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iS^' 
 
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 DIREC 
 
 m 
 
 CALVl 
 
 AOLLO 
 
08G00DE HALL 
 
 EXAMINATION QUESTIONS ; 
 
 eiVIK AT THK 
 
 EXAMINATIONS FOR CALL WITH AND WITHOUT HONOURS 
 AND FOR CERTIFICATES OF FITNESS, ' 
 
 WITH CONCISE ANSWERS: 
 
 AND 
 
 THE STUDENT'S GUIDE, 
 
 A COlLICVtOR or 
 
 DIRECTIONS AND FORMS FOR THE USE OF STUDENTS-AT-LAW 
 A..D ARTICLED CLERKS. 
 
 BT 
 
 CALVIN BROWNE AND EDWARD MARION CHADWICK. 
 
 4tuti(ntf>«t>Eain. 
 
 TORONTO : 
 ilOLLO 4 ADAM, LAW BOOKSELLERS AND PUBLISHERS. 
 
 KINO 8TBBET Kabt 
 
 18«2. 
 
 '..(jSi'.L » .- 
 
 .1^^ 
 
'-* 
 
 J< 
 
 Entered, according to Act of the Provincial Legislature, in the year of our 
 Lord, one thousand eight hundred and sixty-two, by Calvin Browne 
 and Edward Marion Guadwiok, in the office of the Registrar of the 
 Province of Canada, 
 
 TOEOSTO : 
 PBINTID BV LOVILL AND GIBSON, YON'OE STRBIT. 
 
TO THE HONOURABLE 
 
 JOHN HILLY ARD CAMERON, D. C. L., Q. C, 
 
 TBBASCBBB OF TUB 
 
 LAW SOCIETY OF UPPER CANADA, 
 
 18, WITH DI8 PEBMIBBIOir, 
 
 RESPECTFULLY INSCRIBED 
 
 BV 
 
 THE AU'i "»RS. 
 
To 
 
 Still 
 
 reac 
 
 as h 
 
 grea 
 
 and 
 
 parti 
 
 light 
 
 migl) 
 
 Til 
 undei 
 every 
 uatioi 
 fitnesi 
 the ar 
 the ut 
 
 Son 
 preseu 
 nation: 
 farther 
 use to I 
 he will 
 
 In a 
 
PREFACE 
 
 To TBR Law Studrnt,— 
 
 «~f...g Slid, of ,l,e ,ue.ti„,« give,, a, .he Z 
 
 « he could ob..i„, .,., .„e Je .Ih . 'T"?"?"""'"' 
 
 great m»i«»„ce_„„, „„,, :„ .,, '"'' ""•"" '»""'' '» I" »' 
 
 "er,«ude„,.„e,„e„i.,„ „|,ie,, ,,.,e bee, "I " """°' 
 nations for call «„fK i • , ® " ** "'« exami- 
 
 those examinationg respectively were instifnf.J 
 use to the 8fnH«„f "* ""'' "^'^'■'^ sha" be of 
 
 --::::re;::::::::;::i---r-"^ 
 
 '" -„gi.g ,He ,„e..i„.,, „e h„, „ . ^,„„., „„^^ ^^^ 
 
I 
 
 • PREFACE. 
 
 them in their chrouftlogicBl order, omitting repetitions (though 
 some repetitions mnst nnnvoidnhly occur), and questions which 
 have become entirely olisoh-te. We have placed the «{ue8tion8 
 under I lit- heads of tlie hooks upon which they liavu heen t;iven, 
 rather than under tlie head of the several subjects (as Mr. Ilallilav 
 has done in his book of cpiestions and answers), as we have con- 
 sidered our mode of arrangement more convenient, and better 
 suited to the olyccts we had in view in the conipilatiou of th« 
 work. 
 
 It only remains for the Anthers to state that they are indebted 
 to members both of the Law and E(piify bar, whose names the 
 Authors arc not at liberty to mention, for kind assistance in the 
 revision of answers, and which assistance has, they feel, been of 
 great service in securing the accuracy of the work. 
 
 Toronto, May, 1862. 
 
11)8 (tllUllgll 
 
 Ntioiis which 
 
 lie ({ucstioiiit 
 hccii niveu, 
 
 Mr. llnllilay 
 
 wv littve coii- 
 
 nml lutter 
 
 latioii of thft 
 
 are indebted 
 e namcii the 
 taiice ill the 
 feel, been of 
 
 CONTENTS. 
 
 I 
 
 PAOB 
 
 rre/itcf , 
 
 Tublf of Caaen ritfd o 
 
 Tablf uf Editions ,r 
 
 Blackstone'a Cummentaries, Vol. I., tjueationt in 17 
 
 Addison ou Contracts 28 
 
 Smith's Mercantile Law " ^^ 
 
 Bvlcs on Bills .. t.4 
 
 ' 04 
 
 Story on Partnership g. 
 
 Williamson Heal Projierty 89 
 
 Watkins on Conveyancinjj J2(: 
 
 Dart on Vendors and Purchasers [ I37 
 
 Coote on Mortgages ..^. 
 
 Jarman on Wills .ru 
 
 Uussell on Crimes. ,\f. 
 
 Story's Equity .lurispriidem 1 — 
 
 Justinian's In.sfitiites 212 
 
 Story ou the Conflict of Laws 221 
 
 Taylor on Evidence 2oo 
 
 Stephen ou Pleading * ogy 
 
 Statutes, Pleading and Practice— Law 255 
 
 Statutes, Pleading anil Practice— Equity 285 
 
 Student's Giidk. Part L— (Students-at-Law)........'. .. 311 
 
 Part n.— (Articled Clerks) 321 
 
 " P«''/in.— (The Law School) .{41 
 
 Oeneral Index ,... 
 
Ahaoli 
 
 Adam 
 
 Adder 
 
 Allan 
 
 Ander 
 
 •^non. 
 
 Andrv* 
 
 Attorn 
 
 Aiibert 
 
 Baf^lelK 
 Bailey ' 
 Baker \ 
 Bank ol 
 Bardoll 
 Baring 
 Barker ^ 
 Baas' ca 
 Baasett 
 Bajriey, 
 Beckil V 
 Beishaw 
 Berry v. 
 Birch V. 
 Bird V. B 
 " V. (, 
 Birthwisi 
 Bishop V 
 
 " V, 
 
 Bishops V 
 Bloxam v 
 Bloxsome 
 Bolton V. 
 Bonithon 
 liosanqiict 
 Bowden v 
 Bowerbrar 
 Bowles V. 
 Boyd V. Li 
 
TABLE OF CASES CITED. 
 
 ANolon T Markf 
 Adami v. Jones . 
 Adderlejr v. Pixon 
 
 AlUnr, Wftlker..;::: T? 
 
 Andenon V. Mnltby ..'I u, 
 
 •^non. V. Hiindcock 
 
 67 
 
 I Bridge t. 
 Brooke v. 
 
 , Brown 
 
 (I 
 
 0«(fe 
 
 KIbieni e? 
 
 PAOI 
 
 41 
 
 Hyreg 
 
 Andrew v. ._ 
 
 Attorney Qenerai 
 
 Aubert v. WaUh 
 
 143 
 
 Moorhoiise \ f,-) 
 
 48 
 
 Day 
 Sands. 
 
 Bajflehole v. Waltori . . . 
 
 B«iley ''. Mcrrcll 
 
 Hakrr V. Walker ..'.'. 
 
 Bank of Upper Canada" V.Scott' 
 Harden vHpinks.,.. 
 
 Baring v. Dix 
 
 Barker v. Jlodson '.'.'.'. 
 
 Baas' case 
 
 Bassett v. Dodgin 
 
 i:)3 
 80 
 
 Hi 
 41 
 
 7tj 
 
 IHl 
 1411 
 
 fl.'J 
 
 4,1 
 
 174 
 
 V. 
 
 V. n'c Winlon..'.'!.' .'.';■■ 66 
 
 V. Harraden " gq 
 
 Brown V, Dawson .... nit 
 
 BiKkloy V. Pirk ^*' 
 
 BiilliT, .;., ,,fr^ 3 T, R 
 
 Biinn V. Grey 
 
 Buniu-y v. Foynii ".'. . .'. 'm 
 
 Burgess V. Wheate .... " ' ' 
 
 Burgh v. Legge '"" 
 
 Burr V. Gibson 
 
 69, 
 
 Burrows v. Mc . 
 
 1»8 
 47 
 41 
 79 
 153 
 74 
 48 
 
 74 
 
 Bujton V. Lister .....'.'.'..'.,'.,', 143 
 
 330 
 291 
 39 
 138 
 155 
 69 
 \\1 
 
 fJadeii V. Palmer,. .. ioa 
 
 (Caldwell V. Hall..;...;;;;;;;; [H 
 
 McBae ; 399 
 
 46 
 
 Cainoron v. 
 
 Bayley, rx parte „" Campbe , per L„rd, 15 Q. B. 431 _ 
 
 Beckit V. Wr«g .^^? J^'ampbcll v. Walker. ....... 143 
 
 Belshawv. iJh ;;;: -iS^ Cann V. Cann ;; \\l 
 
 Carpenter V. lleriot ,43 
 
 Worry v. Voung 
 
 Birch V. Wright 
 
 Bird V. Boulter. . 
 V. (inminon 
 
 Birthwistlo v. Var.iell. ..Vr 
 
 B'«hopv. Hay ward.... ,, 
 
 „, ." V. Rowe 11 
 
 Bishopsv.ninxman.... ;;;;"■ ofil 
 
 bxam V. Sanders ;;' ^^ 
 
 "loxsome V. Willianw... ,„ 
 
 "olton V. King . . . ;" 
 
 Bonithonv.Hockniow .*;;;;■■■■ ill 
 
 Jiosanquet v. Wray 
 
 Bowden v. Horn 
 
 85 
 
 BowerbranclTiV MontiVro" ; ; ; ; ; ; ^73 
 
 141 
 35 i 
 165 
 
 Bowles v.Rouiid... 
 
 "oj'dv. Lett 
 
 Brayhrook, Lordr. Inikip" 
 
 V. 
 
 1 <'arpnuul v. Powis ; ' ; ; ; I42 
 
 Carter v. Wimlloy. ,. }» 
 
 Cator V. Charlton ikk 
 
 Cave V. Coleman ""41 
 
 Chalmerv. Bradley.... ,43 
 
 Chalmers v. Lanion ;.;*"' 74 
 
 Chambers v. Goldwin ; ; " " 154 
 
 Chapman v. Black ; ; ; ; 7^ 
 
 V. Keane ;; 51 
 
 V. Koops .... ' * 8fl 
 
 Charles v. Marsden.. 74 
 
 Church v. Brown ... il? 
 
 Clark V. Fell ... . 'J' 
 
 Clayton's - ^" 
 
 Noble „. 
 
 Clive- "- *** 
 
 Co. xi. 
 
 Coates v. 
 
 case, Devaynes 
 
 e V. Beaumont ...;; mj 
 
 ti- 82 6 5!:? 
 
 #11 ,, 'JO 
 
 Chaplin 45 
 
10 
 
 TABLE OF CASES CITED. 
 
 Cockerell v. Cliolmeley 14;t 
 
 Collins V. GoiHVey 42 
 
 Colmnn v. Duki' of St. Albans. , l.'iG 
 
 Conibc V. Woolf :i4 
 
 C'onnor v. Martin 73 
 
 Cooke V. Colelmn 81 
 
 Coonius V. Ingrain 71 ! 
 
 Coopc V. Ey ro Hi! 
 
 Cooper V. Tiffin 20') ! 
 
 Cope V. Rowliuicis ,59 I 
 
 Cordcr v. .Morgan Lll 
 
 Coalake v. Till l.W 
 
 Cotton V. Tliurland 3:r 
 
 Cousins v. I'addon . . 2")0 
 
 Couturier V. Hflstic M 
 
 Covington v. Willan 44 i 
 
 Crawfiiril v. Hamilton 87 i 
 
 Craw^^hay v. Collins 84, 89 j 
 
 " V. Maulc 84,85, 87 i 
 
 Crosby v. Wodsworth 30 ( 
 
 Crowe V. Hallard ... 143 
 
 Gro/.ier v. .Smith . . . j 53 i 
 
 CrutcLlcy v. Clarence 71 
 
 " V. Mann 71 : 
 
 Da Co.sia v. New nliaui 46 
 
 Dalby v. India and London I<ife 
 
 Assurance Company 48 
 
 Duvidaon v. Cooper 77 
 
 Davie v. Stejihins Iti3 
 
 Dawes v. I'eck 4:( 
 
 Devaynes v. Xoble, Clayton's 
 
 case 8G 
 
 " " Sleech's 
 
 case S7 
 
 Dickinson v. Valpy 58 85 
 
 Dickson v. Nuttalf 70 72 
 
 " v. Pinch 273 
 
 Di.xon V. Yates 44 
 
 Dobell V. Stephens 142 
 
 Doe V. Lightfoot 154 
 
 " V. Maisev 157 
 
 " V. Wright 252 
 
 " d. Birth wistle v. Vardell. ... 225 
 
 Doloret v. Rothschild 138 
 
 Dovaston v. Payne 252 
 
 Drayton v. Dale 79 
 
 Dreflield v. Creed fio 
 
 Dundas v. Dutens 145 
 
 Durrell v. Bederley 45 51 
 
 Early v. Garrett 
 
 East Lon. W. Co. v. Bailey. 
 
 Easton v. Pratchett 
 
 Eastwood V. Kenvon 
 
 142 
 32 
 68 
 33 
 
 Kdis V. Bury gO 
 
 Kdmond's case 43 
 
 Edward.^ v. McLeay 142 
 
 Egerton v. Matthews 36 
 
 Egg V. Itarni'lt 80 
 
 Elliott V. I'ybus 55 
 
 Emery v. Day 73 
 
 Enimerson v. ileelis 59 
 
 E.-^ron v. Nicholas 143 
 
 Everett v. Vouclls 279 
 
 Fancourt v. Hell 253 
 
 Farrar v. Hoswlck 87 
 
 Fei'han v. Hank of Toronto 262 
 
 Fen v. Harrison 7^ 
 
 Fentou V. Brownt' 143 
 
 " V. Pocock 73 
 
 Fethcrstonchaugh v. Fenwick. . . 88 
 
 Finlay v, lirisi. and Ex. R. Co. . 32 
 
 Fisher v. Mowbray 43 
 
 Fletcher v. Froggart 72 
 
 V Heath 02 
 
 Flighi V. Kooih 138 
 
 Fludycr V Cocker 145 
 
 .Forth V. Sampson 52 
 
 Fy ant-y v , Ueasley 265 
 
 Gardner v. .Alexander 260 
 
 Gay V. Lander 06 
 
 Gibbons v. Scott 57 
 
 Gibbs V. Ralph •. 279 
 
 Giles V. Bourn 79 
 
 Gilpin V. Enderley 50 
 
 Godsall V. Boldors 48 
 
 Goode V. Harrison 88 
 
 Goodman v. Chase 37 
 
 '■ v. Harvey 78 
 
 Gould V. Robson 74 
 
 " V. Tancred 153 
 
 Granger v. Dacrc 35 
 
 Grant v. Murray 60 
 
 ■' v. Vaughau 59 
 
 Gray v. Co,\ 3g 
 
 Griffith v. Young 44 
 
 Groundsell v. Lamb 250 
 
 Gundry v. Feltham 252 
 
 Hall 
 
 V. 
 
 Cole 56 
 
 '' V. Digby 88 
 
 " V. Fuller 71 
 
 " V.Hill 199 
 
 Hammond v. Douglas 84 
 
 " v, Messenger 164 
 
 Hammond's case 172 
 
 Hamper, ejc parte 49 
 
 I* 
 
TAWLE OF CASES CITED. 
 
 PAGE 
 80 
 
 4,3 
 
 142 
 
 i 36 
 
 80 
 
 55 
 
 73 
 
 59 
 
 143 
 
 279 
 
 253 
 
 87 
 
 'oronto... .. 262 
 7J 
 
 143 
 
 73 
 
 Fenwick ... 88 
 Ex. R. Co.. 32 
 43 
 
 72 
 
 02 
 
 138 
 
 145 
 
 52 
 
 26r> 
 
 ■r 260 
 
 06 
 
 57 
 
 . ..-. 279 
 
 79 
 
 50 
 
 48 
 
 88 
 
 37 
 
 78 
 
 74 
 
 153 
 
 35 
 
 GO 
 
 , 59 
 
 36 
 
 44 
 
 , 250 
 
 , 252 
 
 56 
 
 88 
 
 n 
 
 199 
 
 ! 84 
 
 er 164 
 
 172 
 
 49 
 
 II 
 
 Hard man 
 
 r> 111 PAOK 
 
 V. lu'llliouse 7(i 
 
 IJarris v. VVdl.son .' ' 41 
 
 Harrison, ej- /tinti- !.!.!!!] 81 
 
 Harrison v. ("olffrave .' .' .' .' . . . " * ' 42 
 
 V. Jackson 49 CtH 
 
 Headloy V. liainbridoe 48* jh 
 
 Hentli, J., ,«.,•, .i I! 4 p. 494 ' r,o 
 
 Heath V. Milward 250 
 
 Heath v. Sunsom. . . . ! . . . i " ' "47 
 Helps V. Winterbottom ! .'.'.'. ', .'. 49 I 
 
 Hill, ex parte ' 2'Ai) I 
 
 Hindu V. (Jray ... 04 I 
 
 " V. Whitdiouse ' 
 
 Hitchcock 
 
 Uoare v. Dawes ■........,.,., gj 
 
 " V. Graham .... "oV 77 
 
 Bo,y exparle V."...' 330 
 
 Holland v. King ... 
 
 Holt. C. J., per, 1 Show. 95 
 Holt V. Holt..., 
 Hoist V. 
 Home V 
 
 V. Hiimjihrcy 73 
 
 49 
 32 
 
 Knight V. Faith "4' 
 
 Knollys V. Shepherd .'.*..',. 164 
 
 I.acon V. jMcrtoMS 155 
 
 Lacy V. McNeil .!.'.!. 82 
 
 " V. Umbers 284 
 
 Laird v. I'ini ' 2^4 
 
 Lake v. .Mcintosh !..!!!! 286 
 
 Lamb v. Ward .!!!.' 27 { 
 
 Lawrie v. Russell ...., •>63 
 
 {^«'',^- i'"''k ;.;;;;.■ fg,. 
 
 Leeds V. Lancashire 72 
 
 Li'gge V. Thorp \[ 70 
 
 Lervjix v. Hrown ' .' . 29 
 
 Le\yi.s V. Campbell .*.*.'!.*..! 1 08 
 
 Li' ' V V. Honsor 42 
 
 L llyn, t'j,- parte 330 
 
 Load V. (irccn *' 31 
 
 Lobb V. Stanley ...!.' .'!!!!.'."[ " 3«! 
 
 p„,,„„„ L'i.'i : Lockyer V. Wheeler g3 
 
 ™'" f'4 Lord V.Hall.... .,t 
 
 ,1 Bedfcarn 68 I Lumley v 
 
 Hooper V. Stevens 47 I u '' ^ 
 
 Horncastle v. Farran 7u I 
 
 Jfiisjrriive 79 
 
 Palmer go 
 
 Hoiilditch V. Canty 4,; 
 
 Howard's Case * -jO 
 
 Howson V. Handcock ..!.'!!!!![ 33 
 
 Haber v. Steiner ... 99)! 
 
 ilulme V. Pcjiloe 75 
 
 Hume, ill re 
 
 Macilowal v. Frnser. . . . 
 
 Macliell V. Clarke ." 
 
 .Maiiiwaring v. .Vcwman 
 
 Mair v. Kerr 
 
 .Manning, 
 
 45 
 135 
 
 85 
 
 280 
 vx /larte 14.5 
 
 >wv.noi„in,:::::::::::::: IJiSISSt^^iS':;::;;;;;; jj 
 
 Irons V. Smallpiece. 
 Isaac V. Daniel . . 
 
 42 
 57 
 
 Mason v. 
 
 •^'"?<>n 233 
 
 V. .Morgan c>i 
 
 Matsoii V, Wharam ' 35 
 
 Mattlicws, (.(• /xirte .....''.".""" 330 
 
 •Matthews v. Wallwyn ...'.' 153 
 
 Maxwell, Sir G., v. Lady Mon- 
 
 152 
 
 It 
 <i 
 
 Jarvis v. Wilkins ^8 
 
 Jenkins v. lilizzard ' 58 
 
 Johnson V Wiridle '.'.'.'..'.[ .57 ; ,„,„t^, 
 
 Jones v.hnght 36, r.O Mayhew v. Crickett ,.; 
 
 ;• gl7"'«» '-i''! Mckenzie v. Scott . ! ! ! : ! ! '. ' ' ' " ^'S 
 
 l-^°y\\ 83 I McNeil V. Reid .a 
 
 "^•lEs i«i j|if'''<-^vood..mak;;::;;:::;:: « 
 
 ^..^P S8 I Miles V. Gorton ... . r,g 
 
 Milgate V. Kelble .".'.'.'.'.' ." 54 
 
 Miller v. Gordon \ / 30Q 
 
 Mires v. Brown .'..'.*.'.'.'." 46 
 
 Mondell v. Steele .'.'.* j " 265 
 
 Montgomery v. Calland. ..'.'.'.'.'. 153 
 
 Morley v. Cook 145 
 
 Morris v. Dimes '/ 253 
 
 Mortlock V. Uuller .'.','.* 142 
 
 Murray v. East India Oom'y,' 'li, 78 
 
 " ^-Smith ,55 
 
 " V. Yates §5 
 
 Jory V. Cox [[[ J57 
 
 Jourdain y. Wilson .'.'.'!!.'.* 108 
 
 Keecb v. Hall 157 
 
 Kelly V. Solari .'..*... 42 
 
 Kemp V. Finden '.'.',.. 28 
 
 Kennard v. Knott 7i 
 
 Kerslake v. Morgan ..'.',, 78 
 
 Kirwan v. Kirv.'."jr 
 
 58 
 
 Jveave v. 
 
 Kiught V. Crookford ! ! ! ! i 36 Nesbil 
 
 Avery 263 
 
 Lushington 40 
 
Ifi 
 
 TABLE OF CASES CITED. 
 
 New V. Swain 
 
 Newcomb v. Bonham 
 Northcote v. Beauchamp 
 
 
 Obbard v. Hetham 
 
 O'Oallaghaii v. Tbomond . 
 
 Okell V. Smith 
 
 Ord V. White 
 
 Orr V. Magennis 
 
 Orridge v. Sherborn 
 
 Paradice'8 Case 
 
 Parke, B., judgment of, Q. H., 156, 
 
 Parker v. Webb 
 
 Peacock v. Peacock 
 
 Petty V. Styward 
 
 Pfiel V. Vanbatenberg 
 
 Pinnock v. Harrison 
 
 Pipon V. Pipon . . 
 
 Place V. Spawn 
 
 Plumb V. Fluitt 
 
 Popplewell V. Wilsrtn 
 
 Poulton V. Lattimoro 
 
 Prestwick v. Marshall 
 
 Price V. Dewhurst 
 
 " V. Edmunds 
 
 Rapp V. Latham ... 
 Rawlinson v. Stone. 
 
 Reed v, Norris 
 
 Reid V. Furnival . . , 
 
 Reg. V. Norton 
 
 " V. Pearson . . . . 
 Rex V. Almon 
 
 V. Gordon 
 
 " v.Hay 
 
 " V. Journeymen Tailors of 
 Cambridge 
 
 " V. Mawbey 
 
 " V.Philips 
 
 " V. The Scrivener's Company 
 
 '' V. Turner 
 
 Richards v. Heather 
 
 " V. Richards 
 
 Rodwell V. Rcdge 
 
 Roe V. Haley 
 
 Rogers v. Stephens 
 
 Rolinson v. Hawkesford 
 
 Rose v. Sims 
 
 Ross V. Hayes 
 
 Routh V. Thompson 
 
 Ruffin, ex parte 84, 
 
 Rumball v. Ball 
 
 Rushforth V. Hadfield 
 
 Rusaeil v. Powell 
 
 FAdE 
 
 . 79 
 . 150 
 
 . 2{)G 
 
 30 
 . 22.5 
 . .31 
 . I.'i4 
 , 70 
 , 07 
 
 174 
 56 
 
 108 
 83 
 
 157 
 79 
 48 
 
 226 
 
 286 
 
 144 
 71 
 31 
 28 
 
 226 
 73 
 
 87 
 
 78 
 156 
 
 50 
 170 
 169 
 
 87 
 171 
 233 
 
 177 
 177 
 253 
 330 
 175 
 
 87 
 
 80 
 
 46 
 109 
 
 01 
 
 70 
 
 75 
 299 
 
 53 
 
 89 
 
 72 
 
 52 
 
 56 
 
 Ryland v. Worwald 284 
 
 Salmon v. Ward 41 
 
 Sanders v. St. Neot's Union ...'. 32 
 
 Scott v. Gilmore 69 
 
 Scale v. Barter ig3 
 
 Sharp V. Bailey 61 
 
 " V. Grey 61 
 
 Shelley's Case 91 
 
 Sheppard v. Elliott 153 
 
 Simonds v. Hodgson 51 
 
 Skinner v. Stocks 46 
 
 Slater v. Lc Feuvre 39 
 
 Sleech's Case, Devaynes v. Noble 87 
 
 Small V. Attwood 142 
 
 " V. Abbott 69 
 
 " V. Clarke 139 
 
 " V. Surman 66 
 
 " V. Watson 49 
 
 Souch V. Strawbridge 33 
 
 Sparks v. Redhead 289 
 
 Spencer's Case 124 
 
 Sproatt V. Matthews 60 
 
 Stancliflfe V. Clarke 56 
 
 Stead V. Salt 63, 86 
 
 Stevenson v. Blakelock 50 
 
 Stewart V. Smith 138 
 
 Stodhard v. Johnson 279 
 
 Sumptcr V. Cooper 149 
 
 Swan V. Steele .63,82, 85 
 
 Tapper v. Davenant 43 
 
 Tarleton v. Allhusen 58 
 
 Tassel v. Lewis 65 
 
 Tatem v. Chaplin 109 
 
 Taylor, ex parte 330 
 
 Taylor, in re 330 
 
 Taylor v. Beech 145 
 
 " V. Needham 253 
 
 " V. Kymer 59 
 
 Teede v. Johnson 282 
 
 Teto V. Blades 36 
 
 Thompson v. Davenport 62 
 
 Thornett V. Haines 139 
 
 Thornton v. Adams 252 
 
 Thrustoat v. Shenton 263 
 
 Trimbey v. Vignier 225 
 
 Turnbull v. Symmonds 285 
 
 Tye V. Gwynne 36 
 
 Tyler v. Blaud 252 
 
 Underwood v. Wing 233 
 
 Vallojo V. Wheeler = ,,., = ,,.,.. 63 
 Vandcwall v. Tyrrell 66 
 
TABLE or CASES CITED. 
 
 IS 
 
 PAOB 
 
 284 
 
 41 
 
 Jnion .... 32 
 
 69 
 
 163 
 
 61 
 
 61 
 
 91 
 
 153 
 
 61 
 
 46 
 
 39 
 
 J8 V. Noble 87 
 
 142 
 
 69 
 
 139 
 
 56 
 
 49 
 
 33 
 
 289 
 
 124 
 
 60 
 
 56 
 
 63, 86 
 
 : 50 
 
 138 
 
 279 
 
 149 
 
 ...63,82, 85 
 
 43 
 
 58 
 
 65 
 
 109 
 
 330 
 
 330 
 
 , 145 
 
 253 
 
 59 
 
 282 
 
 36 
 
 t 52 
 
 139 
 
 , „ 252 
 
 263 
 
 225 
 
 285 
 
 36 
 
 252 
 
 233 
 
 ==...... 63 
 
 66 
 
 
 PAOK j 
 
 . 43 
 
 tecae"'.''.""'" ,Sl5!'^™ - "-l-on -%'? 
 
 Vernon v. Smith , J2 ' ^ '"'""' " " 
 
 Vyvyan V. Arthur....," {qo 
 
 ■' 42 
 
 164 
 
 rj2 
 
 imms V. 
 
 Wain V. Warlters 
 Walker v 
 
 60 
 
 Cranston 30 
 
 „..,,. v-'*iRgott ;;; ,5g 
 
 vViliiamson v. Watts. 
 Wilson V. Clurc . . ,', 
 
 Wilson V, Hart * 
 
 W'ilaon V. fJrcenwoofI . . aJ 
 
 Wilson V. Swahev. . ..,, g? 
 
 ■Winterbottoui v. "[nglmin! " ! " ' us 
 
 Wood V. Braddick 2, 
 
 Woodhridge V. Sp. ,..,., r, gj 
 
 Westrinthus, in re.' .' «^ ( w""*^"^^^^ ""• *''"«' • • • ' ' 139 
 
 Wheatlev v. Wili;».;L ?? J^J'^y " "■'-" 
 
 Chapman.... '* oa 
 
 V.Walker ,50 
 
 Waters v. Taylor ... It 
 
 Wattv. George ."a 
 
 Waugh V. Carver ^^^ 
 
 Webb V. Spice 
 
 81 
 
 72 
 
 68 
 138 
 
 Wheatley v. Williama 
 Whitchurch v. Bevia 
 
 White V. Chapman..;:: 't^ 
 
 l[ V. Garden :;:::" 31 
 
 mu'-. /• ^^^y Lincoln . : : : : : : : 50 
 
 Whitehead V. Anderson... oi 
 
 „^. " V.Walker 70 
 
 Whitlock V. Underwood 56. C5 
 
 Wight V. Atkyns ' !«? 
 
 Wild's Case.: ^J 
 
 . V. Hutchinson 83 
 
 Wright, ex parte \ ,49 
 
 Wright y. Netherwood. ... " " " 233 
 Wrightson V. P.illen .::: 53 
 
 Yarborough v. Bank of England. 
 Year Book, 13 H. VII., fol. 17 
 Young V. Grote 44 
 
 Zouch V, Parsons 143 
 
 143 
 
 161 
 
 71 
 
Mek 
 
 A( 
 Bl 
 
 Bj 
 Ch 
 
 Co 
 Da 
 Jai 
 
 JUE 
 
 Ru 
 
 Sm 
 Ste 
 Sto 
 Sto 
 Stoi 
 Stoi 
 Tay 
 Wa 
 Wil 
 
TABLE OF EDITIONS 
 
 OF THE 
 
 TEXT.BOOKS EEFEERED TO IN THIS WORK. 
 
 MEM.--i>. a fen, case, ^here the reference is not made to the latest 
 
 EdUtom, the Edition referred to is that in the Library 
 
 at Osgoode Hall, 
 
 Addisou on Contracts, 2nd Amer. from 4th Eng 
 Blackstone's Commentaries, by Chitty, Amer. from 19th Eng 
 Byles on Bills, 4th Amer. from 6th Eng ^' 
 
 Chitty's Archbold's Practice, 10th. 
 
 Coote on Mortgages, 2ud Amer. from 3rd Eng 
 
 Dart on Vendors and Purchasers, 2nd. 
 
 Jarman on Wills, 4th Amer. 
 
 Justinian's Institutes. 
 
 Russell on Crimes. 7th Amer. from 8rd Eng 
 
 Smith's Mercantile Law, 5th. 
 
 Stephen on Pleading, 6th. 
 
 Story on Equity Pleadings, 6th. 
 
 Story ,on Partnership, 4th. 
 
 Story on the Conflict of Laws, 4th. 
 
 Story's Equity Jurisprudence, 8th. 
 
 Taylor on Evidence, 3rd. 
 
 Watkins on Conveyancing, 9th 
 
 Williams on Beal Property, 2nd Amer. from 4th Eng. 
 
EXAML^ATION QUESTIONS. 
 
 BLACKSTONE'S COMMENTARIES.-Vol. I. 
 
 h.!!T''""^~^*'*'. ,^^"* ^^ "'^•'"^ V ««yi"g that a custom must 
 have been "con^.nued/^ and must be "reasonable." and "certain " 
 
 beenTT^ '^'\ ^T '' '"''"* '^'' '^ '^' "^ht to a custom has 
 
 IZtl ^"*T*^' '^^ ^"-^^^^S of that right would 
 
 bring Its commencement within the time of memoiy, whereby the 
 
 Z T wf f"' " ^'^ ^'^'«*^"''« '' ' -«*«- ^-™ time im^e 
 sonah ' '' .^'",,'f r^"'^'*« t« 'ts validity, 77. It must be "reL 
 sonaWe. m that there must be no good legal reason which can be 
 assigned agamst ,t, 77. And by being "certain" is meant thn 
 the custom must be clearly defined, and of such a na ure tha 
 there <.„ be no doubt or uncertainty in the manner of ob^er- 
 
 Q 2.-What is Blackstone's definition of the Sovereign's pre- 
 rogative ? And how does he describe or classify it ? ^ 
 
 .,«t'~'^^\®rr'^"'' P-'^^Sative is that special power and pre- 
 
 and out of the ordinary cou se of the common law, in right of the 
 rega dignity. And it is .escribed or classified a's of "fo k ' 
 Direct, or such positive substantial parts of the royal character 
 Tofitira "'" as are vested in and Ug from the Sover g^' 
 Lvo W '7"'-"""'^"'*^ ""^^y ^>' itself without referencMo 
 
 of tt ;„ -^^---^S*' irom those general rules by which the rest 
 of the community is governed, 239, 240. 
 
18 
 
 EXAMINATION qVESTIONS. 
 
 »S»«-„ 
 
 
 Q. 3. — What is meant by the executive part of Government ? 
 and where is it reposed under the British Constitution ? 
 
 A. — The executive part of the Government consists in the 
 enforcing and carrying out of the enactments of the legislative ; 
 and is by the British Constitution reposed in the Sovereign, 147, 
 1<JU. 
 
 Q. 4. — Mention some leading rules for interpreting acts of 
 Parliament ? 
 
 To interpret Acts of Parliament the intentions of the legislature 
 must be explored by signs, the most natural and probable, viz. :— 
 the words, the context, the subject matter, the effects and conse- 
 quences, and the spirit and reason of the Law. 
 
 (1.) Words are to be understood in their usual and most known 
 signification — not so much regarding the propriety of grammar as* 
 their general and popular use. Technical terms must be taken 
 according to the acceptation of the learned in each art, trade, and 
 Bcieuce. (2.) If words are still dubious, their meaning must be 
 established from the context, as (3.) they are always understood 
 as having a regard thereto. (4,) Where words bear none, or a 
 Tery absurd signification, if literally understood, (5.) the reason 
 and spirit of the Law must be examined to explain them, 59-61. 
 
 The following rules are given, 87 et seq : — 
 
 1. In construing remedial statutes, the oldlaw, the mischief to 
 be remedied, and the proposed remedy must be considered. 
 
 2. Statutes which regard things or persons of an inferior rank 
 cannot by any general words be extended to those of a superior. 
 
 3. Penal statutes are to be construed strictly. 
 
 4. Statutes against frauds are to be liberally and beneficially 
 expounded. 
 
 5. One part must be so construed by another that the wholf 
 may (if possible) stand ; but — 
 
 6. A saving totally repugnant with the body of the act is void. 
 
 7. Where the common law and a statute differ, the common 
 law gives place to the statute : and an old statute gives place to u 
 Dew one. 
 
 . 8. If a statute that repeals another is itself repealed after- 
 •rvl wards, the first statute is thereby revived without any formal 
 rords for that purpose. 
 
 Jl 
 
 X3>^ 
 
jovcrnincnt ? 
 I? 
 
 isists in the 
 e legislative ; 
 vereign, 147, 
 
 ting acts of 
 
 le legislature 
 joble, viz. :— 
 ta and const'' 
 
 ! most known 
 r grammar as* 
 ust be taken 
 rt, trade, and 
 ning must be 
 fs understood 
 ir none, or a 
 .) the reason 
 lem, 59-61. 
 
 lie mischief to 
 
 lercd. 
 
 1 inferior rank 
 
 a superior. 
 
 d beneficially 
 
 hat the whole 
 
 he act 19 Toid. 
 
 the common 
 
 ves place to u 
 
 epealed after- 
 it any formal 
 
 blackstone's commentaries. 19 
 
 S. Acts of Parliament derogatory from the power of subsequent 
 Parliaments bind not. 
 
 10. Acts of Parliament that are impossible to be performed are 
 of no validity. 
 
 Q. .5.— What is meant by saying " the King never dies ?" 
 A.-Our law says that the King never dies, meaning in his 
 political capactOj .• because immediately upon the natural death of 
 one king the sovereignty survives in his successor— the right of 
 the Crown vests eo instanti upon his heir, so that there can be uo 
 interregnum, 19G. 
 
 Q. C._What is Blackstone's account of the foundation or origin 
 of society ? ** 
 
 A.~The wants and fears of individuals, and their sense of their 
 weakness and imperfection; and these keep mankind together, and 
 therefore are the solid and natural foundation of society. He 
 says the formation of society was effected by the means of single 
 tamilies, who formed among themselves the first natural society 
 which, every day extending its limits, laid the first rudiments of 
 civil or political society: and when it grew too large to subsist 
 with convenience in the pastoral state in which the patriarchs ap- 
 pear to have lived, it necessarily sub-divided itself, by varioua 
 migrations, into more, 47. 
 
 Q. 7.— How many forms of Government are there ? 
 A.— Three. 1, Democracy, when the Sovereign power is lodged 
 m an aggregate assembly, consisting of all the free members of « 
 community ; 2 Aristocracy, when it is lodged in a council composed 
 of select members; 3. Monarchy, when it is entrusted in the 
 hands of a single person ; and to these three are all other species of 
 government reducible, 49. 
 
 Iand"?^"~^''** '^ Blackstone's classification of the Laws of Eng- 
 
 ,. ^:"T^' '^^'^ ^"^ '«'« *<?">^«» or Common Law. which is sub- 
 divided into : 1. General customs observed by the whole kingdom: 
 2. Particular customs, affecting the inhabitants of particular dis- 
 
 idnt T^A ^'.y^^ ^'''''''^'' ^*^«' ^^^'^^ by custom are 
 adopted and used by some particular courts of pretty general and 
 
 Ii::r 7hf^"'.fh' ''i k"- ^'' ''' '^"^''' °' ''^'''^ 
 L-w, o... ihe ti.=t VI these (wL^ h receives its force from custom 
 
 cr immemorial usage, and is pre. .d andevideuced U the record. 
 
90 
 
 KXAMIlTATIOBr qcESTTonrs. 
 
 of the seTcral courts of justice, in the reports of judicial decision^ 
 and in the treatises or digests of the learned sages of the profes- 
 •ion, 63) is deriycd from the lans of the ancient Britons, with 
 which have heen incorporated at yarious times many cnstomv 
 derited from the Romans, the Picts, the Saxons, the Danes, and 
 the Normans, <i4. The third sub-division of this branch of the 
 law is deriyed from the civil law and the canon law, 79. The Lex 
 tcripta is composed of the Statute Laws of the llcalm, 85. 
 
 Q. 9. — Does Blackstone place civil and canon Inw, so far as they 
 prevail in England, in the class of written or unwritten law, and 
 why? 
 
 A.— Unwritten law— because they derive their force and effect 
 from custom, 79. 
 
 Q. 10.— Sketch the history of the introduction of civil and 
 canon law into England, and of their contest for supremacy with 
 the common law, as given by Blackstone. 
 
 [We cannot answer this question in a manner satisfactory to the 
 student except by quoting at length from Blacksfonc : we there- 
 fore refer the student to the learned judge's own words. Intro. 17 
 to 25.] 
 
 Q. 1 1.— When was the Habeas Corpus Act passed ? What rights 
 does it give to the subject ? 
 
 A.— 31 Car. II. ch. 2, (1679). It gives to persons who have 
 been imprisoned the right to be brought before the Court of 
 Queen's Bench or Common Pleas for trial, thus rendering it im- 
 possible for any one to be deprived of his liberty for an unreason* 
 able length of time, except where the law requires and justifies the 
 imprisonment, 135. It also enacts that no subject of this realm 
 who is an inhabitant of England, Wales or Berwick, shall be sent 
 prisoner into Scotland, Ireland, Jersey, Guernsey or places beyond 
 the sea (where he cannot hare the full benefit of the common law) 
 and gives a private right of action to the party suffering, against 
 the person committing and all his aiders, advisers, and abettors, in 
 which action he recovers at the least agSOO damages, and treble 
 costs, 137. 
 
 Q. 12. — Can a guardian be appointed by the will of any and 
 what person ; and is the right so to appoint a guardian given by 
 common law or by statute 1 
 
 A.— By Statute 12 Car. II. ch. 24, a guardian may be 
 
al decisions/ 
 t" the profcB' 
 iritons, with 
 my cnatomt 
 •■ Danes, and 
 'anch of the 
 K The Lex 
 , H5. 
 
 ) far as they 
 ten law, and 
 
 i and effect 
 
 )f civil and 
 reniRcy with 
 
 ctory to the 
 : we there- 
 Intro. 17 
 
 What rights 
 
 18 who have 
 le Court of 
 [ering it im- 
 n unreason- 
 justifies the 
 f this realm 
 hall be sent 
 aces beyond 
 )mmon law) 
 ing, against 
 abettors, in 
 I, and treble 
 
 of any and 
 an given by 
 
 1 may be 
 
 i 
 
 BLA' 
 
 HI EH. 
 
 .%fc 
 
 tl 
 
 appointed by the M\l of any mW,' under age .,r of full age, 
 
 Q. 13— What is treasure trove, and to whom does it belong? 
 A.-Treasure trove is where any niom-v or coin, gold, «ilver 
 plate or bullion, is found hidden in the earth or otlur private i.lace' 
 the owner thereof being unknown : it belongs to the (".own. unles.' 
 the owner be found out, when it shall be returned to him '>«r, 
 Q. 14.- What is the meaning of '« the Kini? can d.. no'wrong ?" 
 A.-It means that whatever is exceptionable in the conduct of 
 pubhc affairs .s „„t to be imputed to the King, nor is he answerable 
 for ,t personally to bis people; and that the prerogative of the 
 Crown extends not to do any injury, because it is created for the 
 benefit of the people and cannot be exerted to their prejudice. 
 *or the Ku.g beu.g necessarily Sovereign over all others, and 
 beyond the power of any human tribunal, cannot be supposed to 
 do any criminal act. as the law manifestly cannot define a wronR 
 without any possible redress, 241, et passim. 
 
 Q. ir..-What is the law of England with regard to the guard- 
 ianship of lunatics ? *^ 
 
 A.-The guardianship of lunatics is entrusted to the Crown 
 
 who shall provide for their custody and sustentation. and preserv^ 
 
 heir lands and the profits of them for their use when tl^Tm 
 
 to their right m.nd. or to be transferred to their executors or 
 
 admm.st™tors if they they shall die lunatic, the C own taki.^ 
 
 o7 rcr^^''^- .^'"« ^-^'«-'»P is. by special autS? 
 of the Crown, entrusted to the Lord Chancello,. who usually 
 comm. s the care of tl,e person of the lunatic to so^c person S 
 a su t ble allowance for his mamtenance, and the heir is generally 
 
 s^'?i2T3r] """'"" '' ''^ ''''''' '"'- ^''^ u- ^• 
 
 ed V ir::? "^ ^"^^ ^''^^""'^' ^^-'»'"-^» - -"*-- 
 
 A.t'l^' ^T"""'"^ establishment,, the constitution of which 
 
 depends on the respective commissions issued by the Crown To he 
 
 Governors, and the instructions which usually accompany thl 
 
 e ZZ/rt *'r ^"^'^"^^ "^ ^^'^^^ provincia/assLth 
 
 r pugnant to the laws of Eh^'omH .> t» . . -^ 
 
 cranted n„f K, *u n -""»'""^- -• proprietary Uovenanents, 
 
 granted out by the Crown to individuals in the nature of feudatory 
 
•* KXAMlNATfON qrEKTIONM. 
 
 principnli.K ^h\. . tl... inf.rior roj^nlitie, n,u\ «nl,onH„afc power, 
 
 P l«tme vet «t.ll with tlu.«e cxpn.. condiri.n^ ,h„t tl.o o, Ho^ 
 
 which the grant waa ,„„de he «nb.t«n,|„llv ,.ur«n..d, and tha 
 
 oth.„g ho «tton,ptcd which n,«.v d.-ro^at. frj the ^ov.reil o 
 
 ho n.other country. 3. CAarier r.V...,,,,,,.,,. ;„ ,,,, „ f ■,!> ^° 
 
 c.v,l corporafonB. with the power of snaking hy-laws for thrl 
 
 own .ntor.or re.nlation, not contrary to the Inw« of' Englan • a 
 
 wuh «uch nghtH and authorities «., are specially givfn tL n 
 
 their several charters of incorporation, 108. 
 
 th.^nil'TT^^ ^'"■^^'i constituent parts of a Parliament under 
 the British Conatitution ? 
 
 A.-The King's majesty sitting there in h.s royal political 
 capacity, and the three estates of the realm-tho Loi SpiS 
 -Id the Lords Temporal, who sit together with the King in on 
 house and the Commons, who sit hy themselves in another, ul 
 .Mil '^-T^^'T.^ " '•""^"^ " ^«n »'y conquest or cession, does it 
 IpplyrU ? ''"' '° ''' """"* '"""' ""' '" '""^ '«^« "'■ England 
 
 altptTl!* '"""'"' '"^l''' *° '*' *""•'"* ''"^^ ""^" »''^ Sovereign 
 alters them, except such as are against the law of God. as in the 
 case of an infidel country, 107. 
 
 Q. 19.- How are Statutes classed hy Blackstone^ 
 
 S^ti'l^'^'Z"^ ? ^"''"''. '"^"^'"^ '*'''-^^°'« community, and 
 Special or Pnva e, operating upon particular persons and private 
 coneerns. 85. Also. Declaratory, setting forth the Common Law 
 when It may have fallen into disuse or b. u;n. disrutable, an" 
 Remedial, altering the Common Law-which k^. ^ass s su 
 divided into statutes enlarging the Comn..:. f..^ r.. to it is too 
 narrow, and statutes restraining it where it is too comprehensive. 
 
 Q. 20.— What is the meaning of a menial servant ? 
 
 A.— A domestic or servant who lives intra mcenia, 425. 
 
 H 2 1. —What are the duties of a coroner? 
 
 A I'o inquire by jury, ^per visum corporis, concerning the 
 
 m.u.er of th^ oath of any person who is slain, or dies suddenly 
 
 - m prison, .ad to commit to prison for further trial, any who 
 
 may upon such inquest, be found guilty of murder or homicide 
 
 ana to inquire concerninar their lands n-o'^A^ -i-i -^h^n-u i • '* 
 
nment under 
 
 blackstonk's comhentarirm. 25 
 
 are fortVitnl therrhy, and whchor my deodnn.i hnn aocn.cd bv 
 r.-«««n «» the death ; «Imo to Incjuiro concornin^ shipwreckn, ...d 
 ronconung trcnM.ro trov.; and to «„pp|y th. ,,h.,o of the Sheriff 
 M rnM..« uhere ox.option can h. tnkn, to th. Sh.TifF for su.piciou 
 o p«rt.„hty-as if he h. i..tor.t..d in the nuit. urn .latio,: " 
 Hny 0. the pnrt.eH thereto. 348. [See U. C. Co,,. Stat., e l-,_ 
 
 cernuiK hre=. in eilies. towns nnd villageH.J 
 
 Q. 22.-Wh«t is the differenee between n denizen and an dien t 
 
 A—An ahen .s one who is born out of the allegianee o the 
 
 Sovereign that is. out of the dominions of the Cr'owu ot" fZ 
 
 land ; a denizen ,s an alien bom who ban obtained .* e/o«a^i. 
 
 «my take lan<ls y pnreha«e or devise, (but not by grant ^m^^ 
 
 paren .) but an ahen cannot hold lands or other estates' for 
 0,,,, e „,., ,„,,„„.„ .1.™, he c.„„o. ..ke .hl^t 'ol 
 
 „ *-~^l"l" "'■■,i''j"'y »hicl, l,c 1,0, sustained thronsl, the Iom 
 A.-J/»/» m ,e are those Ihhigs which are forbidden bv the 
 
 penalty il' J T '"""»"^">' " «> '« »» a ""bmisaion ,„ ,h. 
 penalty ™,«ed for noa^omphanee is eoncemed, 57. (Bat .ee 
 
 fro* fbe~Z''of\hi:;'f'"' "■"'*'"' °'-"'»- « """-Suished 
 
 nefed'tftV?""' °'''T°" ™ """'^ "•■'* «-»«"> ""^ are an- 
 neied to the persons of men ; the right, of things are sneh J, 
 
 Q. 26.-H0W are the rights of persons divided? 
 
u 
 
 EXAMINATION QUESTIONS. 
 
 A.— They are divided into, 1. Absolute rights, or those which 
 belong to man in a state of nature, as right of personal security, 
 personal liberty, and personal property. 2. Relative rights, which 
 belong to him as a member of society, as public, or the relations 
 existing between the governors and the governed, magistrates and 
 people, and private, as those existing between master and servant, 
 husband and wife, parent and child, guardian and ward, 123 et 
 seq., 146, 422. 
 
 Q. 27. — What is the law of nations ? 
 
 A.— The law, depending on the rules of natural law, and upon 
 mutual compacts, treaties, leagues and agreements made between 
 separate independent states, regulating the mutual intercourse of 
 such states, 43. 
 
 Q. 28.— How are justices of the peace appointed, and what are 
 their duties? 
 
 A — They are appointed under the King's special commission, 
 under the great seal, 351. Their duties are to conserve the 
 peace by suppressing riots and affrays, taking securities for the 
 peace, and apprehending and committing felons and other inferior 
 criminals ; and two or more of them are empowered to hear and 
 determine all felonies and other offences. In addition to these, 
 numerous duties have been committed to them by various statutes'. 
 854. 
 
 Q. 2f).— What are waifs ? 
 
 A.-- Waifs are goods stolen, and waived or thrown away by the 
 thief in his flight for fear of being apprehended, 296. 
 
 Q. 30.— -On what ground can a master justify an assault in de- 
 fence of his servant ? 
 
 A.— On the ground that he has an interest in his servant, not 
 to be deprived of his services, 429. 
 
 Q. 31.— What is municipal law, and into what four branches is 
 it divided? 
 
 A.— Municipal law is the rule of civil conduct, prescribed by the 
 Governmt. . of a State for the ordering of its own members, 44 : 
 and is divided into: 1. Declaratory Law, defining right and 
 wrong. 2. Directory Law, commanding observance of the 
 right and prohibiting the commission of :he wrong. 3. Remedial 
 Law, giving a method for the recovery of private rights and re- 
 
BLACKSTONE'S COMMENTARIES. 
 
 25 
 
 dressing private wrongs. 4. Vindicatory Law, creating punish- 
 ments for public wrongs, 53 et seq. 
 
 Q. 32. — What are the three absolute rights of individuals ? 
 
 A. — 1. Personal security, or legal enjoyment of life, limb, body, 
 health and reputation, 129. 2. Personal liberty, or free power of 
 locomotion without illegal restraint or banishment, 134. 3. Pri- 
 vate property, or the free use, possession and disposal by each in- 
 dividual of his own lawful acquisitions without injury or illegal 
 diminution, 138. 
 
 Q. 33. — How are Parliaments dissolved ? Is there any provin- 
 cial statute on this point ? 
 
 A. — By the will of the Sovereign, by his demise, (in which case it 
 continues to exist for six months after that event,) and by length 
 of time, on having existed for the space of seven years, 187. [By 
 7 V. c. 3, s. 1. — Con. St. c. 3, s. 1, it is enacted that the Provin- 
 cial Parhament shall not be dissolved by the demise of the Sover- 
 eign, but shall sit as if there had been no such demise.] 
 
 Q. 34. — What are the four chief relations in which persons 
 stand to each other in private life ? 
 
 A. — 1. Master and servant; 2. Husband and wife ; 3. Parent 
 and child ; 4. Guardian and ward, 422. 
 
 Q. 35.— What are the three points to be considered in constru- 
 ing a remedial statute ? 
 
 A. — The ancient law as it stood at the making of the act, the 
 mischief to be remedied, and the remedy apphed by the statute, 87. 
 
 Q. 36. — What private relations will justify a battery in defence 
 of another ? 
 
 A. — Those of master and servant, husband and wife, parent and 
 child, guardian and ward. See 3 vol. 3. 1 vol. 462. 
 
 Q. 37. — What is the presumption, as regards the age, at which 
 persons are criminally responsible for their acts ? 
 
 A. — Under the age of seven an infant cannot be capitally pun- 
 ished ; between the ages of seven and fourteen he is prima facie 
 judged innocent, but if he be doli capax, capable of discerning 
 between good and evil, he will be held fully responsible ; over the 
 age of fourteen, he is punishable in all cases, 462. 
 
 Q. 38. — In what li^ht does the law of England regard marrip"'e ? 
 
 A. — As a civil contract, good and valid in all cases where the 
 parties at the time of making it were willing to contract, alle to 
 
26 
 
 EXAMINATION QUESTIONS. 
 
 contract, and actually did contract in the proper forms and solem- 
 
 . nes required by law; the holiness of the matrimonial state beW 
 
 left entncly to the ecclesiastical law, 433. ^ 
 
 Q. 39.--'vVh.t subject is treated of in the first book of the Com- 
 i^entanes ? and give briefly the different heads. 
 
 A.-The rights of persons, which are: I. Natural persons 
 -^ose nghts are : 1. Absolute, as rights of personal securi'; pe^ 
 
 :r Tl ^r^'""^ ^'''P"*^- ^' ^«^^*i-«' «« PuWic, or the 
 
 ..ople, and Private, as those existing between master and servant, 
 Inrsband and wife, parent and child, guardian and ward. II. Artifil 
 einl persons or corporations. Analysis. 
 
 rol^tior;r^'''' ''' '"""' °^ *^' •*"*''' °^P'"°"' ^"^ '^^' P"^«t« 
 A.-l. As between master and servant : the duties of the latter 
 are his services, in return for which the former is bound to give 
 him in some shape an equivalent emolument, (for slaverv is 
 unknown to the English law.) such as wages, or the instruction 
 given to an apprentice ; they are also mutually bound to protect 
 one another, and the master must answer for the acts of the ser- 
 vant done by his command, express or implied. 422 et seq. 
 2. As between husband and wife : the husband is bound to protect 
 and maintain the wife, who is bound in return to ho^iour and obey 
 h mas her lord. 433 et seq, 3. As between parent and child^ 
 he parent is bound, as regards legitimate children, or those born 
 lu lawful wedlock, or within a competent time thereafter, to 
 manitain protect, and educate according to the best of his ability 
 and to Illegitimate children, or those born out of lawful wedlock 
 his duty IS maintenance; the duties of the child are to honour! 
 obey protec and maintain the parent, 446 et seq. 4. As between 
 guardian and ward the duties of each are similar to those be leen 
 parent and child, 460 et seq. -^eiween 
 
 the?;?^*w^^'* ""t "f ""^ P''"'""'' ""'^ ^°^ "^«"y kinds are 
 there ? How may they be created, and how dissolved f 
 
 Pd7n7;r'^'''''''"^i''P''""' "^ corporations, and are establish- 
 ed fo the purpose of preserving, by a legal immortality, in a per- 
 
 VT^rT"""' """'r ''^^'' ""^''^ ^«"»d ^'^ - 'oLe of time 
 if conferred on natural persons onlv. 4.67 a^ch «---f • >l 
 
 are . I. Corporations sole, or composed of one person only ; 2. 
 
BLACKSTONE's C03IMENTAHIES. 
 
 27 
 
 
 Corporations aggregate, or compos='d of several persons, 469. 
 They are created by the King's royal charter, and by act of Parlia- 
 ment, also by custom and prescription, in which case the king's 
 consent is supposed to have been given, though the evidence of it 
 has been lost, 4/2 ; and may be dissolved by act of Parliament, by 
 the natural death of all the members, by a surrender of the fran- 
 chise, or by forfeiture of the charter, 484. 
 
 Q. 42.— Upon what statutes does the right of a subject to a 
 writ of Habeas Corpus depend ? 
 A.— 16 Car. I., c. 10 and 31 Car. II., c. 2, 135. 
 Q. 43,— In what instances has Parliament assumed the right of 
 altering the succession to the Crown of England ? 
 
 A.— By Stat. 7, Hen. IV. c. 2, the inheritance of the Crown 
 was settled upon the king and his heirs, the right of the Crown 
 then being in the descent from Philippa, daughter and heiress of 
 Lionel, Duke of Clarence, 203. In I Hen. VII. Parliament set- 
 tled the Crown on the king and his heirs, the title being in Eliza- 
 beth of York, whom he afterwards married, 205. By Stat. 25 
 Hen. VIII. c. 12, the crown was entailed to the king, and the heirs 
 male of his body, and in default of such to his daughter Eliza- 
 beth, but this statute was repealed by 28 Hen. VIII. c. 7, by which 
 the Crown was settled on the king's children by Queea Jane 
 Seymour, and his future wives, and in default to such person as 
 the king should appoint ; again by 35 Hen. VIII. c. I, the Crown 
 is limited to Prince Edward, after him to the Lady Mary, and then 
 to the Lady Elizabeth, and to their respective heirs, 206. In the 
 latter end of the reign of King Charles II., a bill was brought for- 
 ward with the object of altering the course of succession to the 
 prejudice of the king's brother James, presumptive heir to the 
 throne, which passed the House of Commons, but was rejected by 
 the Lords, who however did not dispute the right of Parliament to 
 alter the succession, 210. In 1688 the Lords and Commons, 
 having declared the throne vacant by the abdication of James IL, 
 settled the Crown upon William and Mary, Prince and Princess of 
 Orange, (the king having the sole exercise of the regal power,) 
 and to the survivor of them, and the heirs of the body of the 
 Princess, and in default of such issue, to Anne, Princess of Den- 
 mark, and the heirs of her body, and in default of such issue, to 
 the heirs of the body of the Prince of Orange, 214. Also it was 
 
f8 
 
 EXAMINATION QVKSTION8. 
 
 enacted by 1 W. & M. St. 2, c. 2, that no papist, and no one who 
 
 death rfKL w n- 'T\^^" "^ '^' ^^°"°' ^^^P^^^^"' on the 
 
 upon the Pn Tv^T ^""^' "^*^""* '--> — "^^d 
 
 Bohl % 1, ''' ^"P^'"' '^""Shter of Elizabeth, Queen of 
 
 her r be T ^'^ ''"^'*" ^' '^^'"^^ ^•') ^^ ^^e heirs 
 the hereditary succession of the heirs of James II., was altered. 
 
 f ' 
 
 ADDISON ON CONTRACTS. 
 ^^Question l.-How many kinds of contracts are there? name 
 
 ^.*«,...--Three. Contracts by matter of record, contracts by 
 deed, and simple contracts, 2. ^ 
 
 rel!'~^' ""'"'^' '' ^"^' '^^ ^ ''«»- o^ goods without 
 
 « "^7?! '1^°""'* *° *''^' *^' '^'"^ ^"'ount of care of the goods 
 accepted by him to keep, that he has ordinarily taken of his own 
 
 ot them, but will not be responsible for common neglect or ordi 
 nary casua ues, 525. See Tomlin's L Die. tit. ««£ 
 
 H. 3 -If a surety pay the creditor, state his rights as against 
 his prir^ipal, and co-sureties (if any) respectively. ^ ^ 
 
 A.-The moment the principal makes default, the surety may 
 step m and d.charge the liability, and have reco'urse toTe^rincT 
 pal for reimbursement, 57. 60, 672. After the liability of the 
 principal arises, if one co-surety pay the credifor h. T ^ 
 
 parf by h,m for the,r„,e 672,678. See Kemp .. Finden, 12 m! 
 
 H 4._Mention cases in which one labouring under an iacana 
 ^.o^eoutract as principal „.y nevertheless cLract ragenT?:; 
 
 A—An infant, 622, or femc-eovert may become ,„ a^o^t, the 
 latter even tor l,er husband. 697. See P„stwick ,. Marshall, 5 
 
ADDtSOir OJt CONTRACTS. 
 
 29 
 
 M. &P. 513; 7Bing. 565 5 Lord v. Hall, 8 0. B. 627; also 
 Smith's Mer. L„120; also aliens and persons attainted.' See 
 Story on Agency, §7. 
 
 Q. 5.— Generally by what law is a contract made abroad to be 
 interpreted ? 
 
 A.— All contracts made in one country concerning land and 
 houses and immovable property situate in another country, must be 
 interpreted according to the law of the country in which the pro- 
 perty is situate, the "lex loci ret citcB," and not by the 'Hex loci 
 contractus." See Story's Conflict of Laws, §§ 42A, 428. But 
 contractb concerning moveables and personalty receive their inter- 
 pretation either from the law of the country in which the contract 
 18 made, the "lex loci contractus;' or the law of the country in 
 which the contract is to be performed, 861. 
 
 Q. 6.— What law governs when a contract made abroad is to be 
 executed in a specified country 1 
 
 A.— The law and custom of the place of performance generally 
 prevails in all that relates to the fulfilment of the contract, 861. 
 
 Q. 7.— On a contract made abroad, by what law is the' remedy 
 governed 1 ^ 
 
 A.— The remedy is governed by the law of the country where 
 the remedy is sought, 861. See Lervux v. Brown, 12 C. B. 803. 
 
 Q -.—State the chief grounds of distinction between special- 
 ties and simple contracts. 
 
 A.—Specialty contracts are such as are made by matter of record, 
 or by iu-trument under seal and are binding on the party executing* 
 although there be no consideration, (except in the case of certain' 
 deeds framed to pass estates in land under the Statutes of Uses) ; 
 simple contracts are such as are not under seal, nor does the obli' 
 gation arise by matter of record, but by writing , ot under seal, 
 or by mere oral evidence, and are not valid unless founded on a 
 sufficient consideration, and do not, when in writing, (with the 
 exception of bills and notes,) import a consideration. See 2 Steph 
 Com. ch. 5, 3rd Ed.; Smith's Mer. L. 267, r,,.; ed. ; also a 
 specialty creates an estoppel, and cannot be impugned by any of 
 the parties, which is not the case as regards a simple contract. 
 Another difference is, that in administering legal assets a specialty 
 debt has priority over a simple contract debt, ~2, See Matthews' 
 Guide to Ex. & Ad. 154., 2nd ed. 2. 
 
30 
 
 EXAMINATION QUESTIONS. 
 
 II 
 
 Q. 9.— Mention some of the principal kinds of simple contmctfl 
 required by law to be in writing. 
 
 A.— Where any contract is made of lands, tenements or heredi- 
 taments, or any interest therein ; where an executor or administrator 
 pron)ises to answer damages out of his own estate ; where a man 
 undertakes to answer for the debt, default or miscarriage of ano- 
 thcr ; where any agreement is made upon consideration of marriage ; 
 where there is any agreement not to be performed within a year 
 from the making thereof, 29. Statute 29 Car. 2, c. 3, s. 4. 
 
 Q. 10.— Is a sale of growing timber a sale of an interest in land 
 ■within the Statute of Frauds ? and if so, why ? 
 
 A.— It is a sale of an interest in land within the Statute of 
 Frauds, because it is not distinguishable from the land until actual 
 severance, 31. See Crosby v. Wodsworth, 6 East., 610. 
 
 Q 11.— Is a contract for the sale of personal estate made on a 
 Sunday valid ? 
 
 A.— No action can be brought for the price of goods sold on a 
 Sunday in the ordinary course of the trade or business of thr 
 vendor, unless the sale is within the exception of the act which 
 permits food to be dressed and sold in inns, &c., to persons who 
 cannot otherwise be provided for. See 29 Car. 2, c. 7— commonly 
 called the Lord's Day Act. But if the contract for the sale i's 
 merely projected and proposed on a Sunday, and carried into effect 
 on a subsequent week day, it is not illegal ; but if the contract of 
 sale be concluded on the Sunday, it will be void, although it mav 
 not be fulfilled by the delivery of the goods until a subsequent 
 week day, 111. See Bloxsome v. Williams, 5 D. & R. 82 j 3 B.*8t 
 C. 233. 
 
 Q. 12.— At whose risk are goods delivered by a vendor to a car- 
 ner to be conveyed to a vendee ? . 
 
 A.-At the risk of the carrier, 496, et seq. See Williams v. 
 Cranston, 2 Stark, 82. 
 
 Q. 13— .What difference is there between a common carrier and 
 a warehouseman having the charge of goods, in their respective 
 busmess ? '■ 
 
 A.— A common carrier is responsible for the safe delivery of the 
 goods entrusted to him to carry, unless such delivery was prevented 
 by some inevitable accident which no human care or ,°-\ill could 
 have provided against, 496. But a warehouserafl^ is only bound 
 
 
 
ADDISON ON CONTRACTS. 
 
 31 
 
 
 to exercise that amount of care and vigilance for their preservation 
 which the most prudent and careful of men exercise for the protec- 
 tion of their own property, 462. 
 
 Q. 14.— Where goods are sold by sample, and the goods deli- 
 vered do not answer the sample, what course should tlie vendet- 
 take to discharge himself from the contract ? 
 
 A. -The vendee can return the goods so delivered, and if the 
 price has been paid, he can bring an action to recover the monev 
 paid, or he may treat the contract as a subsisting one, and retail, 
 the goods in his own hands or re-sell them, and sue specially upon 
 the contract, and so recover the damages he has sustaiiied. See 
 Poulton V. Lattimore, 9 B. & C 265. If the vendor refuse to 
 accept the goods when returned by the vendee, they will then be 
 at the risk of the vendor, 273. See Okell v. Smith, 1 Stark 107. 
 and Smith Mer. L. 492. 
 
 Q. 15.- Where goods are sold for cash, but the price is not 
 actually paid, (the sale being in writing), but the goods not deli- 
 vered, has the vendee any, and what remedy against the vendor for 
 not delivering the goods ? 
 
 A.-If the vendor neglects to deliver the goods, the purchaser 
 may sue on the contract for the recovery of compensation, 234. 
 
 •.?' i^Ty^""" ^''°^' ""'^ °^*"'"''^ ""'^^ « ««lo«r of a purchase 
 with fraudulent intention of never paying for them, what remedies 
 are open to the vendor ? 
 
 A.-He can treat the contract as void, and can recover the goods 
 by an action of trover; see Load v. Green, 1.5. M. & W. 216 Or 
 If he does not think fit to avail himself of the fraud, he may treat 
 the contract as a subsisting contract, and sue for the pric'e, pro- 
 Tided he makes his election before the goods have been resold and 
 transferred to a bondjide purchaser, 149. See White v. Garden, 
 10 C B. 919. 
 
 Q. 17.---Can a contract, sufficient to satisfy the Statute of 
 Frauds, be collected from several distinct documents, and can 
 the connection between them be shewn by parol evidence ? 
 
 A -The contract can be collected from several distinct docu- 
 
 on the ta.r: ux them, out their connection cannot be established bv 
 parol evidence, 41. ^ 
 
31 
 
 EXAMINATION QUESTIONS. 
 
 Q. 18. —In what cases will the principal be liable for the necli- 
 gence of his agent ? ** 
 
 A.-Wherethe negligence naturally and inevitably results from 
 the performance of the thing ordered to be done by the principal 
 or has been occasioned by the negligent mode of doing the thinR.' 
 or the negligent execution of the orders of the principal j but not 
 where the agent exceeds his authority, 528, 540, GliC. 
 
 Q 19.— In what cases will a master be held liable for goods 
 bought on his credit by a servant ? 
 
 _ A.-Servants entering into contracts on behalf of their masters 
 m the usual course of their employment bind the latter by their 
 contracts ; " if a servant usually buy for the master upon tick, and 
 the servant buys some things without the master's order, yet if 
 the master were trusted by the trader he is liable," 624 See 
 Holt, C. J., 1 Show. 95. 
 
 Q. 20.-Mention some cases in which a master will not be 
 liable tor goods purchased on his credit by a servant? 
 
 A.— If a man send his servant with ready money to buy goods 
 and the servant buy upon credit, the master is not chargeable, 
 (except where the servant usually bought for his master upon 
 credit) If the seller has shown a want of due caution, or has 
 trusted the servant to an improper extent, the principal will not 
 be liable, 624. 625. See case cited to last question. 
 
 Q. 21.— Is there any and what distinction between the liability 
 of a corporation on an executed and executory contract not under 
 seal : 
 
 A.— Assumpsit lies against a corporation on an executed contract 
 not under seal when the work done and the materials supplied 
 were necessary to the purposes for which it was erected, 79. 
 See Sanders r. St. Neot's Union, 8 Q. B. 810, also Smith's Mer. 
 1.. 115. A contract not under seal cannot be enforced against a 
 corporation whilst it remains executory, 78. East Lon. W. Co r 
 
 noo^ ^TT°^' ^^^ ' ^'"'*y "' ^"'*- ^ ^^- ^- Co. 7 Exch. 416'. 
 
 H. 22.— Upon what principal does the right of a wife to pledge 
 her husband's credit for goods depend ? 
 
 A.— Upon the authority (express or implied) of her husband to 
 act as his agent m purchasing the goods, 697, 698. 
 
 ^' f^""^**^ ^^ innkeeper a right of lien on all goods of hia 
 guest ? If not, to what goods does the right extend? " 
 
ADDISON ON CONTRACTS. 
 
 59 
 
 A.-To goods and chattels of his guest generally, if he has not 
 previously agreed to give him credit for his entertainment ; but it 
 does not extend to goods on which he formerly had a lien and lost 
 It. for should he again get the goods into his possession he cauaot 
 detam them for this former lien, 426. 
 
 Q. 24.— Need an agreement, which may or may not be perform-* 
 ed withm a year, be in writing ? 
 
 A.-The Statute of Frauds does not extend to contracts which 
 are to be performed upon the happening of some uncertain event, 
 and which may not consequently be performed within a year. 40 
 See Souch v. Strawbridge. 2 C. B. 808. 
 
 ^:^^T^! *5"' T """^ "^''^ distinction, between a promise to 
 hrmse^f ? "' ""^'^ °""*' ^"^ *^' ''''"*°'" ^^ *^'« ^'^^<>' 
 
 A.-A promise made to the creditor is within the statute of 
 frauds, and requires a written memorandum ; but the latter is 
 not within the statute. 36. See Smith on Contracts, 52 ; East- 
 wood V. Kenyon, 11 A. & E. 446, E. C. L. R. vol. 39. 
 
 Q. 26.-Can money paid on an illegal contract, be recovered 
 back ; does It make any difference in this respect whether it be 
 paid to the other contracting party or a stakeholder? 
 
 A.-So long as an illegal contract remains executory and un- 
 performed, money deposited by one of the parties in furtherance of 
 the fulfilment of the contract may be recovered back. See Walker 
 V. Chapman, cited 2 Doug. 471. a. But when the parties have 
 earned out their unlawful intention, and the illegal act has been 
 accomplished, and both are in pari delicto, the law wiU not give to 
 one of them any remedy against the other in respect of any matter 
 growing out of the illegal transaction, and money paid by one to 
 the other cannot then be recovered back. And if the money is in 
 the hands of a stakeholder it can be recovered back by the 
 depositor, 66. 67. 160. 161. See Cotton v. Thurland. 6 T. r; 406 
 But not after the stakeholder has paid it to the winner. See 
 Howson ». Handcock, 8 T. R. 575. 
 Q. 27.~What is a Nudum Pactum ? 
 
 A.—A Nudum Pactum or naked promise is a contract sup- 
 porte „j no consideration, as where a man promiseth another to 
 give him certain money such a day or to build a house, or to 
 
 
 
•I BXAMMATION <tUB8TIOIf8. 
 
 render bim such certain gervice, and nothing is assigned for the 
 money, for the building, nor for the service, 12. 
 
 Q. 28.--I8 a delivery of goods above the value of ten pounds 
 efficient to satisfy the Statute of Frauds, when there is no written 
 contract or part payment ? If not, what more is requisite ? 
 
 A.—No. There must be an acceptance of part of the goods so 
 lold, 33. See 17 sec. Statute of Frauds. 
 
 Q. 29.— To what extent must a contract be in restraint of tiade 
 to render it void on that account ? 
 
 A.—Contracts in general restraint of trade, preventing parties 
 from gaining a livelihood in any particular vocation or profession, 
 are absolutely void, as being contrary to public policy as well as 
 oppressive to the individual, 99. See Finde v. Gray, 1 M & W 
 195. 
 
 Q. 30.--What amounts to a sufficient giving of time to a principal 
 to discharge a surety ? Give reasons. 
 
 A.— Any enlargement of the time of payment of a binding con- 
 tract which ties, up the hand of the creditor, dud prevents him 
 from suing the principal debtor upon the original obligation, din- 
 charges the surety, if it has been made without his assent, inasmuch 
 as the situation of the surety is varied and his liability prolonged 
 beyond what was originally contemplated, 670. See Combe » 
 Woolf, 8 Bing. 162. 
 
 Q. 31.— What contracts of infants are absolutely binding? 
 
 A.— Contracts for necessaries, being such things as are suitable 
 to the rank and station of the infant, 80. 
 
 Q. 82 — What is requisite to render a voidable contract by an 
 infant binding on him when of full age ? 
 
 A.— He must ratify the same in writing under his sima. 
 ture, 88. * 
 
 Q. 33.— What is the distinction between a pledge and a mortgage 
 as regards-lst, the right to the property ; 2nd. the right to 
 possession during their continuance ? 
 
 A.— 1st. By a pledge the right of property is not altered, 318 
 but by a mortgage the right of property passes to the creditor' 
 subject to be divested by the payment of the debt at the appobted 
 time, 292 ; 2nd. By a pledge the right of possession is given to the 
 pledgee, 318 ; but by a mortgage the right of possession remaiu 
 
 in thft mnHio'airnr Q1^ ^IQ 
 
ADDISON Oir COIfTRACTS. ^ 
 
 Q. 34.— What is the difference between dependent and indepen- 
 dent covenants ? 
 
 A.—A dependent covenant is one in which the performance of 
 one person depends on the prior performance of another, and till 
 the prior condition is performed the other party is not liable to an 
 action on his covenant. An independent covenant is one in which 
 either party may recover damages from the other for the injury he 
 may have received by a breach of the covenant in his favour, and 
 where it is no excuse for the defendant to allege a breach of the 
 covenants on the part of the plaintiff, 865. 
 
 Q. 86.— -What is essential to render a contract binding for goods 
 above the value of ten pounds ? 
 
 A— To comply with the 17th section of the Statute of Frauds, 
 viz. : That the buyer shall accept part of the goods so sold and ' 
 actually receive the same, or give something in earnest to bind the 
 bargain, or in part payment, or that some note or memorandum in 
 writing of the bargain be made, and signed by the parties to be 
 charged by such contract, or their agents thereunto lawfully 
 authorized, 33. 
 
 Q. 36.— Where goods are sold, and the vendee refuses to accept 
 them, what remedy has the vendor against the vendee, and how 
 should he declare against him ? 
 
 A.— He may maintain an action to recover damages, and in the 
 declaration he must aver and show that he was ready and willing 
 to deliver the goods to the vendee according to the terms of the 
 contract, 238, see Boyd ». Lett, 1, C. B. 222, also Granger r. 
 Dacre, 12 M. & W., 434. 
 
 Q. 37 — What is necessary to make the guarantor for payment 
 liable on a sale of goods to the party for whom he is guarantor ? 
 
 A.— The guaranty must be in writing and signed by the party 
 charged, or his lawful agent, and there must he a consideration and 
 a promise shewn by it, 37, 65 ; see Smith's Mer. L. 5 ed. 442 • 
 Matson „. Wharam, 2 T. R. 80. mtO^'tC ^.C^.,r, „^ .!,{' <jU.|au>i 
 
 Q. 38.— Is there any implied warranty on the sale of goods ?— ' 
 If yea, why ? 
 
 A.~With a view to prevent fraud and deceit, and make men fair 
 and honest, and upright in their dealings and transactions, the law 
 implies a general promise or warranty from each of the parties to 
 a contract, that he does not practice any deceit or fraudulent con- 
 
 ji 
 
M 
 
 RXAMrWATIOHr qCKflTIOWS. 
 
 cealmcnt to benefit himself at the expense of i J.„ „». • . 
 
 fro. .h„ defective work^X;, 1 « 3"" H '" r"' ""' 
 any remedy, and what? An,i ;i ♦», • ^'"' ^^'^ ^^'ndee 
 
 a case? ""* ^ ^"'^ " *''^"' »"^ i^P^ed warranty i'n such 
 
 i^i^ltley ^^^^^^^ r:roft "1 f'^ ''''''' ^ ''-^ " - 
 tnakesisntandprooerlT ""' '"**"' ^»''** ^he article he 
 
 23.. see Jonfs n^r^M T^Zt'^"" ^ " ^^^"-^' 
 f. Cox 6 D. & R. 208. 108 ' "^' ^^^' "^"^ C^ray 
 
 or tdUTaXXT^^^^^^^ -P-'^ - '^ 
 
 what defence to the note? ^' ''"**'' ''"^' «""* '^ y*". 
 
 on the bill or not .\uttf fVal ""T ^ '^"P"*^'^ '» *" «'tion 
 between the Parti; 1 tW ".?' '^'^"' '' " ^^''^'-'^^ as 
 Byles on Bills'CroV 1 T 1^ ft °° ""^'"*' '''' '''' «- 
 Obbard..Bethar;. 1 M ij ^3 """" ' ^''"P" '^^' ^^^ 
 
 ehe^alt'?^:!":^^^^^^^^^^^ V memorandum of 
 
 *m«.rf;' If not what2n«7 «.[ *e°. Pounds. should be ,ub- 
 be signed by both part r'"" "" "*'^'^ *'^ «^«^"*« ' --* i^« 
 
 hisaU™ent,i 46 KnghT^^^^^^^ ^/^^^ ^hat it is 
 
 r. Stanley, 5 Q. B. 574 It „!!' ^ °t °''.'^' ^ ^^P" ^^^^ ^^obb 
 
 but only V the party to bech„^ied ,5 ^^^ ^ both parties. 
 6 East. 307. *^ ^ "^ cbarged, 45. Egerton v. Matthews. 
 
 avoid the contract? ^ ^' °^ *^' «*'«• '^bich will 
 
 exe';-ra:;lrnt o^f Siror\r?"^^ T^*' ^^ *^« 
 dUigent examination. disco.Vr hem and 1^ T' °?^ *^^ '"'"" 
 vendor at the time of sale, Tss. "' '"'^"^ '° ^^^ 
 
ADDISON ON CONTHACT8. 
 
 91 
 
 intVJ'^^^Y'J" ■'" '^"' "'■ " P""^-^ ""*'''• ""'^"est or no 
 intereit ; and what is an insurable interest ( 
 
 A.- Such a policy is void, 121, 556. Any pecuniary intere.t 
 however small, is an insurable interest, Sr.6. ' ^ '*' 
 
 Q. 44.-What words, aecompanyinj? a sale, will amount to n 
 warranty of the quality of goods and of title. r^pectiveTy " 
 of tr; "^ «ffi'-'n«tion at the time of sale, respecting the quality 
 of goods ,s a warranty, provided it appears to hLe befnso L2 
 ed . rf the vendor affirm at the time of sale that the goods are 
 
 Sta^utforpL!,""''"* '"" '!'' "'" "' ^"'^'^ ^^^''•^ -ithin the 
 Statute of frauds so as to require to be in writing? 
 
 d^sewuhm the statute, and therefore a contract for the sale of 
 auch requires no writing, 203. 
 
 Q. 46.-What difference is there between the rules of construe 
 2 Ji;I.cable to ,aten. .„., /a... ambiguities in a TrUten 
 
 the'l'iT^f ^'*'"/ ""^''^"''^ '■'"""* ^' '^""^^'-"^^ "'• interpreted bv 
 the aid of parol or extrinsic evidence, but such evidence is admis'. 
 
 iT'^'^wt' ""*"^'"" °' ' '«*^°* «-f>iguity. 848. 840 
 
 statute of Frauds JXotrot ^" ^^'^^'"^" ^^^"^" *^« 
 
 di8t^eU'frl\''-TT,*'^'"''^ "" *^'^^'"^"* the creditors 
 discharge A from his liability, and therefore B.'s promise is not a 
 
 o '^u T ' ^°«^'»«" ^- Chase. 1 B. & Aid. 297 
 
 rieh; of fn '• *^''', ""^""'* '*■ '"• "^"^ '*'^^'^»''«. between the 
 nght of a principal to adopt a contract made by his agent and an 
 act, ex. gr. a demand to found an action of trover ? 
 
 «;.tr.?' ''" u"P"' "^y ^'^"P' « '^^^t'^^t "^ade by his agent 
 
 X/:.ir:H^''V'^'"^*'^«, principal) from a third party, and 
 «7;„7i," •" ", " r ^'''*^' '° "^""'"g^ ^o'' its non-performance if 
 unauthorised a, first, cannot be confirmed by anyUgnitionM 
 
M 
 
 EXAMINATION QOESTION8. • 
 
 «d t ' '"' '°'' °°'«» - 3"1. contHKO under 
 
 quently yoid, 312 2„7r^ l f "VSment., and .re conie- 
 ^forced by compmZrf w l *f u ^'''' " *'J' ™°»°' b' 
 
 consideration is ^r^rS.^l^^'' Tl Tl '"""''"• "« 
 Mai do not reonire »n„ „„ ;n™tfnal, 17. 9rd, Contracts under 
 
 p«.y "ai,inXz:rXTL''r'' "■' r -"' ■" «■" 
 
 the considerations ^ *^ ''^"^ ^^a* are 
 
 4irf;xXt;rrftrwC^^^^^^^^^^^^ 
 
 tion of ,ach. ^ ""^ "" *''» ' Give the deSni- 
 
 de^~!r;r:dtdtLrir-' •'-^•■•-'-^-- «■* 
 
 <»IIedadeed,Wr.„rtr'HLf, "'™ '™''' P""'"- i' » 
 Per«,n Ion, it is IZ\ "1^^^' ^^ " "^ ""^ "^ - 
 
 .cl^^TinTeldTo'trsfeMr' "^'r— ^^ -our of 
 •■.d then pledges ther^lt'^irT^'" "^ «"'>''» »» k™. 
 if ye. to what .m„u« ? '^'"'«"' """' » «™ °P°» "-e goods! 
 
 "poa.hCeX Xurr '*' ""^ •■" ■"•'■es insurance 
 tbelifein.„ed? ^ "^ 'cpresentatiou of ,he ,,«» of 
 
 infhe-;^:„:Tnr:^^:«:::\:*- -'- the,eheso„ef,.„d 
 -h.h he . su^gi^^tLX trr'"'' "'"=""■"•"- 
 
 «• 64.-If a hfe i. h,.ured for „„e year fr„„ .he da, of eb. 
 
ADDISON ON COITTRACTS. 3| 
 
 date Of the policy, and the death occurs that very day twelvemonth. 
 wiU th€ insurer be liable ? Give reasons. 
 
 A—The insurer will be liable, because, "from the day of the 
 date, excludes the day," 601. See Howard's Case, 2 Salk. 625. 
 
 H. 55.— What 18 necessary to make an executor liable, debonis 
 propms, for the debts of his testator ? 
 
 A.— To make an executor liable de bonis propriis for the debts 
 ot his testator, there must be a new and valid consideration for the 
 promise, or he may bind himself by deed, without any fresh consi- 
 deration ; and he will then be personally liable de bonis propriis 
 upon the contract, 1062. /'/'♦»* 
 
 Q. 56.~Doe8 the fact that goods are in the hands of a carrier 
 named by the purchaser affect the vendor's right to stop in tran- 
 Mtu? If not, does the right cease by their coming to the hands 
 of any agent of the purchaser? 
 
 A.-No. See Slater v. Le Feuvre. 2 Bing. N. C. 81. The 
 nght does not cease in coming to the hands of any agent, but only 
 to the purchaser's agent /or custody, 256, 258. 
 
 Q. 57.~Can a covenant not to sue be pleaded as a discharge of 
 the cause of action; if not, what is its effect ? 
 
 A—Where the creditor has covenanted that he will not put hia 
 contract m suit at any time, there the covenant is pleadable in bar 
 
 tibatitshall notbe put in suit for a certain time limited in the 
 deed, there it is only a covenant, and for a breach thereof an action 
 IS mam amable ; but it is not pleadable in bar unless it be a 
 covenan not to sue for a limited time, with a proviso for forfeiture 
 L n r. °"^^' ^*^^° '^' *™*^' ^'^ ^fa'«^h «««e it operates 
 TheUmeXrr "'"*^''""' '^ '^" '''^''^ ^' brought within 
 
 Q. 58.-IS there any exception to the rule that a right of action 
 once suspended is gone forever ? 
 
 » WlT^^T " "^*'* °^ *""°° '' suspended by the acceptance of 
 a brfl of exchange or promissory note, such action revives upon the 
 d^honor of the bill or note. 1II8. See Belshaw v. Bush, 11 C. B. 
 
 i^.?:.i^:~^°T''"**! ^^^ ^^°*"«t« required by the Statute of 
 by subsequent statute ? 
 
40 
 
 EXAMINATION QUESTIONS. 
 
 person. Agreernts ml ,„ *' / *•' '' "'^^''"riage of another 
 guuus, wares, or merchandise for the nrirp nf ^in 
 
 r^i,: rvt, r bT r ^' -^ ^-^™»' »" »« 
 
 oi given, ^8. 17; which has been bv 9 Geo TV « 1^ *, 
 extended to contracts fnr th. 1 ^^ , '' ^' ^^' ^' 7. 
 
 ..«.'i;'v„Tbuf " ,Tf ' "°°f^™«» « ""8^. «.» whole «o„. 
 contact IS.) ,h „.« """.'V •T",'" '"«" "^ P"« »f "« 
 
 conridered .„ have L^t^:, Zt " """" '^' "■"'"=' " 
 be «pheld"7'° "■■" '""' ""' • ™°"-' - P'«ial restrain, of trade 
 
 good-^ll of. ,^.X"S°"- ." - *' "« »f the .de of ,b. 
 ■ """■"" '" » P"ii««iar locality where the 
 
ADDISON ON CONTRACTS. 
 
 41 
 
 vendor covenants or agrees not to carry on the same business on 
 the same spot in opposition to the purchaser, 100. 
 
 Q. 63.-— Mention some cases in which a representation made by 
 the vendor at the time of sale will, and some in which it will not, 
 amount to a warranty. 
 
 A.— If the seUer of a horse says you may depend upon it that 
 the horse is perfectly free from vice, that is a very sufficient war- 
 ranty, though the word warrant was not used ; and if the purchaser 
 of a horse tells the vendor in a letter " You represented the horse 
 to me as a five year old," and the defendant answers, "The horse 
 is as I represented," this is evidence from which a warranty may 
 be inferred. But if one sell purple to another, and saith to him 
 this is scarlet, the warranty is to no purpose, for the other may 
 perceive it, and this gives no cause of action to him : to war- 
 rant a thing that may be perceived at sight is not good. 126, 
 128. See Cave v. Coleman, 3 M. ^ R.4; Salmon r. Ward, 2 
 C. & P. 211, also, Baily v. Merrell, 3 Bulstr. 95. 
 
 Q. 64.— What will amount to a sufficient acknowledgment in 
 writing by a debtor, to take a case out of the Statute of Limita- 
 tions ? 
 
 A.— Any writing signed by a defendant, admitting that a sum of 
 money is due upon a bond or deed or simple contract at the time 
 of making of the admission, will revive the remedy upon the con- 
 tract, although it contains upon the face of it no express promise 
 to pay or to make satisfaction, 1210. 
 
 Q. 65.— What is a sufficient consideration for a promise ? Must 
 it of necessity be an advantage to the person promising? 
 ^A.— The party making the promise must have obtained some 
 advantage, or the party to whom it is made must have suffered 
 soEie loss, or sustained some injury and inconvenience, in con- 
 sequence of the making and acceptance of the promise. It is 
 sufficient if there be any damage or detriment to the plaintiff, 
 though no actual benefit accrue to the party undertaking. 1], 18. 
 See Bunn v. Grey, 4 East. 194, per Lord Ellenborough, C. J. 
 
 Q. 66.— Does the performance of an act which the party is 
 under a legal obligation to perform constitute a good consideration 
 for a promise ? 
 
 A.— It does not, 14. See Harris v. Watson, Peake, 102 ; Bridge 
 
40 
 
 eXAMmATlON QUESTIONS. 
 
 Ml! 
 
 Statute of Limitation, j °"'"'«'"™« '" "ke th, debt out of the 
 
 A.—At one time it »aa lieid sufficient Tl.. ,j ^ , 
 Wver, ehanged. »d the couH^rl I "' «■«""!«", 
 
 leJgement to be such as to jZL 2 • 7'"™ ""' "'"'°''- 
 promise to pay. 1210 C Tl T '" '"'"""« therefrom a 
 
 ««1. but no, other™ ""* "'" '"' "'««»« '" »»ier 
 
 wht;:;tLttt':u.°:uwe:°rf "^ '°'' '-«•««-"«. 
 
 ■greed to be done, ..^0*^^ h °T™^' °"'"°« ''' «*"» » 
 <" inducement for the p omL^^"" ''r ^ *' '°™*'«««» 
 »™l gift of some colts toT. !' ? , """"^ " *■*" ■""'e «« 
 »e»ion uutil the day o hU deMh ,b ' """ ""™ '" ''" "^ ?<* 
 ".d .« be binding m^b^ by " ed 27 'Te!' ? "^ "^"^ 
 2 B. & Aid. 551. ' ' '• ^' '™"= '■ SiuaUpiece, 
 
 CfutTsfof tes wteivT """"^ " -"'-Ppreheusion. or 
 ""d legally eutitW and S he"°°°'L'° "'''°'' *" " °°' J-'''^ 
 •o ret™, how doe, tte 1. wtgL limT "°'' " ^"^ """"^ 
 
 -;yf!nht;eTtt;ir„::r-:fT r-"-'"" °'*' 
 
 promise from him to pay Zll^ ' ■* '"^ "" '"P"** 
 
 S« Kelly y. Solari, 9 M & W jg """""' '° '"* ■"""•. 63- 
 
 »nt r«t;"„;;tLi? '" ° "" "'"""'"^^ ^^'^ '- -ece. 
 
 "pot. MlTf eX"e™ t°""' °"'"°' ™'' "■»»" «•-" 
 '■ Watt., 1 Camp. sSBecleT'T- *"l See WHli.n,„« 
 "•ercautile trau«,c,io„, and a bn of , f ''°'.''= ''°«^'' '" "J 
 «■"«'«• See Smith o^ Co„Lc" 222/1? ".«™«»% ™'- 
 1« L J.. (C. P.) 198. ''°""""'=. 222. ">J Harrison „. Colgrave, 
 
 Q. 71 — An infant contracts for neee.»r,„ - . 
 lo secure the payment thereof can LT^ ' ''' «"" ' '»»'' 
 *»m.t so secur^ ? GWe ylr re»«™! ""^ '*''«^'"' '»' "» 
 
ADDISON ON CONTRACTS. 
 
 43 
 
 A.— It has been said, that if an infant has given a bond to 
 secure the payment of money, he cannot afterwards be sued on the 
 first simple contract, as the specialty operates as an extinguish- 
 ment of the simple contract debt. See Tapper v. Davenant, 3 
 Keb 798; Bull. N. P. 153. But all penal obligations entered 
 mto by infants are absolutely void, as it is not for them, nor can it 
 be for their benefit and advantage to subject themselves to a 
 penalty, (See Fisher v. Mowbray, 8 East. 330), and that any 
 action brought thereon may be defeated, by pleading the infancy 
 of the obligee ; it can hardly, therefore, (being in itself an invalid 
 and nugatory instrument), do away with the responsibility of the 
 hifant on the contract for necessaries. See Edmond's case, 3 
 Leon. 164, 4 Leon. 5. 80, 89. 
 
 Q. 72.-Can money deposited with a third party to be applied 
 to an illegal purpose, be recovered at any, and if so, at what time? 
 A.— It may ; for the law, so long as an illegal contract continues 
 executory, implies from a person who has received money in 
 furtherance of the execution of the contract, a promise to refund 
 It, at any time before the happening of the event which is to 
 decide the adventure, 66. See Varney v. Hicknmn, 17 L. J., 
 C. P, 102,6 C B.,271. > ^ "., 
 
 Q. 73.— Give an instance of a surrender by act and operation of 
 
 tftW* 
 
 A.— If a lessee for years accepts a new lease from his lessor, he 
 IS estopped from saying that his lessor had not power to make the 
 new lease ; and as the lessor could not do this until the prior lease 
 had been surrendered, the law says that the acceptance of such a 
 new lease is of itself a surrender of the former lease; and is 
 considered as « surrender by act and operation of law, 387. 
 
 Q. 74.--IS it a defence for the non-performance of an absolute 
 contract, that such performance became impossible? Give vour 
 reasons. ^ 
 
 A.— It has been laid down as a general rule or principle of law. 
 that It would not be a defence ; because the casualty or accident 
 might have been provided against by the contract, 1123, 348, see 
 Barker t. Hodson, 3 M. & S. 267. 
 
I 
 
 id 
 
 u 
 
 KXAMINATION QUESTIONS. 
 
 S^^ITH'S MERCANTILE LAW 
 
 Question 1. — Dpfinp «,Ko* • ^^^". 
 
 '"-pore from^rr;,: v:iT: """-r =•'•"'"-■ '° 
 
 employ hira; he i, calW .„*°!, «°'"'' "' ""* »» «l'oo,e to 
 «re, or by a robbery 284 286 at r '«'' ''°°'"'y "''"''''"'"l 
 
 -verablebaeU lTl:;r:ZZ. "' " ^"^" ^—^ 
 
 »..-e J:;,;::: srifuTa,; xrr -"^ "-r '"- 
 
 prevent the party takrae ad.an.L! t "'"'"^"»' """"loes not 
 Pover, and ,o he « alfcl'd ,o « '"^ °"'" """^''y '° •■" 
 8ee Griffith .. Y„„„g, 12 e1 5,3 "" """^ "'"'' °"'""- "• «»• 
 
 a.a%tt r';r:seteri.''l'f "h T ,'° ""*'"^ ""-■■ ">" 
 ™ enabled to intrr/^'e Vgnt^fVb'^f ''"1°"^^ ''"^'' " "'■• 
 
 « *ot7hftiL;%7lTd"''''i"'°''-"«''-'' - '» 'he 
 
 immediate po«.esaio!; of ,henf° " ™"'''^' '"""»'' «° «•' 
 A.-Yea, 484 ; sw Bloxam „, Sander., 4 B. & C 941 
 
 «.»i;ofVgr„t.HKr" ?°'u" ^eaWbyn io„i 
 A -The ri,,h. ^ . P "°° ''•' "■» ™dee » 
 
 .econdaaleof tM:^2'2',b"°1'" " ""' ^"'"«' '^ ' 
 fte Moond vendee of a Ztl t "'7"''°«'y "^e of law i., that 
 
 Ad. 313. '• ^**' 'ee Dixon .. Yate«, 6 B. & 
 
 4 whrfj;°tr"lf uth '° '"^ r ^'^ '^ « "-"■»- - 
 
 pe«n .0 .ne the barter ^'°™' '"'' " "> "« P">per 
 
smith's mercantile law. 45 
 
 A.-When goods are forwarded in pursuance of an order, which 
 binds the person gi ing it to receive the goods, as the property in . 
 them passes to that person by the delivery to the carrier, he is the 
 proper plaintiff should they be lost. See Dawes v. Peck 8 T R 
 330. But it is otherwise when the property in the goods has not 
 yet passed to the vendee, as where there is no writing to satisfy the 
 Statute of Frauds, and the carrier was not of his selection See 
 Coates V. Chaplin, 3 Q. B. 483. 290. 291. 
 
 Q. 7.— What facts is the insured bound to communicate to the 
 insurer? Is there any and what distinction in this respect, be- 
 tween misrepresentation and concealment ? 
 
 A.-A11 material facts relating to the property insured must be 
 communicated to the insurer. A misrepresentation of a material 
 fact vitiates the policy; as to concealment, it is as fatal to the 
 policy as misrepresentation, but it must be of a fact matenal to the 
 just estimate of the risk, the main question respecting concealment 
 being whether the fact concealed be a material one. 881. 382 • see 
 Macdowal « Fraser 1 Doug. 260; Middlewood .. Blakes. 7 T. R 
 162; Durrell v. Bederley, 1 Holt. 238, Gibbs C. J. 
 
 Q-a-How many contracts of affreightment are there? what 
 is meant by a general ship ? 
 
 A—Two. viz: contracts of affreightment by charter-party, 
 and contracts fcr the conveyance of goods in a general shipf 292 
 A general ship is one which is engaged by the master and owners, 
 
 d^lXT^r'^'^^^' *" ''-'' ''^' ^^^'^ *« *^^ p^- of he; 
 
 ♦l^^Q? T.^^V^r ^! ''"'^ an:acceptance of goods as will satisfy 
 the Statute of Frauds, without precluding the purchaser r.om 
 atterwards objecting to the quantity or quality ? 
 nntr^.uX'^ the residue of the goods offered does not correa- 
 pond with the sample, 471, see per Lord Campbell. 15 Q. B 434 
 
 PnHH !f rY^"] '' * '^'"^ *°''^ ^'^ "^^^ '^ » the insured 
 entitled to abandon-and what is the effect of abandonment ? 
 
 A.--A total loss is of two kinds, a total loss per w where the 
 thing insured is utterly lost, and a loss which may be rendered a 
 total loss by abandonment, which is a cession of whatever may be 
 
 X. '^ T'''' ^^^- '^^' ^•""'^'^ '' «°*'"«'l to abandon 
 ^n,«uv7~ f """ ^"^""^ -^""^ ^o**^^y *08t, but there is some 
 possibility, however remote, that they may yet reach their destina- 
 
* 
 
 M 
 
 Hi ' 
 
 BXAMINATIOW QUBSTIONS. 
 
 tion or be rendered of some value 373 Th « 
 abandonment is to divest the property fZfJ .'^'''* °^ »" 
 of the insured, and vest it in thl *^« *hmg abandoned out 
 
 becomes a trustee. 376 '"""'"''■ ^«'' ^^orn the former 
 
 carl^i^'^;:;! s,r;:::re ^t sf ;r ^ ^ *^^ «- - ^^« own, 
 
 A— The firm can sup .L V ''^** restrictions ? 
 that the buyer 1^ "oV Xlt'^,,^"; ^'V' ^^^^^^^ 
 
 Reage, 1 Car. & p. 220. >'*«•« A. 387 ; Rodwell ». 
 
 Q. 1 2— What is gene- al aver-'.ge ? 
 A.—Whenever damage or los< is J«„ j . 
 
 part of the ship or cargo J 1 ^"""''^ ^^ ''"^ P«''ticular 
 called GeneralLral7^l{^^^^^^^^^^ 'f *^^ rest, it is 
 
 the ship, freight, and^^rgo hlil c „r.^^^^ T'""' '"^^^^^^'^ ''•> 
 portions to indemnify the owner "f 2 ? '^ '''^"''^' ^'" 
 damage which has ien TuTreJ t fb "'"/ ^^^ '^'^•°«* ^^^^ 
 Da Costa .. Newnham, 2 T R 40^ M v ' '^ '"' ^^^- ««« 
 R. 783. . ^ 1. It. 40/ J Nesbit i,. Lushington, 4 T. 
 
 .... tLT^f^' bmrri:r.r:„;:ri"','t'-™°' ^- '» 
 
 .»ch BotM be in writing » ™''" *"■" ""''''^ i "d must 
 
 w»a .he b.,.i„.„H„;.r;;r,,f:;rft'"„™™« » 
 
 C«P- 3. sec. 17. F-jraent, 468. See Stat. 29, Car. 2. 
 
 «^ i'nle" „??" """ '"° ""^ P-"""' «»« -'to , a„d i„ what 
 
 ^^-nirrg rtiyrtr: "e.TT* -^ - "'«■■ « • 
 
 P"'"er»l,ip, or f„° .„rk V„"e for [he 7 f:'""^ ''"'°"' "^ 
 "en-be, of it. „ for moneylid therf - '"^^ '"' """"^ • 
 't^ger „bo haa had no^or^ ,he 2' *^. <""'""«»» to a 
 
 «oo»n. has bee. taken .TT^lt- '1™' °' "*""= " 
 
 tic^ ,„„di, or on a note or 
 
smith's MBROAWTILE law. Am 
 
 acceptance of his companion : but odp n«rfn«, 
 
 A.-The acceptor undertakes to (lischarM II.. 1 II , . 
 .»do«er undertake, to the indorsee and .vIS u ' *°'' "" 
 that the biU shall be aischarged Tthe a ™To,t?""!, ■"""" 
 due, 285 , see Allan ». Walker, 2 M & W 3T7 ° ™°'"" 
 
 A T "^?^ .* '' '''^"''^^' ^'^ «* good tender ? 
 A.-ln the absence of directions of the creditnr fi,. 
 
 With it h, a dect.M» 4 ' ":;i ::'.:t'u l'":-""'^-" 
 AoTo ihtrs/^sr r • 'd" ^°" - "'■»" -eirt 
 
 .hat purposeT-Z n' s Z eltrjrrd'" --^^ '"' 
 bearerondemaniwhichare.Tl..', /*''"'■' W«Me to 
 pounda, exceplat the btk Lelf^:'; "''r V"^ """ ■'■°™ «" 
 .Wotly speaking, . legahe„der l?. bl'r '^ ""' "''""^^ 
 yet a lender of couLvbZT, v 'T°"'^- " «'!"'«'». 
 «count, will bes^S. 6,0 r f »»' ""-J^W toon that 
 2nd Edit. ; Hooper ,Xh""- , f. tt' ,?" ^^ ''• ^- «^' 
 
 A—As a sleeping partner's name never annearerf in th n 
 couwe It cannot be removed h„f Kn "/PP^^f^^t "» the firm, of 
 
 -duals who knew of hT^ttnlJnTtl . "r'^^ '^ ^^•- 
 
 engagements with the fimT^nd toll °u '"^'^^^ ^"^^ 
 
 proper notice of retirem^t 48 hIk T°"" ^' """* »^^« « 
 1 97 . f- * ^"fcnieni, 4». Heath v. Sansom 4 H & a^ 
 
 177 J Carter ». Whalley^l B. & Ad. II. '^ «• & Ad. 
 
48 
 
 EXAMIXATIOW QCKSTIONS. 
 
 -4.--A life policy, both iu form and effect in «n ok» i . 
 
 the vessel or good, retain their origlTftm^w , "^ """'' 
 
 e,u.l to the deh. for whleh such ,ie„ U hrr'-'re^ouTr 
 „. . u " " "'" '•"""J'"' ' '"' '" "»t case there .re Z 
 
 Cone r* ""'"" """" o- ""' "'"•••" ' "i* thi dlZr 
 that one has a security and the other has not ; and In absenee ^J 
 
 special agreement to that effeet, it would be ob"„ud/^° , ' 
 4B'.*Ai,oT ''' •"'■'^"-"'f A'"-., B.. Clark . FeU. 
 
 A.-NO. For one attornov cannot bind his partner bv a note 
 though given for the debt o'' the firm <?p» w ^1 ^ « . ' 
 bridge, 8 Q. B. 316. Neit. AU'^artne^ Tl^Z 
 
 * • \.?- ®^^^ "gbt IS limited to partners in a trade strictlv 
 .er^ntde. or in a partnership where it'is shewn to be necesl^^t 
 
 *n ^' ^a'~^' **""? *''^' *"•* ''''** distinction between the liabUitv 
 to third persons of an agent remunerated out of the Ifii aa ^ 
 that of one remunerated by a sum proportion.^ .n .,,. ^4^',""'" 
 
smith's mercantile law. 
 
 A.— An Agent remunerated out of the nrnfif- » 
 .WJ persons . p„,„„. s„ g^Uh W« „ ' 2 bTc *' r° 
 but an agent rcmunerafi.,! K« o , . ' "* ^- « C. 407 ; 
 
 deed for that „„,! t' , v ""T '^P''=» ''»'l'«'it7 by 
 H.™„„ „. J.r„'„ 7T E. 2o1 "° "■ ""'^- '" "• * ''• ^'' 
 Q. 27 -To what extent is a bu'l of ladinit neeotiahle I 
 A.-Its negotiability only extends »„ ^^^''T^' 
 property in the mods .n/j consignment of the 
 
 a: "n:rriZ;ttaCd'rtr' ""■; T ^-'-^ ^ 
 
 of .11 the persons to be bound bvt \ a' ,"'".'"'' '«»™"'io" 
 
 .i«- by n.„t„a, consent; ,1. '^^roftconto^ t' ""^ ■" 
 partnership at will ma,. ;il ^- / 7 "* ^"^ Equity. ^ 
 
 i~<>Mdu./p,ei*:;'tnv.nf;rt:ii:trr'r°'''^ -* "« 
 
 ^.^ see ^etnisrrc-j; sixxrc: 
 
 kuf^rno'tlTirsifHt "'r™ """' ** """"'^ »"b. 
 
 30 -Wl..; ■ :r ^''f" ■'• '^""''bottom, 2 B. 4 Ad. 481. 
 
 «. JO.— What u the citent of «i. .«" '- i! , 
 
 does it attach f i- ».j » a„i, aoa upon what 
 
 S 
 
It 
 
 •", w 
 
 60 
 
 mtAMfWATTON QITCflTTOlirS. 
 
 A.— An attorney has a Hen for his general halance, and It 
 attaches on papers of his clients, which come to his hands in the 
 course of his professional employment, 538. See Stevenson v. 
 Blakelock, 1 M. & Sel. G35. 
 
 Q. 31.— Is there any, and if so, what case, in which an endorse- 
 ment can be for part of the sum secured by a bill or note ? 
 
 A.— If the residue be paid, 231. See Reid v. Furnival. 1 C. & 
 M. .538. 
 
 Q. 32.— Messrs. W. & Co.,— I will engage to pay you by half- 
 past four to-day, fifty-six pounds, or bill that amount on H.— J. W. 
 Is this a good guarantee ? give your reasons. 
 
 A.— No ; because there is no consideration expressed, nor can 
 any be inferred from the tenor of the instrument, 446. See Wain 
 r. Warlters, .'i East, 10. i 
 
 Q. 38.— Does the term endorsement of a bill or note include 
 anything beyond the signature of the indorser? 
 
 A.— It includes delivery to the indorsee as holder, and therefore 
 adenial of the indorsement includes a denial of such delivery, 
 which is essential to entitle the party to sue. 236, see Adams v 
 Jones, 12 A. & E. 455. 
 
 Q. 34.— What is the criterion of a partnership between the 
 partners themselves ? 
 
 A.-The community of profits, 19, see Gilpin v. Enderly, 5 B. 
 &Ald., 954. ^ 
 
 Q. 85.— What words are necessary in an acceptance to render 
 necessary the presentment of a bill of exchange at the place named 
 in the acceptance ? 
 
 A.— It must be drawn payable at the place named only, and not 
 otherwise or elsewhere, 244. See U. C. Con. St. c. 42, ss. 6, 6 ; 
 also Can. Con. St. .57, ». 4. 
 
 Q. 36— What is the ordinary form of a contract of affreight- 
 ment by a general ship ? 
 
 A.— A Bill of Lading, 298. [As to the form of a bill of lading 
 we would refer the student to page 299. 
 
 Q. 37.— Are there any, and if so. what cases in which the con- 
 cealment of facts within the knowledge of the insured, will not 
 vitiate a policy ? 
 
 A.~ Yes ; the concealment of facts not material to a just esti- 
 i^ate c-i tac -iSK ; and, t.ierefore, iJie mam question respecting 
 
smith's mcrcantilb law. 51 
 
 conccnlmcnt almost always is. whether the fact concealed be a 
 materml one. 382. See DurrcU v. Bederley, 1 Holt, 283, Gibbs. 
 
 Q. 3S.-Mention some cases in which two persons may be liable 
 as partners to third persons, though as between themselves they 
 are not partners ? ^ 
 
 ^n^r'^vrr""* ,7 "*'"* '*'P"''*' ^""^ * «»>"« i» the profits, 
 and so entitle himself to an account of them, he becomes as to 
 third persons, a partner. 21. Any person who lends his name 
 to the credit of the firm and holds himself out to the world as a 
 partner therein, is liable for its engagements ; and that whether he 
 have any real interest in the firm or not, 23. 
 
 .n,^* ^l^^'"" **""" *"^* """^ ''^''^ exceptions to the rule, that a 
 corporation cannot contract except under seal ? 
 
 .l'r\7T'f ''''!'' '°™' *^"''' """y ^'"^ >t«el^ by promissory 
 notes and bills of exchange ; and there are other acts, mostly Z 
 a tnfl.„g nature, win-.), orporation may do without seal or 
 
 even writing such ,. hirmg of a common servant. 1 15. See 
 
 fe e1"« r "; 1 ^'-''' '^'^^'^-^ousU V. Bank of.'EnglanS 
 i 6 East, 6, per Lord Ellenborough, C.J. . 
 
 u,^' f r^*".' * P"''^" advancing money on bottomry, recover the 
 amount from the owners if the ship be lost ? Give your r Jons 
 .ITv' '^^'^^^^^ '"^ consideration of the principal being ia so 
 
 lender of the money ,s entitled to receive a recompense far beyond 
 the legal rate of interest. 401. See Simonds .. Hcaigson. 3 B. & 
 
 Q. 41.-By whom must a notice of dishonour '.e given to an 
 .ndorser of a bill or note, so as to render him liable, and wSl suc^ 
 notice enure to the benefit of any other party than the one giving 
 
 ♦I, ^K^'^^V^f f^"' ''' '°"^ P"'°° ^°*^tJed, or who, as a party to 
 the bill, probably will be entitled, to call for paymen or reimburs - 
 ment, and a notice given by the holder or any other part^; enures 
 to the benefit of all who stand between that party and the perl 
 receiving it_ 252 Chapman . Keane, 3 Ad. /e. 193 wZ 
 ». Swabey, 1 Stark. 34. ""son 
 
 Q. 42. — What is a guarantee ? 
 
 A.~A guarantee is a promise to answer for the payment of some 
 
52 
 
 EXAMINATION QUESTIONS. 
 
 lif'^ 
 
 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 performance, 438. See Couturier v. Hastie, 8 Exch. 
 40. 
 
 Q. 43. — What are the two ways in which a lien arises? Give 
 instances. 
 
 A —By special agreement, and by usage. The former de- 
 pends upon the special terms of each individual contract : a livery- 
 stable keeper is an instance of lien by special agreement. The lat- 
 ter depends upon implied terms of the contract : an attorney has 
 a lien for a general balance on papers of his client, which come 
 to his hands in the course of his professional employment ; this is 
 an instance of lien by usage. 536 et seq. Forth v. Simpson, 13 Q. 
 B. 680 ; Rushforth v. Hadfield, 6 East., 519. 
 
 Q. 44. — Where a sale has been made to a broker dealing in his 
 own name, but in reality as an agent, whom can the vendor treat 
 as liable to him ; and does the fact of the principal being a 
 foreigner make any diiFerence ? 
 
 A. — He can elect, and treat either as liable ; but if the principal 
 be a foreigner he is not liable, and the agent must be looked to for 
 payment, 151. See Wilson v. Hart, 7 Taunt. 295 ; also, Thomp- 
 son V. Davenport, 1 Camp. 109. 
 
 Q. 45. — ^What parties to a promissory note stand respectively in 
 the position of the drawer and acceptor of a bill of exchange t 
 
 A. — The indorser of a note as the drawer of a bill, the maker 
 as the acceptor, and the indorsee as the payee, respectively, 209. 
 See Brown v. Harraden, 4 T. R., 148. 
 
 Q. 46.— To what extent is an auctioneer the agent of the vendor 
 and purchaser respectively, so as to make the contract binding 
 within the Statute of Frauds 1 
 
 A. — He is agent for the vendor only for the purpose of selling 
 the article pursuant to the terms of the conditions of sale, and he 
 is agent for the purchaser only for the purpose of signing a memo- 
 randum when required by the Statute of Frauds ; his powers are 
 so limited, that a previous agreement between the vendor and pur- 
 chaser will not be altered by the printed conditions of sale, which 
 are part of the contract of sale, 479. 
 
 Q. 47. — What is freight, and under what circumstanceB is it 
 payable 7 
 
smith's mercantile law. 
 
 53 
 
 A. — ^The money paid for carriage of goods by sea. See Tomlin's 
 Die. tit. Freight. It denotes the price of carriage, not of receiving 
 goods to he carried, and no freight becomes due and payable until the 
 contract be performed, 312. See Andrew v. Moorhouse, 6 Taunt. 
 435 ; also Crozier v. Smith, 1 M. & Gr. 407. 
 
 Q- 48. — What is the Common Law liability of a Common 
 Carrier ? 
 
 A. — At Common Law he stands in the place of an insurer of 
 the property intrusted to him, and is answerable for any loss or 
 damage happening to it while in his custody, no matter by what 
 cause occasioned, unless it were by the act of God, such as a tem- 
 pest, or that of the king's enemies, 285. 
 
 Q. 49. — In what cases is the insured entitled to a return of the 
 premium ? 
 
 A. — Where the risk has not been run, the premium shall be 
 returned ; for the underwriter receives it for running the risk, and 
 if he do not run the risk he ought not to retain it ; and similarly 
 where only part of the risk has been incurred, the insurer is enti- 
 tled to the return of a proportionate part of the premium, 386. 
 See Routh v. Thompson, 11 East, 428. 
 
 Q. 50. — Is a warranty made after a sale binding ? Give your 
 reasons. 
 
 A. — A warranty made after sale is void for want of consideration, 
 490. See 3 Bl. Com. 166 ; Finch, L. 189. 
 
 Q. 51. — Can a lien be retained foi a debt, the remedy by action 
 for which is barred by the Statute of Limitations ? Give your 
 reasons. 
 
 A.— It may ; for the Statute of Limitations merely bars the 
 remedy of action, and does not extinguish the right to the debt, 
 and the debtor may avail himself of any remedy in his power, 
 other than action, to obtain payment, 534. 
 
 Q. 52.— What is stoppage in transitu 1 And when does the right 
 to stop arise ; and how is it determined ? 
 
 A.— Stoppage in transitu is a right which the vendor has to 
 resume possession of goods on their way to the consignee, before 
 actual delivery to him ; and arises upon the consignee becoming 
 bankrupt or insolvent during the tfansit of the goods, 524; it is 
 determined upon the goods coming to the possession, actual or 
 constructive, of the consignee, 529. 
 
li ' 
 
 54 
 
 EXAMINATION QUESTIONS. 
 
 Q. 53. — ^Will the delivery of goods to an agent of the vendee 
 appointed to convey them, deprive the vendor of his lien for the 
 price, or of the right to stop in transitu, or either ? 
 
 A.— The delivery of goods to an agent of the vendee appointed 
 to convey them, will not put an end to the right to stop them in 
 transitu, 531, Hoist v. Pounall, 1 Esp. 240 ; but a lien is deter- 
 mined by delivery to such an agent, as the possession is thereby 
 given up, 527, 540. 
 
 Q. 54. — Does the bond fide endorsement of the bill of lading 
 affect the right to stop in transitu ? and if so, how ? 
 
 A. — Yes ; such endorsement defeats the right to stop in transitu ; 
 but if the indorsee have not acted bona fide, (for instance if he 
 knew that the consignee was insolvent, and assisted to defraud the 
 consignor of the price of ^he goods,) he stands in the seme place 
 as the consignee, and the consignor retains his right to stop in 
 transitu. 301. 
 
 Q. 55. — Does stoppage in transitu revest the property in the 
 goods in the vendor 1 
 
 A. — It would seem that it does not, and the vendee may still 
 obtain the right to possession if he pays or tenders the price, 527. 
 See Milgate v. Kebble, 3 M. & Gr. 100; Martindale v. Smith, 1 
 Q. B. 389. 
 
 Q. 56. — Will such a delivery of goods as would be sufficient to 
 support an action for goods sold and delivered, be sufficient to 
 ratify a contract of sale within the Statute of Frauds 1 State the 
 difference. 
 
 A. — It would not ; the difference is this, — on the one hand there 
 need only be a delivery of the possession, in order to sustain a count 
 for goods sold and delivered ; and on the other hand, there must 
 be an acceptance of the possession in order to satisfy the Statute 
 of Frauds, 473, note. 
 
 Q. 57. — ^What are the respective rights of debtor and creditor as 
 to the appropriation of sums paid by the former ? 
 
 A. — Where a debtor, owing several sums to one creditor, makes 
 a payment, it is in his option at the time of payment, to have the 
 payment appropriated to the discharge of any particular sum ; if 
 he fail to make such appropriation, the creditor may apply it in his 
 optioD, 520. If both fail to make any appropriation, the law will 
 
smith's mercantile law. 
 
 55 
 
 appropriate as may be most beneficial for the debtor. Story, 
 Equity Juris., § 459, c. 
 
 Q. 58. — What are the implied warranties in a marine policy ? 
 
 A.— The implied warranties are : 1. Not to deviate unnecessarily 
 from the usual course of the voyage ; 2. Seaworthiness of the 
 vessel insured ; 3. That the insured will use reasonable diligence 
 to guard against the risks covered by the policy, 363. 
 
 Q. 59.—" I promise to pay to A. or order ^650 on demand, in 
 goods :" is this a good promissory note ? Give your reasons. 
 
 A.— No ; a promissory note must be for the payment of money 
 alone, 211. See Russell v. Powell, 14 M. & W. 418, also Bolton v. 
 Kingf 4 n. „ Ad. 619, per Patterson, J. 
 
 Q ' What is requisite to a valid sale of goods over the value 
 oft*: i aads? Does it make any difference whether the gooda 
 are in existence at the time of the sale ? 
 
 A. — It is requisite that the buyer shall accept part of the goods 
 so sold, and actually receive the same, or give something in earnest 
 to bind the bargain, or in part payment, or that some note or 
 memorandum in writing of the bargain be made and signed 
 by the parties to be charged by such contract or their agents 
 thereunto lawfully authorized. A distinction was formerly taken 
 between cases in which the thing contracted for was in existence 
 and capable of delivery at the time of the contract, and in cases 
 that it was necessary that something should be done in order to 
 render it capable of delivery ; the former cases were universally 
 held to be within the act ; but the decisions on the question 
 whether the latter were so, were not very consistent. However, by 
 the Statute 9 Geo. IV., c. 14, s. 5, it is enacted that the 17 sec. 
 Stat, of Frauds shall extend to all contracts for the sale of goodi* 
 to the value of ^610 sterling and upwards, notwithstanding the 
 goods may be intended to be delivered at some future time, or 
 may not, at the time of such contract, be actually made, procured 
 or provided or fit or ready for delivery, or some act may be requisite 
 tor the making or completing thereof, or rendering the same fit 
 for delivery, 468, 469. See Con. Stat U. C, cap. 45, sec. 11. See, 
 also. Smith v. Surman, 9 B. & C. 5dl ; Elliott v. Pybus, 10 Bing. 
 512, for remarks of Tindal, C. J., on this Statute. 
 
 Q« 61. — V/hat is the effect of mentioning no time for payment 
 in a bill or note ? 
 
I 
 
 li 
 
 ^^ EXAMINATION QUESTIONg. 
 
 A.~The bill or note is payable upon demand, 217. See Whit- 
 lock V. Underwood, 2 B. & C. 157. 
 
 Q. 62.-What are general and particular liens, and how are thev 
 respectively looked upon by the law ? 
 
 A.-General liens are claimed in respect of a general balance 
 of account, and Particular liens are where persons claim to retain 
 the goods m respect of which the debt arises ; the former is looked 
 upon by the law strictly, whilst the latter &re favored, 534. See 
 per Heath, J., in 3 B. & P. 494. 
 
 Q.6S -What is the distinction between a voyage and a time 
 policy as regards any implied warranty of sea-worthiness ^ 
 
 A.--Where a vessel is insured for a ^oya^^e there is an implied 
 warranty of sea-worthiness at the commencement of the risk, that 
 IS, at the port where the assurance is "at and from" at the 
 beginmng of a voyage] when it is "from" a port. 366; see 
 judgment of Baron Parke. 16 Q. B. 156 : with respect to a time 
 pohcj, which is usually effected when the ship is at sea. or in a 
 position where the owner could have no means of knowing her 
 state or complying with such a condition, no warranty of sea- 
 worthiness can be implied, 369. 
 
 Q 64.-What is the distinction between a factor and broker, and 
 what is a del credere agent? 
 
 A.-The former are entrusted with the possession as well as the 
 disposal of property, whilst the latter are employed to contract 
 «oout it without being put in possession, 121. A del credere agent 
 IS a factor, who, for an additional premium beyond the usual com- 
 mission, sells goods on credit, and becomes bound to warrant the 
 
 fTlJr, V'^'tr'' ^^^' ^'' ^^'^^'^"^ '' Scott. 6 Bro. 
 r. t/. zou, lomhn s Ed. 
 
 Q. 65.-IS there any, and if so. what difference between a 
 warranty made on the sale of a specific chattel and of unascertained 
 goods ' 
 
 A.-Upon the sale of a specific chattel there is an implied 
 warranty only that it actually exists and is of the description given. 
 Upon sale of unascertained goods there is an implied waSanty 
 that they are merchantable, or that they are suitable for the 
 purpose for which they are stated to be required. 489. See Jones 
 V. Bright. 5 Bmg. 533, also Stancliffe v. Clarke. 7 Exch. 439. 
 
 Q. 66.-Will the discharge of an indorser of a bill or note diV 
 
f 
 
 smith's mercantile law. 
 
 57 
 
 charge any other, and if so, what parties to the instrument ? Give 
 your reasons. 
 
 ^-.— If the holder discharge or give time to a prior indorser, he 
 will discharge those subsequent to him ; see Hall v. Cole, 4 Ad. & 
 E. 677 : because a subsequent indorser stands in the light of a 
 surety for the prior ones, 279. See observations of Tindal, C. J , 
 m Bassett v. Dodgjn, 9 Bing. 653, and Isaac v. Daniel, 8 Q b' 
 500, ^' 
 
 Q. 67.— When a forged cheque is paid by a banker, has the 
 banker any remedy against his customer, whose signature has been 
 forged ? Is there any exception to this rule 1 
 
 A.— The banker will have no remedy against his customer whose 
 Signature has been forged, (see Johnson v. Windle, 3 Bing, N. C. 
 225), unless the customer have by his gross negligence, facilitated 
 the commission of forgery ; in which case he (the customer) will 
 have to bear the loss thereby occasioned, 264. 
 
 Q. 68— What is the distinction between the common law liability 
 of a carrier of passengers and goods ? 
 
 A.— A carrier of passengers does not warrant the safety of the 
 passengers, at all events; but only that, so far as human care and 
 loresight will go, their safe conveyance will be provided for. See 
 Sharp V. Grey, 9 Bing. 457. But a carrier of goods is answerable 
 for any loss or damage happening to the goods while in his custody, 
 no matter by what cause occasioned, unless it were by the act of 
 God, or that of the king's enemies. 284, 285. 
 
 Q. 69.— Can there be a binding verbal agreement to renew a 
 bill or note ? Will it make any difference in the validity of such 
 agreement whether it was contemporaneous with the executing of 
 the instrument or not ? Give your reasons. 
 
 A.— There may, after a bill or note has been made, be a binding 
 verbal promise for valuable consideration to renew it when due ; see 
 Gibbon V. Scott, 2 Stark, 286 ; but such promise must no't be 
 contemporaneous with the drawing of the bill or note, because it 
 would incorporate with a written contract an incongruous parol 
 condition, which is contrary to first principles, 274. See Hoare v. 
 Graham, 3 Camp. 57, and Woodbridge v. Spooner, 3 B. & Aid. 
 
 Q. 70.— Has one partner in the firm of attorneys an authority to 
 bind his co-partner by a negotiable instrument ? Give your reasons. 
 
58 
 
 EXAMINATION QUESTIONS. 
 
 A. — An attorney cannot bind his partner by a bill or note, though 
 given for the debt of the firm ; see Headley v. Bainbridge, 3 Q. 
 B. 316: for partners in a particular business not strictly mer- 
 cantile, have primd facie no authority by law to bind each other 
 by bills or notes, 4 j. See Dickinson v. Valpy, 10 B. & C. 128. 
 
 Q. 71 — What is the general effect upon a creditor's claim of his 
 taking his debtor's bill or note for the amount ; and what would 
 be the effect of the creditor negotiating such bill or note ? Will it 
 make any difference in the effect of his so negotiating it, whether 
 he does or does not render himself liable on it ? 
 
 A. — The taking of the debtor's bill or note is an agreement to 
 give him credit for the time it has to run, and suspend the credi- 
 tor's remedy in the meanwhile. If the creditor negotiate the bill 
 or note for value, and without rendering himself liable, it will 
 operate as payment, though dishorn red. See "Runney v. Poynt>;^ 
 4 B. & Ad. 568. But if the creditor negotisl ; the bill or note 
 so as to reader himself personally liable upon it, in that case it -vill 
 not operate as payment if dishonored. 512, 514. See Miles r. 
 Gorton, 4 Tyr. 295 ; 2 C. & M. 604, and Tarleton v. AUhusen, 
 2 A. & E. 32. 
 
 Q. 72.— Can a partnership be dissolved as between the partners, 
 without being dissolved as to third persons ? And if so, when 
 does this happen ? 
 
 •A. — A partnership, though dissolved as between the partners, 
 can exist as to third persons, if they do no ; remove their names 
 from the firm, and give proper notice of the dissolution ; for until 
 the world is duly advertised thereof, they continue to hold them- 
 selves out as still in business, and will be still responsible to third 
 persons for their engagements, 27, 47. See Jones v. Shears, 4 
 A. & E. 832. 
 
 Q- "3. — For what purpose is it necessary to give notice of a 
 dissolution of a partnership ? And how should such notice be 
 given, and to whom i 
 
 A. — For the purpose of preventing all danger of the liability of 
 a partner for the future acts of his companions. To persons who 
 have not dealt with the firm, notice in the Gasette will be suffi- 
 cient. See Wrightson v. Pullen, I Stark, 375. To persons who 
 have dealt with the firm, express notice ought to be given, and is 
 
 I 
 
smith's mercantile law. 
 
 50 
 
 usually done by circular letters. See Kirwan v. Kirwan, 2 C & M. 
 617, and Jenkins v. Blizzard, 1 Stark, 418. 48. 
 
 Q. 74. — What may disentitle the agent to remuneration for his 
 services. 
 
 A.— If the object of his employment be illegal, (see Cope r. 
 Rowlands, 2 M. & W. 157) ; if by his misconduct as by neglect to 
 keep an account, (see Whitp v. Lady Lincoln, 8 Ves. 371) ; or if 
 gross negligence or want of skill on his part prevent his employer 
 from deriving any benefit from his services, (see White v. Chapman, 
 1 Stark, 113 ; or if he betray his trust and act adversely to his 
 principal, (see Hurst v. Holding, 3 Taunt. 32), he will not be 
 entitled to remuneration for his services, 132. 
 
 Q. 75. — In the ordinary case of a sale at auction, what is the 
 writing to satisfy the Statute of Frauds ? 
 
 A. — The entry of the purchaser's name in the sale book oppo- 
 site the lot for which he is the highest bidder, by the auctioneer 
 or the a- ctioneer's clerk, at the time of the sale, is a writing suffi- 
 cient to satisfy the statute ; and the signature is sufficient, because 
 either the auctioneer, or his clerk, who makes the entry, is the 
 lawfully authorized agent of both vendor and purchaser for that 
 purpose, 479. See Hinde v. Whitehouse, 7 East. 558 ; Bird v. 
 Boulter, 4 B. & Ad. 443 ; also Emmerson v. Heelis, 2 Taunt. 38. 
 
 Q. 76.— To what limitations is the right of an undisclosed prin- 
 cipal to sue on a contract made by his ageut subject ? 
 
 A. — If the undisclosed principal sue, the defendant has the 
 same rights against him as he would have had against the agent if 
 he had really been the principal : as the right to set off any claim 
 he may have against the agent personally, 163. Taylor r. 
 Kymer, 3 B. & Ad. 334, per Lord Tenterden, C. J. 
 
 Q. 77 — Upon what does the negotiability of bills of exchange 
 am' promissory notes respectively depend ? 
 
 A. — The negotiability of bills of exchange and promissory notes 
 depends upon their being drawn or indorsed, payable to either 
 order or bearer, 205. See Chitty on Bills, 9th ed., 159, 196 ; also 
 Grant v. Vaughan, 3 Burr. 1516. 
 
 The following answer may also be given to this question : 
 The negotiabihty of bills of exchange depends upon the cnstom 
 of merchants ; and that of promissory notes upon the statute 
 3 & 4 Anne, c. 9. See Byles on Bills, 2, 4. 
 
■ 
 
 I 
 
 60 
 
 EXAMINATION QUESTIONS. 
 
 Q. 78— What is an indorsement in full, in blank, a restrictive 
 indorsemei.t, and an indorsement "sans recoura,'^ and what is the 
 effect of such indorsements respectively ? 
 
 A — An indorsement in full, is one which mentions the name of 
 the party in whose favor the indorsement is made ; an indorsement in 
 blank, is one which does not i, sntion such name. The effect of 
 such indorsements is : a bill or note indorseil in full must be 
 indorsed again by the person to whom it was s o indorsed in order 
 to render it transferable ; an indorsement in blank is transferable 
 by mere delivery. A restrictive indorsement is one worded so as 
 to restrain the transferability of the instrument ; an indorsement 
 satis recoups is where the indorse r, by adding those words, or the 
 like, to his indorsement, in effect merely passes the property in the 
 instrument without indirring any personal liability upon it. 230, 
 231. See Chitty on Bills, 9th ed., 228, 229. 
 
 Q. 79.— What is a charter party, and a bill of lading ? 
 A.— A charter party is a contract, (frequently by deed, but not 
 necessarily so), " by which an entire ship or some principal part 
 " thereof is let to a merchant for the conveyance of goods upon a 
 " determined voyage to one or more places," 292. A bill of lad- 
 ing is a memorandum signed by the master of a general ship, 
 acknowledging the receipt of goods which he undertakes to carry 
 m his ship, and deliver to a consignee named, or to the person to 
 whom such bill of lading shall be transferred, 292, 298; see 
 Tomlin's L w Die, tit. Bill of Lading ; also Grant v. Murrav 
 IOC. B. 66.5. ^ 
 
 Q. 80 — Is a verbal acceptance of a bill of exchange binding on 
 the acceptor ? Does this depend upon common law or statute 1 
 
 A.— In case of a foreign bill the acceptance may by common 
 law be either verbal or in writing ; Lumley v. Palmer, 1000 ; 
 Sproatt v.^ Matthews, 1 T. R. 182 ; but by the Statute 1 & 2 
 Geo. 4, 0. 78, s. 2, the acceptance of an inland bill must be in 
 writing on the bill. 237. See Con. Stat. U. C. c. 42, s. 7. 
 
 Q 81.— To what extent is an auctioneer an agent of the pur- 
 chaser, to bind him, where the Statute of Frauds requires a signed 
 memorandum ? Does this depend upon who is suing on the con- 
 tract ? 
 
 A.— He is agent only for the purpose of signing such memoran- 
 dum. This depends upon who is suing, for if the auctioneer sues, 
 
smith's mercantile law. 
 
 61 
 
 he cannot avail himself of his character of agent for the defendant. 
 
 Q. 82.— When may notice of dishor jur to the drawer of a bill 
 be dispensed with ? 
 
 A — Where the holder has endeavoured to give notice, but was 
 unable to do so by reason of the fault or neglect of the drawer • 
 as for instance, where the drawer fails to have any one at his 
 place of business to receive such notice ; where the drawer hus ab- 
 sconded ; where the drawer with full knowledge of his position 
 partly liquidates or promises to liquidate the bill ; and where the 
 bill has been accepted for the accommodation of the drawer, and he 
 is fully aware that it will be dishonoured ; 260, 2G1. See Sharp v 
 Bailey. 9 B. & C. 41 ; Rogers v. Stephens, 2 T. R. 713. 
 
 Q. 83.— Mention some of the peculiarities of the contract of 
 hiring and service. 
 
 A. -Where the contract is under a special agreement, the term^ 
 of that agreement must be observed; if there be no special 
 agreement, but the hiring is a general one without mention of time 
 It 18 considered to be for a year certain ; if the servant continue in 
 employment beyond that year, a contract for a second year is 
 implied ; in case of menial or domestic servants, the contract is bv 
 general custom dissoluble by a month's warning, or payment of a 
 month's wages ; but a general hiring at (e. g.) weekly wages is a 
 weekly hiring, unless there are some circumstances to shew a con- 
 trary intention ; if the master dismiss his servant (hired generallv^ 
 without cause, the latter will have a right to wages up to the 
 expiration of the year, while on the other hand if the servant quit 
 his master causelessly, he will be entitled to no wages ; nor will he 
 be so if dismissed before the expiration of his term of service for 
 misconduct; 407—409. 
 
 Q. 84.— What are the requisites of a guarantee ? 
 
 A.— To comply with the 4th sec. Stat. Frauds (29, Chas 2 
 c. 3, 8. 4), a guarantee must be in writing and signed by ihe 
 party to be charged, or his lawful authorised agent; otherwise 
 It cannot be sued upon, 438 : and there must be a good considera- 
 tion ; which if It he a past consideration must have been moved hy 
 an antecedent request from the guarantor, 445, 446. 
 
 Q. 85.— In what contracts must a consideration exist and be 
 proved, and in what ia it presumed ? 
 
V iii 
 
 it 
 
 i ! 
 
 ill 
 111 
 
 ii 
 
 68 
 
 EXAMINTATTOW QUESTIONS, 
 
 A.— Simple contracts require a consideration to be proved ; an 
 exception to the rules regarding this, is made in the case of Bills 
 and Notes which are \icrsona\ prima facie to be founiod upon good 
 consideration ; in contracts by deed a consideration is presumed ; 
 267. 
 
 Q. 86. — How far is a pledge by a factor of his principal's goods 
 valid ? 
 
 A. — In such case the pledgee shall acquire such right, title, or 
 interest as, and no further or other than, was possessed by the 
 factor or agent at the time of the deposit or pledge, 144. See 
 Fletcher v. Heath, 7 B. & C. 517- 
 
 Q. 87. — How does the right to stop in transitu differ from a 
 lien? 
 
 A. — The right to stop in transitu differs from a lien in this — 
 that the former arises when the actual possession of the goods is 
 given up, but a lien simply affects the property in possession, and 
 is lost when the goods go out of the hands of him who has the 
 lien, 527, 524. 
 
 Q. 88.— State some of the grounds on which a surety's liability 
 will be discharged ? 
 
 A. — If the creditor discharge the principal, or enter into any 
 agreement with him by which, the sureties situation is altered for 
 the worse, or which would render a proceeding against the surety a 
 fraud upon the principal, or to substitute a new agreement instead 
 of that for which the surety was responsible, he (the surety) will 
 be discharged. 45(/. 
 
 Q. 89. — What is the difference between law and equity as regards 
 the indorsment of a bill of lading by way of pledge, on the ven- 
 dor's right to stop in transitu ? 
 
 A. — The indorsement of a bill of lading by way of pledge, 
 defeats the legal right to stop in transitu ; but in equity, the ven- 
 dor may, by giving notice to the pledgee, resume his former interest 
 in the goods, subject to the pledgee's claim, and will be entitled to 
 the residue of their proceeds after the pledgee's demand has been 
 satisfied out of them, or to the goods themselves, if it be satisfied 
 aliunde, (In re Westrinthus, 5 B. & Ad. 8l7i) notwithstanding the 
 pledgee may have other demands against the consignee, 532. 
 
 Q. 90.=What are the two instruments used in contr.ii^t.s nf 
 affreightment ? 
 
smith's mercantile law 99 
 
 ^u^T^u'^r'"' ^'"■'^' "'''^ * *''' "-^ '^"''"^5 tl>o ''«'-nier bcini; 
 that by which an entire Bhip. or some principal part thereof, is lot 
 to a merchant for the conveyance of goods on a determined voyage 
 to one or more places ; the latter being when the master and 
 owners of a ship engage with smarate merchants to convey their 
 goods to the pl«ee of their desf .tion, in a general ship. 292, 298 
 Q. 91.-Can one partner b.nd anotl.or by negotiable instrn- 
 ments, submission to arbitration, or deed; or by either or which 
 of them I 
 
 A.— One partner of a mercantile firm can bind the firm to the 
 
 payment of negotiable instruments drawn, indorsed, or accepted in 
 
 the coirmon name. Swan v. Steele, 7 East. 210. One partner 
 
 cannot bind the firm by a submission to arbitration, without some 
 
 authority beyond that which flows from the general relation of 
 
 partnership. Stead «,. Salt, 10 Moore. 39.5. One partner cannot 
 
 bind the firm by deed, unless he has ( xpress authority by deec for 
 
 that purpose. Harrison v. Jackson, 7 T. R., 207. 37, 39. 
 
 Q. 92.-What is the meaning and result of Barratry'? Give an 
 example ? "^ 
 
 ^.-Barratry is derived from an Italian word, which signifies 
 to cheat ; It 18 any act of the master or mariners of a vessel of a 
 criminal nature, or which is grossly negligent, tending to their own 
 benefit to the prejudice of the owners of the ship, and without 
 their consent or privity; and the result is. th d if by reason of 
 such an act, the subject matter of insurance is detained, lost or 
 forfeited, the insured will be entitled to recover for a loss of bar- 
 ratiy, 349, 350. See Lockyer v. Wheeler, 1 T. R. 252. Wilful 
 deviation m fraud of the owner is an example, (Vallojo v. Wheeler, 
 l^owp. 143,) 349. 
 
 Q. 93.-Define "a general agent," and "a particular agent," 
 and ^state the rule as to the authority of each to bind the prin- 
 
 A.-A general agent is one who is intrusted with all his princi- 
 pal 8 business in some specific line, of some specific kind. A par- 
 ticular agent is one employed specially for some one special pur- 
 
 fri" . !? °" ^""l'"'''' ^^^' ^ general agent has a general 
 
 mphed^ authority to bind his principal in the ordinary and usual 
 
 9.0,.? 0. ...e ausiness he i. deputed to transact, even if he go be- 
 
 yond his actual authority; but a particular agent can only bind 
 
 i •»« 
 
 ' M 
 
•4 
 
 XXAMINATION QUESTIONS. 
 
 the principal hy his acts within tlie limit of his authority. 13h et 
 •cq. See Smith on Contracts, '2nd ed., aoi, et seq. 
 
 BYLES ON BILLS. 
 
 Queiition 1.— Define a promissory note and bill o| exchange 
 respectively ? 
 
 Answer.— k promissory note is an absolute i romise in writing, 
 signed but not sealed, 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, 4. A bill of exchange is a written 
 order from A. to B., directing B. to pay C. a sum of monev 
 therein named, 1. 
 
 Q. 2.- What is the meaning of Protest, and of what bills or notes 
 is Protest necessary or allowable 1 
 
 A. — A Protest is a solemn declaration in writing by a notary, 
 stating that payment or acceptance has been demanded and refused, 
 nnd the reason, if any, assigned, and that the bill (or note) is 
 therefore protested, (201,) or, in other words, it is a minute non. 
 acceptance or non-payment, accompanied by a solemn declaration 
 on the part of the holder against any loss to be sustained thereby. 
 Smith Mer. L., 5 ed., 257. Protest is necessary in thi case of 
 foreign bills, (200,) and allowable on inland bills (204) ; it is un- 
 necessary in the case of foreign or inland promissory notes. 
 
 Q. 3. — What are the requisites of notice of dishonour ? 
 
 A.— As regards form, no particular form of notice is necessary, 
 all that is necessary is by actual notification, written or verbal, to 
 apprise the party to be made liable, of the dishonour of the instru- 
 ment, and that he is expected to pay it. {Sed quaere, see Smith's 
 Mer. L. 256.) The bill or note in question must be carefully 
 described, 213, 216. As to the mode of transmitting, it may be 
 personal, or may be by letter transmitted by post, or by a special 
 messenger, who, however, must deliver it at the least as soon as it 
 would have arrived by post ; in the case of a foreign bill it should 
 be sent by the first regular ship bound for the place to which it is 
 to be sent: 218, 220. As to place, it should be sent to the 
 plac6 of business or residence of the party for whom it is designed. 
 
 
 A3 regards time, it should be given before action, and 
 
BYLE8 ON BILLS. 
 
 65 
 
 wiihin a reasonable time after dishonour, depending on the facts 
 of each particular case. It has been held that where parties live 
 at different places, a notice may be transmitted on the day follow- 
 ing the day of dishonour, or by the next post thereafter ; where 
 parties live in the same town it should be transmitted so as (« be 
 received on the day after .\.l.wa ,»r. Each person wlio receives 
 notice has a reasonable ti-.e to notif any person whom he desires 
 to make liable to himself. S passi,.- 221-220. (As regards the 
 persons by whom and to -i^.v,, g,, » „otice should be given, see 
 
 Q.4— If the last of the three days of gn-ce fall on a legal 
 holiday, when is the bill or note payable ; and under what law ' 
 
 A—On the preceding day ; 162. See Tassell v. Lewis, 1 Ld. 
 Ilayni. 7-13; Imp. Stats. 39 & -10 Geo. 3. c. 42 ; 7 & 8 Geo. 4, c. 15. 
 Our law on this point is quite different from the English law ; by 
 
 r rT„®**'* '"'P* *^' '• ^^' """^ ^^"' ^°"- Stat. cap. 57. 
 a. o, "ah bills of exchange and promissory notes, \*wereof the third 
 day of grace falls upon any non-judicial day, shall become due and 
 payable, and be presented for payment upon the judicial dav next 
 after such third day of grace." 
 
 .V. ^; ^'^y. "° ^''"^ ^°'" P'»y'"«°t 0* a bill or note be expressed on 
 the tace of it, when is it payable f 
 
 A.-On demand, 165. See Whitlock v. Underwood, 2 B. & C. 
 157. 
 
 Q. 6.-May a bill be accepted after the time at which it is made 
 payable on the face of it. ha. elapsed; and if so. when does it 
 become payable ? 
 
 A —Yes ; and becomes payable on demand, 140. 
 Q. 7.-In what particulars do bills and promissory notes differ 
 from other simple contracts ? 
 
 *i.^~'^"i''° P^t'^'^l^s-first, that they are assignable; secondly, 
 that consideration will be presumed till the contrary appear. 2. 92. 
 
 Q. 8.— What IS requisite to make a bill or note negotiable ? 
 
 A.— It must contain a direction or promise to pay to the order 
 of the payee, or to bearer, 113. 
 
 Q. 9.— What are the modes of transferring bUls and notes f 
 
 A.-If the instrument be payable to order, it is transferable by 
 'nuorseuicut ; but if payable to bearer, it is transferable by mere 
 dehvery, 114. . "^ 
 
 IS: J 
 
 B 
 
66 
 
 EZAMIXATIOir qCESTIOIVg, 
 
 Q. 10.— What are the different kinds of indorsements 7 
 
 A—Indorsements are of two kinds-an indorsement in hlanfc, 
 or, as It 18 sometimes termed, a blank indorsement, made by the 
 mere signature of the endorser, and an indorsement in full, or a 
 special indorsement, naming the indorsee, 114, 11 S. 
 
 Q. ll.—What is the meaning of an acceptance mtpra proteai ; 
 *° A V^ undertaking of the acceptor mpra protest ? 
 
 A.— When acceptance is refused, and the bill is protested for 
 non-acceptance, or when it is protested for better security, any 
 person may accept it ^pra protest for the honour of the drawer or 
 ot any one of the indorsers. See Vandewall v. TyrreH, M & M 
 87. The undertaking of the acceptor supra protest, ia not an 
 absolute engagement to pay at all events, but only a collateral 
 conditional engagement to pay if the drawee do not. 206-208 
 
 ♦1. i:^,^"~T^** " *^^ ^^'''* °"*^® liabilities of the endorser if 
 the holder of a promissory note bind himself to give time to the 
 maker ; and what general principle of law is applicable to such a 
 case: 
 
 A.-The indorser is discharged, unless the agreement giving 
 time be made with his consent, or contain a stipulation that the 
 holder shall, in case of default, hfive judgment at a period as early 
 as he could have obtained judgment if hostile proceedings had con- 
 
 fto io. /"i''' *° *^' ^"* ''^""^ «» P"°«^P«1 «°«1 ««reties. 
 189—193. See Story's Equity Jurisprudence, § 492. 
 
 Q. 13.-State the effect of a note of hand at common law. 
 
 A—At common law no note of hand was transferable, and no 
 action could be maintained, even by the payee, on a promissory 
 note as an instrument, hut it -as only evidence of a debt, 4. ' 
 
 Q. 14.— By what act were promissory notes made indorsable 
 and transterable ? 
 
 A.— 3 & 4 Anne, c. 9, s. 4. 
 
 Q. IS.-If a note be made payable to the maker or order, and 
 be mdorsed by him in blank, what is the effect ? And what is the 
 effect if it bfc indorsed by him specially? 
 
 A— A note made payable to the maker or order, and indorsed 
 by him in ^ank, becomes payable to bearer. See Browne v. De 
 
 II r i ^/- ^^^ ^' ^' ^"^ ^*' «P«"*»y i"^°"«d' it " pay- 
 able to the mdors:. or order. See Gay v. Lander. 17 L. J. 286 
 ^' r. t'j 114, 115. 
 
BTLSS Oir BILLS. 
 
 67 
 
 Q. 16.— Is a note good when made by several persons payable 
 " to our and each of our order," and indorsed by one only of the 
 makers ? 
 
 A.— Yes ; 5. See Absolon v. Marks, 11 Q. B. 19. 
 
 Q. 17.-- May a note be made payable by instalments ; and if so 
 are the days of grace allowed on each instalment ? A^ J are pre- 
 sentment and notice of dishonour required when each instalment 
 becomes due? and do laches as to one instalment discharge an 
 indorser as to that instalment, or as to the whole note ? And may 
 such note be indorsed over for less than the entire sum due on it ? 
 
 A.— A note may be made payable by instalments. Days of 
 grace are allowed on each instalment. See Orrige v. Sherbom, 
 II M. & W. 374. Presentment and notice of dishonour are 
 required when each instalment becomes due ; but laches as to one 
 instalment in ordinary cases only discharges the indorser as to that 
 one. Such a note cannot be indorsed over for less than the 
 entire sum due upon it. 5. 
 
 Q. 18.— Is a note made payable to a married woman good ; and 
 
 if 
 
 so, can she transfer it by indorsement. 
 
 A.— The note is good, but she cannot transfer it during coverture, 
 50. See Mason v. Morgan, 2 Ad. & El. 30. 
 
 Q. 19.— Within what time must an action be brought on a bill 
 or note to save the Statute of Limitations? 
 
 A.— Within six years after the cause of action accrues, or after 
 the removal of any disability under which the person entitled to the 
 action then labours, 270. 
 
 Q. 20.— Do writings in the following forms constitute Promis- 
 sory Notes,— viz : I acknowledge myself to be indebted to A. in 
 ^100, to be paid on demand for value received." " I have received 
 the sum of ^20, which I borrowed from you ; and I have to be 
 accountable for the same sum, with interest." " I undertake to 
 pay to Mr. Robert Jarvis the sum of £6, for a suit of clothes 
 ordered by Daniel Page." " Gentlemen, I have received the books 
 which, together with the costs overpaid on the settlement of your 
 accoutft, amounts to £S0, which sum I will pay within two years 
 from this date, Your obed't serv't., A. B." 
 
 A.— The first form mentioned was held to be a good note, the 
 words " to be paid," amounting to a promise to pay ; see Brooke 
 ». Elbiens, 2 M. & W. 74. The second was held not to be a 
 
68 
 
 EXAMINATION QUESTIONS. 
 
 promissory note ; see Home .. Redfearn. 4 Bini? N C 4q^ 
 .hid. W been lo.. r „a if' ^^ Xur; "°'""'°" "''' 
 
 By our stat 19 V. c. 43, s. 292~U. C. Con. Stat c 42 s S"? 
 m case any action be founded unon r inc. .-7, .' ' ^^' 
 
 upon an inden,„i., .„ ,te .llSn o ° eX J^'Tr™'' 
 of any officer of tliP Pnnrf *„ u , ^'^ " Judge, or 
 
 being^giventotlX^trjlLt^^^^ 
 
 .on upon him i„ respect of snchTnlumet" .Lp "^ °"'", ^'■ 
 
 ^^. .M .0. .0. ..„ .„. .X'af r^r: •/::- 
 
 o.he™,?o;eW:he'e" m "LT'T,""' '"^'^ "»»" "" 
 U. C. Con. St., c. 42 s 5 L ," ' ''" " ^ff" Can^i., 
 Con. Stat., cw!, 4. '" '*°"" *^'°'«'' " " "iW'^t, 
 
 "hat.?!;n';dT'£!:°'"" "''«"""»'>■•««»■' « good defence. ...d 
 
 -iderauon. a... 3..«r :itrs:r^^^^^^^^ 
 
 «-/ to m^„. Ik Se. tS V S: 7"r '"-""' '"""■ 
 
 - i-sc., at. jiiilis oj Jiixchange. 
 
BYLES ON BILLS. 
 
 69 
 
 Q. 26.-In the case of the death of the maker of a note, what 
 presentment is necessary in order to charge the indorser^ 
 
 ,„r7rT"'"''"* ""T ^' ™*'^' *° ^'' l'«"^°^l representatives ; 
 2th ed 357 """'' "' ^'' ^'"''' '^^' "^'^ ^^^' ^'^ ^"^«' 
 
 Q. 27.~What is the effect of endorsing a bill sam recours ? 
 
 n"^o r"*'" '"^«"»"g incurs no personal responsibility, 117. 
 
 Q 28.-Does payment of a bill at maturity by any person ex- 
 cept the acceptor, destroy its negotiability ? 
 
 A.— No, 132, 174. 
 
 Q. 29.-If a hote be made payable to A. B., or bearer, and 
 A B endorses the note, has the holder any, and if any. what 
 remedy agamst A. B., and what is necessary to make him liable ? 
 
 A—In such a case the indorser incurs the same liabilities as 
 Ae endorser of a negotiable note payable to order; Story Pro. 
 Notes, § 132 : therefore the holder has a remedy against A. B., as 
 him m7 "''''* '"'^ ***' "''' proceedings must be taken to make 
 legend ;ry%:Jr'^^^''^ ''-' consideration of a bill partly 
 
 ..ot:;'^T:LT2^^^^^^^ "^- S-Scott..Gil. 
 
 Q. 31.-Can a bill be either drawn or accepted for the payment 
 
 this re?nlt T^^'^"" """'^^'^°° ' ^' '^''' ^^^ ^^'^'^^^^ '^ 
 this respect between drawing and acceptance ? .tate the reason. 
 
 ./ . S lnT''*^'*^''*'"'P''y'''''" conditionally, but may be 
 BO accepted, 70-72, 149. The reason why this distbction is made 
 and acceptance on a condition allowed, is because to refuse to per- 
 mit such acceptance would affect trade, as for example, a bill may 
 be dra^ „po„ a factor before he has an opportunity to dispose of 
 the goods consigned to him in respect of which the bill is drawn ; 
 see Smith ». Abbott, Stra. 11 62. 
 
 ,n?' .f .-Y^'^* P"'*r *° "^ *»'" *'•« ^'^^it^^'i to "otice of dishonor, 
 and withm what time ? 
 
 A—All parties to whom the holder of the bill means to resort 
 for payment. 226 ; see Chit, on Bills, 496. It must be given 
 withm a reasonable time after dishonour, depending upon the par- 
 -icu.ar circiiuzstauees of each ease, 221. (See answer to question 3.) 
 
70 
 
 KXAMmATIOJT QnESTlOWS. 
 
 W 
 
 Hawkesford, 9 Q. B. 52. Holmson v. 
 
 .»d drawer res^lc^^? "'"'"''' "^''" ">» -"P*"' 
 
 •gainst the illV^i^7ot"V^\^'" ""^ P"^""«= " 
 
 thoagh he ivM ril J «°'"»™"'g it If he take, it, 
 
 be mcumbered. m ' ">"'"" ""■ "'"«'' " "V 
 
 J;«^Jf.Lt'eS:rjr:^^^^^^^^^ -- - - 
 
 A.—U at any time during the drawine of tho k;ii j -x 
 
 7 E«t, 359, Chit, on n, 328 ai' ' * ' 
 
 .he drawer had „„ effect, in l Zu ^"Z l^,""^ 
 
 the drawer, though in fact L' ' '^''^ned goods to 
 
 ««p.ed,.;,.f„r*h;„: S: ti;rTh- T.^^t.r. "" 
 
BTLES ON BILLS. 
 
 71 
 
 itB%tct7^'''^ "" '"'*'"'''^ °^ * restrictive indorsement ; what i« 
 
 A. -"The within must be credited to A. B.,» was held to be a 
 restrictive indorsement. So-" Pay to A. B. for my use ;» or « Pay 
 to A. only A holder who takes a bii:, the circulation of which i. 
 restrained by a restrictive indorsement, cannot sue the drawer or 
 acceptor on It, but holds the bill or money raised by him, as the 
 trustee of the restraining party, and is liable to refund the bill or 
 money received upon it to the party making the restrictive indorse- 
 
 Q. 39.-What is t:.. effect of a bhnk left in a biff or note, for 
 the name of the payee ? 
 
 A.-A f,ond fide holder may fill it up with his own Lame, and 
 recover against the drawer or maker; but to charge an acceptor, 
 the holder so msertmg his name must shew that he has the autho! 
 
 fieT QO r .T '° t '°' ^'- ^'■"**="«y ^'^ ^''''«»'^' 2 M. & 
 feel. 90 ; Cnitchley v. Mann, 5 Taunt. 529. 
 
 (.?: wu"}" " u^' '^"' ^'■°'" ** ^^''^ P'^'^y * g°°d consideration 
 Jorabill of exchange payable at a future period? Give your 
 reasons. ^ 
 
 -~^\ i!' ^'^^ ** " **" agreement to give time to the 
 original debtor, and that indulgence to him is a consideration to 
 the maker, 96, and note fpj- Popplewell v. Wilson, 1 Stra. 264 ; 
 Coombs o. Ingram, 4 D. & R. 211. 
 
 • ^' ^l"^^! " ""^^"^ *^**"^ ^° ^"'^""t' »° fra«d of the drawer, 
 be liable to the banker for the amount ? 
 
 A.-The drawer is not in general liable, but must bear the loss 
 If any act of his own has facilitated or given occasion to the alter- 
 ing.' 25;. " ^"""' ' ^- ^ ^- '"'"' ^^'^"S V. Grote, 4 
 
 .^•,'?,t-;^'f °° «o™« dealings with the acceptor, by the holder 
 ot a bill of exchange, which will discharge the indorser. 
 
 A.-Any transaction by which the acceptor is dischhrged, oper- 
 ates as a discharge to the indorser. as also does any r^.etment by 
 which the ngh of action against the acceptor is suspended, (Ken- 
 nard .. Knott, 4 M. & G. 474), o. the time of payment postponed. 
 _uc arc-a release to the acceptor; a covenant or valid agreement 
 not to sue him ; a release in law to the acceptor, aa if hrbe made 
 
 ,1 
 
H 
 
 nl ^1 
 
 7« 
 
 EXi .>|IJfATIOW QUESTIOI7S, 
 
 Q. 43.-What amounts to a payniei.l of a bill of exchance ; by 
 whom must it be made, and v hen. so n3 U.ally to extinguish il? 
 thtZ^V'^nlT' ^" '""'" '" ™°'"^' ^70), by or on benalf of 
 
 it falls SVA '* ""^ ''""' '^'^'" ^"''"'"^ ^°"''' •'' *^^ ^"^y 
 
 Q 44.— To what extent is an agreement to rcnev/ j: bill t * note 
 T^utten-M, separate piece of paper binding between the original 
 
 ana 8ub»;-..i!'esi,, :)a;l.ie3 res;;octively ? 
 
 A—A wrHtc; ..^reeinent between the original parties on a dis- 
 t net paper, u. ; mew, i, binding between the origii,.; parties; but 
 It will Hot r. ,. tnua the operation of the bill or note if it be coUa- 
 teru. bee Bawerbranch v. Montiero, 4 Taunt. b44; Webb v. 
 
 ..r"' I V ^^ ^- ^' ^* ^ °"* ^^°^^"S *« to subso.v.ent parties 
 unless they hare notice of the existence of a written agreement, 
 feee Leeds v. Lancashire, 2 Camp. 205 ; Chit, on BiUs. 142. 75, 
 
 Q. 45.— Upon what grounds, and to what extent, does a promise 
 by an indorser to pay a note or bill after it becomes due, dispense 
 with the proof of notice of dishonor ? 
 
 A.— Upon the grounds that every man is taken to know the 
 law. A promise to pay an OTerdue note or bill bv the indorser 
 dispenses with proof of notice of dishonor to the extent that the 
 aetendant has the burden of proving the want of notice and his 
 Ignorance of it, for unless he were ignorant of it the want of 
 notice would be immaterial. 237. See Fletcher v. Froggatt, 2 
 v/. & if. 569. 
 
 Q. 46.— Is it necessary to present a bill or note payable at sight 
 or on demand, or either of them, for the purpose of charging the 
 maker or acceptor? e 8 ^ '«^ 
 
 ™i*"~^* is necessary to present a bill or note payab^. »t sight 
 Dickson . Nuttall, 1 C. M. & R. 307; but it is not .aiy to 
 
 present a bill or note payable on demand, for an actio •. : p. a it is 
 a sufficient dema.i-- : 70. Rumball v. Bail, 10 ¥ni* '; 
 
 bp«n 5 *^'^ note be indorsed to a pre. . .aorser, has 
 
 he^any remedy against the intermediate parties i ^ e your rea- 
 
 A.-He has no remedy, for they would have their ic :....Iy ovef 
 
BYLES ON BILLS. 
 
 78 
 
 against him, and the result of the actions would be to place the 
 parties in precisely the same situation as before any action at all, 
 119. Bishop V. Hayward, 4 T. R. 470. 
 
 Q- 48. — Where a note or bill is given to a single woman, who 
 afterwards marries, who should indorse, and who should sue upon 
 it during coverture ? 
 
 A. — The husband should indorse it. See Connor v. Martin, 3 
 Wilson, 5 ; 1 Stra. 516, S. C. Husband and wife should join in 
 action upon it. 49. 
 
 Q. 49. — If a bill is dishonored by non-acceptance, and afterwards 
 by non-payment, from which time does the Statute of Limitations 
 commence to run ? Give your reasons. 
 
 A. — From the time of the refusal to accept, see Whitehead v. 
 Walker, 9 M. & W. 506 ; because the Statute of Limitations 
 begins to run on a bill or note as well as on any other contract 
 from the time that the action first accrued to the party. See 
 Emery v. Day, 1 C. M. & R. 245. 272—274. 
 
 Q. 50. — Who is the principal debtor in a bill of exchange? 
 Does the fact that the bill was an accommodation one make any 
 difference in this at law as regards other persons ? 
 
 A. — ^The acceptor is the principal debtor. It was formerly held 
 that where a bill was accepted without consideration for the accom- 
 modation of the drawer, the drawer was to be considered the prin- 
 cipal debtor ; but this distin<!tion has since been overruled, (see 
 Fenton v. Pocock, 5 Taunt. 192), and now in courts of Law, the 
 acceptor, in all cases of accommodation bills as well as others, is 
 considered as the principal debtor. See Price v. Edmunds, 10 B. 
 & C. 578. 190, 191. 
 
 Q. 51. — When a bill or note is transferred without indorsement, 
 in payment for goods, is the party transferring it, as a general rule, 
 liable for the price of si.ch goods, if the bill or note is not paid ? 
 Give your reasons. 
 
 A. — No ; for such a transaction is held to be a sale of the bill 
 or note by the party transferring it, and a purchase of the instru- 
 ment, with all risks of the transferee, 123, 307 ; see Fen v. Harri- 
 son, 3 T. R. 759. 
 
 Q- 52. — What is the effect upon the liability under the original 
 instrument, of a new bill being taken in renewal of the original 
 one ? 
 
74 
 
 BXAMINATIOW QUK8TION8. 
 
 iij 
 
 IW 
 
 ""til the renew.1 bill is u JZ ! .. '"'P"""" «' *« debt 
 
 endorsers, discharges them 194 r„ 7/1 , ° ''°"«"' "f ""e 
 
 Q- 63.-IS there .n/XtL t^rb "'.""u'™' « ^«- "e- 
 "".eoverdue take, it suV^TS s ^u.™ « f^^ ^ ""* " 
 .n«^«,,g„„r „.ke .„y diffe^nce in tltXect" "'°'^"°'' 
 
 .,i-tM hTt:^,' Hh": itrr? '- - °- °' *- 
 
 indorsee for value. Z CU^^Z f ''"'"' "" «"« "f «■• 
 
 indorsee of., overdue JeLtj;,^!"'''"'''?''""'-^^^- ^" 
 on the bill or note itself L „„, . ? f"* '«""''= ""'y " 'IKch 
 
 ■natters, ,o .he iDdo«ee^ .„"° "'T""" '"™8 ""t "' eolUOiral 
 
 «t off due from the p^ee., theTlf T '"" """ '»'"« '» ' 
 10 B. & c. 558. An ,SLL*J "''"'• , ^'= burrows ». Moss, 
 
 V «n iu,rmi., iu .h^e\ST. ^r^o" T !l '■°' "'"'^ 
 his immediate assizor coul,! K- * • ° "°*«cedent party, if 
 
 %n7 V'T'-^'^d^"""-^ -r^^^^^^^ .n action. ^See 
 
 it 1 hesh™'\rat't"h:tl''' '°m"1""' °' ^"'■°"°' '"■» 
 A—He wiU be enlitw , .■ "'°"''' '" ''i*™ored ? 
 
 n.ere knoldgrt"!! .Tl" ''"'"" "°'™ O"" »»'™" 
 I.egge,5M.4w:,4,8 ""fSction, 2,8. Burgh „. 
 
 Of rd-jror.-^ii-:? ;X"°:T.tr "- ""'^ 
 
 cheque is drawn? ^^aange, and a banker on whom a 
 
 .nf:;.!rir*ntrhtdtrct:o7r\'"' "-'-- 
 
 eeption to this rule - he is hn,.Z ■!• en'tomer, is an ei- 
 
 <.« received the mot; .rosvl ' ""'°"°'''' «"'''''*'•• ^e 
 See Marzetti. Willi™?, B.rAd 415'""°"""'' *''""•• "■ 
 
 recover on the biU f S '1 .LTu! "° ■°"°"" "'"'"■ "" "• 
 A-Yes; as soon« the note comes to the h«.ds of .ni™„ee« 
 
BTLES ON BILLS. 
 
 75 
 
 holder, the fraud is removed and it is a bond fide and subsisting 
 note, 103. Ch. on Bills, 10 ed. 50. 
 
 Q. 57. — If a bill is accepted in one country payable in another, 
 is the contract to be construed by the law of the country in which 
 it is accepted, or of that in which it is payable ? Give your reasons. 
 
 A. — It must be construed by the law of the country in which it 
 is payable, for " where a contract is made in one country to be 
 performed in another, the country where the contract is to be per> 
 formed is deemed the country in which it is made," and " the in- 
 terpretation of a contract, is to be governed by the laws of the 
 country where it is made," 315, 317. But a general acceptance 
 being a contract to pay everywhere, is governed by the law of the 
 place where it is given, for it is payable there as well as in every 
 other place, 3 1 7. 
 
 Q. 58 — Is a plea of tender, by the acceptor after the bill has 
 become due, but before action brought, good ? Give your reasons. 
 
 A — It is insufficient ; because it admits a breach of contract, 
 and in strictness a plea of tender is applicable only to cases where 
 the party pleading it has never been guilty of any breach uf his 
 contract, 176. See Hulme v. Peploe, 8 East, 168. Ch. on bills, 
 10th ed., 275. 
 
 Q. 59. — What is the effect of the gift of a bill or note, first, as 
 to the donee's right to sue the donor upon it ; second, as to his 
 right to retain it against the donor ; tliird, as to his right to sue 
 other parties upon it ? 
 
 A.^First-donee cannot sue the donor upon it. Second-donor 
 cannot recover the bill back. Third-donee has a right to sue other 
 parties prior to himself. 95. 
 
 Q. 60. — If the bill be not transferable, or payable to order, and 
 not indorsed, what is the eifect of a gift of it ? 
 
 A. — It vests the legal property in the paper in the donee, who, 
 however must recover from prior parties in the donor's name, 95. 
 
 Q. 61. — Are cross acceptances for mutual accommodation to each 
 other sufficient eo- siderations ? 
 
 A— Yes : «" See Rose v. Sims, 1 B. & Ad. 521. 
 
 Q. 62. — Is a judgment debt a good consideration for a note pay- 
 able at a future day ? Give your reasons. 
 
 A.— Yes; for it imnorts an afirreement on the nart of the iudsr* 
 inent credito. to suspend proceedings on the judgment till the 
 
 m 
 
T6 
 
 RX ^ '■ r 
 
 MTfow qvvsTtom. 
 
 A._Thc drawer i» iniiiri.,) ,., 1 'MtivMy ilcpcnd? 
 
 «1- Und. of the drawee ^".dTf f ^ T'""'""" ". effeet, from 
 " . c precarious, 230 '^""™ '""'''' "> h™ " rendered 
 
 •.;.u„MwTetpi.'!;f tTlm Lr"'r ""^ ""■ ■"•"""f" '>"' 
 
 A.-The holder e.„„„, „el ? '" P"'' ''•' *" "l'""? 
 
 «• C3.-Wha. are he "r. ■■ '*""•" "" ""''"■ >^'- 133. 
 A.-Thu U bo a wrtoen o?de rT'"" °'' "" »' »^A.„ge? 
 
 ;>'-»'"ch .he .„„ „::,'"e^:i • ".'dirT"' "'"-"'^ -'^^ 
 
 lute and not eo„,i„geo, eith'"'^, ,o '''' ^^"^ ''= ' ■'"■ 
 
 ».e«of.br: ™;r^ '''""» '■">■" ">» «'«*' or endo„.. 
 
 ."^.•Tf "ts: .^a^z ~rrlr;rTd "' •-■ 
 
 imor indorsements, I74. ncco (A) *^ °^ *^« '^aWitj of the 
 
 ac^n;:::?^-:::;-^^' '-^^i"s.o.e presented .^^ 
 
 -tna'irerdienXTnT" ^'"'' '^ "'^^^ -"- « 
 is necessaryin the 'a ! ^V rLT"" M "" "'"'^^ -^' -^ 
 J'eriod thereafter, but .ot in he .T "'^ J:/* '^'='*' ^'^ ^ «^^^«i" 
 period after date, 139 A bH n m ^ ' ' *"" ^^^^^^^ '^t ' ^"taiu 
 presented for .a^Jel't on th 17^1" ^'^7^-^^^' --'' be 
 (as also in Canada and the I T c T'^^'c^'' ''' ^" ^°?^-d. 
 tttird day after the ay specifi, ' T.fA""'''' '" *^' 
 ^hen a falls due on .he davr . ^* ^"^ ^' ' ^^^^a) 
 
 Canaia, on the day after ^ Co: l^f " *^^ United S^-^es; L 
 payable at a certain ^^^ aft ail: ' ". '^' '' ''> ^ ^>'" 
 presented or. the last da. of ^ ' ?' ""^ "'^"'^^' » ^^^o to be 
 «»^ouId bo presented wi It f^ .f ^"^ P^^^^Ie on demand 
 which no time of pajlnt is srlT. ' ''""'' ''' "^«° ^ ^i" i° 
 Srace are allowed. 7^Zur^'tl! "' " *'"^ "° ^«^« °^ 
 
 iCf 
 
 aays of grace are to be 
 
BYLfiS ON BILLS. 
 
 7T 
 
 allowed on bills pnyable at sighf, but the weight of authority is in 
 favor of such an allowance. In reckoning the time when a bill, 
 payable a certain number of days after date, or after sight, falls 
 due, those days are reckoned exclusively of the day on which the 
 bill is drawn or accepted, and the day on which it falls due. l.^'J, ct 
 seq. 
 
 Q. 68. — When may presentment he excused ? 
 
 A.— Illness or other reasonable cause not attributable to the 
 misconduct of the holder will ex e presentment, 141, 
 
 Q. 69.--What is the effect of the alteration of a bill or note ? 
 
 A.— The instrument becomes void, whether the alteration be 
 made by a party or a stranger, 253 j Davidson v. Cooper, 11 M. & 
 W. 778 ; 13 M. & \V. 343. 
 
 Q 70.— What are the five principal rules established in the law 
 of England with respect to the conflict of laws, which arise iu 
 cases of bills of exchange ? 
 
 A.— l. Every contract is, in general, to be regulated by the laws 
 of the country in which it is made ; 2. Where a contract is nade 
 tn me country to be performed in another, it isdeen.ed to be made 
 m the CO "atry where it is to be performed ; 3. Contracts immoral 
 or contr to the laws of nations, or injurious to British public 
 interests, t..oup! valid where made, will not be enforced on behalf 
 of a guilty party in an English Court ; 4. One country will not 
 regard the revenue laws of another; 5. The remedy is to be 
 governed hj the law of the country where that remedy is sought. 
 315, 316. 
 
 Q. 71 — What is a qualified acceptance, and how mav it b?- 
 evideuced ? 
 
 A.— It is an acceptance with a condition or qualification annexed 
 thereto; and must be evidenced by writing, 150. See Hoare v. 
 Graham, 3 Camp. 57. 
 
 Q. 72.— Can a corporation be sued in assumpsit on a promissory 
 note ? 
 
 A.— A corporation is liable to be sued in that form of action, on 
 negotiable instrur nts, wherever it ha- power to issue them, 52. 
 See Murray v. East Indii Coni| any, 5 B. & Aid. 204. 
 
 Q' 73. — What considerfitions are illegal ? 
 
 A. — Considerations illegal at common law are suoh ea riolate 
 the rules of religion or morality, and such ae contravene public 
 
78 
 
 KXAMIWATION qUEaxiONi. 
 
 policy. Those legal bv Btatnf. .. 
 «-V'„ l,,"",;!?"' '" '•""'^ •"«' .1.= dc«h of .he p.,«, 
 Wils. I. . . « Ah ^04 : Hawhnaon v. Stone, 3 
 
 neX™;7f "' " *" •'"' "f ">a ..^ft™ .ffeoted I, hi, 
 
 * Ad. & El. 870. *' Goodman v. Harrey, 
 
 ana d,«harge.;he liaS^TI deh.o"rirS^ '° "" r'"*"- 
 not revive on the dishonour Ze,L.T[! *. ° ""S"""" ''•''" "« 
 f- it operate, a, . .aU.c«o„ TTf ™'™™"*' "'™- ' 
 M. & W. 596. Bnt if itT. . v Yardman «. BeUhouse, 9 
 
 renewal, the origin" aba LilTv*'"''*''^ onacconnt, or in 
 SeeKer.lale.e^^^^^rr/lfrs;"™"""'''^*™-'^ " 
 
 *e coS^Sln t I'oS'bm" "*"•"■ "^ "■' *'™'« »f 
 
 newa,hmi.l„\Td."L"£r''''Sf°? ■" '-«-•'•■'- 
 ™le» the .n,„„n. "e'reTn^dr". f""^ " "• * '""• =88 i ' 
 
 b«on,e.dne.i.heb„nndt:do.„P ^'"' '" '™" " ""■•» " 
 _±li-^i|;^^-°te»po^^^ ., ^ ^^^^^^ 
 
 ^ «..-Th. ™„^ u„ are ^u,^ ^ .^.^ ,^ U.^li^TlT^' 
 
BTLB8 0!f BILL!. 70 
 
 —or a Bubsequent verbal agreement founded upon good considera- 
 tion,— to renew, is binding as between the originftl parties, 76. 
 
 Q. 80.— When is a renewal bill a satisfaction of the original bill ? 
 
 A.— When it is expressly given and accepted in full satisfaction 
 of the whole of the former bill, 184, 186. See Lumley v. Mus- 
 grave, 4 Bing. N. C. 9 : see answer to 78 ante. 
 
 Q. 81.— Is a bill or note earnest, or part payment, within the 
 seventeenth section of the Statute of Frauds, so as to obviate the 
 necessity of a written contract ? 
 
 A.— It is, 308. 
 
 Q. 82.— What is the effect of taking a bill or note in payment 
 of goods, as regards the vendor's lien on such goods ? 
 
 A.— u general it will determine the lien. See Horncastle v. 
 Farran, 3 B. & Aid. 497. But if the bill or note, remaining 
 in the vendors' hands, be dishonoured, the goods not being 
 delivered, the lien will revive. New v. Swain, 1 Dans. & LI. 
 193. 307. 
 
 Q. 83 — When does the taking of a bill operate as a waiver of 
 a lien ? 
 
 A.— When the vendor takes the vendee's bill or note and nego- 
 tiates it, it is a waiver of the lien, 307. See Bunney v. Poyntz 4 B 
 & Ad., 668. 
 
 Q. 84. — What is the effect of an infant drawing and indorsins 
 bills? * 
 
 A. —He may convey a title to the indorsee, so that the indorsee 
 can sue the acceptor and all other parties except the infant himself, 
 46. See Drayton v. Dale, 2 B. & C. 299. 
 
 Q. 86.— Is a date in general essential to the validity of a bill or 
 note ? If not, when will it be considered as dated? 
 
 A.— Date is not essential ; if not dated it will be considered as 
 dated at the time it was made ; 67. See Giles v. Bourn, 6 M. & 
 Sel. 78. 
 
 Q. 86. — What is presumptive evidence of payment of a bill or 
 note? 
 
 A.— A bill or note, overdue, having been in circulation and being 
 in the hands of the acc.;ptor or maker, is presumed to be paid, 180. 
 A receipt upon the back of a bill or note is also presumptive evi- 
 dence of r yment, 181. Pfiel v. Vanbatenbcrg, 2 Camp. 439, 
 Also the production of a dbeque from the defendant on his banker 
 
80 
 
 II! 
 
 EXAJilXATiGN QUESTIONS. 
 
 B.n.eu sV. 1.'" A7er;! wrnTJ„r.„r ff "• 
 
 the holder „a, a„ alien e„e,;,' T/„' 286 """' *'"" •""'»■' 
 
 e,.i.y e.i..fag be.::e;:,:';si;«re;°:f '^^^^ "■•■ 
 
 «.^»^* holder, „, takes .he tin oSuCnr """' "^ " " 
 
 A —TliP h.J 7 ,' ' '^ *^^ consequence ? 
 eitht a ^, noTe 68 e7'°« "' *"^*^"^ *^^ ^^--"^ «» 
 
 A ^?,'-^^r;'^» ;^« ^^'ceptor for honour sue? 
 pa«CstX20r""°^'^"^^^P^^^ ^" -^- *^- 
 
 of le?al~It"n"r'^^^^^^^ ^'^ '^"^ ^° ^^^ J-* -edit 
 
 be paid out r ^ °'"' *° "^^^^ '^''^-' '"^y the money 
 
 on the same ? ' ^^'''"* ^'°'" ^^""^ W^ent position 
 
 several, it wour eem that ^ '' °" ''' ^*'' J°'"*' ""' i°^' ^"'^ 
 
 • surety for J^^Z^^^^Z tZ'''' r '"^'^^ ^^ 
 
 tween the creditor and the surety but ll T \'"'' ''■ 
 
 received, 6. ^' ' '"^'^ evidence has been 
 
 Q. 92. — if the time of napmpnf ««• „ >^ • 
 that vitiate it r ^ ^ °^ ^ "°*^ '^ uncertain, does 
 
STORZ OW PARTNERSHIP, 
 
 81 
 
 il transac* 
 le deliverv 
 se Egg v.. 
 A lapse 
 )ayable on 
 liat period 
 
 nsferee of 
 
 it all the 
 ding any 
 ! he is a 
 
 doubtful 
 
 iment as 
 
 om that 
 
 It credit 
 5 monev 
 
 * 
 
 ill, 18. 
 ation of 
 position 
 
 iimoda- -• 
 odation 
 /hit. on 
 int and 
 laker is 
 rise be- 
 8 been 
 
 i> does 
 
 &Ad. 
 which 
 
 though uncertain, must inevitably happen some time or other, id 
 certum eat quod certum reddi potest, 72. Cooke v. Colchan, 2 
 Stra. 1217. If no time for payment be mentioned, it is a good 
 note, payable on demand, 165, .'jS. 
 
 Q. 93.— Distinguish between a guarantee and a promissory note? 
 
 A.~A guarantee requires an express consideration to support it, 
 and is not transferable ; nor can the action or proof be upon it, as 
 in the case of the endorsement of a note, but it must be on a special 
 agreement, or the consideration which existed before, or passed at 
 the time of the transaction. See Ch. on bills, 248, 250. Ex parte 
 Harrison, 2 Cox, 172. 
 
 STORY ON PARTNERSHIP. 
 
 Question l.—What constitutes a Partnership as between the 
 parties, and what a Partnership as to third persons ? 
 
 Answer.— V.omm\xmty of interest in the whole property, business, 
 and responsibilities of the Partnership, and of the profits arising 
 from the Partnership business, constitutes a partnership as between 
 the parties : §§ 1, 30. As regards third parties a partnership 
 may be constituted— First, where there is no community of interest 
 in the capital stock, by the parties agreeing to have a community 
 of interest or participation in the profit aqd loss of the business or 
 adventure as principals, either indefinitely or in fixed proportions ; 
 secondly, where there is, strictly speaking, no capital stock, by the 
 contribution of labour, skill and industry by each in the business 
 aa principals, and the sharing of the profit and loss thereof in like 
 manner ; thirdly, by the sharing of profit between the parties as 
 principals, where the loss, if any odturs beyond the profit, is to be 
 borne by one only ; fourthly, where the parties are not in reality 
 partners, by their holding them selves out as partners, or by the party 
 sought to be charged, holding himself out as a partner, to third 
 persons who give credit accordingly ; and fifthly, by one of the 
 parties receiving an annuity out of the profits or as a part thereof. 
 § 54. Smith Merc. L. chap. 2, s. 1. Montagu L. of Part. 2 ed. 
 2, 7, 10. Waugh V. Carver, 2 H. Bl. 23-^, Hoare v. Dawes, 1 
 Doug. 371. " Community of profit " is said to be the ■' true 
 
 Bl. 37. ■ ^ 
 
 
 'V tl 
 
 Li 
 
82 
 
 EXAMINATION QUESTIONS. 
 
 Hits 
 
 Q. 2.--What are the principal duties which, without any express 
 stipulation between them, the law imposes on all Partners ? 
 
 A.— The law implies an obligation on partners of mutual confi- 
 dence in one another, and mutual good faith towards one another ; 
 zealous attention to and co-operation in the business and objects of 
 the concern ; strict conformance to stipulations contained in the 
 articles of partnership, and to the objects of the business ; to abstain 
 from acts in any way adverse to the partnership interests, or 
 tending to the benefit of one partner to the exclusion of the firm ; 
 not to engage in any other business or speculation which must 
 necessarily deprive the partnership of the use of a portion of the 
 common stock ; exactness in keepina; accounts of the partnership 
 business, and readiness to submit them to inspection; and the 
 exercise by each partner of a sound and reasonable discretion for 
 the benefit of the concern to the best of his knowledge and skill. 
 §§ 169-186. 
 
 Q. .3. — Under what circumstances docs the admission of a Part- 
 ner bind his Copartner ? 
 
 •A.. — An admission made in any partnership transaction, by one 
 partner, will bind the firm. § 107. Lucos v. De la Cour, 1 Maule 
 and Sel. 250. Whether such an admission if made after the dis- 
 solution of the partnership, will be binding, seems doubtful : Mr. 
 Story contends that it will not, §§323, ef seq; in England admissions 
 so made respecting transactions which have taken place during the 
 continuance of the partnership, have been held good, but not those 
 relating to transactions occurring subsequent to the dissolution ; 
 Wood V. Braddick, 1 Taunt. 104. Lacy v. McNeil, 4 Dowl. and 
 Ry. 7. 
 
 Q. 4.— What acts of one Partner bind his Copartner before and 
 after a dissolution respectively ? 
 
 A. — Before dissolution one partner may bind the firm by any 
 simple contract entered into on behalf of the firm in the ordinary 
 trade and business thereof, or by doing any acts which are incident 
 or appropriate to such trade or business, according to the common 
 course and usages thereof, § 102 ; Anon. 12 Mod. R, 446 ; or 
 even by a simple contract made in the name of the partnership, 
 with a person who has no notice that the party is dealing on his 
 sole account. Swnn p, Steele, 7 East. 210. After dissrslMtinn or" 
 partner can bind the others by acts done consistent with the duty 
 
STORY ON PARTNERSHIP. 
 
 83 
 
 incumbent on them all, of winding up the concern, as acts for the 
 purpose of making good outstanding engagements, settling accounts 
 and converting the property of the partnership. §§ 322, 325, 328. 
 Collyer Partn. §§ 118, 546. Peacock v. Peacock, 16 Ves. 57. 
 
 Q. 5. — State what may ipso facto determine a Partnership after 
 it is formed ; and what are sufficient grounds for obtaining a decree 
 in equity for a dissolution ? 
 
 A. — A partnership may be determined ipso facto by effluxion of 
 the time for which it is created, § 278 ; by the extinction of the 
 thing which constituted the sole subject matter of the partnership, 
 § 280 ; by the completion or accomplishment of the entire business 
 for which the partnership was formed, § 280 ; by change of the 
 state or condition of one of the parties, as marriage of a female 
 partner, §§ 303 ef seq ; by the transfer of the property or share 
 of one or more partners by their own act, or by act of law, as an 
 execution and levy by the Sheriff, ^ 307, 311 ; by the bankruptcy 
 or insolvency of one of the partners, § 313 ; by a public war 
 between the countries of which the partners are respectively 
 subjects, § 31.'^> ; by the death of one partner, § 31/ ; by an award 
 directing a dissolution, §299; Collyer Partn. §§108—120. 
 Equity will decree dissolution on the ground that the })artnership 
 has been entered into by one partner through jjross fraud or gross 
 misrepresentations of another, § 232 ; that th^-rp is gross misconduct, 
 fraud or violation of duty by one partner, §§ 287, 288 ; on the 
 ground of impracticability of carrying on the undertaking for which 
 the partnershi]) i= tbrmed, either from inability on the part of one 
 or all of the partners; or from the undertaking itself being in its 
 character visionary or its operations absolutely impracticable, § 290 ; 
 a decree of dissolution may also be made when one partner has been 
 long absent in the public service, or upon mere personal or private 
 objects, or has changed his domicile to another country, or has 
 voluntarily engaged in some other incompatible pursuit, § 298. See 
 1 Rose 69. Wray v. Hutchinson, 2 Mylue & K. 238. Baring v. 
 Diy, 1 Cox, 213. Jones v. Noy, 2 Milne V K. 126. Waters v. 
 Taylor. 2 Ves. &■ B. 299. 
 
 Q. G. — What are the rights of the Partners inter se upon the 
 determination o ' their Partnership 1 
 
 A.— The determination of the paftssrsbip puts an end to the 
 joint powers and authorities of all the partners any farther to 
 
 
 «•• 
 
84 
 
 EXAMINATION QUESTIONS. 
 
 "!i 
 
 fjf 
 
 I '5i!l' 
 
 employ the partnership property, funds or credit in the business 
 and trade thereof, or to make any new contracts binding on the 
 partnership, or to do any act inconsistent with the duty, which the 
 dissolution makes incumbent upon them all, of winding up the 
 affairs of the partnership ; but for that purpose the partnership ia 
 held to continue. §§ 322, 328. Crawshay v. Maule, 1 Swanst 
 507. Wilson V. Greenwood, ib. 480. Upon dissolution each 
 partner has a right to require the partnership funds to be applied 
 m settling the liabilities of the firm, and then to have his share of the 
 residue, § 326. Hx parte WiUiama 11 Ves. 3, 5. Bxparte Ruffin, 
 r Ves. 126. Upon dissolution by bankruptcy of one partner, the 
 bankrupt has no power to bind the partnership in any way his 
 assignee standing in his place. § 337. Upon dissolution by 
 the death of one of them, the personal representative of the deceased 
 becomes a tenant in common with the survivors, of all the partner- 
 ship property and effects in possession. § 346. Upon dissolution 
 by bankruptcy, the solvent partners continue to carry on the busi- 
 ness at their risk, and the assignee of the bankrupt has his option 
 to a share of the profits, if any ; and so also in the case of dissolu- 
 by the death of one partner, his representative may call upon the 
 survivors for an account of profits subsequent to the death. §§ 341 
 343. Crawshay t». Collins, 15 Ves. 218. Hammond v. Douglas! 
 6 Ves. 539. Upon taking an account between the partners, each 
 IS of course, chargeable with debts due by him to the firm, with 
 mterest, and all the profits of the partnership which he has 
 received, § 348. If no particular mode of taking an account 
 between them be pointed out by the partnership articles, a court 
 of Equity will take the last stated account as conclusive up to the 
 time when it is made, unless gross error or fraud be shewn in it. 
 3 349. 
 
 Q. 7.- Give a definition of Partnership, and illustrate the rule 
 that Partnership is a voluntary contract. 
 
 A.— Partnership is a voluntary contract between two or more 
 competen! persons to place their money, effects, labour and skill 
 or some or all of them, in lawful commerce or business, wiih the 
 understanding that there shall be a comnmuio/. of the profits 
 thereof between them, § 2. CoUyer Partn. § 3. Partnership is 
 founded upon the voluntary consent of the p/i.rfies as co-.traiJisHn. 
 guishedfrom the relations which may arise between pai ' » by 
 
STORY ON PARTNERSHIP. 
 
 85 
 
 mere operation of law ; to illustrate, — joint heirs and joint leg^atees 
 have a community of interest, but, wanting the voluntary consent, 
 (their mutual relations arising by operation of law,) there is no 
 partnership between them. § 3. 
 
 Q. 8. — Where the same person is a partner in two different firms, 
 can one of such firms sue the other ? Will this rule affect the 
 rights of the holder of a note or bill made by one of such firms to 
 the other and endorsed over ? Give your reasons ? 
 
 A. — One firm cannot sue the other, for 'all the partners of one 
 firm must be plaintiffs and all the partners of the other firm defen- 
 dants, in which case the common member would be both plaintiff 
 and defendant upon the same record, which cannot be, for a man 
 cannot sue himself. § 221 . Mainwaring v. Newman, 2 B. & P. 120. 
 Bosanquet v, Wray, 6 Taunt. 697. Chitty Contr. 2 ed. 227. 
 But an action upon such a note may be brought by the endorsee, 
 AS each member of both firms is liable to him, either as maker or 
 endorser, irrespective of their rights inter se. See Jones v. Yates, 
 5 B. & C. 532. 
 
 Q. 9. — Is the right of one partner to bind another by negotiable 
 instruments a legal incident to the existence of a partnership ? If 
 so, in what cases does it not exist ? 
 
 A. — The right of one partner to bind the firm by negotiable 
 instruments is incident to the partnership, unless it be inconsistent 
 with its objects, as when it is not formed for any commercial pursuit, 
 for example a mining or farming partnership. §§102,126. Swan 
 V. Steele, 7 East, 210. Dickinson v. Valpy, 10 B. and Cres. 128. 
 
 Q. 10. — Is the absence of any e::press stipulation between the 
 parties conclusive on the question, whether a partnership is at will 
 or for a definite period ? 
 
 A. — Where there is ;io exprefs stipulation as to the duration of 
 the partnership, it wii'. \v', {• . jumed to be a partner; hip at will, 
 § 84 ; but this is ac cor.cbisive, for its intended duration may be 
 ascertained by implu :it'cnt; or presumptions arising from the acts 
 and conduct of the purues and other accompanying circumstances. 
 § 277." Crawshay v. Maule, 1 Swanst. 508. 
 
 Q. 11. — Wiiere there are running accounts between a firm and 
 a customer, how will the ordin.uy rule of law with regard to appro- 
 
 :. I 
 
 pnation Oi payments bjr* such customer, auect the lis-jhity Oj 3 
 retiring partner ? 
 
If i ■ 
 , i ■' 
 
 m\.. 
 
 I'H 
 
 'r ' 
 
 86 
 
 EXAMINATION QUESTIONS. 
 
 A.-Iu such case, if the balance at the time of the retirement 
 be agamst the firm, the retiring partner will be liable forTuch 
 balance ; but if the account be continued, this balance will be 
 dimunshed by every payment made by the new firm, unless such 
 payment be appropriated to the discharge of any specific item, 
 because where no specific appropriation is made, every payment i 
 applied to the first item on the debit side of the account^; but If 
 the new Arm, making payments, neglect to appropriate them to 
 discharge of the balance, the creditor may appropriate as he pleases. 
 
 ^^Noble, Clayton's case. 1 Mer. 572. Collyer Partn. §§ 548, 
 
 Q. 12.--T0 what extent can the sheriff sei^e partnership pro- 
 perty upon a judgment against an individual partner for his separate 
 debt? and what is the position of a purchaser from the sheriff in 
 sucn a case ; 
 
 A.-The sheriff, on an execution against one partner for his 
 separate debt, can seize the interest of that partner in the property 
 of the partnership, subject to the prior rights and liens of the 
 other partners and the joint creditors therein : upon sale, the pur- 
 chaser of such property becomes tenant in common with the other 
 partners and he may file a bill against them, or thev mav file a bill 
 against him to ascertain the interest of the judgment debtor, which 
 he^has purchased. §§ 261, 263. Chapman . Koops, 3 B. & P 
 
 f. ?V.' fi^"""^' *^' '"^' *^** *" '''''''' ^y "^"^ P^'-t^^r of a debt due 
 to the firm an exception to the doctrine that one partner has no 
 authority to bind his co-partners by deed? If „ot, upon what 
 principle does the effect of such release depend ? 
 
 A.~The rule that one partner may bind the others by deed 
 does not extend to a release. Collyer Partn. §468. The reason 
 why a release by one binds all is, that as the creditor m v J ", ! 
 pay his debt to one of them, he ought to be able to obtk TZ 
 charge upon due payment. §115. Collyer Partn. §468 
 Stead V. Salt, 10 Moore 393. 3 Bing. 103. ' ' 
 
 Q. 14.-.IS there any, and if so, what case in which a retiring 
 n^rmf " "''"' ^'" '^ ''''' '''''' ^- ^^'^ - '^^^^ o'"h! 
 
 A.-«. is liable where, upon the insolvency of the firm, known 
 
STORY ON PARTNERSHIP. 
 
 87 
 
 to all the partners, they fraudulently permit him to withdraw a 
 portion of the partnership funds out of the reach of the joint 
 creditors of the new firm, for the purpose of cheating or defrauding 
 the latter ; in such case the fraud vitiates the whole transaction, 
 and the retiring partner will be held liable to the full extent of the 
 funds so fraudulently withdrawn. § 163. Anderson v. Maltby, 2 
 Ves. 244. 
 
 Q. 15.— What is the effect of the death of one partner, and 
 what is the position as regards the partnership property of his 
 personal representatives ? 
 
 A.— The partnership is thereby dissolved. §§ 317, 843. Craw- 
 ford V. Hamilton, 3 Madd. 254. Crawshay v. Maule, 1 Swans. 
 509. (As to the effect of such dissolution as regards the rights of 
 the "parties inter se, see answer to Q. 6.) Upon dissolution by 
 death, the creditors have no remedy at law for their debts, against 
 the representatives of the deceased, but only against the survivors ; 
 but in Equity the assets of the deceased partner are liable. § 361. 
 Collyer Partn. § 576. Richards v. Heather, 1 B. & Aid. 29. 
 Devaynes v. Noble, Sleech's case, 1 Meriv. 539. Wilkinson v. 
 Henderson, 1 Mylne & K. 582, 588. Upon the death of one 
 
 partner his personal representatives become tenants in common with 
 
 the survivor of the partnership property. § 346. 
 
 Q. 16. — What is the presumption, in the absence of precise 
 
 stipulation, as to the proportion in which each partner is to share 
 
 in the profits ; and does the amount which each has contributed 
 
 affect this presumption ? 
 
 A. — They are presumed to share equally, Farrar v. Beswick, 1 
 
 Mood. & R. 527 ; and this is the presumption even if they have 
 
 contributed unequally. § 24. 
 
 Q. 17. — Mention some instances in which a firm may be liable 
 
 for the tort of a single partner ? 
 A. — The firm will be liable for the torts of one partner arising 
 
 in the course of the business ; as fraud committed by one partner 
 
 in the course of the business, Rapp v. Latham, 2 B. & Aid. 795 ; 
 
 or a libel published by one of a firm of booksellers, see Rex v. 
 
 Almon, 5 Burr. 2686. 
 
 Q. 18.— Distinguish betw^mthe right of partners in partnership 
 
 property and— 1st, of thai of joint tenants; 2nd, of tenants in 
 
 common in the property held unebr their respective tenures. 
 
 I 
 
':i| 
 i j 
 
 88 
 
 'S ! 
 
 hi 
 
 BXAMINATIOnr QUESTIONS. 
 
 mMMwm 
 
 exclusivp riolit .n fi,^ ' "* *""* there is no 
 
 differs from tenancy in commonTnT/. ^ '• ^°''' P"*"*^'-^^'? 
 separate and distinct tholT . ^.^^* *«"««*« i" common have a 
 
 wholeofanun e'dtietoTtt^^^^ ^"""'"^ "^'^^ 
 
 moiety of the whole prop E » ^^f P'-'^P-*^' «"" -^ an undivided 
 
 joint' pi~rin,ir''":r'°'''''°''''"^ ■^"^ "> «•»''»* «■• 
 
 Lanf/r ' ^''' "" """ '"""^'^ *->- off.H.e,, or join, 
 
 . re«,„„able time "„Z .n' ^ , °'",°''"' ""y •'°'' >■' ""'« -rithii 
 confimedi, andriirfM '"r*"""' ''' "■"■" '- have 
 
 the credit „';i'p:ix.^/"^-7"' r""" ■"""' °° 
 
 Aid. 147. "■"■"lip. § 7. Goode d. Harrison. .0 B. & 
 
 * 21._I„ what ways can a partnership be dissolred' 
 
 .™ ■'■ " °' "«'»™«°' " ""Ment of the parties- „, „#• 
 some one or more of them i„ .u .. parties ; or of 
 
 5S 26'. ■>«« n • "" "" °' " partnership at will- 
 
 n 265, -'(.» ; Fetherstonehaugh t,. Fenwick 17 Ves 9q« L .i. 
 decree of a Court of Eqnitv. L. „,,,. 1," '"■ ^ ' ''3' "» 
 ■1 ,. ^-- r.ior. .uxij, answer to y. o;) and 
 
WILLIAMS ON REAL PROPERTY. 
 
 8» 
 
 « 
 
 the 
 
 by operation of law ; (as to cases in which this may occur, see 
 answer to Q. 5.) 
 
 Q. 22.— What is the position, with regard to the partnership, of 
 the personal representatives of a deceased partner ? 
 
 A.— The personal representatives of a deceased partner have a 
 right, (through the intervention and by the assistance of a Court 
 of Equity,) to have an account taken, and the affairs of the firm 
 properly wound up, and the partnership effects properly applied to 
 the discharge of the partnership liabilities, and then to have the 
 residue divided among the partners, according to their respective 
 shares. §§ 342 et seq. They have also a right to have an account 
 of the profits subsequent to the death, if the survivors have con- 
 tinned to carry on the business, and to a share therein in due pro- 
 portion, but are not liable to any losses incurred by the survivors in 
 so continuing the business. § 343.— Ex parte Ruffin, 6 Ves. 126. 
 Crawshay v. Collins, 13 Ves. 218. 
 
 i;t' 
 
 WILLIAMS ON REAL PROPERTY. 
 
 {Mem,— The statutes referred to in the answers given to the questions 
 upon this book are Imperial Statutes, unless named as Provincial Statutes.) 
 
 Question 1 — Distinguish between a joint-tenancy and a tenancy 
 in common ? 
 
 Answer.— L joint tenancy is where lands are held by wo m more 
 persons as one single owner, such persons having unity of posses- 
 sion, unity of interest, unity of title and unity of tim? of the com- 
 mencement of such title, 109. Tenancy in common is where the 
 ■3veral owners have a unity of possession, but a distinct and several 
 title to their shares, which shares may be in various proportions, 
 113. Upon the death of one joint tenant the indivisibility of 
 estate is such that the survivor holds the whole estate as if he had 
 been always sole owner. 111; but upon the death of a tenant in 
 common his share descends to the heir as in ordinary cases. See 
 2B1. Com. 180, 191. 
 
 Q. 2. — What are co-parceners ? 
 
 A.— Coparceners are two or more persons who together form one 
 heir, 81. 
 
 Note.—V. C. Stat. 14 & 15 V. c. 6, s. 16- iJ. C. Con. St. c. 82, 
 s. 38, enacts that co-heirs shall take as tenants in common. 
 
90 
 
 EXAMINATION qVESTlOtfB. 
 
 Q. 3.— A. seised in fee, dies intestate, leiiviug t o daughtors, B. 
 and C. : B. conveys all her estate in the lands to D. in fee. What 
 is the quality of B.'s estate before and after the convo\ an( ? 
 
 A — B. and C. before conveyance hold the fee as co-paroenera j 
 after conveyance, C. and D. hold as euants in common. See 82. 
 113. 
 
 Q. 4.->\Vhat are the rights of a husband in the real estate of 
 his wife ? 
 
 A.— The husband is entitled to the whoh of the rents and 
 profits wlach may arise from his wife's land, and acquii. h a free- 
 hold estate therein during the continuane. ot the coverture, 182. 
 If he survive his wife he will, in case he has had inheritable issue 
 by her, be entitled to a life estate as tenant by courtesy in lands of 
 which she was solely seised in fee simple or in fee tail, in pos- 
 session, 185. 
 Note.~^^<u' ^ee U. C. St. c. 73./<i<, /J!)J ^W /[>.: ^, l^i 
 Q. 5.- -);< o,tiat instances can a married woman convey licr real 
 estate, »':,, -vhr! are the formalities to be observed foi that purpose? 
 A.— lu »l; rases where she could convey if unmarried, and where 
 her real estate is not settled in trust with a clause restraining 
 alienation, she can convey, by deed executed with her husband's 
 concurrence; and such a deed must be acknowledged by her before 
 a judge of one of the Superior Courts at Westminster, or a master 
 in Chancery or two Commissioners, who must, before the receive 
 the acknowledgment, examine her apart from her husband touching 
 her knowledge of the deed, and ascertain whether she freely and 
 voluntarily consents thereto, 188, 189. 3 & 4 W. IV. ch. 74,. 
 
 Note.— By U. C. Con. Stat. c. 85, a married woman of twenty- 
 one years of age, may by deed executed jointly with her husband 
 convey her real estate (s. 1) ; such deed (when executed in Upper 
 Canada) must be executed by her in the presence of a judge of the 
 Courts of Queen's Bench or Common Pleas, or a County Court, or of 
 two justices of the peace of the County wherein she resides, who 
 must examine her apart from her husband, respecting her free and 
 voluntary consent to convey, and must certify to such consent 
 (s. 2) : that statute also provides (ss. 3, 4,) for execution abroad. 
 
 Q. 6.— What is the meaning of the term " purchase," with 
 reference to title to real estate 1 Is a devisee under a will a pur- 
 chaser, according to the legal acceptation of the word ? 
 
WILLIAMS ON REAL PROPERTY. 
 
 91 
 
 A.— The word " purchase," in n tVrencc to the title to real 
 estate, has in law a meaning more extended than its ordinary sense ; 
 it is "possession to which a man cometh not hy title of descent," 
 78. A devisee under a will is accordingly a purchaser ut law, even 
 if he would have inherited ns heir had there been m ' vise to him, 
 78, 181. See U. C. Stat. 4 \V. IV. c. 1, s. 2— U Jon. Stiit. c. 
 82. s. ^, 
 
 1^. 7. — Define a lease, an under-lease, and an Interesse Termini. 
 A. — A leapp is the grant of the possession of lands to a person 
 for life, years or at will ; of which the first is a freehold estate and 
 the others ai . .hattel interests, 324 et seq. Watk. Conv. 9 ed. 
 312. An under-lease is a lease of a portion of the term by one 
 who has n term of years, 335. When a lease is made, the lessee 
 does not become complete tenant by lease to the lessor, until he 
 has entered on the lands let ; before entry, he has no estate, but 
 only a right to have the lands for the term by force of the lease ; 
 and his right is called in law an Interesse Termini, 329. 
 
 Q. 8. — An assignment of a term of years is made to A. to the 
 use of B. ; does the Statute of Uses apply? Give the reasons for 
 your answer. 
 
 A. — No ; bocausi that statute applies only where a person 
 "stands seized" of lands to the issi of another, which a lessee does 
 not, as a leasehold is only a personal interest, and the seisin is in 
 the lessor, 131, 31 G, 324. 
 
 Q. 9.— What is the rule of law known as the rule in Shelley's 
 case? 
 
 A.— When the ancestors by any gift or conveyance, takes an 
 estate for life, and in the same gil't or conveyance an estate is im- 
 mediately limited to his heirs in fee or in tail, the words " the 
 heirs " are words of limitation of the estate of the ancestor ; and 
 also, when the ancestor by any gift or conveyance takes an estate 
 of freehold, and there is afterwards, in the same gift or conveyance, 
 a limitation to his heirs or heirs in tail, after some other estate for 
 life or in i ail interposed between his freehold and such limitation 
 to his heirs, .&c., this remainder to his heirs vests in the ancestors 
 as a remainder, 209—213. Watk. Conv. ' 10 and note. Shelley's 
 case, I Rep. 94, 104. 
 
 Q. 10.— Under a limitation of lands in a deed to the following 
 elfect ! " to A. for life, and after his decease to B. for his life, and 
 
:i 
 

 IMAGE EVALUATION 
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 •t 
 
 CXAMIIVATION qUKSTIOlVfl. 
 
 Explain what estate A. has 
 
 after his dorensf to the licirs of A." 
 in the lands. 
 
 tee .imple , which l«(t„ e.tate wo„W, (morpn,, (he life e.late 1 
 
 ti 1 1 — Explahi tlie cloctrhip of Lii|„|.. 
 
 A— Where a ,l,.i,„ dies during ,h, life „f ..he ,e„„„, .he 
 
 .; t \t,T:.::;;.: wzr- ■"■ "'-""' '- -"-' "'-' -'-'°- 
 
 Q. '-^-Wliat are the leading provisions of the statute aeain-t 
 conveyances of ,a„ds for charitable pnrposes : and ^'^^ 
 
 A -That no estate or interest of any kind in land can be con- 
 
 mdess made by deed n.dented sealed and delivered in the presence 
 of wo or more credible witnesses and enrolled in the CoTr Tf 
 
 the elf "/T; "\"'"'" '""^^^^ "«^^ «^'- ^he execution 
 
 or t .e Ih " 7, ''" """' '" •"'"'^ ''^ ^'^'^^ ^ff-t •" possession 
 
 of Ind • r. ' "'' '"^"••^'"'^ immediately from the mak ng there- 
 
 liltt Tr ''""^•' "' ^•'^'''=*^^'«" or reservation'of Iny 
 kmd u favour of the grantor or any person claiming under hir^ 
 
 aTortrre'tl '7-^''%''^'''' ^"'^ -'"«^'^ eonsLratt "a^d 
 a befon. the makn.g of the .lee.l without fraud or collusion it 
 
 ^ .K, vo.d upon the death of the grantor within twelve month, 
 after the execution. 9 Geo. II. ch. 3(J. s. 60 
 
 .nd sab r^''"' " '''""'"' '" '**' ""^'"^''y "^ ^ ^''^ «^ '^'^••gain 
 A.-Itmustbe printed or written upon paper or partLment 
 -ndm„.,,, ,«,,,,„, ,^„^^^^,^ .^ isLld^y\omerutlS 
 hat sn.ce the passing of the Statute of Frauds! signature i. en 
 ml but ,t ,s maintained by others that that statute'does no extend 
 deeds but merely affects parol contracts. 12(i. (and see autho.i 
 .es cted. Add. Contr. 4. A deed of bargain and sairrequt^ a 
 cons.derat.on m money, though it may be nominal, and rlTre' 
 enrolment, 16.5. Watk. Conv. 355. ^ 
 
 /Vote. In this Prnvinoo niivnlmnn* So ..«.» » 
 
 of a deed nf K„,..„;.::::7:- :";;"^^!"L'' unnecessary lu the 
 
 a deed of bargain and sale, U. C. Con. St. 
 
 c. 90, 8. 14. 
 
 validity 
 
WILLIAMS ON REAL PROPERTY. 
 
 93 
 
 Q. 1-1. — Give an example of estoppel by deed. 
 
 A. — Where a deed coiituins an averment on the part of one of 
 the parties to it, he is precluded or estopped from denying the 
 truth of such averment in any subsequent action between the 
 parties to the instrument relating to tiie same matter ; Smith 
 Contr. 10 ; for example, where one Kps in an instrument under 
 seal, asserted title to lands in himself, he cannot afterwards disprove 
 it in an action upoi> such instrument. 
 
 Q. 1 5.— What is an casement ? 
 
 A. — An casement is defined to be " a service or convenience 
 which one neighbour hath of another, by charter or iirescription, 
 without profit," as a way through his land. Toml. Law Die. tit. 
 Easement. 
 
 Q. 1 6. — What are the rules of descent as to real property in case 
 of intestacy ? 
 
 A. — 1. Inheritances shall lineally descend to the issue of the 
 last purchaser in infinitum, and the person last entitled shall be 
 deemed to have been the purchaser, uidcss he be prc^vcd to have 
 inherited, in which case the person from whom he inherited shall 
 be considered to have been the purchaser, and so on, 78. 2. Male 
 issue shall be preferred to female, 80. 3. Where two or more of 
 the male issue are In equal degree of consanguinity to the purchaser, 
 the eldest shall inherit ; but the females shall inherit equally, 80. 
 4. All lineal descendants in injlnitum of any person deceased shall 
 represent their ancestor, or stand in the same place as he himself 
 would have done had he been livins;, 82. 5. On failure of lineal 
 descendants the inheritance shall descend to the neart st lineal 
 ancestor of the purchaser, 83. 6. Male paternal ancestors and 
 their descendants shall inherit before femali' pateruhl ancestors, S.*). 
 7. A kinsman of the half-blood shall be capable of being heir, and 
 shall inherit next after a kinsman in the same degree of the wliole 
 blood, and after the issue of such kinsman when the ancestor is a 
 male, and next after the common ancestor when such ancestor is a 
 female, 86. 8. In the admission of female paternal ancestors, the 
 mother of the more remote male paternal ancestor and her heirs 
 shall be preferred to the mother of the less remote male paternal 
 ancestor and her heirs ; and in the admission of female maternal 
 ancestors the mother of the more remote male maternal ancestor 
 shall be prefened to the mother of a Icsa remote male maternal 
 ancestor and her heirs, 87* 
 
 I 
 
94 
 
 EXAMINATION QUESTIONS. 
 
 f^^ 
 
 Q 17 -What are the rules regulating the descent of a fee 
 simple inheritauee as they exist iu Upper Canada ' 
 
 Descents since \st July, 1834. (4 W. IV c 1 ) 
 
 1. Descents shall he tr'aced ^rom the U i.uichaser ; «„d the 
 person last ent.tled to the land slull be consiuered to hdSe been t e 
 purchaser, unless it be proved that ho has inherited, in which case 
 
 he person from .vhom he inherited shall be con.id.red to have 
 heen the purchaser, unless it be proved that he also had inherited • 
 and so on. ' 
 
 2. If lands be devised to the heir at law. such heir at law shall 
 lake by devise and not by descent. 
 
 . 3. If lands be conveyed with a limitation to the person or the 
 heirs of the person conveying, such person shall be considered to 
 have acquired the ands as a purchaser by such conveyance, and 
 not entitled as of his former estate. 
 
 4 If a person acquire lands by purchase, under a limitation to 
 the heirs or the heirs of the body of any of his ancestors, or the 
 hke. the descent shall be traced from the ancestor as purchaser. 
 
 0. Ihe descendants of a person attainted may in'^-i-it 
 
 title' ^''°°*"''^ '"*'^ ^^ *^^ *'"'' ''"*" ^' """"'"• ■ ^" P''°'^'"g 
 Descents between 1st July 1834. and \st January 18.52 : (which 
 
 1. N« brother or sister shall be considered to inherit immediately 
 from a brother or sister, but shall tra.e descent through the parent 
 
 2. A hneal ancestor shall inhere in preference to collateral 
 relatives claiming through him. 
 
 3. The male line of ancestors shall be preferred to the female 
 
 4. The mof her of a more remote male ancestor shall be preferred 
 to the mother of a less remote male ancestor. 
 
 5. Relatives of the half blood shall inherit next after relatives 
 in the same d.-gree of the whole blood and their issue, if the com- 
 mon ancestor be a male ; and if the ^ommon ancestor be a female 
 next after such common ancestor. ' 
 
 Descents since W; January, 18.52. (14 &. 15 V. c. 6 ) 
 
 The real estate of persons dying after that dal'e descends as 
 
WILLIAMS ON REAL PROPEnTV. 
 
 95 
 
 follows : Firstly— Tn lineal dpscondaiits, and thoso clnimiiifj hy or 
 under them, per stirpes ; Secoiidhj— To the father ; Thirdly— To 
 the mother ; Foi>rfh/y~Tn collateral relatives. 
 Subject to the follovim^ rules : 
 
 I. If the intestate leave several dist;,tiidants in the direct line of 
 lineal descent and m11 of pqnal de^'ree of consanpuinity to such 
 intestate, the inheritance shall descend to such persons in equal 
 parts, howeve.' remote from the intestate the common degree of 
 consanguinity may l)e. 
 
 II. If any cf the children of the intestate be living, and some be 
 dead; the inheritance shall descend to the children liviufr, and to 
 the decendants of those who are dead, so that each child who shall 
 be living shall inherit such share as would liave descended to him 
 if all the children of the intestate who shall have died, leaving 
 issue, had been living ; and so that the dt-,cendant8 of such as are 
 dead, shall inherit the share wiiich their deceased parent would 
 have received if living. And the same rule applies where descend- 
 ants of the intestate are of unequal degrees of consanguinity. 
 
 III. If the intestate die without descendants, and leaving a 
 father, the inheritance shall go to the fatiicr,— unless the iidieritance 
 came to the intestate on t>e part of his mother, and she be living. 
 If the niotTier he dead, the inheritance descending on her {)art shall 
 go to tlie father for life, and the reversion to the brothers and 
 sisters of the intestate and their descendants as ab<Me. If there 
 be no such brother or sister, or their desceudanti, living, the in- 
 heritance shall descend to the fother. 
 
 IV. If the intestate die >vithout descendants, leaving no father, 
 or leaving a father not entitled muler the last ride, and leaving a 
 mother and a brother or sister, or ('escendant of a brother or sister, 
 the inheritance shall descend to the mother for life, and the rever- 
 sion to such brother or sister of the intestate as may be living, and 
 the descendants of such as may be dead, as above. If the intes- 
 tate leave no brother or sister or descendant of them, the inheritance 
 shall descend to the mother. 
 
 V. If there be no father or mother capable of inheriting, the 
 inheritance shall descend to the collateral relatives of the intestate 
 in equal degree of consanguinity in equal parts. 
 
 VI. If all the brothers and sisters of the intestate be living, they 
 
 i! 
 
96 
 
 BXAMIK\TIOIf QDESTIOIVS. 
 
 w 
 
 ill 
 
 "., t 
 
 H 
 
 !il ] 
 1^1 
 
 ot flueli sliall inluTu tlii-ir parent's share. 
 
 VII. If the intestate leaves no heir under the preceding rule. • 
 1. the .nheruance. if it has come to the intestate on the par of 
 h.s father, shall descend to the luothers and sisters of ^'father 
 and the escendants of .uo!, . .ay he dead in the like llZ; 
 and .f there he none so to inherit, it shall similarly descend to the 
 brothers anu s.sters of the mother, and the descendants of such 1 
 
 Zt ; . • '; '''*''''•"'-•*«'-»--- to the intestateon" 
 pa t of the .nother. ,t shall similarly descend to her brothers and 
 8.8ters and the descendants of such as may he dead ; and f the"e 
 be none such, to the brothers and sisters of the fa her and the 
 descendants of such as may be dead. 3. If the inheritance came 
 to the mtestate on the part of neither father nor mother U shTl 
 descend to t e brothers and sisters of both father and mo her. an" 
 their descendants, in the same manner. 
 
 ofyho t)T.t'7*'"r ''"''■ •''""^ ''"*" '"^'-•"^ '^^"^"y ''•th those 
 
 to h I . ? r "i" '*'' '""*' ^'«''' ' •'"* '^ ^''^ '"heritance came 
 to the intestate by descent, devise or gift of one of his ancestors. 
 
 excluZ. "'' ""' "^ '^' '^'""'^ "'■ ""'='' ""^^«^^ «hall b^ 
 
 IX On failure of heirs under the preceding rules, the inherit- 
 ance shall descend to the remaining next of kin of tiie intest" . 
 
 th^.^:zt;:htr'^ '' "-^"^ '* ^°"""- - p-^-^- - 
 
 .Ju "^7"^.'^°*««"d'-«'«tiVcsofthe intestate begotten before, 
 and born after his death, shall inherit as if born before his death. 
 
 XII. Illegitimate children shall not inherit. 
 
 XIII. If any child of an intestate shall have advanced by set- 
 Uement or portion, and the same shall have been so expressed in 
 writing by the intestate, or acknowledged by the child, the value of 
 such advancement or portion shall be reckoned as part of the 
 intestate s real and personal .state ; if the advancement or portion 
 be equal or superior to the amount of ttie share which such child 
 would take, such child shall be excluded from any further inherit- 
 ance; if unequal, such child shall be entitM ta -« ^..-u „ _.„ 
 
 «.uitit::._ — „„ ff?Mtij aa Will 
 
WILLIAMS ON REAL PROPERTY. 
 
 Ii'scendants 
 
 Jng rules : 
 he part of 
 the father, 
 ? manner ; 
 'nd to the 
 of such M 
 tatc on the 
 tthcrs and 
 J if there 
 > and the 
 ince came 
 r, it shall 
 »ther, and 
 
 rith those 
 
 ince came 
 
 incpstors, 
 
 shell be 
 
 p inherit- 
 intestate, 
 )n of the 
 
 >rtion to 
 
 before, 
 death, 
 
 hy set- 
 ;ssed iu 
 ralue of 
 
 of the 
 portion 
 h child 
 inberit- 
 
 -- :ii 
 
 OS mil 
 
 97 
 
 herited " '*'"* "^"''* ^"^ ^''"^ **"'■*' *'" o^'^^'^^e would hare ia- 
 Q. I8.-A. is tenant for life with remainder to B. in tail • how 
 can B. at the prm-nt day, acquire an estate in fee simple in remain- 
 der^ J^xplajn the mode of proceeding for a sin.ilar purpose pre- 
 ▼lously to [U. C. Stat ] y Vic. c. 1 1. ^ ^ 
 
 A.-IIe may acquire an estate in fee simple in remainder by con- 
 ireymg such an estate to a tlm.| p.r.on to the use of himself and 
 h.s la.rs w.th the consent of A. give, by ,be same deed, or by « 
 .e,,ar«(e deed executed on or before the day of execution of L 
 conveyance. A,, U5. Such conveyance, an.l the deed by which A. 
 consents, .la separate one. must be enrolled in the Court of 
 Chancery ; (.n th.« Province, instead of enrolment, registry in the 
 proper county Registry office within six months, is made ;equisite 
 by 9 V. c. 11. 8s. 29. 34~U. C. Con. St. c. 83. ss. 31. 36) Z 
 •uch latter deed must be enrolled (or registered) at or before the 
 enrolment (or registry) of the conveyance. 
 
 ». n l"''.?'^" '''"*" '.' '""'■'>■''' *" *^' ""^ '"■« ^'"'' to ""ch uses 
 as B shall appo.nt :~.n whom does the common law seisin reside / 
 unt,l appointment ? and if B. appoi..t8 to C. to the use of D.. who 
 takes the legal estate ? 
 
 A.-l^.e com>non law seisin will, until appointment, reside in 
 
 he f I ; T T: u '" '"'"• ''''• ^^''«" «PP«intment C. take, 
 the legal estate, and he has the use, which is all that B. can dispose 
 of. and the use to D , is a use upon a use. which gives merely an 
 equ.table estate. 246, 1.34. ^ 
 
 Q. 20.-By 1 W. 4. c. 1. (Prov. Stat.-U. C. Con. ^ 82, .. 
 1 1.) a w.ll may operate so as to pass real estate acquireo -r the 
 «ec«t.on of the will. What was the old rule on thia subjecc. and 
 upon what principles was it founded ? 
 
 A—The old rule was that a general devise of lands was in effect 
 a specfie disposition of such lands, and such only, as the testator 
 had at the t.me of making the devise ; because a will was regarded 
 as a present oonveyanee to come into operation at a future time, 
 that .s, on the death of the testator, and consequently he couli 
 dev.se such lands only as it was then in his power to convey 172 
 173; IJarm. Wills. 287. 
 Q. 21.— How can a term of years be made to cease? 
 A.-Ky surrender, 837, 341 ; by re-entry on breach of a condi- 
 
 > 
 
98 
 
 EXAMINATION qVBRTIONS. 
 
 H 
 
 wi t 
 
 ^ 
 
 tion contained in the leai.., 201. Watk. Conv. 3«; by merger 
 where the lessee acquires another term in the lands k-ased, or where 
 the term and a freehold estate meet in the same person. 841. 
 Watk. Conv. 66. 
 
 Q. 22.~To wJ.om, on the death of the tenant intestate, does 
 the unexpired term of years pass ? 
 
 A.— To the administrator of the tenant, as it is personal pro- 
 
 Q. 23. -What are the various kinds of estates in real property? 
 
 A.-l. Freehold estates : an ^*/a/<./or ///V., being either for the 
 hfe of the tenant himself, or for that of another-;,«r autre vie 
 16 22 ; an estate fail, or an estate given to a man and the heirs 
 of his body, bemg general, to the heirs of his own body generally 
 and special, to certain particular heirs of his body, as those by a 
 particular wife, 30 ; and an estate in fee simple, being an estate 
 given to a man an.l his heirs, 54. 2. Estates less than freehold • 
 tenannj at sufferance, where one who has originally come into 
 possession by a lawful title, holds such possession after bis title has 
 determined, 32:, ; tenancy at will, where land is held of another by 
 an estate determinable at the will of either the lessor or lessee. 325 
 Watk. Conv. I ; and an estate fcxr a term of years, where one holds 
 lands of another at a rent reserved, for a term certain or from year 
 to year. ^ 
 
 Q. 24. -What estates may pass by word of mouth ? what, if any 
 by writing not under seal ? what estates, if any, must be created 
 by deed and whether by deed poll or indenture ? and state whether 
 a freehold estate can be granted in any way, and what, other than 
 by deed. 
 
 A.— A tenancy at will may be created by word of mouth 324 ■ 
 aa also a tenancy for a term not exceeding three years, and' reser! 
 vmg at least two-thirds of the full improved value of the land as 
 rent, 326. All other estates, whether freehold or leasehold, must 
 be create 1 by deed, which may be either deed poll or indenture 
 125, 126, 326. 29 Car. 2, c. 3, ss. 1, 2 ; 8 & 9 V. c. 106. fU. c'. 
 Con. St. c. 90.] •■ 
 
 Q. 25.— What is meant by dower ? In what cases is a woman 
 entitled thereto ? 
 
 A.— Dower is a life interest which a wife surviving her husband 
 has in one-third part of the lands of which he. dnrin., *he «o"-- 
 
WiLLIAMH ON REaI, PROPERTY. 
 
 tare .„, " '">' ','"'- «■'"'■''• '"'-'!• "> <!•<■ «im|,lo „r foe ,.il, „,d .„ 
 
 he':: ,s7;r " ™' ""- '""■ ""•"■• "^ '-"•""••j- '-"••- 
 
 Q. M.-Can dower be soUl or M,ig,„.d before it i. ,et .,..„ 
 .»d o.„ .l,e «i,„ee enforee. „.,"„,e el.i. .o 1.*; d"' ' 
 
 .y«c'iiiii"v ^r^tiL 'the ll' °f" ""' '" '■"'' "'' ""■ f""!"' 
 O 2« f/7 '* ""> f« alieiiHtion of la„d», :i„. 
 
 <*■ 28 -DeSoe . reversio,,, and „,e„ti„„ ,o,„e of i„ i„cide„« 
 undisposed of ia cal ed ,1 ,? • ' "''" "''"■'' "'"' "■'"»'"' 
 
 fe.u.a„drenr::;',^;r,,: oVxr;,.'"? "'"".""*"■ ■' 
 
 exacted, 199, 204. '°'''""' " "<'»' ""w 
 
 Q. 29.— Define a n-niainder 
 
 con^.;;aTrui: in::!':'™: r, n:-^ • .--'" -»., 
 
 i» called . reminder, m. """'" '" """"y^ 
 
 ^^Q. 30. -What i, the difference between a reversion and a remain- 
 
 ...tT.ifee'tiLTttsri'''; *'"r'"""'" "'■"•' "•-•"" 
 
 • third person (r.Tbe'w e„ .1 o^n ' T"'"'? " «°" "" 
 the owner of the reversion! , '""'™'" ■■'"" "»'' 
 
 existing between thin ' ,,'""" """' ""' ' ''"' "'"' « """o 
 
 .he.r.n;i„:^f.t;r:Lxr.::rr!?:7r:°rr'"""'"" 
 
 ea b^ express grant ; 198. 206. ''cmainder .» crcat- 
 
100 
 
 BXAMIIfATION (ICMTIONII. 
 
 ffWi 
 
 Q. 31. — What i« tlic difference between » vested and a contin- 
 gent remninder? 
 
 A. — A vested remainder is one which ia alwnya from its com- 
 mencement ready to come into poBBeBBJon imnudiately upon the 
 determination of the estate which precedes it ; ■ contingent re 
 mainder is one which is not ho ready to come into possession until 
 the oeeurrence of some contingent event ; but upon the occurrence 
 of which it w II become vested, 222. 
 
 Q. 32. — Whnt is the difference between an executory devise and • 
 contingent remainder? 
 
 A. — I St, A contingent remainder may be created by any mode 
 of conveyance,— the latter only by will, 2IH. 2ii(l, An execu- 
 tory devise respects personal estate as well as real. .'Jrd, A 
 contii»gent remainder is a future e.'-tate which waits for and depends 
 on the determination of tlie estate which precedes it, 222 ; an 
 executory devise arises when its time comes as of its own strength, 
 and depends not for protection on any prior estate, but on the con- 
 trary, often puts an end to any prior estate which may be subsisting, 
 241. Formerly, also, there was this difference, that a contingent 
 remainder was continually liable to be destroyed until it became 
 vested, while an executory devise is indestructible, 241 ; but thii 
 distinction is now done away with by 8 & 9 V., c. 100, a. 8. [See 
 U. C. Con. St. c. 90, s. 6 ] 
 
 Q. 'Xi. — What are springing uses and shifting uses respectively T 
 Give an example of each class, and shew in what way they do not 
 conform to common law. 
 
 A. — A springing use is a use by means of which an estate is 
 caused to spring into existence at a future time ; a shifting use is 
 a use by means of which an ebtate limited to one person is made, 
 upon a certain event taking place, to shift away from him to ano- 
 ther. Thus a feoffment may be made to A. and his heirs to the 
 use of B. and his heirs from to-morrow ; at common law, B.'e 
 estate would have been void, but by means of the springing use, 
 becomes good. A feoffment may be made to the use of A. and his 
 heirs until to-morrow, and then to the use of B. and his heirs : 
 B.'s estate in such case also is void at common law, but by means 
 of the use, the estate shifts from A. to him. 242, pataim. 
 
 Q. 34. — Distinguish between a shifting use and a remainder. 
 
 A. — A shifting use upon coming into force, destroys the estate 
 
WILLIAMS ON RKAL PROPRRTV. 
 
 lat 
 
 upon which it depcndii. while a rem«in(Irr miwt wnit for thp deter- 
 minntion of Hiinh c»tntn. A nhiftiiig uhc hIho differii from a 
 remainder in that it may be preceded by an eiitntc in fee simplf, 
 which a remainder cannot. 2i;i, 214. 
 
 Q. 35.~A. tenant for life, with remainder to B. in tail with 
 remainder over to C. in fee : can B. bar hio issue without barring 
 the remainder ? 
 
 A.— He may bar his issue, without barrinfc the remainder, by • 
 deed enrolled in (he Court of Chancery (or, in this Province, 
 registered in the proper county Ilegistry office), within six months 
 after execution, 44. 
 
 Q. 36.— When was the Statute of WardH nnd Liveries passed ? 
 and what important effect had it on the tenure of land ? 
 
 A.— 12 Car. H. c. 24— I (ifiO. It abolished all tenures of estates 
 of inheritance in the hands of private persons, except copyhold 
 tenures, and changed them into free and common soccnge, 100. 
 
 Q. 37.— Is a woman entitled in any, and what, cases to dower 
 oat of her husband's equitable estates ? 
 
 A.-Stat. 3 & 4 W. IV. c. 105, gives a wife a right to dower in 
 her husband's equitable as well as legal estates of inheritance in 
 poteession, excepting estates in joint tenancy. 194, and see more 
 fully, answer to Q. 25. 
 
 Note.-V. C. Stat. 4 W. IV. c. 1, s. I4-U. C. Con. St. c. 84. 
 ■• 2, contains a similar enactment. 
 
 Q. 38.-Upon the deatS testate of a tenant pur autre vie, 
 living cejtm que vie, and there being no special occupant named in 
 the deed creating the estate, who is entitled to the estate? Is tho 
 law on this subject determined by any, and what, statutes ? 
 ^ A.--Tae Statute of Frauds, 29 Car. II. c. 3, s. 12, provides that 
 in such case the estate should go to the executors and administra- 
 tors of the tenant so dying intestate, and be subject to payment of 
 his debts, during the residue of the life of the cestui que vie, 20 : 
 •nd by Stat. U Geo. II. c. 20, s. 9, the surplus of the proceeds of 
 the estate, after payment of the debts, is distributable among the 
 next of kin. in the same manner as personal estate, 21. Both 
 these enactments have been repealed by enactments to the same 
 effect, by 7 W. IV.. and 1 V. c. 26, ss. 3, 6. 
 
 O. ^Q. — In nrKa* noon >!<.— . - «. . ..... 
 
 ^ — - '*'■ '^''"^ uGvz a use rusuii: to a Teotter r 
 
 A.— Where one makes a feoffment to another and his heirs with- 
 
 / 
 
 vl 
 
 
 y 
 
^ I 
 
 IM 
 
 ■XAMINATIOIV (IDRHTIONII. 
 
 M 
 
 out wiy (•oniiiderati..n : before the Statute of IJ^ea wu paafed the 
 fcoffer would in «ucl. nuo |„. held in .M,uity f« h.ve the me, for 
 want of eonHiderntioi. to pass it to the feoffee ; „„w, therefore by 
 force of the statute, the feoffer having (he „«., has nUo (he Li 
 •eisin. (But if the feoffment he ,na<le unto and to the use of the 
 feoffee anti his heirn, the feoffe« will have the use.) I.J2. 
 
 Q. 10.- -Can a man in any. and what manner, eonvey to him- 
 •clf r ' 
 
 A.— At common law a man could not convey to himself hut b? 
 tneans of the Statute of Uses he can do so. by conveving'to ano- 
 ther to the use of himself, 16C. 
 
 Q. 4l.-{'an real property be «ettled to the separate use of a 
 marncd woman be rendered for any, and what lenirth of time 
 inalieiahle l)y her ? 
 
 A— It can be rendered inalienable by her during her coverture 
 
 Q. 42.- By what statute are estates tail aa they now exist 
 onginally established ? 
 
 A -By the Statute 13 Edw. I. c. 1, called the statute De honi, 
 Gondtttonalibua, 88. 
 
 Q. 43.- State the rule of law against perpetuities'. 
 
 A.—An estate cannot be given to an unborn person for life, foU 
 lowed by any estate to any child of such unborn person.-in such 
 case, the estate given to the child of the unborn person is void. 228. 
 An executory estate must be limited to commence within the period 
 of any fixed number of now existing lives, and an additional term 
 of twenty^ne years; allowing further for the period of gestaUon 
 should gestation actually exist, 262. 
 
 Q. ij -What are the requisites of a legal jointure sufficient toi 
 oar a widow of dower ? 
 
 A.— It must be a competent livelihood of freehold lands and 
 tenements, to take effect in profit possession presently after the 
 death of tne husband, for the life of the wife at least, 192 2 BL 
 Com. 137. 
 
 Q. 45.— In whom does the property in timber unlawfully cot 
 down by a tenant for life vest upon its severance. 
 ' A. -In the first person who has a vested estate of inheritance. 
 8 Cox's P, Wms. 267 ; 3 Woodd. 400. 
 
WIIXIAMII ON RKAI. PBOPERTY. 
 
 toa 
 
 Q. 46. — What coviimntB for title itliould an ordinary viudor 
 give? 
 
 A- — '- Thnt lie is dcImmI in fee iiimplr: (hut lliin in now usually 
 omitted, r» tlw second is uutticiint v thout it.) 2, '1 at lit; had good 
 right to convey the lands. .'}, That they shall be (juietly enjoyed. 
 4. That they are free from encumbrances. 5, For further assurance. 
 An ordinary vendor never gives abselute covenants, but limits bia 
 responsibility to the aetM of those who hav»' !)een in possession 
 •ince the last sale of the estate. .'UiO. 
 
 Q- **7. — What eovennnts for title should a mortgagor give ? 
 
 A. — .Absolute covenants, .'J69. 
 
 Q. -IH — What covenantM for title \f a purchaser entitled to from 
 a trustee for sale ? 
 
 A.— A covenant only that he (the trustee) himself has done do 
 •ct to encumber the premises. 369. 
 
 Q. 4'J. -When a power i» required to be executed by writing 
 under hand and seal attested by two witnesses, what should be the 
 form of the attestation ? 
 
 A.— It should be " signed, »ea.\ed and delivered, &c.," for the 
 power being required to be exercised by a writt.g under hand and 
 teal attested by witneates, the exercise of the power is invalid if 
 the witnesses do not sign au attestation of the signature, as well aa 
 of the sealing, 247. 
 
 Q. 50.— Under a devise to husband and wife and their heira, 
 what will the wife surviving her husband take ? 
 
 A. — She takes the fee simple : they are tenants by entiretiet, 
 each being seised of the whole estate and neither of part, there- 
 fore upon the death of one of them the survivor has the whole, 
 and that by original limitation, and not by survivorship, 186. 
 Watk. Conv. 177. 
 
 Q. 61.— .What is an estate by the courtesy of England? 
 
 ^' — A life estate which the husband, upon surviving his wife, 
 hai in lands and tenements of which she w as seised in fee simple 
 or fee tail, 18.5, and see following question and answer. 
 
 Q. 62. — What is essential to constitute a title to an estate by tke 
 courtesy of England ? 
 
 A.— It is essential that the marriage be lawful ; that the hu«- 
 band have had issue by the wife which might possibly have inhe- 
 ifiled the estate a» her heir ; that the estate be a several one, o 
 
 / 
 
104 
 
 EXAHIlTATIOir qVEbTIONS. 
 
 else held under a tenancy in common, but not one of which the 
 wfe was aeiaed jointly with another ; and that the estate be one in 
 possession ; 185. 186. 2 Bl. Com. 127. 
 
 Q. 53.-Are the conveyances of infants void or voidable only ? 
 
 n,.v'iir"7u "''/*" ^"^""^^ "^ •" S''""''^ ^°'dable only/and 
 may be confirmed by them upon attaining full age. 69. But it 
 
 Beerns to be the general opinion that a conveyance by an inln 
 
 f^tr Tl^'V' '"' '^^^^^-"^'•g^ i« void: Watk. Conv. 420. 
 AOd contr. 89 An infant may in some cases make a valid feoff, 
 nient, 122. 
 
 « ?: .^"^•-7^*" « t^»«nt Ptfr autre vie devise his estate ? Does hU 
 nght m this respect depend on common law or statute ? 
 
 tw"~; f ''"'' °^ ^''""'^'' ^^ ^^'■- "•' '' 3. 8. 12, provided 
 that a tenant p«r«,,^r.m> might dispose thereof by his will. 20. 
 
 Tw iT&rv!!r2r2f^^ '"'""''"'"' *''^' ««™^ «ff««t. 
 
 n„?;»,^^~/"' '""*''*'* °'''«'"'""'"^*'y* *^"«nt in tail with a 
 
 zt::zr'' " '^-^ ^^^ ^^^ ^^'"^^^^ -^-^^^^ ^^ ^^-^^^ ^ 
 
 A.-Itisnot; an estate in equity may be barred in the same 
 
 Tthrmei:: iir "' " "^ ^-^ ^^--^^ •^^ ^^^^-^ °^ ^y -^ 
 
 Q. 56— Can a settlement of lands made by a man after mar- 
 nage. upon h.s wife and children, be defeated by him ? Does thL 
 depend upon any and what statute? Is there any and wha dif 
 ference in the law in this respect between real and personal prl 
 
 A.~A voluntary settlement of real property may, by Stat 27 
 Ehz.. c. 4 be defeated by the settlor by' a^ubsequeLt 'conleyan^' 
 to a purchaser for money or other valuable consideration. eTenTf 
 
 Add. Contr 685. A voluntary settlement of personal property 
 cannot be afterwards defeated by him. Will. Pers' Pro. 3 e'd. '237 
 Bu settlements of real and personal property are both void if he 
 be m debt. 13 Eliz.. c. 5, 62. ^ ^ ^ '^ ^oia " ne 
 
 bi.^„'Hf';TT^^*"*^'P''°P"" "°'*" '^"^ ^^••™ of conveyance to 
 be adopted by a man who wishes to convey an estate n fee to 
 another, reserving a life estate to himself? 
 A.-He Bbouid make a conveyance of the estate to the intended 
 
WILLIAMS ON REAL P.ROPERTY. 
 
 105 
 
 grwitce and his heirs to the use of himself (the grantor) for his 
 life, and from and immediately after his decease, to the use of the 
 grantee, his heirs and assigns. He will thus be seised of an estate 
 for his life, and after his decease an estate in fee simple will remain 
 for the other. 155. 
 
 Q. 58.— IIow must a rent-charge be created ? 
 
 A.— Being an incorporeal hereditament, it can only be created 
 by deed, or by will, 270, 271. 
 
 Q. 59.— "What is the effect of a release of part of the lands sub- 
 ject to a rent-charge ? Give your reasons, 
 
 A.— It releases the whole, becai \ rent-charge is regarded as • 
 thing entire and indivisible, 276. 
 
 Q. 60.— What right of disposition has a husband over a term of 
 years belonging to his wife ? 
 
 A.— He may dispose of it any time during the coverture, either 
 absolutely or by way of mortgage, 336.— [But see U. C. Con. St. 
 c. 73, 8. 1, by which a married woman is empowered to hold her 
 property free from the control of her husband.] 
 
 Q. 61.— Where is the legal estate in the following limitations : 
 
 1, Bargain and sale to A. B. and his heirs to the usp of C. D. and 
 his heirs ; 2, Lease and release to A. and his heirs to the use of B. 
 and his heirs ; 3, A Statutory deed of grant to A. aud his heirs to 
 the use of B. and his heirs ? 
 
 A.-— 1, In A. B. and his heirs, for a use cannot be limited in a 
 bargain and sale to any but the bargainee, 105. Watk. Conv. 249. 
 
 2, In B. and his heirs, and 3, in B. and hw heirs, by virtue of the 
 Statute of Uses, 27 Hen. VIII., c. 10, which enacts that where 
 any person or persons shall stand seised of any lands or other here- 
 ditaments to the use, confidence or trust of any other person or 
 persons, the person or persons having any such use, confidence or 
 trust, shall be deemed in lawful seisin or possession of the same 
 lands and hereditaments for such estates as they have in the use, 
 confidence or trust, 131. 
 
 Q. 62.— Was a limitation in a deed of an estate to take effect 
 after the determination of a precedent estate in fee, good at com- 
 mon law ? 
 
 A — At common law it was not, for the estate in fee carried with 
 It no great a power of alienation that the remainder might be kept 
 forever out of possession, 208, 243. 
 
 ۥ 
 
 y 
 
 ^jiiP*..,t- 
 
106 
 
 EXAMINATION QUESTIONS. 
 
 Q. 63.-I8 there any and what mode of assurance by deed, bv 
 which an estate ,nay be Hmited to take effect after the determina- 
 tion ol a precedent estate in fee ? 
 
 A.-Such a limitation may be effected by means of a shiftiae 
 use, by which the estate in fee is destroyed, and the estate so limi. 
 ted 18 substituted, 244, 
 
 Q. 64.— Give an instance in which the person entitled to a first 
 charge upon an estate by way of mortgage, would formerly have 
 lost the benefit of that charge by the effect of merger? * What 
 alteration as to this has been made by statute in Upper Canada ? 
 
 A.-Where a prior mortgagee purchased the equity of redemp- 
 tion, his mortgage merged, so that a subsequent mortgage became 
 a first charge upon the estate; Coote Mortg. 3 ed., 610. By U C 
 Stat. 14 & 15 Vic, c. 46. s. 1-U. C. Con. Stat, c 87, s. 1* a 
 mortgagee may acquire the equity of redemption without merger 
 of the mortgage debt, as against any subsequent mortgagee. 
 
 Q. 6o.-If a tenant in tail in possession enter into a writtea 
 agreement for the sale of his estate, can the purchaser enforce 
 specific performance of the contract in equity? Would specific 
 performance be decreed against the heir in tail? Give your rea- 
 sons. ^ 
 
 A -Specific performance would be decreed against the tenant in 
 
 ^t r/r? ^'""^ P"'"'''" *" "'^"^'^ ^'' ««t«te, (see answer to Q. 
 100,) 43 ; but not against the heir in ^ail, because a contract for 
 the sale of lands by the tenant in tail, which is not completed in 
 his lifetime by the proper bar. will be null and void .*,s against the 
 
 St"I " 't '\J-^I ""• ^- ^"''- ' ^•^•' «• !•' - 35-U C. Con. 
 6»tat., c. 83, s. 37, the Court of Chancery is precluded from de- 
 
 creeing specific performance of a contract by a tenant in tail to 
 OJE^ose of the estate.] 
 
 Q. 66.— Is there any and what statutory enactment in Upper 
 Canada as to the destructibility of contingent remainders P 
 
 A.-14 & 15 Vic, c. 7, s. 7.-U. C. Con. Stat. c. 90, s. 6 
 enacts that a contingent remainder shall be capable of taking effect 
 notwithstanding the determination by forfeiture, surrender or mer' 
 ger, of any preceding estate of freehold. 
 
 Q. 67— Give an instance of tenancy by sufferance. 
 A.— Tenancy by sufferance is where one who has come intn nn«. 
 Bession originally by a lawful title, retains possession after his title 
 
WILLIAMS ON REAL PROPERTY. 
 
 107 
 
 is determined, as where a tenant for a term of years holds over after 
 the term has expired, 325. Watk. Conv. 24. 
 
 Q. 68. — What powers may, and what may not, be released or 
 extinguished by the donee ? 
 
 A. — Any power may be released or extinguished by him, unless 
 his duty may require him to exercise it at some future time, 256. 
 
 Q. 69. — What is a use? and, in connexion with ' is, explain the 
 operation of a conveyance under the Statute of Usc^. 
 
 A. — A use is " the profit or benefit of lands and tenements, or 
 a trust and confidence reposed in a man for the holding of lands, 
 that he to whose use the trust is made shall take the profits there- 
 of," Toml. L. Die. tit. Use. Before the passing of the Statute of 
 Uses, a person to whom a gift of lands was made and seisin de- 
 livered, was considered at law to be thenceforth the true owner of 
 the lands ; but in equity it was held that mere delivery of the 
 seisin by one person to another was not conclusive of the right of 
 the feoflfee to enjoy the lands of which he was enfeoffed, but com- 
 pelled him to hold his legal title for the benefit of any other per- 
 son who might have a more righteous claim to the beneficial enjoy- 
 ment ; thus where a feoffment of lands was made to one person to 
 the use of another, equity obliged him to hold for the use of that 
 other. Transactions of this kind became so frequent that it was 
 at length found necessary to make an enactment, (Statute of Uses, 
 27 Hen. VIII., c. 10,) that where any person or persons stood 
 seised of lands or other hereditaments to the use, confidence or 
 trust of any other person or persons, the person or persons having 
 such use, confidence, or trust, should be deemed in lawful seisin and 
 possession of the same lands and hereditamen 3, for such estates as 
 he or they might have in the use, confidence, or trust. Therefore 
 if a conveyance (other than bargain and sale, in which a use can 
 be limited to none but the bargainee,) be made to A. and his heirs 
 to the use of B. and his heirs. A., who would formerly have had 
 the legal estate, now takes no estate at all, but is made by the sta- 
 tute merely a " kind of conduit pipe " for conveying the estate 
 to B., who, having the use, is deemed to be in lawful seisin and 
 possession of an estate in fee simple. 129-132. 
 
 Q. 70. — Explain the nature of a mortgage, and the respective 
 rights of the mortgagor and mortgagee. 
 A. — A mortgage is, at law, u. >,bsolute conveyance, subject to an 
 
'!!] 
 
 108 
 
 BXAMIDTATION QUESTIONTS. 
 
 agreement for re-conveyance upon a given event, namely, upon 
 payment of a sum of money at a certain time; in equif; it b 
 ooked upon as a debt, the payment of ^vhich is secured upon cer- 
 ^hilr^t ^ '"'^ conveyance the mortgagee has the legal estate, 
 subject to an agreement under which the mortgagor has a right of 
 ewment until the day named for payment, ani subject t?s ch 
 right of redemption : upon failure of payment upon the day named 
 he mortgagee may eject the mortgagor, and acquire the absolute 
 legal estate .n the lands, but equity allows the mortgagor to redeem 
 b.s estate upon payment of principal, interest and cofts du upon 
 the morcgage, withm a reasonable time after the day for payment 
 
 trustee for the mortgagor, and account for the rents and profits to 
 hun and to reconvey when he has received so much as will suffi " 
 to repay h.m the principal interest and costs. 349 et se^ 
 H- 71— How may an easement be conferred or lost? 
 
 iovmeTt / wT' ^"'"^ "'' ^"''"*' ""' ^'y prescription from long en- 
 joyment (wh.ch supposes a grant.) It may be lost by being releas- 
 ed or surrendered, or by non-use for twenty years, upon whTh 
 
 utfz:T^;;^"^-~^'-- ^- ^^^^ 
 
 O Tq^ *«"« of years, and a mortgage debt, 322. 
 
 andVve-i^ra:;;^:"^"' '' " ^'^^^"^"^^ '"""^"« ^^^^ '^^ '^^ ^" 
 A.-Covenant8 by a lessee, which are binding upon every one to 
 whom a term of years is assigned, and those b'y a'lessor ^f which 
 Sir ?r'' *° the assignee: as. a covenant by a lessle for 
 himself andkts assigns, to build a wall upon the demised premTses 
 a covenant to renew, 331. Watk- Conv. 316 et sea 325 Se^ 
 Spencer's case, 5 Co. 16. See answer to Q 125 Tb.f n • 
 are examples of covenants which have bl^ Id to rZ 1!TZ 
 land : covenant for quiet enjoyment. Lewis v. Campbe" 8 Taunt 
 
 with water. trdW wtl .^^ ^° IT!^ ^^^ de^nised premises 
 
 , - J.. ,» ^^.u. it)u; to reside on tho 
 
WILLIAMS ON REAL PROPERTY. 
 
 109 
 
 premiseB, Tatem ». Chaplin, 2 H. Bl. 133; to Fenew, per Lord 
 EUenborough, Roe v. Haley, 12 East, 469. 
 
 Q. 74. — Are words of limitation necessary, in order to create aa 
 estate in fee simpiv.? 
 
 A.— By Stat. 7 W. IV. & 1 V., c. 26, real estate may be dovised 
 in fee simple without words of limitation, the devise being c:u- 
 Btrucd to pass the whole estate or interest which the testator has 
 power to dispose of, 177. [See U. C. Stat. 4 W. IV., c. 1, sec. 50 
 — U. C. Con. Stat. ch. 82, s. 12, which contains a similar enact- 
 ment.] Formerly, also, a fee simple might pass without words of 
 limitation, by a conveyance by bargain and sale, for it was 
 presumed that the purchase money was paid for an estate in 
 fee simple, but this has been overruled, 150. Watk. Conv. 143, 
 144. 
 
 Q- 75. — What are the rights of aliens with respect to the owner- 
 Bhip of real property. 
 
 A.— An alien friend may hold real property for the residence of 
 himself or his servants, or for the purpose of any business, trade, 
 or manufacture, under a lease for a term not exceeding twenty-one 
 years, (7 & 8 V., c. 66, s. 5.) An alien cannot hold any greater 
 estate, for a conveyance to him is a cause of forfeiture to the 
 Crown, and the lands may be seized by the Crown upon office 
 found ; though if he convey to a natural born subject the convey- 
 ance will be valid for all purposes, except to defeat the prior right 
 of the Crown, 58. [In this Province an alien may hold real estate, 
 12 V , c. 197, 8. 12,— Can. Con. St., c. 8, s. 9.] 
 
 Q. 76. — What is meant by an '• equitable estate in fee simple?" 
 
 A, — An estate in fee simple to which the owner is entitled only 
 in the contemplation of a Court of Equity, 135. 
 
 Q. 77. — Can a husband convey to his wife ? and give reasons 
 for your answer. 
 
 A. — At common law he could not ; for as he could not convey 
 to himself, neither could he convey to his wife, who is part of 
 himself; but he may do so by means of the Statute of Uses, by 
 a conveyance to another to the use of his wife, for the operation of 
 that statute will pass the legal seisin to her, 185. 
 
 Q. 78— Can a mortgagor make a conveyance by lease and release? 
 and give reasons for your answer. 
 
 A. — He cannot ; for the mortgagee has the legal seisin, and 
 
no 
 
 BXAMlWATinur QUESTIONS. 
 
 if: If 
 
 ..If 
 
 ^ 
 
 thercf„re the mortgagor car,not convey by bargain and sale and 
 consequently cannot convey by lease and rdea-efof whl tde "f 
 
 mXr.^r°^"^'- ' '"'^ "- a bargain and sart^: 
 
 Li^tl;::^:HX::: to ;r :r ^^'^""' -' ^'^ «-- «^ 
 
 A.-Its ,.ov.8ions are, that no person can bring an action for 
 the recovery of real estate b,.t within twenty years after he tile 
 a wh.ch the nght to bring s„ch action shall 'have first aclr^Ttl 
 hirn or to some person through whom he claims: and aa to 
 est es .n m.er,on or remainder, or other future estates, the Hg^ 
 -hall be deemed to have first accrued at the time when the esUt 
 b cam «„ ,3,,,, .„ p„3^^^^j^„ , ^ ^^.^^^^ acknowledgment of tU 
 
 from?r";"Tr"""'"^''*^"'*»''«"^»'t to twenty year 
 [r T "•^'^"°^'«^«^'"^"t ' 'f ^he person entitled be.' at the 
 time when the nght accrues, under any disability by reason of 
 infancy, coverture, idiotcy. lunacy, unsoundness ofm'ndf or Tsence 
 beyon seas ten years are allowed from the time of ;he remova 
 
 vea a:. •' " " ''' "'^'^ period may not exceed forty 
 the!/ « ""ortgagee has obtained possession of lands! 
 
 iLTh T'""%'""1^'^^"'^° ''^''^ -»'»" twenty year 
 after the obtannng of such possession, or after a written acknow- 
 ledgement of his right has been given by the mortgagee. Msoit 
 provides that money charged upon land and legacks, are o be 
 deemed satisfied at the end of twenty years, if nf interest be paid 
 
 u cZ st cTs ] ''"^"^ '"'" ^" ^'^ '"^^"^^'"^' '"'- CS- 
 
 Q. 80._What is the effect of the destruction of the reversion 
 upon the rent incident to it ? reversion 
 
 A.--At common law the rent was destroyed : Stat. 8 & 9 V 
 c. 106. however, provides that when the reversion expectant on a 
 ^se shall be surrendered or merge, the estate. wWch for the 
 tune be ng confers, as against the tenant under the same lease 
 
 to thT. n 7^' 'I '^' '"'"' *''^*^'"^"*« «•• hereditaments, shall.' 
 oth extent and for the purpose of preserving such incid nts to 
 and obligations on the same reversion as. but for the surrender or 
 merger thereof, would have subsisted, be deemed the rlversion 
 expectant on the same lease. 204, 205. [U. C. Con. St. c. 90, 
 
 — "i!.iii«i cuaciiiieui, J 
 
WILLIAMS ON REAL PROPERTY. 
 
 Ill 
 
 Q. 81. — What is equitable jointure ? 
 
 A—Any terms, other than legal jointure, accepted by the wife 
 before marriage in consideration of the extinguishment of her title 
 to dower, 19;i, (and see answer to Q. 14.) 
 
 takteffec"?^'"** "''' ^*''''"* "'"^ ^'''''"'" ^"^ ''^''*'*' thereunder 
 A.~" A power is an authority expressly reserved to the grantor, 
 or expressly given to another, to be exercised over lands, &c 
 granted or conveyed at the time of the creation of such power.'"' 
 Watk. Conv. 268. Estates thereunder take effect by virtue of the 
 Statute of Uses, for the authority is so given that, upon he exer- 
 ewe ot It. a use with its accompanying estate springs up, givine 
 the seisin to the appointee. 24.5. 2.5.5. 
 
 Q. 83.-Explain the feudal system, Und state the effect of its 
 introduction into England ? 
 
 A.— The feuda, system was a system of military tenures, adopted 
 for the protection of the king, or lord paramount, by his vassals or 
 barons ,n the first place, and for the protection of the vassals 
 themselves by their vassals, who held the same position towards 
 their immediate lords as those lords did to the lord paramount, 
 fhe king, to bind his vassals in his interest, granted lands to 
 them to hold by such military tenures, reservin^f certain services or 
 rents, of which an oath of fealty to him was the principal ; these 
 vassals or tenants in capite, as they were called, parceled out the 
 laads so granted to them to inferior vassals in a similar manner 
 who egam allotted their portions to others ; and thus a system 
 was established by which the people were bound in the service of 
 their nders. Incident to this system were an immense variety of 
 tenures, both of a military nature and otherwise, and a great 
 number of various rights and duties between the lord and his 
 vassals. The effects upon real property of its introduction into 
 England were so great, that even at the present day a conveyance 
 of lands cannot be explained without some knowlenge of feudal 
 pnnciples ; bat the most important result was the restraint which 
 was placed upon the alienation of lands, which, though removed 
 to a very considerable extent by various enactments, is still trace- 
 able m our modern text-books. [For a more complete answer to 
 this question—which manifestly cannot be expected in a work like 
 
 y 
 
]12 
 
 BXAMINATION qUESTIONS. 
 
 hi 
 
 the Present-we would refer the student to the introductory chap- 
 chap ; VO "'"^' '''"'"• ""' ^° ' '^'«^''»'°-'« Con,n,entarS. 
 
 rea?eBUtel'^'"' "' "*' "^'*' °^ "'"''' "'""^° ^'^^^ '"P^«' *<> 
 A.-During coverture a married woman is looked upon by the 
 law as one person with her husband-she is. as it were, merged in 
 h.m : he therefore .s entitle 1 to the whole of ,he rents and profita 
 wh.ch may ar.se from her lands ; but. though he acquires a free- 
 hold mterest there.n he cannot alien them without he? concurrence 
 and after h,s death they remain to the wife as before the coverture 
 But she may hold equitable estates, through the inter e ion of 
 trustees, ,ree from the control of her husband in any wTi„ 
 consequence of the husband and wife being considered «« one 
 person, .f a conveyance^e made, for examplf. to A. aTd B .hus 
 band and wife), and C. a third person, and'their heirs A and B 
 bemg one. w.ll take only a moiety of the rents and profits, and wui 
 have a power of disposition over one half only of the est te beb^ 
 toge her one jomt tenant with C, and if lands be conveyed to hus- 
 band and wife and their heirs, they will not be joint tenants bu 
 take hyenureiie.. each being seised of the whole estate whch re- 
 mained ,n the survivor upon the death of one of them. A wife h^ 
 
 L d" ::r' :l h '^iv''" '-^^^-'^ '"''-« coverture^:t :?t^ 
 
 Ills death, she has a life mterest. called her Dower, in one thir,! 
 part of the lands of which he was lawfully seized in Z Ip L o,te 
 tail m possession, during the coverture. 182 et seq. |But in vZ 
 per Canada, by 22 V. c. 34. s. l.-U. C. Con. sl. c 78 1^ 
 2-an who marries without any marriage contract or seUle^'nt 
 
 ^ my. notwithstanding her coverture, .'have, hold and e J^' a 1 
 her real and personal property, whether belonging to her before 
 niarriage. or subsequently acquired, (except property received from 
 
 [ her husband during coverture.) free from his control.! 
 
 is limited to twe^nty years VJl'L: IT^^^^^ 
 
 tains possession of the land, or from any written acknowtlgLnt" 
 
 of the mortgagor's title, or of hi. right of redemption. ^^^ 
 
 .>j#: 
 
WILLIAMS ON REAL PROPERTY. 
 
 113 
 
 [See U. C. Con. St., 
 
 or his agent, signed by the mortgagee, 374. 
 
 Q. 86.— Distinguish between the different kin,l« «.' 
 and their effect. "'nereut kinds o» conveyances 
 
 A— The most ancient mode of conveyance wnw, « f„„^ , 
 gf. o .„ ...te i„ .he ,a„ds .iti, U.,n,\ZZTt7::°': 
 feudal possession. Such a conveyance nnfJl / 
 
 operated by wrong, that i., „„„w h,„ „„;e„^;i 'iT„'i\"™ 
 whole e,...e ,i„i.ed to him by the feoffor, eveT V™»„ t 
 had power to d,.p„,e of o.her„«. A fcoff,„ent forLrly n/h" be 
 made by parol, but „„w by the statute of fraud,, 29 Car To 1 
 s. 1, and S A 9 V. c. lOB . <l riT <. /< „ ' ''• 
 
 n>ust be made by deed. m_U ,20 ' "• '^ ""' " '^ " 
 
 mLrV?""^ ''', *""' ""'' "''"" ™ f»™«rty effected bv 
 
 c. 21, a Release has the same effect as « T ,.««„ i -d 7 . « 
 that act ; 146-153. Watk Conv 2Qq T ^'^'^'' ^'^"•"^ 
 
 said to be an innocent'^rt l;^L it ;Tev::V;ir 
 ^^ong. M.ly p..edthe same estate which the granCrtd i^ 
 
 the"sfa:r:fCr/H vTnTrr rr^^ -'-' '-- 
 
 made for the sale of an estate, and tl,e purchase money p'a d! Z 
 no feoffment executed to the purchaser, the estate ought in con 
 8c ence to belong to the purchaser, and therefore held that the bar 
 gamor was seized of the lands to the use of the purc^a l wht^^ 
 doc tnne. upon the passing of the act had the effL of ^ving the 
 legal seism to the purchaser, (see answer to Q. 69). It was heW 
 that a bargam and sale passed an estate in fee simple, witZut the 
 uualhmuatmnto heirs, for the purchaser was pr'es^m "^^ 
 paid the purchase money for such an estate, (150) but tbi« hi! 
 been doubted, and the better opinion would seem to be that it 
 not that effect ; see Watk. Conv. 14" u. 1™ ,'.*.* * ^T 
 
 aA U U • 1 . ~' • ■■ sa. ttoc CMlUtlt OC limit- 
 
 ed by a bargain and sale, for the . ..ainee himsetf .„. the^ 
 
114 
 
 EXAMINATION (QUESTIONS. 
 
 iJi 
 
 n !i 
 
 and there cannot be a use upon a use, Watk. Conv. 249. This 
 alao is an innocent assurance, Watk. Conv. SC>7. 
 
 By 8 dJ 9 V. c, IOC, s. 2, [U. C. Con. Stat. c. 90, s. 2,] a Deed 
 of Grant is sufficient to convey the freehold or feudal seisin of all 
 lands : formerly such a conveyance was only applicable to the 
 transfer of incorporeal hereditaments, which were therefore said to 
 lie in grant, as corporeal hereditaments were said to lie in livery ; 
 but now by that enactment, the latter lie in grant as well as in 
 livery. A grant also is an innocent conveyance. 147, 164, 195. 
 
 A covenant to stand seised is a conveyance which is occasionally 
 used, whereby the grantor covenants to stand seised to the use of 
 the grantee, in consideration of blood or marriage. This mode of 
 conveyance also derives its effect from the Statute cf Uses. 166 ; 
 Watk. Conv. 299. 
 
 A conveyance of lands may also be effected by means of an ap' 
 pointment under a power, by which an estate may be made to arise 
 by means of a springing use, 166, 245 ; see answers to Qs. 33, 82. 
 
 Q. 87. — What are the various kinds of tenures ? 
 
 A. — All lay tenures are reducible to four kinds ; 1. Tenure by 
 knight's service, which was esteemed the most honourable; 2. 
 Socage tenure, also consisting of free and honourable and certain 
 services ; 3. Copyhold tenures, or tenures by copy of the Court 
 roll at the will of the lord ; and 4. Tenure in ancient dcjpiesne, or 
 villein-socage ; the first of these has been, by Stat. 12 Car. II, 
 c. 24, converted into free and common socage, and by the same 
 act, it is provided that the crown cannot create any tenure other 
 than free and common socage. Besides these there is an ecclesiasti- 
 cal tenure, called tenure in frankalmoign or free alms. 94, 108. 2 Bl. 
 Com. chaps. V., VI. 
 
 Q. 88. — In the deduction of a title why are sixty years re- 
 quired ? 
 
 A. — That length of time has become customary, but its origin is 
 uncertain : it probably arose from the ordinary duration of human 
 life ; for a remainder after an estate tail may be barred, but a re- 
 mainder after a life estate cannot, so that an estate of which the title 
 appears to have been clear for that IcLgth of time may be presumed 
 to have been well founded, 371. Another reason may be given,— 
 an estate cannot be bound up for more than three lives, or twenty, 
 one years, (228, 262,) after the expiration of which time, if the 
 
WILLIAMS OW HBAL PROPKRTT. 
 
 116 
 
 person entitled be under a disability to assert his claim, his right 
 may remain unasserted for forty years and no longer without Itting 
 barred, (.'{71,) so that a title of sixty years duration may in the 
 natural course of things, l)e presumed to be perfect. 
 
 Q. 89.— Give the effect of the Provincial Statute as to barriag 
 estates tail. 
 
 A.— It enables every actual tenant in tail, whether in possession, 
 remainder, contingency, or otherwise, by n deed, registered in the 
 Registry office of the county, city or riding in which liie innil lies, 
 within six months after execution, to dispose of the lands entailed 
 for a fee simple or any less estate, as against the heirs in tail and 
 the remainder-niHU, U. C. Con. St. c. K3, ss. 4, 31 . Hy s. 8 power 
 is given to enlarge base fees. By s. 1 1 it is enacted that the owner 
 of the first existing estate under settlement, prior to the estate tail 
 under the same settlement, shall be the protector of the settlement, 
 (and see following sees.,) and, by s. 24, his consent is necessary to 
 enable the tenant in tail to create a larger estate than a base fee, 
 (see following ^ecs.) which consent must, by ss. 32, 36. be given 
 by the same assurance by which the entail is' disposed of, or by a 
 separate deed, executed before such assurance or at the same time, 
 and registered before or at the time of registry of such assurance. 
 By &. 37, Courts of Equity are excluded from giving effect to de- 
 fective dispositions, or from decreeing specific performance of con- 
 tracts for the dispositions of estates tail under the act. 
 
 Q. 90.— Distinguish between a stipulation to diminish, and a 
 stipulation to raise interest, respectively. 
 
 A.— The latter is held to be void, as being a hardship upon the 
 debtor,— the former is considered to be for his benefit and there- 
 fore is valid, 359. 
 
 Q. 91.- Tow do voluntary conveyances stand with respect to 
 purchasers u.id creditors respectively ? 
 
 A. — [See wer to following question.] 
 
 Q. 92.— Explain the effect of the statutes passed in the 13th 
 and 27th Elizabeth upon alienations of property. 
 
 A.- By the former statute, 13 Eliz. c. 5, conveyances of landed 
 estates, and also of goods, made for the purpose of delaying, hinder- 
 ing, or defrauding creditors, are void against them, unless made 
 upoii good (1. e. valuable) coiisiderations, and bona fide, to any 
 person not having, at the time of the conveyance, notice of such 
 
 V IT 
 
 
 
 
 v^ 
 
11« 
 
 INATION qURSTIONt. 
 
 i ! 
 
 m 
 
 ilrii 
 
 y) 
 
 fraud. By 27 Elii. c, 1, volantary conveyances of any estate in 
 landa, tenenunts, or other lu'reditanienta, nud eonvcynncwH of such 
 estates made with niiy clause of revocation at the will of the grantor, 
 are also void ns aKuiuHt Huhseijuent purchasers for money or other 
 vahiahU consideration ; so that one who has made a voiinitary 
 settlement of landed property, even on hisi own children, may after- 
 wards sell the same property to any purchaser ; who may hold 
 against the prior grantees, even though he have full notice ; 02. 
 
 Q. 93.— How may the estate ol' a tenant for life he forfeited ? 
 
 A.— By outlawry or attainder for treason or felony, unless the 
 estate he given for the "natural life" of the tenant; hy marriage, 
 if the tenant for life l)e a widow, the estate having lieen given to 
 her during her widowhood, (such heing in law a life estate,) or in 
 similar cases ; 22, 2.1. Walk. Conv. 80. Also, hefore 7 & 8 V. c. 
 76, the estate might haVe heen forfeited hy any act which divested 
 or displaced the remuin<itr or reversion, as a feoffment in fee, 
 which would have given an estate to the feoffee in fee, 2.5, 121 , hut 
 by that act it is enacted that no assurance shall create any estate 
 by wrong', or have any other effect than the same would have if it 
 were to take effect as a release, surrender, grant, lease, bargain and 
 sale, or covenant to stand seised, as the case may be. Watk. Conv. 
 81, 82. 
 
 Q. 94. — How can an interest in a term of years be surrendered ? 
 
 A. — It may he surrendered by deed, 29 Cat. II. c. 3 ; 7 & 8 V. c. 
 7. [U. C. Con. St. c. 90, s.yi.] Watk. Conv. 341. Also, by opera- 
 tion of law, as if the lessee accept a new lease, '^37. 
 
 Q. 9.5. — What was the effect of a warranty, a. 1 fowbas it been 
 affected by recent statutes ? 
 
 A. — Under a warranty the feoffor, and also ma Leirs, were bound, 
 not only to give up all claims to the lands themselves, but also to 
 give to the feoffee, or his heirs, other lantls of the same value, in 
 case of the eviction of the feoffee or his heirs by any person having 
 R '3rior title. The chief force and effect of a warranty have been 
 ."i.noT :! by clauses of two recent statutes, 3 & 4 W. IV., c. 27, s. 
 v9 -.ad 3&4\Y. IV., c. 74, s. 14, the former of which enacted that 
 , •' ivarranty s,' .uid defeat any right of entry or action for the re- 
 covery of land, and the latter, that warranties, of laud should be 
 absdlutely void against the issue in tail and all persons whose estates 
 are to take effect after the determination or in defeasance of the 
 
«^ 
 
 WILLIAMS ON RBAL PHi/I'lCRTY. 
 
 117 
 
 eitatc tail, 366. f Similar enactments have been made in Upper 
 Caimdn by 4 W. IV.. c. 1, a. 2-U. C. Con. St., c. 27, s. 80, and 
 I' V . rh. 11,8. 2— U. C. Con. St., c. 83, a. 3.] 
 
 Q. J!-.— What are the statutory recpiirements with reference to 
 I aaehold interests / 
 
 A.— By the Statute of Frauds. 29 (nr. II., c. 8, s. 1, it is re- 
 quired that leasehold interests shnll be created in writing, signed 
 by the parties making the same, or their agents thereunto lawfully 
 anthorized by writing ; but an exreption is made to the effect th&t 
 leases may be made by parol if the term do not exceed three year 
 from the making thereof, and if the rent reserved amount to two- 
 thirds at least of the full improved value of the land, 326. By 
 8 & 9 v., c. 100, 8. li, it is required that a lease required by law to 
 be in writing of any tenements or hereditaments shall be void at law, 
 unless made by deed, 327. f A similar enactment is contained iu 
 U. C. Con. St., c. 90, 8. 4.] 
 
 Q. 97.— How far is a covenant [/or re-enfryl affpcted by a license 
 once given for a breach of it ? 
 
 A.— If an express license be once given by the landlord for the 
 breach of any covenant, or if the covenant be not to do a certain 
 act without license, and license be once given by the landlord to 
 perform the act, the right of re-entry is gone forever ; because 
 every condition of re-entry is entire and indivisible, and as the 
 condition has been waived once it cannot be enforced again, 332. 
 
 Q. 98.— "What limitations exist with respect to executory interests 
 in land ? 
 
 A. The law has fixed the following limit to the creation of exe- 
 catory interests : it will allow any executory estate to commence 
 within the period of any fixed number of now existing lives, and 
 an additional term of twenty-one years, allowing further for the 
 period ol gistation, should gestation actually exist ; this addi- 
 tional term of twenty one years may be indepeiulent or not of the 
 minority of any person to be entitled ; and if no lives are fixed on, 
 then the term of twenty-one years only is allowed; but every exe- 
 cutory interest which might, in any event, transgress this limit, will 
 from its commencement be absolutely void ; 262. 
 Q. 99.— What are the requisites of a will of realty 1 
 '" — -^ ""'" "*" realty inust be iu writing and signed fay the testa- 
 tor, or by some other person in his presence and by his direction, 
 
I ii " ' • 
 
 ' i ! 
 
 III. 
 
 118 
 
 GXAMINATION QUESTIONS. 
 
 and such 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 must attest and subscribe the will in the presence 
 of the testator; 7 W. IV. and 1 V., c. 26. 168. [In Upper Canada, 
 by 4 W. IV., c. 1, s. .51— U. C. Con. St., c. 82, s. 13, a will must be 
 executed in the presence of two or more witnesses, who must sub- 
 cribe their names in the presence of each other, although they need 
 not subscribe in the presence of the testator.] 
 
 Q. 100.— How may estates tail be effectually barred ? 
 A.— By a deed executed by the tenant in tail, enrolled in the 
 Court of Chancery within six calendar months after execution, 43 
 and note («.) [As to barring of estates tail in Upper Canada, see 
 answer to Q. 89.] 
 
 Q. 101. — Distinguish between a use and a trust. 
 A.— A use is a legal, a trust an equitable estate ; the former 
 arises by virtue of the Statute of Uses, 27 H. VIII., e. 10, where- 
 by lands conveyed to one person for the use, confidence or trust of 
 another, are vested in the latter as fully as if they had been con- 
 veyed directly to him ; but if lands be conveyed to one person to 
 the use of another to the use of a third, by the construction placed 
 upon the Statute of Uses, the legal estate is vested in the interme- 
 diate party, — but here equity interferes, and compels him to hold 
 as a trustee for the benefit of the third party ; 129 et seq. 
 
 Q. 102. — What changes have been effected by statute in the mode 
 of conveying or assuring an estate ? 
 
 A.— By the Statute of Frauds, 29 Car. II., c. 3, it is in effect ren- 
 dered necessary that a feoffment should be put into writing, signed 
 by the party making the same^ or his agent lawfully authorized in 
 writing. By Statute 8 & 9 V., c. 106, it is provided that a feoff- 
 ment, other than a feoffment made under a custom by an infant, 
 shall be void at law, unless evidenced by deed, 126. [And see U. C. 
 Con. St., c. 90, s. 3.] In modern times, down to the year 1841, 
 the kind of conveyance employed on every ordinary purchase of a 
 freehold estate was a lease and release. By Statute 4 & 5 V., c. 21, 
 a release was made as effectual as a lease and release. By Statute 
 7 & 8 v., c. 76, freehold land might be conveyed by deed without 
 livery of seisin or a prior leuse. By Statute 8 & 9 V., c. 106, s. 
 
 9, it la nrQvirjprl fliof- oil /.i->r.->"r""1 * — i-iif- ^! '- '-' ■ 
 
 _, .. .„ jji -J . i.jr:,. ....„i, ,iH Lyr^jtrTcai tcllclIJClltB UIIU IlCrCUllUillCIlCS 
 
 flhall, as regards the conveyance of the immediate freehold thereof. 
 
WILLIAMS ON REAL PROPERTY. 
 
 U9 
 
 be deemed to be in grant as well as livery : a simple deed of grant 
 is therefore sufficient to convey the freehold or feudal seisin of all 
 lands, 146. [See U. C. Con. St., c. 90, s. 2.] 
 
 Q. 103.— Wherein does the law of Upper Canada differ from that 
 of England as to dower ? 
 
 A.— By Imperial Statute 3 &4 W. IV., c. 105, where lands have 
 been absolutely disposed of by the husband in his lifetime or by 
 his will, the widow shall not be entitled to dower ; the husband also 
 may 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, 193, 194. In Upper Canada the husband has no such 
 power over his wife's right to dower, which, however, may be bar- 
 red by her by joining with her husband in a deed or conveyance 
 thereof, in which a release of dower is contained ; or by execu- 
 ting, either alone or jointly with other persons, a deed or convey- 
 ance to which her husband is not a party, containing a release of 
 her dower, in which case she must be examined touching her con- 
 sent to be barred of her dower by certain judicial officers, who must 
 certify on the back of the deed that she consents to be barred of her 
 dower in the lands in the deeds mentioned, freely and voluntarily, 
 without coercion or fear of coercion on the part or her husband, or 
 of any other person ; U. C. Con. St., c. 84, ss. 4—10. 
 Q. 104.— What estate has a tenant for life ? 
 A.— A tenant for life has a freehold estate, and this is the smallest 
 freehold estate which can be held, 22. 
 
 Q. 105.— What acts of the vendor will destroy the lien for the 
 unpaid purchase money ? 
 
 A. — If the vendor take a mortgage of part of the estate, or any 
 other independent security, his lien will be gone, 359 ; but see Story 
 Eq. Juris., § 1226 and note. 
 Q. 106. — What was enacted by the Statute Quia emptores ? 
 A. — It was enacted that any freeman (but not the King's tenant 
 in capite,) might at his own pleasure sell his lands and tenements or 
 part thereof, so nevertheless that the feoffee, or purchaser, should 
 hold the same of the same chief lord of the fee, and by the same 
 services and customs, as his feoffor held them before ; and that upon 
 such a sale of part, the services should be apportioned to the part 
 sold ; 56, !)5. 
 
 Q. 107. — What is a tenant in special tail? 
 
! 1' 
 
 li. 
 
 ill 
 
 S' ' Ml 
 
 120 
 
 EXAMINATION QUESTIONS. 
 
 ^ A— A tenant m special tail is one who holds an estate tail descend- 
 ible to certain heirs of his body, and not to all of them generally • 
 as where an estate is limited to a man and the heirs of his body by 
 a particular wife, in which case none can inherit but his issue bv 
 the wife specified, 30. "^ 
 
 Q. 108.— Of what estate does escheat arise, and of what not? 
 
 A.— An escheat may arise of an estate in fee simple, 102 • but 
 not of an equitable estate, for such an estate is not the subject of 
 tenure, 138 ; nor of a rent-charge. or other similar estates, which 
 are not the subject of tenure. 278. Escheat also arises of a copy- 
 hold estate in fee simple, 303. 
 
 esto " ^5^f ■~"°"' "^"^ * ^^"'^ ^°'' ^ *^'-'" «^ years be made valid by 
 
 A.-If lands be leased for a term of years by indenture, by one 
 who has no legal interests in the lands, both lessor and lessee will 
 be estopped during the term from denying the validity of the lease 
 and It the lessor during the term acquire the lands he has so let, 
 the lease will take effect out of the newly acquired estate of the 
 lessor, and will become for all intents and purposes a regular estate 
 tor a term of years, 329. 
 
 Q. 110— What is the doctrine o( cypres? and give an instance. 
 
 A.-Where attempts have been made by testators to settle their 
 property on future generations beyond the bounds allowed by law 
 as where lands have been given by will to the unborn child of some 
 Imng person for life, and after the decease of such unborn child 
 to hts sons in tail, (which latter limitation is void, 228,) the courts 
 of law have been so indulgent to the ignorance of testators, that 
 m such case they have endeavoured to carry the intention of the 
 testator into effect as nearly as can be done without infringing the 
 rule of law limiting the creation of future estates, by altering his 
 will to what they presume he would have done had he been ac 
 quainted with that rule : thus in the case put, the courts will give 
 to the unborn child, not a life estate, but an estate in tail ; 229, 
 
 Q. lll.—In what respects do powers of alienation unconnected 
 with ownership, differ from alieuatiolITm respect of ownership? 
 
 A.— The former are of a less ancient date, and are free from 
 
 some of the incumbrances bv which fhp Wn^r pro „i a . xi,.._ 
 
 a man may exercise a power of appointment in favour of himself 
 
WILLIAMS ON REAL PROPERTY. 121 
 
 or of his wife, though he cannot convey by virtue of his owner- 
 ship, directly to himself or his wife, and a married woman may 
 exorcise a power of appointment without her husband's consent, 
 though she could not without his consent convey by virtue of her 
 ownership, 250. 
 
 Q. 112.— Distinguish between a demise and a grant. 
 
 A.— A demise implies an absolute covenant for the quiet enjoy- 
 ment of the lands by the lessee during the term, 367; a grant 
 does not imply any covenant, except where by force of any Act of 
 Parliament a covenant may be implied, (as in the case of convey- 
 ances to the Governors of Queen Anne's Bounty, by stat 1 & -^ V 
 c. 20, s. 22 8 & 9 V. c. 106, s. 4. 368. [See U. C. C^n Sta^t. c. 
 90, 8. lO.J 
 
 Q. 113.— Is a purely incorporeal hereditament the subject of 
 tenure ? and give reasons for your answer, 
 
 A.— Such an estate cannot be the subject of tenure, because it is 
 accessory or incident to no other hereditament, 278. 
 
 Q. 1 14.— State the proceedings upon a common recovery. 
 A.— A common recovery was a fictitious suit by which estates 
 tail were anciently barred. The proceedings by which this was 
 done were as follows : the lands were in the first place conveyed 
 by a deed called the recovery deed, to a person against whom the 
 action was to be brought and who was called the tenant to the jrroe. 
 cipe or writ. A regular writ was then issued from the Court of 
 Common Pleas against the tenant to the pracipe by another per- 
 son called the demandant ; the tenant in tail was then required by 
 the tenant to the pracipe to warrant his title according to a sup- 
 posed engagement for that purpose ; this was called vouching the 
 tenant m tail to warranty : the tenant in tail on being vouched then 
 vouched to warranty in the same way the crier of the court who 
 was called the common vouchee : the demandant then craved leave 
 to imparl or confer with the last vouchee in private, which was 
 granted by the court, and the vouchee having thus got out of 
 court, did not return ; in consequence of which judgment was given 
 for the demandant to recover the lands from the tenant in tail, 
 upon which a regular writ was directed to the sheriflF to put the 
 demandant in possession ; 42. 
 
 ^ Q. 115.— -State the classes of persons not possessing the ordinary 
 nghts of alienation of real estates. 
 
 y 
 

 132 
 
 EXAMINATION QUESTIONS. 
 
 A— Infants, idiots, lunatics, and married women ; also persons 
 attainted for treason or felony, 59, 60. 
 
 Q. 116— State the classes of objects in respect of which these 
 rights are restricted. 
 
 A— By Stat. 9 Geo. II., c. 36, no estate or interest of any 
 kind in land can be conveyed for charitable purposes (except to" 
 a few favoured institutions), unless by deed indented, sealed and 
 delivered m the presence of two or more credible witnesses, and 
 enrolled in the Court of Chancery within six calendar months 
 atter execution ; and unless the same be made to take effect instant- 
 ly, and be irrevocable and without any reservation or trust in favor 
 of the donor ; and if not made bondjlde and for good considera- 
 tion. It will be void if the donor die within twelve calendar months 
 after execution. No conveyance can be made to a corporation 
 unless a license to take lauds has been granted to it by the Crown. 
 60, 61. 
 
 Q. 117.— State the distinction between a will of lands and a will 
 of personal estate regarding them as documents of title. 
 
 A — A will of real estate is the proper evidence of title, and not 
 the probate, Watk. Conv. 368 ; but the title to personalty can only 
 be proved by the probate, or by an exemplification of the record 
 of the grant thereof, if it has been lost, 2 Tayl. Evid. 1223, 2 ed. 
 Q. 118.— How can a person seized in fee simple convey so aa to 
 vest the fee in himself and another as joint tenants ? 
 
 A.— He may convey to the other and his heirs to the use of that 
 other and himself and their heirs, and a joint estate in fee simple 
 will then vest in them both by the operation of the use, 155. 
 
 Q. 119.— Explain the law of Hotchpot, and the effect of the 
 statute of this Province on the subject. 
 
 A —Where property is descendible to several persons equally, as 
 coparceners, if one of them has received a portion of it from the 
 intestate during his lifetime, he cannot claim a share of the pro- 
 perty which has descended without putting the portion which he 
 has received into hotch-pot, that is, he must give up his portion to 
 be divided together with the property so descended, 2 Bl. Com. 
 191. By U. C. Stat. U & 15 V. c 6, ss. 20, 21-U. C. Con. St. 
 c. 82, ss. 42, 43, it is enacted that if any child of an intestate shall 
 have bepn advanced by the intestate by settlement or portion of 
 real or personal estate, or both of them'j and if such advancement - 
 
WILLIAMS ON REAL PROPERTY. 
 
 123 
 
 ilso persons 
 
 ^hich these 
 
 rest of any. 
 (except to 
 
 sealed and 
 nesses, and 
 ar months 
 jct instant- 
 ist in favor 
 
 considera- 
 lar months 
 orporation 
 ;he Crown. 
 
 and a will 
 
 e, and not 
 fcy can only 
 ;he record 
 123, 2 ed. 
 r so aa to 
 
 :se of that 
 ee simple 
 L55. 
 ct of the 
 
 qually, as 
 from the 
 
 the pro- 
 (vhich he 
 )ortion to 
 Jl. Com. 
 
 Con. St. 
 tate shall 
 Drtion of 
 mcement 
 
 be equal or superior to the amount of the share which such child 
 would be entitled to receive of the real and personal estate of the 
 deceased, such child and his descendants shall be excluded from 
 any share in the real and personal estate of the intestate ; or, if 
 Buch advancement be not equal to such share, then such child and 
 his descendants shall be entitled to such a share only of the intes- 
 tate's real and personal estate as will make together with the value 
 of such advancement, a share equal to that which h? would have 
 inherited if there had been no advancement, 
 
 Q. 120.— A lease to A. for life, remainder to B. for Hfe ; is this 
 a vested or contingent remainder ? ^'- 
 
 A.— It is a vested remainder, for it is one which is ready to be- 
 come an estate in possession immediately upon the determination of 
 the life estate of A. 207, 222. 
 
 Q. 121.— A. leases lands to B., and in the lease B., covenants 
 with the lessor for himself and assigns to dig a well on the demised 
 premises during the second year of the term ; B. during the first 
 year assigns to C. ; the well is not dug at any time. Can the les- 
 sor sue both B. and C, or which ? 
 
 A.— He may sue B., who is bound to him by his covenant, not- 
 withstanding the assignment, 330 ; and he may sue C, because a 
 covenant so made by the lessee for himself and assigns to do an 
 act upon the demised premises, is one which runs with the land, 
 and so is binding upon the assignee, 331. 
 
 ft 122.— A. conveys lands to B., in 1861, who does not register 
 the conveyance ; A. subsequently conveys to C, who does register ; 
 what must C. prove beyond conveyance to establish priority over 
 B., in ejectment against him ? 
 
 A.— He must shew that he is a iowtJ^rfe purchaser for value 
 without notice. 
 
 Q 123. —An estate is conveyed to A. and B. in fee in trust to 
 sell; do the grantees take as joint tenants or tenants in common? 
 Give the reasons for your answer. 
 
 A.— They take as joint tenants, as they have unity of interest, 
 unity of title, and unity of time of the commencement of the title ; 
 and they are well made joint tenants, as their only interest is that 
 of the cestui que trust, and the right of survivorship consequent 
 upon the joint teuaucy, enables the interests of the cestui que trust 
 to be observed more effectually than conld be done if tne legal 
 
■i 
 
 \ I- 
 
 1)^1 i 
 
 124 
 
 EXAMINATjtON QUESTIONS. 
 
 estate of one of them were descendible upon his death, 109. Ill 
 [Our statute 4 W. IV.. c. 1. s. 48-U. C. Con. Stat., c. 82, s. id, 
 which enacts that upon a conveyance or devise to two or more per- 
 
 trTtee?7 '^"'^ **"*' *' *^"''"^' '" ''°"""'*"' expressly excepts 
 
 Q. 124.— Does the law recognize an absolute ownership in real 
 estate ? Give reasons for your answer. 
 
 A.-The English law does not recognise absolute ownership of 
 lands by a Bubject, for it is a fundamental rule that all lands within 
 the realm were originally derived from the Crown (either by ex- 
 press grant or tacit intendment of law,) and therefore the Queen 
 IS sovereign lady, or lady paramount, either mediate or immediate 
 of all lands within the realm ; and this may be accounted for upon 
 feudal principles, (upon which our law of real property is founded ) 
 by which all lands were hteld of the Crown, either immediately or 
 through the king's tenants m mpite., 2, 17, 95. [See answer to 
 \i. aJ.J 
 
 Q. 125.-Mention the incidents of the usual covenants in an 
 indenture of lease. 
 
 A.-Covenants directly relating to the premises are said to run 
 with the land, that is, they are binding upon the assignee, whether 
 of tlie leasehold or of the reversion. Covenants are either express, 
 or entered into especially, or impHed, where they are not so ex- 
 pressly entered into, but are imposed by the law upon the parties, 
 as a covenant for quiet enjoyment or to pay rent : all covenants of 
 the latter class run with the land ; express covenants run with the 
 land when they relate to the land and the tenancy of it, but not 
 (It would seem) where they are merely collateral and affect only 
 the person of the party entering into them, 330, 331. Watk 
 Conv. 314 et seq. See Spencer's case. 5 Co. 16. [For examples' 
 ot covenants running with the land, see answer to Q. 73.] 
 
 Q. 126.— Can one person have more than one estate in the same 
 land at the same time ? Answer fully. 
 
 A.-As a general rule, where a greater and a less estate coincide 
 m the same person, the less estate merges in the greater ; but by 
 the statute Z). Dom-., 13 Edw. I. c. 1, an estate tail is excepted 
 from this rule ; so that a person can have at the .am e time, an 
 estate tail, and also the immedintP rAvorginti «, ,-. — ;„j-_ :_ r-^ 
 
 fluj . Simple, expectant on the determination of such estate tail by fail- 
 
 it I • ^ 
 
109, in. 
 
 . 82, 8. 10, 
 • more per- 
 ily excepts 
 
 lip in real 
 
 nership of 
 nds within 
 ler by ex- 
 he Queen 
 mmediate, 
 i for upon 
 founded,) 
 iiately or 
 answer to 
 
 nts in an 
 
 id to run 
 ), whether 
 T express, 
 not so ex- 
 le parties, 
 enants of 
 with the 
 t, but not 
 ffect only 
 . Watk. 
 examples 
 
 I 
 
 the same 
 
 coincide 
 ; but by 
 excepted 
 time, an 
 
 __ :_ i"- - 
 cT su itrv 
 
 by fail- 
 
 WILLIAMS ON REAL PROPERTY. 
 
 ure of his own issue, 234. A man may also have more than one 
 estate m lands, where there is an intervening estate which pievents 
 the merger : as if a deed be made to A. for his life, and after his 
 decease to B. for his life, and after his decease to the heirs of A 
 A. will have in possession a life estate, and in remainder, expectant 
 on the decease of B. (by the rule in Shelley's case), an estate in fee 
 simple; 213. 
 
 Q. 127.-Give instances of technical rules, or canons, which 
 obtam, in the construction of wills, even against the intention of 
 the testator. 
 
 A.— Where the testator uses technical words, the will requires a 
 technical construction ; thus where a testator declares his intention 
 to be, that his son should not sell or dispose of his estate for a 
 longer time than his life, and to that intent he devised the same to 
 his son for life, and after his decease, to the heirs of the body of 
 his said son, it was held that such a limitation gave the son 
 an estate tail, and therefore he was enabled, bv barring the entail 
 to dispose of the lands in fee simple, 175. Similarly a devise to 
 a person without words of limitation was held to give only a life 
 estate, unless some technical word were used, such as the word 
 estate, 19 ; (but this is now otherwise, for by 7 W. IV. & 1 V c. 
 76 [and in Upper Canada by 4 W. IV. c. 1, s. 50-U. C. Con. St. 
 c. 82, s. 12] a devise without words of limitation is considered to 
 convey the same estate which the testator had in the lands.) 
 Where lands were given to one person, " and in case he should die 
 without issue," then to another, those words were interpreted "in 
 case of his death, and of the failure of his issue," so that the 
 estate was to go over to the other, not onlv in case of his death 
 leaving no issue living at his decease, but also in the event of his 
 leaving issue and the issue afterwards failing, the estate being in 
 fact an estate tail to the first person, with remainder over to the 
 other, ro the first person was enabled to acquire the fee simple, 
 177 ; (this rule also has been changed by the same (Imperial) act, 
 such 8 limitation being now considered to mean failure of issue during 
 the Hfetime, or at the death of the party.) 
 
 Q. 128. — What is meant by an innocent conveyance ? 
 
 A.— An innocent conveyance is one which does not operate by 
 wrong ; thus a grant is an innocent conveyance, for if a tenant for 
 life purported to convey the fee simple by a grant, his own life in- 
 
 i 
 
126 
 
 SXAMINATION QUESTIONS. 
 
 terest only would pass, and no injury would be done to the rever- 
 sioner ; but if (before the Stat. 8 & 9 V. c. 196, s. 4) he had made 
 a feoffment of the lands for an estate in fee simple, the feoffment 
 would have operated by wrong, and conveyed the whole estate to 
 the feoffee, to the prejudice of the reversioner, 1 64, 1 22. 
 
 WATKINS ON CONVEYANCING. 
 
 Question 1.— How many kinds of estates tail are there ? Describe 
 them. 
 
 Answer.— Tvio; estates tail general and estates tail special. 
 The former is where an estate is limited to a man, and the heirs of 
 his body ; the latter is where an estate is limited to a man and 
 certain particular heirs of his body, 108. 
 
 Q. 2.— Give the several instances of estates tail special, and how 
 they may arise. 
 
 A.— An estate limited to a man and the heirs of his body by a 
 certain woman, or to a woman and the heirs of her body by a 
 certain man, or to man and woman (husband and wife), and the 
 heirs of their bodies, or to the heirs male of the body of a man 
 or woman or to the heirs female of the body of a man or woman ; 
 and these may severally arise by the special words of limitation • 
 108, 109. 
 
 Q. 3. — Illustrate a cross remainder by an example. 
 A — Under a gift to A., B. and C, as tenants in common iu tail 
 and in default of the issue of either of them, then to the other or 
 others of them as tenants in common in tail, and in default of issue 
 of all of them, then to a stranger in fee : A., B.,and C. are tenants 
 m common of one-third each in possession, with remainder as to 
 
 A. to B. and C. as tenants in common in tail, with remainder as to 
 
 B. to C. in tail, with remainder as to C. to B. in tail, and so re- 
 ciprocally as to the other two-thirds ; 199. 
 
 Q. 4.— What is the nature of the estate of a mortgagor in pos- 
 session ? 
 
 A.- -First, Where there is an express agreement that the 
 mortgagor shall retain possession until defoult in pavment of the 
 mortgage money at a particular period, he is a"^ tenant to the 
 
WATK1N8 ON CONVEYANCING. 127 
 
 mortgagee, holding an interest in the nature of a term of years 
 Secondly, Where there is sucl, an agreement, but the money is not 
 paid vhen due, the mortgagor continuing in possr.sion after 
 default without any new agreement between him and the mort- 
 gagee, may be, until payment of interest, considered either as a 
 tenant at sufferance to the mortgagee, or be looked upon by him 
 as a trespasser. Thirdhj, Where there is originally no such agree- 
 ment, the mortgagor being the occupant and remaining in posses- 
 sion with the consent of the mortgagee, should be considered as 
 tenant at will. Fourthly, In such case the assignment of the 
 mortgage without the concurrence of the mortgagor, would deter- 
 mine the tenancy at will, and the mortgagee would become tenant 
 at sufferance to the assignee, until payment of interest. So also 
 the death of either mortgagor or mortgagee determines the tenancy 
 at will; in case of the death of the latter, the mortgagor becomes 
 tenant at sufferance to hid representative, until payment of interest • 
 upon the death of the mortgagor, if his heir or devisee enters' 
 without any recognition of the mortgagee's title, an adverse posses- 
 sion takes place. Fifthly, In such latter case and in the case of a 
 tenancy at sufferance, payment of interest would create a tenancy 
 at will. Sixthly, Where the estate is in the occupation of tenants 
 and the mortgagor is in receipt of the rents, without any agreement 
 m the mortgage that he is to receive rents, there is no tenancy 
 existing between him and the mortgagee, but he is to be considered 
 merely as a receiver, without liability to account. 13—15. 
 Q. 5.— Distinguish between /or/eiVwre and escheat. 
 A.— Between forfeiture and escheat there is this difference • 
 forfeiture is a punishment for a malignant offence ; escheat arises 
 trom an obstruction in the course of descent: the former is per- 
 sonal to the offender ; the latter respects his successor : forfeiture 
 affects the rents and profits only ; escheat operates on the inherit- 
 ance ; 496, 497. 
 
 Q. 6.— Distinguish between chattel and freehold interests. 
 
 A.— Estates at will and for years are considered by law as only 
 chattel interests ; an estate for one's own life, or the life of another 
 person, or any greater estate, is deemed an estate of freehold : in 
 the^ tenant of the latter estate the feudal possession or seisin is 
 v^'sted ; and the tenants of the former are regarded as only the 
 bailiffs or farmers of their respective lessors, 61. 
 
128 
 
 EXAMINATION ^UEfiTIONS. 
 
 Q. 7 — Can a lease created by dwd be surrendered by cancella- 
 tion ? 
 
 A.— A lease created by deed cannot be surrendered simply by 
 cancellation, for a surrender of such a lease is void unless made 
 by dcorl. 341. See Imp. St. 7 & 8 V.. c. 76, s. 4 ; a similar enact- 
 meut 19 coutuiued in 14 & la V.. c. 7. s. 4.-U. C. Con. St. c 90 
 1. 4. ' 
 
 Q. 8.- By what means may an entail now be barred, and can 
 this be effected in all cases of estates tail ? 
 
 A.-By Imp. Statute 3 & 4 W. 4, c. 74, (which conters po-./ers 
 ot disposition upon persons entitled to estates tail and bwe fees) 
 an estate tail may be barred whether legal or equitable, in posses^ 
 sion, remainder, or contingency, by feoffment, lease and release, 
 bargain and sale, grant or covenant to stand seised, according to 
 the circumstances of the^estate, and the object of the parties, but 
 not by executory contract or will ; such assurance to be enrolled in 
 the Court of Chancery within six calendar ..i ^nths from its execu- 
 tion. But this cannot be effected if the tenant in tail be a woman 
 seised ex provmone viri, under 1 1 II. 7, c. 20, by virtue of a settle- 
 ment made before the passing of the act ; nor as to reversions in 
 the Crown, under 84 & 35 H. 8, c. 20. 127-129. [As to the 
 barring of estates tail in this Province we would refer the student 
 to U. C. Con. St. cap. 83.] 
 
 Q. 9— Can a tenant in tail make leases to be binding on any 
 one else than himself, and on whom; and by what authority of 
 Law, and on what conditions ? 
 
 A.~By the Statute 32 H. 8, c. 28, a tenant in tail is enabled to 
 make a lease for three lives, or twenty-one years, to bind his issue, 
 and upon the following conditions : 1. The lease must be by in- 
 denture, and not by deed poll or parol ; 2. It must begin from the 
 making or day of the making, and not at any greater distance of 
 time ; 3. If there be any old lease in being, it must be first 
 absolutely surrendered, or be within a year of expiring; 4. It 
 must be either for twenty-one years or three lives, and not for 
 both ; 5. It must not exceed the term of three lives or twenty-one 
 years, but may be for a shorter terra ; 6. It must be of corporeal 
 hereditaments, and not of such things as lie merely in grant ; 7. It 
 must be of lands and tenements most commonly letten for twentv- 
 one years past ; 8. The most usual and customary feorm or rent, 
 
y cancella- 
 
 simply by 
 iless made 
 lilar enact- 
 
 St. c. 90, 
 
 J. and cati 
 
 JM po'.'/ers 
 'Rse fees), 
 in poases- 
 id release, 
 ording to 
 rties, but 
 nrolled in 
 its execu- 
 a woman 
 f a settle- 
 Tsions in 
 l8 to the 
 e student 
 
 ; on any 
 hority of 
 
 labled to 
 
 lis issue, 
 
 le by in- 
 
 from the 
 
 itance of 
 
 be first 
 
 5; 4. It 
 
 1 not for 
 
 enty-one 
 
 orporeal 
 
 It ; 7. It 
 
 twenty- 
 
 or rent. 
 
 WATKIN8 ON CONVUYAWCIWO. I39 
 
 IndTLTr" ''"*• '""''^ '"' ''''''''^ y^^^^'y on «uch lease; 
 
 taL 47r s TnTl' T ^' ""'^•^ "'^^^^"^ impeachment o 
 waste. 479. Sep 2 Black. Com. 819. 
 
 Jinue o7eT^' '' " '''''' '' "'^'"P^'^"' *"^ ''^ »-« ^- it 
 
 ..ntr'^ " '''"''" T''^ '""''' *° •'"^t^^"' 0" 'condition, as a 
 secunty for money, and the conditio., be broken, he may, under 
 
 certain c.rcun.8tanees...rfe«« the premises; and this priviWe i, 
 
 denommated h,s equit,j of redernption ; 281. This right continues 
 
 open for twenty years from the time it arises, or after th 1^ 
 
 acknowledgment of it made by the mortgagee; beyond that time 
 
 the mortgagor ,8 forever barred of relief in equity; 231 note 
 
 Coote Mortg. 520. See U. C. Con. St. c. 88, s. 21. 
 
 Q. 1 J — Describe forcible entry. 
 
 A.- A forcible entry is such as is made with a strong hand with 
 unusual weapons, an unusual number of servants and attendants 
 
 i::^.z:; ''''-'-"''''• ««« xomi. l. d. t!:: 
 
 A.— "An Act respecting the conveyance of Real Estate bv 
 married women," Con. Stat U C r si .« a a * f^ 
 
 bV,«w f /. • ^^- ^" ^ct respectnig the 
 
 short forms of conveyancing," Con. Stat. U. C. c. 91;also%ec. 
 
 O ,^' T "• ^ ^' ''^^^'"S t'^ '^^^ting orders. 
 
 exnositit"^7i.'' ",'"'""• ^^ " "P^'-P^tuity?" Give a general 
 Suis based! ^'^'"' ''''''^'''' '""'''^ P"-P'- - 
 
 «n^'r^/*'^i"'*^ ''' ''^"■^ "" "'**'*« '« «o tied up that though 
 all who have interest should join in the conveyance, yet they could 
 not bar or pass the estate, Toml. L. Die. tit. Perpetuity. The 
 nde against perpetuities is that an executory estate cannot be 
 made to commence after a longer period than any fixed number 
 01 now existmg hves, and an additional term of twenty-one years • 
 alowjng further for the period of gestation, should ges'an 
 actually exist. This rule arose from the usual practice of settling 
 real estates to the husband for life, with remainder to his sons suc- 
 cessively in tail ; which being allowed, renders the ««fj.fP ,n.H«"-Ki. 
 dunng the existence of a life in being, and twenty-one years after,- 
 that IS, till the son of the tenant for life attains his fiiU age : from one 
 
n'^vf 
 
 ISO 
 
 ■XAMIITATIOBr QUESTIONS. 
 
 life the courts gradually proceeded to several lives in being at the 
 same time, for this in fact only amounted to the life of the Hurvi- 
 vor ; and as it might happen that a tenant for life, to vyhose un- 
 born son an estate was limited, might die leaving his wife enceinte, 
 an allowance was also made for the time of gestation of a posthu- 
 mous son :— hence the period allowed by the rule. It was formerly 
 a matter of much discussion, but is now settled by the decision in 
 CadrlU. Palmer, (10 Bing. 140 j 1 Clark & Fin. 372.) in the 
 House of Lords, that this term of twenty-one years may be inde- 
 pendent or not of the minority of any person to be entitled. The 
 object of the rule is to prevent, or ratlier, to control, the placing of 
 restraints upon the alienation of real estate, it being the policy of 
 our law — (and manifestly a correct one, in a commercial country) — 
 to favour free powers of alienation. 204 et aeq. Will. R. Pro. 
 2f)2 and note. I Jarm. Wills 220 et aeq. 
 
 Q. 14. — In whom does the legal estate vest if on a conveyance 
 by bargain and sale, a use is limited to a person other than the 
 bargainee ? Give the reason for your answer. 
 
 A. — The legal estate vests in the bargainee ; because in a bargain 
 and sale a use cannot be limited to any but the bargainee ; for, till 
 inrolment, the bargainee has but a use, and he cannot be seised of 
 a use to the use of another person, 249. 
 
 Q. 1.5. — What is a power simply collateral ? 
 A. — A collateral power is such as is given to a stranger ; that is, 
 to a person who has neither a present nor future estate or interest in 
 the lands, 269. 
 
 Q. 16. — What are the principal incidents to a tenancy in tail ? 
 A. — They are these : 1. That a tenant in tail may commit waste 
 on the estate tail, by felling timber, pulling dowti houses, or the 
 like, without being impeached, or called to account for the same : 
 2, that the wife of the tenant in tail shall have her dower, or thirds, 
 of the estate tail ; 3, that the husband of a female tenant in tail 
 may be tenant by the courtesy of the estate tail ; 4, that an estate 
 tail may ')e barred, or destroyed by a fine, by a common recovery, 
 or by lineal warranty descending with assets to the heir ; see 2 
 Black Com. 115. 
 
 Q. 17. — Mention the different kinds of freehold estates, and 
 how aind by what acts they may severally be forfeited. 
 
 A. — Estates in fee simple, fee tail, and estates for life. An estate 
 
 in fee si 
 
 An estat 
 
 estate fo 
 
 the remc 
 
 Q. 18 
 
 wid wha 
 
 k.—A 
 
 mence in 
 
 time witl 
 
 Statute ( 
 
 where th( 
 
 number 
 
 years, all( 
 
 posthumt 
 
 estates mi 
 
 Q. 19.- 
 
 A.-A 
 
 of the Ian 
 
 his father, 
 
 Q. 20.- 
 
 «8 will be 
 
 A.— It ] 
 
 executed b 
 
 certain he 
 
 capable o f 
 
 privity of j 
 
 Q. 21.- 
 
 estate to ai 
 
 A.— Sue 
 
 the infant, 
 
 not then ac 
 
 418. 
 
 Q. 22.-1 
 
 an indentur 
 
 A.— The 
 
 the date, th 
 
 ought to be 
 
 the 
 
 •'••-■rcrtuu 
 
 the estate oi 
 
WATKIN8 oy CONVUrANCmo. 131 
 
 sit::^!- --r;;^- -« -- -- . at;;.:: 
 
 A.-At common law freehold estates could „ot be niado to .n™ 
 
 Statute of Use by mj^, ' ' "°" '"' ''"" ''^ '"''' ">' "" 
 whore the e.t«Vil Toll: X^f, ^'"i "' '""'" -• 
 number of cxistinR live, .rd .„ ! ^ "^ '"'' "'^ '"'' ""'"'> 
 
 .car,, .U„„i,„ furfber f"." p l:' "Ir if tr"'"°"? 
 po.tb„mou. birth , ,a. 205. 2.5 , Will ,f C ol' " " 'T M 
 
 M «ill be executed under the statute of u,es » 
 
 .xet';;J'b:r:t'.zr.La: r"r °"'"'' ■" -^ " -^ <- 
 
 certain hcLZl r\r.„eh ll L'e ""ra: tb ^'T" """' "" 
 capable of takin, that „,e , afd .ha.ThVret p itu: of'eZr^ 
 privity of person, 240—242 ^ "'^ 
 
 c«lto.Ti„t;" "' '''"' °' " "°"™^'- »'• f« -pie 
 the'^taTa^rL r"^'"™.""'? '" "'■-'• '"''°8 '» "-e advantage of 
 
 418. ""''' ""'^ " ••*«>■ h'"> i in, 
 
 «.lf„;:re':ntr™' •»""'*"--'" "- ooven.„.. of 
 
 . .„ »„urOT««tf«„, ("to have and to hold,") b'v whieh 
 .he eaute or,..ere.. of fhe lea.ee is limi„d , 3rd, the ' JJ^' 
 
1B2 
 
 EXAMINATION QUESTIONS. 
 
 or clause whereby rent is reserved ; and 4th, the covenants and con- 
 ditions. Crabbe, Prec. Conv. 1024-1026. The usual covenants 
 are, — on the part of the lessee, to pay rent, to pay taxes, to keep the 
 demised property in good repair, and to leave them in good repair 
 at the expiration of the term ; and he also frequently covenants 
 not to cut down timber, &c., to insure, and not to assign or sublet 
 without the permission of the lessor : the lessor covenants for quiet 
 enjoyment by the lessee under the demise : to the lessor is reserved 
 the power of entering to view the state of repair; also a power of 
 re-entry on non-payment of rent or non-performance of covenants 
 by the lessee. [See U. C. Con. St., c. 92.] 
 
 Q. 23. — "What is a release, and how many species of release are 
 there? and mention them. 
 
 A. — A release is the relinquishment of a right or interest in lands 
 or tenements to another who has an estate in possession in the same 
 lands or tenements. There are five species of release : — 1st, % way 
 of enlargement, as if he in remainder in fee release to the parti- 
 cular tenant in possession ; 2nd, by way of passing an estate, as when 
 one co-parcener or joint-tenant releases to the other ; 3rd, by way 
 of passing a right, as when a disseissee releases to the disseisor ; 
 4th, by way of extinguishment, as if a tenant for life makes a greater 
 estate than he is warranted in granting, and the reversioner release 
 to his grantee, or if the lord release to his tenant his seignorial 
 rights ; and 5th, by way of entry and feoffment, as when a disseisee 
 releases to one of two disseisors. 331-333. 
 
 Q. 24. — What is meant by merger? When and how does it take 
 place, and in respect of what estates ? 
 
 A. — Where two estates, which are immediately reversionary to 
 each other, meet in the same person in one right, the one which 
 gives the title to the possession, except it be an estate tail, will, if 
 it be less in quantity than the one in reversion, merge and become 
 in the latter, 56. A merger may occur of every estate less than an 
 estate in fee simple, except an estate tail, 137. 
 
 Q' 25. — Can merger in any way, and how, be relieved against ? 
 
 A — Mergers are usually prevented upon a purchase, by the ma- 
 chinery of a conveyance to a trustee of the estate or charge which 
 would otherwise be discharged, for the purpose of preserving its 
 existence ; as where a rramber of terms in the same estate are to be 
 assigned, it is the practice to assign them alternately to two trusteeg. 
 
f 
 
 'ii i, 
 
 WATKIJV8 ON CONVEYANCING. J 33 
 
 -one trustee takes the 1st, 3d, 5th, &c., according to the priority of 
 creation, and the other trustee the 2nd, 4th, 6th, &c. ; 56. 
 
 Q. 26.— Is there any, and what Provincial Statute relating to 
 merger, and what are its provisions ? 
 
 TT ^iT^i^ ^" '• ^^' '• ^^' '"^ ^^ * *^ v.. c. 7, s. 7_Cori. St. 
 tf. C, c. 90, ss. 7 and 8, it is in efiFect enacted that merger of the 
 immediate reversion in lands expectant on a lease shall not have 
 the effect of extinguishing the rent and covenants in the lease. 
 The Provincial Statute 14 & 15 V., c. 45, s. 1-Con. St. U. C. c 
 »7, s. 1, provides that any mortgagee of freehold or leasehold pro- 
 perty or any assignment of such mortgagee may take and receive 
 trom the mortgagor or assignee a release of the equity of redemp- 
 tion in such property, or may purchase the same under any power 
 ot sale m his mortgage, or any adjustment or decree, without 
 thereby merging the mortgage debt as against any subsequent 
 mortgagee. ^ 
 
 Q. 27.- With respect to a lease, distinguish between "privity 
 of estate" and "privity of contract." 
 
 A—Immediately on the execution of the lease, a privity arises 
 between the lessor and lessee, which, if there be any collateral co- 
 Tenants m the lease not implied by law. is called a privity of con- 
 tract, and on that privity the lessee is bound to perform all those 
 collateral covenants, although he should never perfect the lease by 
 entry ; when he enters, there ari'ses between him and the lessor a 
 second privity, called the privity of estate, and this renders him 
 aabie tor the covenants implied by law ; 314 
 
 Q. 28.— What is the effect of a contract to purchase at law and 
 m equity upon the estate of a purchaser? 
 
 A.— A contract to purchase, before the Statute of Uses, raised 
 a use, which was converted into a legal estate by an actual convey, 
 ance ; upon the passing of that statute, the purchaser having the 
 use, had also the legal seisin, and therefore such a contract passed 
 the legal estate ; so that such a contract, if enrolled in Chancery 
 within SIX months, pursuant to 27 H. VIIL, c. 16, would perhaps 
 operate as a valid conveyance, but this is doubtful, as that statute 
 requires a bargain and sale to be indented and sealed, 356. In 
 equity, upon a contract to ourchnsfl. tbp pnr«l,aao^ !,«„„»,«. *u» 
 owner of the property, as to the parties to the contract, but not as 
 to strangers, and the owner holds in trust for him, subject to the 
 
 Hi 
 

 t'J 
 
 . I 
 
 
 134 
 
 EXAMINATION QUESTIONS. 
 
 payment of the purchase money ; Dart. Vend. & Purch., 2nd ed.» 
 129, 131. 
 
 Q. 29.— Explain the devolution of chattels real, vesting in sev- 
 eral executors, one of whom is the last survivor. 
 
 A.— Where there are several executors or administrators, the 
 chattels real of their testator or intestate do not devolve upon 
 them as joint-tenants ; but whether many or few, in the eye of the 
 law they take as one person, representing the testator or intestate, 
 and having a several as well as a joint dominion over the whole of 
 his effects ; see Touch. 484. It follows, therefore, that the sur- 
 vivor equally represents the deceased, and this representation de- 
 Tolves upon the executor of the last surviving executor who has 
 proved, and so on, to the last surviving executor of the last of the 
 series of executors. 484, ,485. 
 
 Q. 30.— In what case before the wills act would an estate in fee 
 simple pass by a devise even without words of limitation ? 
 
 A.— Prior to the wills act, the mode of evading the common law 
 restraints on testamentary dispositions was by making a feoffment 
 to A., his heirs and assigns, to such uses as the feoffer should ap- 
 point ; the appointment usually contained a power of revocation, 
 when it did not confer an immediate interest, so that the power 
 was in fact kept open till the appointor's death. In effect this 
 mode of evading the common law was equivalent to the will of the 
 present day, and was generally used in the same manner, and for 
 the same purposes. 246, n. 
 
 Q. 31. — What is a power in gross? 
 
 A.— A power in gross is where the person to whom It is given 
 has an estate in the land, but the estate to be created under, or by 
 virtue of, the power, is not to take effect till after the determina- 
 tion of the estate to which it relates, 270. 
 
 Q. 32.— Of what property is a deed of "grant" the appropriate 
 form of conveyance at common law ? 
 
 A.— A ffrant at common law is appropriated .to the conveyance 
 of things not in possession, as reversions and remainders, and other 
 incorporeal hereditaments, 302. 
 
 (Hence the law divided estates in those which lay in livenj and 
 those in ffrant, the former being corporeal and the latter incorpo- 
 real hereditaments ; but our statute 14 & 15 V., c. 7, s. 2— Con. 3t. 
 U. C, c. 90, 8. 2, enacts that all corporeal hereditaments shall, as 
 
WATK1N8 ON CONVEYANCING. 135 
 
 regards the conveyance of the immediate freehold thereof be 
 deemed to lie in grant as well as in livery ; therefore a conveyance 
 of such corporeal hereditaments may now be made by deed of 
 grant.) •' 
 
 Q. 33.-Can an estate for years be in any mode, and how, so 
 limited to A. for life with remainder over to B. and the heirs of 
 His body, that the first taker cannot defeat the remainder ? If an 
 estate to C. and his heirs were limited after the limitation to B. and 
 tne heirs of his body, what estate would C. take ? 
 
 A -An estate for years may be devised, or limited by way of 
 trust, to A. for life, and after his decease to B. and the heirs of his 
 body; and A., the person taking the preceding limitation for life, 
 cannot defeat the limitation, or remainder over; and the whole 
 property m the term will vest absolutely in B., the person who 
 takes under the limitation; hence the limitation over to C. must 
 lau ; 43. 
 
 Q. 34.-If there is a conveyance by deed of bargain and sale to 
 A. and his heirs, to such uses as A. shall appoint, and in default of 
 appomtment, to the use of A. and his heirs, and A. executes aa 
 appointment to B. and his heirs, does B. take any, and what estate 
 at law f (:Jive reasons for your answer. 
 
 A.-A bargain and sale cannot contain a power of appointment, 
 because to support a bargain and sale, a money consderation must 
 pass between the bargainor and bargainee, and to the perfection of 
 the instrument the consideration must be paid at the time the deed 
 18 executed, otherwise no use will arise, and nothing passes from the 
 bargainor, and so the deed is completely nugatory at the time it la 
 executed ; now between the bargainor and appointee under a power 
 there cannot pass a present consideration, and consequently no use 
 can arise; and as the seisin and the use are not separated the 
 statute cannot operate, consequently nothing is drawn out of the 
 bargainor, neither the use by the deed, nor the seisin by the statute ; 
 therefore B. takes no estate at law ; 357, 368. 
 
 Q. 35.- What estate will pass under a conveyance by bargain 
 and sale to A and his heirs by tenant in tail in remainder, without 
 the consent of the protector of the settlement ? 
 
 A.-A base fee will pass to A. by the conveyance, and th. Psfa*« 
 coutinues until it be avoided by the issue in tall by entry. 117; See" 
 Macheil V, Clarke, 2 Lord Raymond, 778. 
 
h'''\i 
 
 i ■ N' 
 
 r>' < 
 
 III 
 
 ST 
 
 
 136 
 
 examihtation questions. 
 
 Q, 36.— What are the distinctious (five in number) between an 
 executory devise and a contingent remainder ? 
 
 A — The five points in which an executory devise differs 
 from a contingent remainder, are; 1st, An executory devise is 
 admitted only in last wills and testaments; 2nd, An executory 
 devise respects personal estate as well as real ; 3rd, An executory 
 devise requires no preceding estate to support it ; 4th, When any 
 estate precedes an executory devise, it is not necessary that the 
 executory devise should vest when such preceding estate deter- 
 mines; and 5th, An executory devise cannot be prevented or 
 destf oyed, by any alteration whatsoever in the estate out of which 
 or after which it is limited. 202. 
 
 Q. 37.— What estates may be successfully limited by way of 
 executory devise ? J j 
 
 A.— A fee or less estate may be limited after a fee, either abso- 
 lute or base, provided the rule against perpetuities be not infringed j 
 (see answer to Q. 13), 204; this could not be accomplished by 
 any other means ; see Will. R. Pro. 208, 243. A fee may so be 
 limited to commence m>#«ro; as, till such fee shall take effect, 
 the inheritance shall descend to the right heirs of the testator, 205. 
 Q. 38.— Explain the term "without impeachment of waste." 
 A.^Imj)cachment of waste signifies a restraint from committing 
 waste upon lands or tenements ; or a demand of recompense for 
 waste done by a tenant who hath but a particular estate in the 
 land granted : and he that hath a lease to hold without impeach- 
 ment of waste, hath by that such an interest given him in the 
 lands or tenements, that he may make waste without being im- 
 peached for it ; that is, without being questioned, or any demand 
 of recompense for the waste done. See 11 Co. 82, b. 
 
 Q. 39.- What is the provision of the Statute of Frauds relative 
 to the creation of a trust ? 
 
 A.-By the Statute of Frauds, 29 Car. II. c. 8. s. 7, it is enacted : 
 that all declarations or creations of trusts or confidences of any 
 lands, tenements or hereditaments, shall be manifested and proved 
 by some writing, signed by the party who is b- law enabled to 
 declare such trust, or by his last will in writing, or else ihey shall 
 be utterly void, and of none effect. By sec. 8, trusts arising by 
 implication of law are excepted, but all assignment of trusts must 
 be in writing. 486. 
 
DART ON VENDORS AND PURCHASERS. 
 
 l$1 
 
 way of 
 
 Q. 40.— Define a fee simple, and state what are its properties. 
 A.— An estate in fee simple is a freehold estate limited to a 
 person and his heirs, general or indefinite : that is, not confined to 
 any particular line or species of heirs, hut limited to the heirs gen- 
 erally r and it is the highest estate which the law acknowledges in a 
 subject. The properties of such an estate are,— 1, an unlimited power 
 of alienation by deed or will; 2, an uncontrollable power in the com- 
 mission of waste ; 3, liability to dower and courtesy ; 4, liability to 
 debts by speciality and simple contract ; 5, descent to the heirs 
 general, according to the laws of inheritance ; 6, escheat to the 
 lord of the manor for want of heirs ; and 7, forfeiture for treason, 
 murder and felony. 137, 138, and notes. 
 
 Q. 41.~Give a definition of "emblements." 
 
 A.— Strictly speaking, the word emblements signifies the profits 
 of the land sown with corn ; and the word has been extended to 
 inclut. other annual artificial pfofits, as hemp, roots, and the like, 3. 
 See Toml. L. Die. tit. Emblements,- also Will. Real Pro. 25, 325. 
 
 Q. 42. — When does a tenancy by entireties arise ? 
 
 A.— Where an estate is during their coverture conveyed or 
 devised to a man and his wife, they are said to be tenants by 
 entireties, that is, each is said to be seised of the whole estate, and 
 neither of a part, 1 77. 
 
 Q. 43.— What liability does the mortgagee of leasehold incur in 
 respect of the covenants on the part of the mortgagor contained iu 
 the lease ? Does this liability arise from privity of estate or 
 privity of contract ? 
 
 A.— The mortgagee in( a liability in respect of all covenants 
 m law and in deed that run with the land, 319. The privity of 
 estate exists no longer than the relation of landlord and tenant, 
 consequently this liability arises from privity of contract, 31; 
 
 17. 
 
 DART ON VENDORS AND PURCHASERS. 
 
 Question 1.— When is time of the essence of a contract at law 
 and m equity respectively ; and when not originally of the essence 
 of the contract, can it, and by what means, be made so ? 
 
 Answer.^Al law, the time fixed for completion is of the essence 
 of the contract, and the vendor must deduce and verify a market- 
 
 S ?i 
 
I ; ' I 
 
 138 
 
 EXAMINATION QUESTIONS. 
 
 1-1: 1- 
 
 able title by the tune agreed upon : if no time be fixed, a reasona- 
 ble time will be allowed, 232. 51.3. Berry v. Young, 2 Esp. 640 
 n. In equity, although unreasonable delay will of itself conclude 
 either party, the mere fact of the time fixed for completion having 
 expired, .s no defence to a suit for specific performance; except 
 where time has been made of the essence of the contract by expreas 
 agreement ; or where, from the circumstances of the case, such 
 must clearly have been the intention of the parties ; 232 ; Coslake v. 
 1111, 1 Russ., 3/6 ; see Doloret v. Rothschild, 1 Sim. & Stu. 590 
 Where time has not originally been of the essence of the contract, 
 either party may, by proper notice, bind the other to complete 
 withm a reasonable specified period, 235. Stewart v. Smith 6 
 Hare, 223. ' 
 
 Q. 2.-~Are parol contracts relating to land enforceable, and 
 under what circumstances J 
 
 A—The Statute of Frauds, 29 Car. II. c. 3, s. 4. requires all 
 contracts for the sale or purchase of lands, tenements or heredita- 
 ments, or any estate or interest in or concerning them to be put in 
 writing, 102 ; but parol contracts will be enforced in certain cases 
 upon the ground, 1st, of fraud having been the cause of the non- 
 compliance with the requisitions of the statute; 2ndly, of the 
 parol agreement having been in part performed ; or 3rdly of its 
 existence being admitted by the defendant ; 539. Whitchurch v 
 Bevis. 2 Bro. C. C. 565 ; Attorney General v. Day, 1 Ves. sen! 
 
 Q. 3.-What is the effect upon the rights of both parties 
 respectively of property being in some important particular misde- 
 scnbed in a written contract for the sale thereof? 
 
 A._A misdescription, if wilful or designed, amounts to fraud, 
 and avoids the contract as regards the purchaser; if it arise simply 
 from neghgence, equity will refuse a specific performance at the 
 Buu of the vendor,-notwithstanding any condition in the agree- 
 went for sale that misdescription shall not avoid the contract, but 
 merely be a subject for a compensation, if the error be not such as 
 may be compensated ; at law it has been held that negligence with- 
 out fraud, did not excuse the purchaser from his liability, but it is 
 now settled that if tl.e misdescription be material, the contract is 
 avoided. Flight v. Booth, 1 Bing. N. C. 370, 377 70 71 
 
1 
 
 ill 
 
 DART ON VENDORS AND PURCHASERS. 
 
 1S9 
 
 Q. 4. — What is the effect in equity and at law respectively of a 
 puffer being employed at an auction sale of lands ? 
 
 A. — In equity, unless the property be expressly or impliedly 
 offered for sale without reserve, it appears that the employment of 
 a bidder to prevent its going at an undervalue is allowable ; but a 
 bidder for the purpose of enhancing the price indefinitely, or more 
 bidders than one, would not be allowed. Woodward v. Miller, 2 
 Coll. 279; Smith v. Clarke, 12 Ves. 483. At law the question 
 is unsettled, but in a recent case (Thornett v. Haines, 15 M. & W. 
 871, 372,) the Barons of the Exchequer laid it down that the em- 
 ployment of a puffer would vitiate the sale at law, unless the 
 intention to do so were expressly notified. 100, 101. 
 
 Q. 5.— State briefly the effect of a contract for the sale of land 
 upon the rights of the vendor and vendee respectively. 
 
 A.— Upon the making of a binding contract for the sale of land, 
 the vendor holds the land in trust for the vendee, subject to the 
 payment of the purchase money, and the vendee is, as a general 
 rule, under a personal liability, both legal and equitable, for pay- 
 ment of the purchase money to the vendor, 129. 
 
 In equity, the vendee becomes the owner of the property as 
 between himself and the vendor, but not as to strangers to the 
 contract ; and is entitled to everything forming part of the inheri- 
 tance, so that the vendor cannot remove ornamental timber or the 
 like ; and he also has the benefit of any improvements which may 
 happen after the date of the contract,, and must bear any loss 
 which may occur in respect of it without the fault of the vendor ; 
 130—133. 
 
 The vendor has a lien upon the estate for the unpaid purchase 
 money ', the vendee in possession will therefore, until payment, be 
 restrained from doing any act by which the vendor's security may 
 be lessened. A registered judgment against the vendor, subsequent 
 to the contract, is a lien upon the unpaid purchase money ; [but not 
 in Upper Canada, as the registering of judgments has been abol- 
 ished by 24 V. c. 41] ; and ah extent upon crown process, at any 
 time before conveyance, binds the purchaser, although he has paid 
 his money. If the purch<iaei die intestate and without an heir, 
 before conveyance, it seems probable that the vendor might keep 
 
 t'llA <.ofafA nnA *Urt n..**At> » .^^v * . IP ? 1 1 o j 
 
 ...,s...,.i. „,,U rj:». puiuiiaBC JIIUUC^', 11 IjaiU. lO'^. 
 
 Up to the time for completion, the vendor is, in the absence 
 
,| '!" 
 
 140 
 
 EXAMINATION QUESTIONS. 
 
 orofirnf Iv T. T' '°*"''^ '° '^' '''^'' «■• «*her ordinary 
 profits of the land ; but cannot take crops otherwise than in the 
 
 due course of husbandry : after the ti„,e fixed for completiorand 
 pending negotiation, the vendor may outcrops, &c., but the vendee 
 will be entitled to the profits ; 134, 130. 
 
 Where a purchaser has been let into 'possession, pending discus. 
 «ons as to t,tle. if the contract go off through defects'in tS 
 he cannot be sued for use and occupation ; nor can he unlew 
 he agreed to quit on some specified event which has happened b^ 
 ejected without a demand of possession, 135 ^^ ' 
 
 Where the purchaser is a tenant from year to year, or for a 
 onger term, the contract will not ^letermine the tenancy. unTesJ 
 specially worded so as to be an absolute contract for pirchte 
 whether the vendor do or do not shew a good title : but elX^l 
 r mn the landlord from enforcing payment of rent pendTng'com. 
 fh t^e Tt r\"' "' ".'" ^^'^^^^-^-d by the contract' from 
 m 135 P"''''''°" '' "^'''^ '' ""' S>^«° *° the purchaser ; 
 
 Q. 6.-What is an abstract of title, and how is it verified ? 
 A -An abstract of title is an instrument shewing the way in 
 which the vendor derives his title to the land, and stati'ng a IdL" 
 wills, mor gages, judgments and documents of every kind bv which 
 such title IS deduced, or by which the land is changed An^ tt 
 
 fiUe oMf :r ''' rr'^^" P-ductionof the'documen^s o? 
 tiUe, or If they cannot be produced, he is entitled to the best 
 secondary evidence of them which can be given him : he may also 
 require evidence of all facts material to the title, from the dTteaJ 
 
 ^f^:mat•^7:'" f r^^^^ ^^'"'"^"-' sufHdentt estalush 
 affirmatively the vendor's title; see. chap. VIII s 6 
 
 subiect "^^^''' '^?/ '" '*' '° '^' ^'''^"^^ °^ ''^y «tiP"I*tion on the 
 subject, to prepare the conveyance ? 
 
 f« t~w purchaser is bound to prepare the conveyance and 
 tender it for execution to the vendor, 272 °^«yance, and 
 
 solute^b^r'! ''''"'°*' ^'' ''*'' ^''' ^ vendor, who is the ab. 
 solute beneficial owner, give ? 
 
 A -A vendor, if the absolute beneficial owner, enters into the 
 usual covenants that he has a good right to app;int and rde«e 
 ssignor d,r, (asthe case may be, acccoJL. as theirs 
 
 f.ec,..la, ieasehuid, or copyhold,) for quiet enjoyment, free from 
 
DART ON VENDORS AND PURCHASERS. 
 
 141 
 
 Church V. Brown, 
 
 encumbrances, and for further assurance, 286. 
 15 Ves. 263. 
 
 Q- 9- — In what cases are recitals evidence ? 
 
 A.— If a deed be lost or destroyed, the recital of it is erir^nce 
 of its existence as againbt all parties executing the deed containing 
 the recital, and those claiming under them, but it is no evidence of 
 its contents or effect beyond what its name and nature necessarily 
 imply, unless proof be given of its loss or destruction, 171, The 
 recital of a lease for a year in any conveyance executed before the 
 13th May, 1841, is sufficient evidence of the execution of such 
 lease, without proof of its loss : and in any rentiwed ecclesiastical 
 lease granted since the 2l8t of June, 1836, (unless in pursuance of 
 a covenant or agreement entered into before the 1st March, 1836,) 
 the recital of the old lease, and of the deaths, Ac, of the ceatuia 
 que vie, is conclusive evidence thereof : 173. In the absence of 
 better evidence, recitals in deeds and wills are admissible to prove 
 births, marriages, and deaths, 197; but as against third parties 
 such recitals in deeds are not evidence unless the deed was executed 
 by some disinterested member of the family, 200. 
 
 Q. lO.—Is a stranger, not interested in the estate, liable to an 
 action by the purchaser for misrepresentations made by him ? 
 
 A.— A stranger who, even from mere wantonness, intending to 
 deceive, although without any view to gain, makes a false repre- 
 sentation to a purchaser as to the value or rent of the property, is 
 liable to an action by the purchaser for such misrepresention, 51. 
 Bardell ». Spinks, 2 Car. & K. 646. 
 
 Q. 11.— Is a vendor in any and what cases, bound to disclose 
 defects ? 
 
 A, — He is not bound to ^dose patent defects, or such as might 
 be discovered by ordinary vigilance on the part of a purchaser ; 
 e. g,, the existence of an open footpath across the property, Bowles 
 V. Round, 5 Ves. 508. As regards latent defects, or such as the 
 greatest attention would not enable the purchaser to discover, {e.g., 
 the existence of defects in a ship's bottom when sold afloat,) if 
 the vendor omit to disclose them, he cannot rely on the aid of a 
 Court of Equity ; but at law the rule seems to be otherwise, in the 
 absence of fraud, if the sale be made with all faults, Baglehole 
 XI. Walters, 3 Camp. 154. The vendor must not, either during a 
 treaty for, or while intending, a sale, endeavour to conceal a defect, 
 
142 
 
 SXAMINATION QUESTIONS. 
 
 Pp : 
 
 or to divert a purchaser's aUenUon from it, 44, 45. Shirley v. Strat- 
 ton, 1 Bro. C. C. 140. ^ 
 
 Q. 12.—After the conveyance has been executed, can a pur- 
 chaser, upon discovering a defect of title, in any case, obtain relief 
 either at law or in equity otherwise than by action upon the 
 covenants for title ? j f ^ 
 
 A.— A purchaser, after conveyance and payment of his purchase 
 money, may obtain relief in equity against a vendor who has 
 induced Inm to accept a defective title by fraudulent misrepresen- 
 tation, or fraudulent concealment of a material fact which the 
 purchaser had no means of discovering, 420. Small v. Atwood, 
 ^ou. 407; Edwards v, McLeay, G. (^op. 308. 312; Early v 
 Garrett, 4 Mann. & R. 687. fi90. At law h. ,nay, after conveyance,* 
 bnng an action on the case for a fraudulent misrepresentation of 
 the property or the title;, or he may recover the purchase money 
 If the "rcumstances of the case entitle him to rescind the contract! 
 423. Dobell v. Stevens, 3 B. & C. 623. 
 
 «Pf^l!.^'~"^'" /^' ?""'' °^ ^^'''''''y •" '^"y- ""'^ «hat cases, 
 set aside a sale of lands for inadequacy ,*f price only ? 
 
 A.-If the vendor in fixing the prjrc have altogether relied upon 
 .normation furnished to him by the purchaser, and such b- 
 formation turn out to have been (even unintentionally) ^.aterially 
 incorrect, the vendor will be entitled, even after conveyance, to 
 have the contract set aside, 392. Carpmael .. Fowls, 11 Jur. 168. 
 iwn "''■ f/ A P"''^^"^^'-' «^t«>* completion, could not in the 
 
 :n:::iati^4i^'"" '""' -- ''- ^^^--^ -^ ^'^ p- ^^--^ 
 
 Q. 14 -.Does it follow that because a court of equity refuses 
 specifically to perform a contract, that it will rescind it ? 
 
 wo i7f ^"/ ^7 """"^ '^"'' ^^'''' '^°"S^ «P«"fi« performance 
 would be refused, equity will no, rescind the contract, but will leave 
 the par les to their remedies upon it at law ; Sugd. Vend. & Pur. 
 269; Mortlock v. Buller. 10 Ves. 308. . 
 
 Q. 15.- What must be shewn as to title to induce a court of 
 eqmty to compel an unwilling purchaser to take it f 
 
 A.-A purchaser is entitled to a good title, and cannot be com- 
 pelled to take one which is doubtful, 232; Sugd. Vend. & Pur. 
 505 et seq. ; but he will be bound by his agreement if he have olear 
 notice 01 tbe state of the title before entering into it; and he wil! 
 
DART ON VENDORS AND PURCHASERS. 
 
 143 
 
 also be bound to take a doubtful title if he has waived his right to 
 a good title; 241. 
 
 Q. lO.^Is a conveyance upon a sale by an infant void or 
 voidable only ? 
 
 v.— Any deed executed by an infant, which takes efFect by 
 delivery, is voidable only. 2, note («). Anon. v. Handcock, 
 17 Ves. 383. See Zouch v. Parsons, 3 Burr. 1794. 
 
 Q. 17.— If au infant vendor commit a fraud upon the purchaser 
 by falsely representing himself as of age, will a court of equity 
 give the purchaser any and what relief, if the vendor attempts to 
 recover the land in ejectment ? 
 
 A — If the infant were to proceed at law to recover the land 
 equity would restrain the action, except upon the terms of his 
 refunding .he purchase money. 3. See Esron v. Nicholas. 1 D G 
 & S. 118. 
 
 Q. 18.— What are the requisites to a confirmation by a cestui 
 que trust of a voidable purchase of the trust estate by his trustee? 
 
 A.— To make his confirmation binding, the cestui que trust must 
 be sut juris, fully aware of the material facts, of his right to 
 impeach the transactioa. and of the legal consequences of his 
 confirming it ; he muse be under no undue influence, the con- 
 firmation must be a solemn and deliberate act, free from any 
 pressure resulting from the original transaction ; and, in the case 
 of a plurality of cestuis que trust, it must, to be effectual, be the 
 act of all, as a majority cannot bind the minority ; 28, 29. Camp- 
 bell V. Walker. 5 Ves. 682 ; Chalmer v. Bradley 1 Jac. & W 51 
 Cann v. Cann. 1 P. Wms. 727; Cockerell v. Cholmeley. 1 Russ'. 
 &M.418; Carpenter v. Heriot, 1 Eden. 338; Crowe v. Ballard. 
 3Bro. C. C. 117. 
 
 Q. 19.— What false statements by the vendor will avoid the con- 
 tract ? 
 
 A.~Any false statement by a vendor, of an independaut fact, 
 —(as that the property has been valued by a surveyor at a specified 
 sum,)— will if relied on by the purchaser, avoid the contract ; 
 Buxton V. Lister, 3 Atk. 386; but mere expressions of praise or 
 affirmations of value, are immaterial ; Fenton v. Browne. 14 Ves. 
 144. 49, 50. 
 
 V,. 20.— What arc. f.hp Pgaont'^al i«>n,.;5Uao *_ iU- --I^-t-'x ^i. 
 
 . — — _n — „... ,,.t|i,ieiteo lu mc TttiiuiLT Oi an 
 agreement for the sale of lands ? 
 
144 
 
 ■XAMINATION qUXSTIONS. 
 
 By the Statute of Frauds. 29 Car. II, c. a, s. 4, it is requisite to 
 the validity of an agreement for the sale of lauds that it should be 
 in writing, signed by the party to be charged, or his agent there- 
 unto lawfully authorised ; 102. 
 
 Q. 2 1. —What is constructive notice/ give a definition. 
 
 A.— Constructive notice has been defined to be "evidence of 
 notice, the presumptions of whichareso violent that the court will not 
 allow even of its being controverted." Sec Plumb v. Fluitt, 2 Anstr. 
 438. It may, perhaps, more correctly be considered to consist in 
 those circumstances under which the court concludes, either that 
 the party, (personally, or through his agent,) has fraudulently 
 abstained from acquiring actual notice, or has been guilty of such 
 negHgence in not availing himself of the means of acquiring it, as, 
 if permitted, might be a cloak to fraud, and which, therefore, the 
 common interests of soiciety require should in its consequences 
 be treated as equivalent to actual notice j 460, 451. 
 
 Q. 22.— How must a vendor relying on a waiver by the purchaser 
 of his right to an investigation of the title, charge such waiver in 
 his bill for specific performance ? 
 
 A.— In charging such waiver, it is not sufficient to allege facts 
 which, if proved, would be evidence of it ; and on the other hand, 
 it is improper to introduce 2;eneral charges or averments of waiver, 
 unsupported by a statement of the particular facts : the party ought 
 so to frame his case, that the court can fairly see what the case is 
 which is to be relied on ; 532. Clive >'. Beaumont, DeGex & 8. 
 397. 
 
 Q. 28.— What covenants for title has a purchaser a right to, 
 from a vendor who has acquired the estate sold by inheritance ? 
 
 A.— Formerly the Court of Chancery would not compel a vendor 
 to enter into covenants extending back further than the acts of the 
 last owner ; but where such owner himself acquired the estate other- 
 wise than by purchase for valuable consideration, the " universal 
 and settled practice of conveyancers " is, to make the covenants 
 extend to the acts of all prior owners up to and inclusive of the 
 last purchaser for value ; and the courts would probably at the 
 present day be inclined to sanction such practice by decision ; 287. 
 
 Q. 24— What are the requisites* oi an agreement relating to real 
 estate, which equity will specifically enforce ? 
 
 A.— 'fhe agreement, except in certain cases (sec answer to Q. 
 
DART OBT VBNDORA AWD PURCHASERS. 
 
 146 
 
 to Q. 
 
 2.) mult be in writing, in pursuance of tlie Statute of Frauds, 29 
 Car. II., c. 3 ; it must lie certain, fair in all its parts, for an ade- 
 quate consideration, and capable of being performed ; Story Equity 
 Juris. § 751. - 1 / 
 
 Q. 25.— Can a purchaser who has been let into possession pend- 
 ing a discussion as to the title, be sued for use and occupation if 
 the contract go off through defect in the title? and give reasons 
 for your answer. 
 
 A.— Such a purchaser cannot be sued for use and occupation, for 
 he docs not hold as a tenant, and the plaintiff cannot convert him 
 into an occupier, liable to pay for his occupation, by kis own wrong- 
 ful act in not completing the sale, 135, 503; Winterbottom v. 
 Ingham, 7Q. B. 611. 
 
 Q. 26.— If no time be fixed fo? the completion of the purchase, 
 is the purchaser liable to pay interest ? 
 
 A.— If no time be fixed for completion, the purchaser is liable 
 to pay interest upon his purchase money, (unless lying idle, with 
 notice of the fact to the vendor,) from the date of the contract, if 
 he be then in possession 'x parte Manning, 2 P. Wms. 410 ;' or 
 if he be not then in possession, from the time of his taking posseu • 
 aion ; Fludyer v. Cocker. T2 Ves. 25 ; or from the time at whicii he 
 might prudently have taken possession, namely, the time when a 
 good title is shewn ; 329. 
 
 Q. 27.— What are the requisites of a "perfect abstract" of 
 title? 
 
 A.— If must shew a perfect title, that is, it must shew that the 
 vendor is oither himself competent to convey to, or can otherwise 
 procure to oe vested in, the purchaser, the legal and equitable 
 estates free from incumbrances ; 149 ; see Morley v. Cook, 2 Hare, 
 
 Q. 28.— Is marriage any part performance of a parol aerreement 
 entered into previously, but in contemplation of it ? Give your 
 reasons for your answer. 
 
 A.— Marriage is not, for the purpose ot specific performance 
 considered as a part performance of a parol contract, for which it 
 forms the consideration: because there can ht no part performance 
 ot an incomplete contract, 541. Taylor v. Beach, 1 Ves. sen. 298 • 
 Dundas v. Dutens, 1 Vps^ iun. ! Qp. ' 
 
 
 8! 
 
I-I 1 
 
 u^ 
 
 146 
 
 KZAMIWATION f^UESTIOirs. 
 
 Q. 29. — Who are generally and relatively incompetent to pur- 
 chase or sell respectively ? 
 
 A.— Incapacities to purchase or sell are considered as being of 
 two descriptions : 1st, general, or such as depend on some circum- 
 stances personal to the proposed vendor or purchaser, and aflFecting 
 his general capacity to buy or sell any real estate ; and 2ndly, 
 relative, or such as depend on the relation in which he stands to 
 the particular property proposed to be sold or bought, or to the 
 party with whom he proposes to deal ; 1 , 
 
 As regards the first class :— Corporations, who, though they may 
 purchase, cannot hold lands without a license to hold in mortmain, 
 or power given by act of Parliament ; a number of persons unin' 
 corporated,— as the parishoners of a parish,— cannot purchase, as 
 individuals must purchase only jn their private capacities and in 
 their individual names ; aa alien may purchase lands, but cannot 
 hold them, as upon office found, they belong to the Crown ; an infant 
 may purchase, but upon attaining full age, may abandon the con- 
 tract ; a purchase by a lunatic or idiot is voidable by the Crown 
 after office found, or by his committee after inquisition, or by his 
 representatives after his decease,-but he cannot avoid the purchase 
 himself; a purchase by a married woman is voidable by her hus- 
 band, or by herself after his death ; traitors and felons may, before 
 judgment, purchase land, but upon judgment, it will be subject to 
 the rights of the lord of the fee, or of the Crown,-purcha8e8 by 
 them after judgment are subject to the same rules as purchases by 
 aliens ; upon a purchase by a bankrupt or insolvent, the lands vest 
 m his assignees ; 8-15. An infant cannot, as a general rule, make 
 a conveyance bmding upon himself after attaining full age, or bind- 
 ing upon his heirs if he die under age, or without confirmation 
 after attaining full age ; sales by a lunatic or idiot are voidable by 
 his committee or hrs heirs after his death ; it has been held that 
 an innocent conveyance by a lunatic is absolutely void; a married 
 woman cannot in general, convey without her husband's concur- 
 rence ; a conveyance by a traitor or felon is subject to the rights of 
 the crown or of the lord of the fee ; 2-6. 
 
 As regards the second description, persons incompetent to sell 
 are ; those who have no transferable title to the land proposed to 
 be dealt with ; and those who stand in a special relation toward* 
 the proposed purchaser which may enable them to exercise an 
 
DART ON VENDOaS AND PURCHASERS. 147 
 
 undue influence, as the relations existing between guardian and 
 ward, sohcuor and client, trustee and cestui que W.^and the like ; 
 and persons standing in such relations are equally inco^ „?! 
 purchasers; and.tisarule in equity that lo person "Vho by 
 being employed or concerned in the affairs of another, has acquired 
 aknowlege of his property," or who, in respect of the Z'rty 
 to be sold, has a duty to perform which is inconsistent wTh the 
 duty^or mterest of a purchaser, shall purchase such prop"^ ; t 
 
 Q. 30.-When is a purchaser entitled to compensation ? 
 -nU r purchaser is entitled to compensation when the estate 
 old turns out to be deficient in quantity, quality, or the exten of 
 the vendor's interest therein ; 343, 345, 566. 647 
 
 Q. 31.-Distiuguish between dependent and independent stinu- 
 e^r;::; ""'"^'°'"'^' «tate th^r effect; and' iUustUrby 
 
 A.-Dependent stipulations are those which are precedent to the 
 performance of the contract, and upon which such perfomal 
 depends; as a general rule, the mutual engagements of' he p"rt" 
 mil be considered dependent on each other, and either must rdl 
 discharged therefrom by the other,) perform his tbSstfo 
 he seeks to enforce his rights under the contract. Xe/dt; 
 stipulations are those which are to be performed independentlv oJ 
 
 example of the former,--a purchaser cannot, in general, sue up^^ 
 
 n reTZTthT "V"'^"°^ *'^ conveyance, and the sumT 
 m respect of the purchase money and interest ; as an examnle of 
 an independent atipulation,~if a day be fixed for the pZet of 
 money before the day on which the thing which is the coSrlJ 
 for such payment is to be performed, an action may be broZ for 
 the money before performance. 604, 505 ^ 
 
 par^ol,fe7eI" ^'^ "^^"'°" '' * ^^^^^'"^^ ^^^'^ --<^ ^7 
 A.--A party suing on a written contract is, as a general mle. 
 bound by Its terms, and cannot, upon the ground of frfud. surpl^ 
 or mistake, seek to vary, add to or explain its contents exl^ 
 perhaps, where the fraud consists in a refusal to accede ti 1 ?«. 
 mised variation upon the faith of which the party plaintiff' ente';ed 
 mto a written agreement : or in the CMe of a fraudulent preparation 
 
 
!'j ' 
 
 U 
 
 I 
 
 ! 
 
 iLlJ 
 
 148 
 
 EXAMINATION QUESTIONS. 
 
 or alteration of the agreement so as to make it inconsistent with 
 the real intentions of the parties, and the understanding of the 
 plaintiff at the time he executed it : or where by mistake an agree- 
 ment not expressing the real intention of the parties is entered into, 
 and the mistake is admitted by the answer, or not being denied by 
 the answer, is proved by unexceptionable evidence. A subsequent 
 parol variation may be enforced where there has been such a part 
 performance of the varied agreement as would support a decree in 
 the case of an original independent agreement, or where the defend- 
 ant by his answer admits the variation and does not insist upon the 
 statute. 54(i, 547. 
 
 • 
 
 hi*' 
 
 COOTii ON MORTGAGES. 
 
 Question 1. — What are Mortgages, and how are they created? 
 
 Answer — A mortgage may be defined to be a debt by specialty, 
 secured by a pledge of lands of which the legal ownership is vested in 
 the creditor, but of which, in equity, the debtor and those claiming 
 under him remain the actual owners until barred by judicial sen- 
 tence, by legislative enactment, or their own laches. It is a secu- 
 rity founded on the common law, and perfected by a judicious and 
 wise application of the principles of redemption of the civil law. 1 . 
 Mortgages must be created by deed : but in some cases a mortgage 
 may in equity be created by parol, as in the case of a deposit of 
 title deeds as a security for a debt, 165. 
 
 Q. 2. — What is an equitable mortgage ? and how is it effected 
 by the Statute of Frauds ? 
 
 A. — An equitable mortgage is where a debtor deposits his title 
 deeds with his creditor as a security for the debt ; see Will. Real 
 Pro. 359. The Statute of Frauds, 29 Car. 2, c. 3, s. 4, enacts that 
 no action shall be brought upon any contract or sale of lands, tene- 
 ments, or hereditaments, or any interest in or concerning them, 
 unless the agreement upon which such action shall be brought, or 
 some memorandum or note thereof, be in writing and signed by 
 the party to be charged therewith, or some other person thereunto 
 lawfully authorized. Notwithstanding this statute, it is now deci- 
 ded, that if the title deeds of an estate are (without even verbal 
 communication,) deposited by a debtor in the hands of his creditor 
 
 11 
 
'^ 
 
 COOTE ON MORT6AOES. 
 
 149 
 
 or of some third person on his behalf, such deposit is of itself evi- 
 dence of an agreement executed for a mortgage of the estate ; 
 Ex parte Wright, 9 Ves. jun. 258. An equitable mortgage by de- 
 posit of title deeds will in some cases be recognized even in a court 
 jf law; see Sumpter et al. v. Cooper, 2.IB. & Ad., 223. 165. 
 
 Q. 3.— What Statutes affect the law of mortgages in Upper 
 Canada? 
 
 A.— By 14 & 16 V. c. 45, s. 1— U. C. Con. St. c. 87, s. 1, a 
 mortgagee of freehold or leasehold may acquire the equity of re- 
 demption without merger of the mortgage debt ; by s. 2, where a 
 prior mortgage acquires the equity of redemption, a subsequent 
 mortgagee cfi not foreclose or sell without paying off the prior 
 mortg- - ,y 8. 4, the mode of proof of the state of the mortgage 
 accoi . ase of suit for foreclosure or redemption, is regulated ; 
 
 by 8. 5, the executor or administrator of a deceased mortgagee is 
 enabled to reconvey the lands and give a discharge of the debt, in 
 certain cases. By 12 V. c. 73, ss. 1, 2— U. C, Con. St. c. 22, 
 ss. 267, 268, the interest of a mortgagor is made liable to seizure 
 and sale under execution ; and by s. 3— Con. St. s. 259, a mortgagee 
 may become a purchaser upon such sale. By 20 V. c. 3, s. II — 
 U. C. Con. St. c. 22, s. 260, the mortgagor's interest in chattels 
 mortgaged is made liable to sale under execution. By 4 W. IV. 
 c. 1, 8. 36, and 16 V. c. 121, s. 1— U. C. Con. St. c. 88, ss. 21-23, 
 26, the limitations of suits respecting mortgages are regulated. 
 By 8 V. c. 8, s. 11— U. C. Con. St. c. 80, s. 24, the nominee of 
 the Crown or his assignee is enabled to mortgage the lands before 
 issue of the patent. By 20 V. c. 3— U. C. Con. St. c 45, mort- 
 p-ages of chattels are regulated. By 19 & 20 V. c. 50— Can. Con. 
 St. c. 42, mortgages of vessels are regulated. 
 
 Q. 4.— Are any, and what trustees allowed by any, and what, 
 statutes in Upper Canada, to execute mortgages of the trust pro- 
 perty, and upon what conditions, and for what purposes ? 
 
 A. — Trustees of religious institutions are allc-ved by stat. 13 & 14 
 V. c. 78, — U. C. Con. St. c. 69, to create mortgages of the trust 
 property, upon the terms and conditions usually agreed upon, for 
 the purpose of building, repairing, extending or improving of such 
 religious institutions or for the purchase of land on which the 
 same may be erected ; or may borrow money to pay the debt or 
 part thereof and secure the repayment thereof by a like mortgage. 
 
16C 
 
 KXAMINATION QUESTIONS. 
 
 li'f 
 
 Q. 6.— What are the comparative advantages of Mortgages in 
 fee, and mortgages for a term of years ? 
 
 A— Mortgages for a terra of years have this advantage over 
 mortgages in fee, that the security and debt devolve together, 
 whereas in the case of a mortgage in fee the land descends to the 
 heir and the debt to the executor, 109. 
 
 Q. 6.— What is meant by the rule "once a mortgage always a 
 mortgage ?" o- o ^ 
 
 A.-Court8 of equity, looking always at the intent, and not at 
 the f..-m of things, disregarded all the defences by which the ere- 
 ditor surrounded himself, and laid down as plain undeviating rules 
 (Newcomb V. Bonham, 2 Vent. 364 ; 1 Vera. 7, 214, 233,) that it 
 was inequitable the creditor should obtain a collateral or additional 
 advantage through the necessities of his debtor, beyond the pay- 
 ment of principal, interest, and costs ; and they established as 
 principles not to be departed from, that " once a mortgage always 
 a mortgage ;" that an estate could not at one time be a mortgage 
 and at another time cease to be so, by one and the same deed ; and 
 that a mortgage could not be made irredeemable. 1 1 . 
 
 Q. 7— Distinguish between "vivum mdium" and "mortuutn 
 vadium." 
 
 A.— The common law recognized two kinds of landed security • 
 the one, vivum vadium, consisted cf a feoffment to the creditor and 
 his heirs, until out of the rents and profits he had satisfied him- 
 self his debt ; the creditor took actual possession of th? estate and 
 received the rents, and applied them from time to time in Hquida- 
 tien of thfl debt : the other, mortuum vadium, or mortgage ulti- 
 mately known at the common law, was an absolute fee, with the 
 condition annexed, making void the feofi'ment on payment of a given 
 sum, which the common law allowed, if reserved to the feoffer or 
 his heirs. The diff-erence between these estates was striking : in the 
 latter mstance the feofl'ee took the whole estate, subject to be defeat- 
 ed. but which on the non-fulfilment of a certain engagement, be- 
 came his own by an indefeasible title ; in the former case the 
 creditor took an estate, which, as soon as his debt was satisfied. 
 ipso facto ceased, and the feoff-or might re-enter and maintain eject- 
 ment ; in the latter the determination was collateral to the es- 
 tate ; in the former, the dpfpnaibiUfw nrop «« 
 estate. 4. 
 
 !!:iicsciii quality oi me 
 
COOTK ON MORTOAOBS. 
 
 151 
 
 Q. 8. — ^Who are incapable of mortgaging ? 
 A.— The exceptions which occur as to those who are capable of 
 HJArtgaging are married women, infants, and lunatics, 103-107. 
 
 Q. 9.— Explain the effect of a power of sale contained in the 
 mortgage deed. 
 
 A. —A power of sale in a mortgage deed prevents the necessity 
 of a suit in Chancery, and provides a more simple and less expen- 
 sive mode of barring the mortgagor's equity of redemption, in case 
 default should be made in payment, and when such power is exer- 
 cised, the mortgagee having the whole estate in fee-simple at law, 
 is able to convey the same estate to the purchaser, and tliat vrithout 
 the consent of the mortgagor ; 124-127 ; see Will. Real Pro. 356; 
 see also Corder v. Morgan, 18 Ves. jun. 344. 
 
 Q. 10.— What is the effect of a purchase of the equity of 
 redemption by the mortgagee ? 
 
 A — If the mortgagee in his lifetime obtain a release of the 
 equity of redemption, and enter into possession, it is manifest that 
 the debt and land have altered their characters, for the land has 
 ceased to be a pledge, and the debt has become merged into the 
 land ; and, consequently, if from any circumstance after the death 
 of the mortgagee, the release shall be set aside, the heir and not 
 the executor will be entitled to the money ; inasmuch as the mort- 
 gagee has done all in his power to make it real estate ; 510. 
 
 But by Statute 14 & 15 V. c. 46, s. 1— U. C. Con. St. c. 87, 
 B. 1, any mortgagee may takt and receive from the mortgagor 
 or his assignee a release of the equity of redemption, without 
 thereby merging the mortgage debt as against any subsequent 
 mortgagee having a charge on the same property. By s. 2 if any 
 prior mougagee takes a release of the equity of redemption of the 
 mortgagor or his assignee, or purchases the same under any power 
 of sale in his mortgage, or any judgment or decree, no subsequent 
 mortgagee shall be entitled to foreclosure or sell such property 
 without redeeming or selling subject to the rights of such prior 
 mortgagee in the same manner as if such prior mortgagee had not 
 acquired such equity of redemption. 
 
 Q. 11. — ^Wherein consists the utility of the mortgage bond? 
 A.— It creates a personal liability on the part of the mortgagor, 
 and so gives the mortgagee additional collateral security for his 
 debt, 12. 
 
I ''' 
 
 !■" " 
 
 
 152 
 
 EXAMINATION QUS8TI0NS. 
 
 w •'!r^**''* 'V^^ '"'*"'°» °^ foreclosing a mortgage, and 
 what IB the effect of the foreclosure? 
 
 A -Foreclosing a mortgage means the barring of the mortgagor's 
 equity of redemption in the mortgaged premises through means 
 
 title to the property i.hich the mortgagor held prior to the mort- 
 gage, 492 et seq. 
 
 Q. 13.-What are the comparative advantages to the mortgagee 
 ot a decree for sale and a decree for foreclosure ? 
 
 A -Where the land is not of sufficient value to pay the debt, a 
 sale has this advantage over foreclosure, that the mortgagee may 
 recover the balance on his collateral securities ; in the case of a 
 foreclosure, if he were to take proceedings subsequently on his 
 collateral securities, the foreclosure would be thereby opened ; 
 
 Q. 14.-I8 parol evidence admissible to shew that an alsolute 
 conveyance was intended for a mortgage merely? 
 
 A.— Equity will admit parol evidence to shew that an absolute 
 conveyance was intended by way of security only : a case decided 
 by Lord Nottingham is one of frequent reference-Sir O. Max- 
 well V. Lady Montacute, Prec. Chanc. 526 ; in this case a man 
 agreed to lend money on mortgage, and it was proposed, as was 
 formerly practiced, that the mortgagor should execute an absolute 
 conveyance, and that thero should at the same time be a deed of 
 defeasance from the mortgagee ; the mortgagor executed the con- 
 veyance, and then the mortgagee refused to execute the defeasance : 
 Lord Nottingham, (after the Statute of Frauds,) admitted parol 
 evidence to shew the agreement, and decreed against the mortgagee. 
 12, 13. See Walker v. Walker, 2 Atk. 99. 
 
 Q. 15.- What liabilities does the mortgagee assume by taking 
 possession of the mortgaged property? 
 
 A.— If the mortgagee be in possession he is considered in equitv 
 in some measure, in the light of a trustee, and is so held accounta- 
 ble for the profits, 308. 
 
 Q. 16.— What are the respective relative situations of morteaffor 
 and mortgagee before redemption or foreclosure 1 
 
 A.~On the execution of the mortgage the mortgagor becomes 
 
 the equitable owner, the mortMffPP th« 
 
 
 
COOTE ON MORTGAGES. 
 
 168 
 
 in which respective situations they remain until the land is redeemed 
 or foreclosed ; 819. 
 
 Q. ir.— Why is it desirable that a mortgagor should join in an 
 assignment of mortgage ? 
 
 A.— If the mortgagor do not concur in the assignment he is not 
 bound by the amount appearing due on the face of the mortgage ; 
 and consequently the ccicurrence of the mortgagor should if 
 possible, never be dispensed with, 302. Matthews v. Wallwyn, 4 
 Ves. jun. 118. 
 
 Q. 18.— In case of the decease of the mortgagor intestate, and 
 without heirs, does the equity of redemption escheat ? 
 
 A.— Whether an equity of redemption is subject to escheat does 
 not seem to have been precisely determined ; but the reasoning of 
 the Lord Keeper in Burgess v. Wheate, 1 Bl. Rep. 123, as well on 
 the principles on which hs determined that a mere trust estate was 
 not so subject, fairly leads to a conclusion that an equity of redemp- 
 tion is not liable to escheat, for, as remarked by the Lord Keeper, 
 it is a question of tenure and not of forfeiture, and the right to 
 escheat anaespro defectu tenentis ; so long as the lord has his tenant 
 to perform his services, the land cannot revert in demesne, and the 
 crown has no equity on which to sue a subpoena ; 34. 
 
 Q. 19.— Is »,n equity of redemption of a mortgage in fee, or of a 
 mortgage of a term of years, liable to forfeiture for treason or 
 felony ? 
 
 A.— An equity of redemption of a mortgage in fee is liable to 
 forfeiture for treason, but not for felony ; see Attorney General v. 
 Sands, Hard. 488 ; but the equity of redemption in the case of a 
 term of years is forfeited by either treason or felony ; 35. See Sugd. 
 Gilb. on Uses, 79. 
 
 Q. 20.— Will the Court of Chancery in any, and what cases, in 
 taking an account against a mortgagee in possession, take it with 
 annual rests ? 
 
 A. — In taking an account against a mortgagee, the court will, it 
 seems, direct annual rests, if there be no interest in arrear when 
 the mortgagee takes possession ; Sheppard v. Elliott, 4 Madd. 254 ; 
 and in certain cases :n which the rents considerably exceed the 
 interest ; Gould v. Tancred, 2 Atk„ 538 ; so if he has set up an un- 
 founded claim to the equity of redemption ; Mongomery v. Calland 
 14 Sim. 79 ; so where a mortgagee in possession comes to a settle- 
 
IM 
 
 BXAMmATION qUESTIONS. 
 
 M 
 
 ■! ; ::.4 
 
 ment of accounts, by which it appears that no interest is then doe, 
 or the interest then due is converted into principal, and the 
 mortgagee afterwards continues in possession ; Wilsrn v, Clure 3 
 Beav. 236. 530,531, 
 
 Q. 21.— When can the assignee of & chose in action sue for a 
 debt in equity ? and how does snih assignee take ? 
 
 A— When the assignor refuses to allow the assignee to use hia 
 name, or does or intends some act to prevent hi. i from recovering 
 at law, such assignee can sue in equity. The assignee of a choae in 
 action duly assignable in equity, takes subject to the existing 
 equities against the assignor. 234. See Hammond v. Messenger. 
 9 Sim. 327, and Ord. v. White, 3 Beav. 357. 
 
 Q. 22. -Under what circumstances is a mortgagee entitled to a 
 receiver ? 
 
 A— The mortgagee may stipulate with the mortgagor for the 
 appointment of a receiver, to be paid by the latter. Chambers v, 
 Goldwin. 9 Ves. jun. 271 ; he may also if the property lies diapers- 
 ed or at a distance, or is so circumstanced that the mortgagee must. 
 If the property had been his own, have appointed a bailiff or re- 
 ceiver to manage it and collect the rents, without the authority of 
 the mortgagor. 343. Bonithon v. Hockmore, 1 Vem. 316. 
 
 Q. 23.— From what dates does the Statute of Limitations ruu 
 against a mortgagee out of possession ? 
 
 A — The Statute of '.imitations commences to run from the time 
 when the rig>t to recover accrues to the mortgagee, or from the 
 payment of any part of the principal or interest on the mortgage, 
 or from the giving of some acknowledgement in writing of hia 
 nght, signed by the mortgagor. 449. When the mortgage deed 
 contains merely a proviso that the mortgagee may enter into pos- 
 Bession on default in payment, but no express or implied covenant 
 that the mortgagor shall in the meantime remain in possession, the 
 Statute of Limitations runs from the execution of the mortgage deed. 
 If no subsequent payment is made of principal or interest, 450; 
 Doe r. Lightfoot. 8 M. & W. 5.53. See 4 W. IV.. c. 1, ss. 36, 43 
 16 V. c. 121. s. 1-U. C. Con. St. c. 88. 
 
 Q. 24.— In what relation does the lessee of the mortgagor stand 
 with respect to the mortgagee 1 
 
 A. — The mortgaeror heino- ViimaoK ti>nfin* ss* —iv ^ - «• 
 
 o >-• — a • i-r.iajis ttv will ur ai suncnuice 
 
 to the mortgagee, cannot make a lease to bind the latter ; if he 
 
COOTB ON MORTOAOKS. 
 
 155 
 
 I then dae, 
 , and the 
 V. Clure, 3 
 
 1 sue for a 
 
 to use hia 
 recovering 
 
 a chose in 
 e existing 
 Messenger. 
 
 titled to a 
 
 r for the 
 ambers v, 
 m dispers- 
 gee must, 
 [iff or re- 
 thority of 
 .6. 
 itiong run 
 
 the time 
 from the 
 aortgage, 
 g of hifl 
 ;age deed 
 into pos- 
 covenant 
 sion, the 
 ige deed, 
 !st, 450 ; 
 36, 43 J 
 
 or stand 
 
 LfforoQce 
 r ; if he 
 
 make such lease, the mortgagee may proceed to eject the lessee 
 without notice ; if the land, however, at the time of the mortgage, 
 be in the occupation of a tenant from ^ ear to year, he will be en- 
 titled to the usual notice to quit. Birch, v. Wright, 1 T. R. 383. 
 332. 
 
 Q. 25. — How are the priorities of several mortgagees of the same 
 mortgagor ascertained ? 
 
 A. — Each mortgagee shall have preference according to his prior- 
 ity in time, the maxim of equity being qui potior est in tempora 
 potior est injure, 209. 
 
 Note.— By stat. 9 V. c. 34, s. 6— U. C. Con. St. c. 89, s. 44, 
 the priorities of the several mortgagees of the same mortgagor are 
 regulated according to the time of registration of their several 
 mortgages. 
 
 Q. 26 — Blackacre and White^cre are by separate deeds, at 
 different dates, and for distinct debts, mortgaged to A.; subsequently 
 the same mortgagor mortgages Blackacre alone to B. ; can B. 
 redeem the mortgage on Blackacre without also redeeming that on 
 Whiteacre ? 
 
 A. — Where two or more distinct mortgages are made of different 
 estates between the same parties, and a subsequoiit mortgage is 
 given by the same mortgagor to a third party of one of the estates, 
 fdthough without notice, such third party shall not be permitted 
 to redeem one mortgage without redeeming both, 399, 400. See 
 Cator V. Charlton, cited in Jones v. Smith, 2 Ves. jun. 376. 
 
 Q. 27. — If leasehold are mortgaged and before the mortgagee is 
 paid off the term expires, and the mortgagee then takes a new 
 lease in his own name, what are his rights in respect of such new 
 lease? 
 
 A. — It has been decided that if the mortgagee of a leasehold 
 estate obtain a renewal of the lease, although there existed only a 
 tenant right, the renewed lease will be held subject to the like 
 equity as subsisted in the old lease, and will be redeemable accord- 
 ingly. Such mortgagee will be entitled to his costs in effecting the 
 renewal, with interest. 122. See Holt v. Holt, I Ch. Ca. 190, 
 and Lacon v. Mertons, 3 Atk. 4, 2 Vern. 84. 
 
 Q.. 28. — If a surety for a mortgagor purchase the mortgage for 
 a less sum than the mortgage debt, what are his rights against the 
 mortgagor ? 
 
 1 
 
168 
 
 EXAMINATION QUBSTIONf . 
 
 III 
 
 r'l 
 
 I 
 
 A.— A surety who pays off the debt of the principal debtor, is 
 entitled to the benefit of every security which th.> creditor has 
 existing against the latter ; per Lord Eldon in May how v. Cricket, 
 2 Swanst. 191 ; but if the surety compounds the deot on payment 
 of a smaller sum, he cannot as against the principal, become a 
 creditor for the full amount ; see Reed v, Norris, 1 M. & C. 361 : 
 he will be allowed interest on tli- amount paid by him for the 
 mortgagor. 481, 482. 
 
 Q. 29.— Will a mortgage given by a client to his solicitor for 
 costs due and to become due, be to any and what extent a valid 
 Becurity ? 
 
 A.— A mortgage by a client to a solicitor for costs due and to 
 become due will be restricted to those actually due, 369 ; Williams 
 V. Piggott, Jacob. 598. , 
 
 Q. 30.— Is a mortgagee who assigns the mortgage in any case 
 liable to the mortgagor for rents and profits received after the 
 assignment by his assignee ? Give your reasons. 
 
 A — If the mortgagee be in possession, he is considered in equity, 
 ir some measure in the light of a trustee, and accountable for the 
 profits ; and, therefore, if without the assent of the mortgagor, he 
 assigns over the mortgage to another, he will be held liable to 
 account for the profits received subsequent to the assignment ; see 
 1. Eq. Ca. Ab. 328 ; on the principle that having turned the mort- 
 gagor out of possession, it is incumbent on him to take care in 
 whose hands he places the estate ; 303. 
 
 Q. 31.— Can the mortgagee compel the mortgagor to account 
 for rents and profits received by the latter while in possession ? 
 
 A- — The mortgagee cannot compel the mortgagor to account for 
 the rents and profits received by him while in possession, even al- 
 though the security shall prove insufficient, 326, 530. Colman v. 
 The Duke of St. Albans, 3 Ves. jun. 25. 
 
 Q. 32.~Distinguish between "legal" and "equitable" mort. 
 gages. 
 
 A.— A legal mortgage cannot be created except by deed ; an 
 equitable mortgage may be created by parol ; 165. 
 
 Q. 33. — What are the rights and remedies of a mortgagee against 
 a tenant in possession of the mortgagor after default ? 
 
 ...... vg,..gv I 
 
 Tiaj annu: tue lease, or itu may conunn the 
 
 tenancy, or rather establish a new tenancy upon the same terms 
 
COOTE ON MORTGAGES. 
 
 167 
 
 see Keech v. Hall, Dougl. 22 ; and any act of the mortgagee, de- 
 monstrating an approbation of the demise, such as the receipt of 
 or distress for rent or the like, will be evidence of a tenancy ; 884. 
 Q. 84. — If it is desired that the mortgagor should pay a greater 
 amount of interest in the event of the interest not being punctu- 
 ally paid, is there any, and if m rhat, means of effecting such 
 intention ? 
 
 A.— This may be done by means of an agreement by the mort- 
 gagor to pay a certain rate of inter, it, and a stipulation that on 
 punctual payment the interest shall abate, and a less amount be 
 payable, upon which tae greater amount may be exacted in the 
 event of default in payment at the proper time, 440 ; Jory v. Cox, 
 Pre. Ch. 160. 
 
 Q. 35. — What is the position of a lessee under a lease from a 
 mortgagor made after the mortgage, as regards the n.ortgagee ? 
 
 A. — Although in equity the mortgagor remains the actual owner 
 of the land until foreclosure, entitling liim while ia possessiou to 
 receipt of the rents and profits without account, ytt equity regard- 
 ing the land with all its produce as a security for the mortgage 
 debt, will restrict the right of ownership within those bnunds which 
 may not operate to the detriment or injury of the mortgagee : on 
 this principle the mortgagor, generally speaking, being only tenant 
 at will or at sufferance, cannot make a lease to bind the mortgagee, 
 and if he make such a lease the lessee will be liable to eviction in 
 the same manner as the mortgagor, 332 ; see Keech v. Hall, Dougl. 
 22 ; also Doe v. Maisey, 8 B. & C. 767. 
 
 Q. 36. — If two persons advance money on a mortgage, and one 
 die, to whom will the debt belong ? 
 
 A. — The debt at law will belong to the survivor, but in equity 
 there will be a tenancy in common ; see Petty v. Styward, 1 Coll. 
 Rep. 31. On paying off the mortgage, the concurrence of the 
 personal representatives of the deceased mortgagee is necessary, to 
 give a valid discharge to the mortgagor. 511. " 
 
 / 
 
. I 
 
 M 
 
 CXAMIIfATIOIf qCBBTIOIfS. 
 
 'Iff 
 
 JARMAN ON WILLS. 
 
 Question 1. — What is a will ? 
 
 Answer.— h. will is a declaration of a man's mind as to the man- 
 ner in which he would have his property or estate disposed oi after 
 his death : when it operates upon the personal property, it is 
 sometimes called a testament, and when upon niil estate, a devise ; 
 but the more general and popular denomination of the instrument,' 
 embracing equally real and personal estate, is that of last will and 
 testament, i. 1. 
 
 Q. 2. — What is a nuncupative will ? 
 
 A.— A nuncupative will is where the testator makes a declaration 
 of his intention in his lasit hours before a sufficient number of wit- 
 nesses, and which is afterwards reduced to writing ; see Tomlin's 
 L. Die. tit. Wills. 
 
 Q. 3. — What are the formal parts of a will ? 
 A.— The formal parts of an ordinary will are: 1. the induce- 
 ment, containing the name of the testator and a statement of his 
 residence and quality; 2. the devises and bequests; 3. the 
 appointment of executors ; 4. a revocation of prior wills ; 6. 
 the testimonium clause ; 6. the signature ; and 7. the attestation. 
 Q. 4. — What is a republication of a will ? 
 A.— Republication is of two kinds, express and constructive : ex- 
 press republication occurs where a testator repeats those ceremonies 
 which are essential to constitute a valid execution, with the avowed 
 design of re-publishing the will ; constructive republication takes 
 place where a testator for some other purpose, makes a codicil to 
 his will, in which case the effect of the codicil, if not neutralized 
 by internal evidence of a contrary intention, is to republish the 
 will; i. 174. 
 
 Q. 5. — When can a married woman make a will 1 
 A. — A married woman cannot make a will of either personal or 
 real estate ; except under settlement or marriage contract, or by 
 her husband's license, i. 30. By St. 22 V. c. 34, s. 16— U. C. 
 Con. Stat. c. 73, s. 16, it is enacted that from and after 4th May, 
 1859, every married woman may by devise or bequest executed in 
 the presence of two or more witnesses, neither of whom is her bus- 
 
JABMAN ON WILLS. 
 
 159 
 
 > the mail- 
 ed of after 
 erty, it is 
 a devise ; 
 fHtrument, 
 t will and 
 
 leclaration 
 
 er of wit- 
 
 Tomlin's 
 
 le induce- 
 ent of his 
 ; 3. the 
 wills ; 5. 
 ttestation. 
 
 !tive: ex- 
 eremonies 
 le avowed 
 ion takes 
 codicil to 
 iutralized 
 blish the 
 
 Tsonal or 
 Bt, or by 
 i— U. C. 
 th May, 
 cuted in 
 her hus- 
 
 band, make any devise or bequest of her separate property, real or 
 personal, or of any rights therein, whether Hvich property be acquired 
 before or after marriage, to m among her child or children, issue of 
 any marriage, and failing there bo any issue, then to her hus'iand, 
 or as she may see fit, in the same manner as if she were sole and 
 unmarried ; but her husband shall not be deprived by such devise 
 or bequest of any right he may ^ 'vp acquired as tenant by the 
 
 IH> 
 
 courtesy. 
 
 Q. 6. — Is there any differe 
 witness in a will of freehold a"! 
 
 A. — A gift to a witness in a » 
 
 gift to 
 
 if'tweCi the effect of a 
 orsonaVy ? 
 
 '" '•♦' freehold is, so far as relates 
 to the witness and those claiming ander him, made absolutely null 
 and void by Stat. Geo. II., c. 6 ; but this act did not extend to 
 wills of personal estate, for as such tvills did not require an attes- 
 tation at all, there was no ground for invalidating the witness : but 
 the distinction is done away with by Imp. Stat. 1 V. c. 26, which 
 places wills of realty and wills of personalty on the same footing ; 
 i. 65—67. 
 
 Q. 7. — From what period does a will speak as to realty and as to 
 personalty ; and is there any, and what Provincial Statute which 
 affects, and how, that period ? 
 
 A. — As regards realty a will speaks from the time of its execu- 
 tion, and is looked upo& as a present conveyance to take effect at 
 a future time, namely on the death of the testator ; see Will. R. 
 Pro. 173 : as regards personalty it is for some pui^.jses considered 
 to speak from the date and for others from the death of the testa- 
 tor, and was held to pass such pemonalty as he might happen to 
 possess at the time of his death ; i. 277 — 287. Such is the law 
 as regards wills made before the year 1838 ; but wills which are 
 made or republished sine that time are regulated by Imp. Stat. 
 1 V. c. 26, s. 24, which provides, that every will shall be con- 
 strued, with reference to the real and personal estate comprised 
 in it, to speak and take effect as if it had been executed imme- 
 diately before the death of the testator, unless the contrary inten- 
 tion shall appear by the will. i. 387. 
 
 By Prov. Stat. 4 W. IV., c. 1, s. 49— U. C Con. St. c. 82, s. 
 1 1, it is enacted that when the will of any person dying after 6th 
 March. 1884, contains a devise in any form of words of all such 
 real estate as the testator shall die seised or possessed of, or any 
 
160 
 
 EXAMINATION QUESTIONS. 
 
 part or proportion thereof, such will shall be valid and effectual to 
 pass any land acquired by him after the making of the will. 
 
 Q. 8. — In what ways may a revocation of a will in whole or in 
 part be effected ? 
 
 A.— The revocation of a will of lands must, by the Statute of 
 Frauds, 29, Car. II., c. 3, s. C, be effected by some other will or 
 codicil in writing, or other writing declaring the same, signed by 
 the testator in the presence of three or more witnesses : the revo- 
 cation of a will of personalty must be committed to writing, and 
 then read to the testator, and allowed by him, and proved to be so 
 done by three witnesses at the least ; i. 152, 153. By Imp. Stat. 1, 
 V. c. 26, s. 18, a will (except when made in the exercise of a power 
 of appointment in certain cases) is revoked by marriage ; i. 1 14. 
 A will may also be revoked by the " burning, tearing, or other- 
 wise destroying " of it by the testator or some person in his pre- 
 sence, and by his direction, with the intention of revoking the 
 same, i. 128. A subsequent alteration of estate in the property 
 devised will effect a revocation as to the devise of such property, 
 where it is substantially alienated and withdrawn from the opera- 
 tion of the will by being vested in another, i. 147. Formerly 
 also, a will might have been revoked by an attempted disposition 
 of the property, but this cannot now take place, i. 150, 152. 
 
 Q. 9. — How far and in what respects do the statutes commonly 
 called the statutes of Mortmain, or the principal of law analagous 
 thereto, affect the disposition of property by will ? 
 
 A. — The disposition of property by will for superstitious uses or 
 for charitable purposes is not allowed, i. 188 ef seg. 
 
 Q. 10. — What personal restraints are there on testamentary dis- 
 position ? 
 
 A.— By the Statute of Wills, 34 & 35, H. VIII., c. 6., s. 14, 
 infants under the age of twenty-one years are restraisied from mak- 
 ing wills of realty, and by Imp. Stat I V., c. 26, they are res- 
 trained from making wills of personalty, i. 29. A married woman 
 in gene il cannot make a will [but see Prov. Stat. 22 V. c. 34, s. 
 16— U. C. Con. St, c. 73, s. 16.] Persons deaf, dumb, and blind, 
 persons attainted, idiots, lunatics and persons of unsound mind, or 
 under <,iie influence of drink, are incapable of making wills ; i. 50, 
 et 9eq. A devise of realty by an alien is at least voidable, but 
 alien friends uidy make wills of personalty, i. 50. 
 
JARMAN OS WILLS. 
 
 161 
 
 Q. 11. — In what cases is parol evidence admissible in regard to 
 \dlls, for explanation or otherwise ? 
 
 A. — Parol evidence is admissible to explain a latent ambiguity 
 in a will, i. 871 et seq. Where the testator uses a foreign language 
 or terms or characters not understood by the court, they may be 
 explained by verbal evidence, i. 363. 
 
 Q. 12. — Give some instances of estates arising by 'nplication 
 under will, and explain the principles on which such implication 
 rests. 
 
 A. — The following are some instances of estates arising by way 
 of implication under a will : a devise to a testator's heirs after the 
 death of A., will confer on A. an estate for life by i plication ; but 
 under a devise to B., a stranger, after the death of A., no estate will 
 arise to A. by implication, upon the principle that there must be an 
 intention to disinherit the heir to raise an estate by implication. 
 Year Book, 13 Hen. VII., fol. 17. If a testator, whose issue was 
 an only daughter, devised real estate to such daughter after the 
 death of his wife, and it happened that he afterwards had a son 
 born, who survived him, the conclusion arrived at was, that the 
 wife would take an implied estate for life, though the ulterior 
 devisee was not in event the testator's heir; upon the principle that 
 the implication occurs wherever the express devise is to the person 
 who is the testator's heir upparent or presumptive at the date of 
 the will, and not otherwise. Where a testator devises to one of 
 two daughters, (his co-heiresses) after the death of his wife, she 
 (the wife) takes an estate for life by implication : for an implica- 
 tion arises in the case of a devise as well to one of several co-heirs, 
 as to a sole heir. i. 465-468. 
 
 Q. 13. — A devise of lands is made to A. for life, and after his 
 death to B. in fee, what estate do they severally take ; and when 
 does it vest ? 
 
 A. — Under such a devise, A. takes an estate for life, and B. 
 takes an estate in fee simple in remainder, ii. 184. The respective 
 estates of A. and B. are both vested at the instant of the death of 
 the testator ; the only difference between the devisees being, that 
 the estate of the one is in possession, and that of the other is in 
 remainder, i. 727. 
 
 
 i-;_ ii-_ J i_; r l 
 
 -xjxpisiu luc uucLriuc ui lapsc 
 
 A. — ^The liability of a testamentary gift to failure or lapse b"^ 
 
162 
 
 EXAMINATION Ql/EbTIONS. 
 
 if. 
 
 "i 
 
 reason of the decrease of its object in the testator's lifetime is a 
 necessary consequence of the ambulatory nature of wills ; which 
 not taking effect till the death of the testator, can communicate no 
 benefit to persons who previously die ; in like manner as a deed 
 cannot operate in faror of those who are dead at the time of its 
 execution, i. 293. 
 
 Q. 15.— What are the consequences of the distinction between 
 conditions " precedent " and " subsequent ?" 
 
 A.— Conditions precedent and subsequent differ considerably in 
 regard to the consequence of events rendering the performance of 
 them impracticable : where a condition precedent becomes im- 
 possible to be performed, even though there be no default or laches 
 on the part of the devisee himself, the consequence is. the devise 
 fails ; on the other hand if the performance of a condition subse- 
 quent be rendered impossible, the estate to which it is annexed 
 becomes by that event absolute, i. 805, 806. 
 
 Q. 16.— Define the legal doctrine of election, and give an ex- 
 ample. 
 
 A.— The doctrine of election may be thus defined : he who 
 accepts a benefit under a deed or will, must adopt the whole con- 
 tents of the instrument, conforming to all its provisions, and 
 renouncing every right inconsistent with it ; for example, if a 
 testator has affected to dispose of property which is not his' own 
 and has given a benefit to a person to whom that property belongs, 
 the devisee or legatee accepting the benefit so given to him, must 
 make good the testator's attempted disposition, but if a the 
 contrary, he chooses to enforce his proprietary rights against the 
 testator's disposition, equity will sequester the property given to 
 him, for the purpose of making satisfaction out of it to the person 
 whom he ha disappointed by the assertion of those rights ; i. 385. 
 
 Q. 17.— Under a devise of lands to A. and his chUdren, a! 
 having no children either at the date of the will, or at the testator's 
 death, what estate does A. take ? 
 
 A.— Under such a devise A. takes an estate tail, for "the intent 
 of the devisor is manifest and certain that the children (or issues) 
 should take, and as immediate devisees they cannot take, because they 
 are not in rerum natura, and by way of remainder, they cannot take 
 for that was not his intent, for *hf mft \n imme-Hat^ * 
 
 
 words shall be taken as wordi oi limitation;" ii. 307, 308. WUd'g 
 
JARMAN ON WILLS. 
 
 163 
 
 case, 6 Co. 17; Davie v. Stephens, Doug. 321 ; Scale v. Barter, 
 2 Bos. & Pull. 485. 
 
 Q. 18. — What is the rule by which to determine whether or not 
 a devise to a person iu trust for another, gives the legal estate to 
 the person named as trustee ? 
 
 A. — The courts generally give such a coiidtruction as will confer 
 on the trustee an estate co-extensis^e with those interests which are 
 limited in the terms of trust estates, if the other parts of the will 
 can by any means be made consistent, ii. 199. 
 
 Q. 19. — In what cases are cross-remainders implied in a will ? 
 
 A. — Cross-remainders are implied in a will in the following 
 cases : Ist, Upon a devise to several persons in tail being tenants 
 in common, with a limitation over for want or in default of issue, 
 cross-remainders are to be implied among the devisees in tail ; 2, 
 The word " remainder," following a devise to several in tail, will 
 raise cross-remainders among them ; 3, a devise to the children of 
 A. for life, and for want and in default of such issue, then over, 
 creates cross-remainders by implication for life among such devises. 
 ii. 479. The principle has been long admitted, that wherever real 
 estate is devised to several persons in tail as tenants in common, 
 and it appears to be the testator's intention, that not any part is to 
 go over until the failure of the issue of all the tenants in comm. ~\, 
 they take cross-remainders among themselves, ii. 458. 
 
 Q. 20. — Isiithere any difference between the construction of wills 
 and deeds as to the implication of cross-remainders ? 
 
 A. — The difference between the construction of wills and deeds 
 as to the implication of cross-remainders is : that in the former 
 cross-remainders need not be limited expressly, but may be implied 
 from the context, ii. 457 ; whilst in the latter they cannot arise 
 without express words. See Watk. Conv. 199. 
 
 Q. 21. — Explain the doctrine of constructive conversion. 
 
 A. — The doctrine of constructive conversion is: — equity con- 
 siders that as done which ought to have been done, and it iB 
 well estabUshed that money directed to be employed in the pur- 
 chase of land, and land directed to be sold and turned into money, 
 are to be considered as that species of property into which they are 
 directed to be converted : it follows therefore that every person 
 claiming property under a will or settlement directing its conversion, 
 must take it in the character which such instrument has impressed 
 
'1% 
 
 164 
 
 EXAMINATION QUESTIONS. 
 
 Upon it ; and its subsequent devolution and disposition will be 
 governed by the rules applicable to property of this character ; i. 
 524. 
 
 Q. 22.— What are the requisites of the attestation of a will in 
 Upper Canada? 
 
 A.— The will must be attested by two or more witnesses ; and 
 , such witnesses must subscribe their names in the presence of each 
 S ,^k-' otheTy^4. W. 4, c. 1, s, 51.— U. C. Con. St. c. 82, s. 13. 
 
 Q. 23.— In regard to a devise of real estate, what is the rule 
 respectmg conditions in restraint of marriage ? 
 
 A.-Itseerastobe generally admitted, (though the point rests 
 rather on principle than decision,) that unqualified restrictions on 
 marriages are void, on grounds of public policy, i. 836 et seq. 
 
 Q. 24 — In administering assets of a testator what is the general 
 ord.. of the application of the several funds liable to the payment 
 of his debts ? * ^ 
 
 A.-The following is the general order : 1, The general personal 
 estate not expressly or by implication exen.pted : 2, Lands express- 
 ly devised to pay debts, whether the inheritance, or a term carved 
 out of it, be so limited: 3, Estates which descend to the heir 
 whether acquired before or after the making of the will • 4 De' 
 vised or bequeathed property, real or pevsonal, which is charged 
 with debts, and then specifically disposed of, subject to such charge • 
 5, General pecuniary legacies pro rata : 6, Specific legacies pro 
 rata i 7, Real estate devised, and if the rule be subject to the old 
 law, whether in terms general or specific ; ii. 546, 547. 
 
 Q. 25.— Where a testator contracts to sell the devised estate, and 
 dies without having executed a conveyance to the purchaser, what 
 interest does the devisee tako ; and to whom does the purchase 
 money go '' 
 
 A.— In such case the devise remains as to the legal estate, and 
 no fiirther, this being all the interest which the testator bar power 
 to dispose of at his decease ; and the conversion as b'-t^ the real 
 and personal representatives, being completely effectxd bv He con- 
 tract, (supposing it to be a binding one), the devisee, it is conceiv- 
 , ed, takes only the legal estate : as to the purchase money, it consti- 
 tutes part of the testator's personal estate, consequently it goes to 
 his personal representatives : i. 147-148. Spp K-r,nii„a .. au„^i— j 
 1J.&W.499. .'"."hcphc.u 
 
JARMAN ON WILLS. 
 
 165 
 
 Q. 26. — When will lands held in trust pass undev a general 
 devise of all the testator's lands? 
 
 A.— In the case of Lord Braybroke v. Inskip, 8 Ves. 435, Lord 
 Eldon held the rule to be, that trust estates would pass under a 
 general devise, unless it could be collected, from expressions in the 
 will, or purposes or objects of the testator, that he did not mean 
 that they should pass, i. 64 1 . 
 
 Q. 27. — What may be devised or bequeathed ? 
 
 A. — The power of testamentary disposition extends to all interests 
 in reel and personal estate, which, at the decease of the testator, 
 would if not so disposed of, devolve to his •jencrtvl real or personal 
 representatives, wL^ther the testator br t ^e legal or the beneficial 
 owner only, or unite in himself both these characters ; i. 36. 
 
 Q. 28. — Is a devise or bequest by a joint tenant valid ? 
 
 A. — A devise or bequest by a joint tenant of real or personal 
 estate is void, in the event of the testator dying in the lifetime of 
 his co-proprietor, whose title by survivorship takes precedence of 
 the claim of the devisee or legatee, as it would of that of the heir 
 or administrator of the pre-deceaaed joint tenant, in case he had 
 died intestate : but if the testator survives his companion in the 
 tenancy, the efficacy of *^^°! devise or bequest formerly depended on 
 the nature of the property , if it were a freehold interest, the estate 
 subsequently devolving by survivorship did not pass — the testator 
 not having a sole or devisable estate when he made his will ; and, 
 by parity of reasoning, any divided part or share which, after the 
 execution of the will, he might have acquired on a partition of the 
 property which would not pass thereby ; but this reasoning it is 
 obvious did not apply to leasehold property or personal estate ; a 
 future interest in which devolving by survivorship or acquired by 
 partition, would, like all other after acquired pei ^onalty, pass by a 
 general or residuary bequest ; and i^uch is now the rule with respect 
 to real estate devised by wills made since the year \b37 ; and now 
 it is unnecessary to inquire whether the devising joint tenant had 
 become solely seized by survivorship at the period of its execution ; 
 it is enough that he had acquired a devisable interest in the estate 
 at the time of his decease ; i. 38, 39. 
 
 Q. 29. — Does a will in all cases speak only from the decease of 
 the testator ? 
 
 A. — Since the passing of the recent [imperial] act, it is doubtful 
 
! (• 
 
 
 166 
 
 EXAMINATION QUESTIONS. 
 
 whether a will may spe .k from its date, but it seems vr')hahk tha' 
 it may do so in some C6r,es of specific bequests, or as to bequests 
 in words pointing at the present time, i. 290, 2?1 ; as regards the 
 objects of gift, the will speaks, as rc;; t -Is realty fiom the time of 
 execution, and as regards ptvoualty i :. ,: the death of tha ^?stator, 
 as the act only affects the subject matter of dirpositir,;,, L 291, 2/7 
 et seq. * - > - ; 
 
 Q. 30.— Is a will of realty executed abroad uder ^ powor, 
 govevf-efl : y the Lu: domicilii or the lex loci rei sim 
 
 A.- A will r, f fixed or immovable property is generally governed 
 by the lex ioeinaiicB: that is the law of the place where such 
 property i:. )^-^<% situated is to govern as to the capacity or in- 
 capacity of fi,» testator, the extent of his power t- dispose of the 
 propel ty, and the forms and solemnities to give the will its due 
 attestation and effect; and whence the place where a will of im- 
 movable property happens to be made, and the langu,.^e in which 
 U IS written, are wholly unimportant, as affecting b-th its con. 
 atniction and the ceremonial of its execution, the locality of the 
 devised property is alone to be considered ; i. 1. 
 
 Q. 31.— How far does "domicile" affect a testamentary dia- 
 
 A.--A testamentary disposition of immovable property is gov- 
 erned by the lex loci rei ntcB, that is, the law of the place where 
 the property is situated ; and a testamentary disposition of personal, 
 or rather movable property, is governed by the lex domicilii, that 
 18 the law of the country where the testator is domiciled ; i. 1, 2. 
 
 Q. 32.— What are the statutory provisions affecting wills' in 
 Upper Canada ? ® 
 
 A -Statute 22 V.. c. 93,-U. C. Con. Stat. c. 16, provides that 
 probate of wills and letters of administration shall belong to the 
 Surrogate .Court of Upper Canada, and the practices of said court 
 shall be the same as the Court of Probate in Englaud, unless 
 otherwise provided by said Act, 22 V.. or by the r- ^r orders 
 made under the Surrogate Court Act, 1858 ; this act , . rovides 
 that nuncupative '.r--ils are good only in cert • c« as' therein 
 provided Stat. , c. 34, s. I2,-U. C. Cr ,, . 89, s. 46, 
 
 provides for the legistration of wills, within t..c nt^ce of twelve 
 months n^st after the death of the devisor, test? ';.:■, sic testatrix; 
 unUss the person interested in any such will be lii^m^^ from 
 
JARMAN ON WILLS. 
 
 167 
 
 recording the same within that time by reason of the contesting 
 of such will, or any other inevitable difticulty without his neglect 
 or default, and in such case registry can be effected within 
 twelve months after the removal of the impediment. By 12 V., 
 c. 64, s. 10, — U. C. Con. St. c. 12, s. 28, it is provided, that the 
 Court of Chancery shall have the power to try the validity of wills 
 and to pronounce such wills to be void for fraud and undue 
 influence or otherwise, in the same manner and to the same effect 
 as that court has power to try the validity of deeds and other 
 instruments. By 4 W. 4, c. 1, ss. 49, 50, 51,— U. C. Con. St. 
 c. 82, ss. 11, 12, 13, it is provided that estates acquired after the 
 making of a will, may pass by the will where such intention is 
 expressed ; that a devise of land shall carry as large an estate as 
 the testator had in the land, unless a contrary intention be 
 expressed : and that statute further enacts that wills shall be 
 attested by two or more witnesses, who must sign in the presence 
 of each other, but not necessarily in the presence of the testator. 
 
 Q. 33, — ^What is the rule of construction of the word " heir" 
 in a gift to him of both real and personal estate ? 
 
 A. — ^Where real estate is demised simply to the heir, he takeBL 
 the property in the character of devisee, and not as formerly, by 
 descent ; and such a devise vests in the heir an estate in fee simple, 
 without words of limitation, or any expression equivalent thereto, 
 ii. 2 ; and (according to the principle laid down by Lord Eldon in 
 Wight V. Atkyns, Coop. Ill) whenever real estate is combined 
 with personalty in the gift, both species of property receive the same 
 construction, as if the •«rl"iv»ie property which was the subject of the 
 disposition, were real estate, ii. 22. 
 
 Q. 34. — ^When may " survivor " be construed " other ? " 
 
 A. — ^The word "survivor" may be construed "other" when 
 such a construction is warranted by the intention of the testator ap- 
 parent from the wording of the will ; in other cases it is now settled 
 (though formerly doubted), that the word must be interpreted 
 according to its strict literal meaning ; ii. 609 et aeq. 
 
 Q. 35. — ^When a bequest is made to A. with a gift in case of 
 his death, what is the effect of it ? 
 
 A. — If A. survives the testator, he takes absolutely, ii. 659. 
 
 Q. 36.— What is the effect of a gift over, in default of issue, 
 with respect to personal and real estate respectively ? 
 
 i 
 
 I 
 1 
 
168 
 
 KXAMINATION QUKSTIONS. 
 
 A.-A gift of personalty, to arise on a general failure of issup 
 .8vo.dforren,oteness. Such a devise of real estate hi the eZ; 
 of creating in the prior devisee an estate tail, and the limitationt 
 • remainder expectant on that estate, ii. 428 
 
 'I'. 
 
 ir,"' 
 
 RUSSELL ON CRIMES. 
 
 Question \.-^l, there any and ,vhat age when by presumption 
 of law an mfant cannot be guilty of a capital oifence ? ^ 
 
 j^««..r.~With regard to capital crimes the law is minute 
 ^d circumspect distinguishing with great nicety the seve'dd 
 grees of age and discretion, though the capacity of doing Ul or 
 contractmg guilt is not so much measured by years and davl Z 
 by the strength of the delin'quent's understandin7and]ud™^^ 
 but ^thm the age of se.en years an infant cannof be puniS f ; 
 any capital offence, whatever circumstances of a mischievous Ts 
 cretion may appear ; for e.^resumptioneJuri. such aninfrcau„o 
 
 btdmSTi/r '''^'' ^^^ '---''- ^^ ~ ^^^ 
 
 a 2^At what age are infants deemed to be doli capaces ? 
 A.-On the attainment of fourteen years of age, the niminal 
 
 thosTof tb 'T r "'J"* *° *'^ ""^ ™°'^- of'c'onstruZ ,^ 
 Istoh./; '°"'*^; ^'' *^^^" presumes them at tho^ 
 year to be doh capaces^^nA able to discern between good and evil, 
 
 ttytre^r^s;:: I'r " -'''-' ^-^^^-^-^ - --^ -^^ 
 
 ^Q.^3.-What is the rule or presumption of law between those 
 
 ^nf^^?';f u^ *^^ '"*"*''*^ '''*^"''' ^^^t^e'^ years and seven, an 
 nfant .hall be pnma facie deemed to be Ji incapa^, and pre- 
 sumed to be unacquainted with guilt ; yet this presumption wTu 
 dimmish with the advance of the offender's years,^and Vilipend 
 upon the particular facts and circumstances of the case, T". ^ 
 
 «.iai^;rtheforrnf7. "f "'''* '*''"*' ^PP'^°8 *° '^' P^««e 
 agamst the form of the statute or statutes " in indictments ?~Rnr1 
 
 what would the effect be of omitting all such refeZ. L T.t 
 
 Statute m statutory offences ? 
 
RUSSELL ON CRIMES. 
 
 160 
 
 A.— The Imp. stat. 7 Geo. 4, c. 64, s. 20, professing to hare for 
 its object that the punishment of offenders may be less frequently 
 interrupted in consequence of technical niceties, enacts that no 
 judgment upon any indictment shall be stayed or reversed for the 
 insertion of the words " against the form of the statute," instead of 
 the words " against the form of the statutes," or vice versa : but the 
 entire omission of the words against the form of the statute in an 
 indictment for an offence created by statute, is fatal, as it is not 
 cured by that enactment ; see Reg. v. Pearson, R. & M. C. C. R. 
 313. ii. 113 etaeq. 
 
 Q. 6. — ^When is the plea of "autrefois acquit" a good plea 
 in bar? 
 
 A. — ^The plea of autrefois acquit is a good plea in bar, when the 
 facts contained in the second indictment would, if true, have sus- 
 tained the first indictment ; or if a prisoner could have been con- 
 victed by any evidence on the first indictment, he may successfully 
 plead his acquittal to a second indictment : or if the means of death 
 charged in two indictments be such as would be supported by the 
 same evidence, a plea to the one that the prisoner was acquitted on 
 the other is good : or an acquittal on an indictment against the 
 prisoner and others, is a good plea in bar to an indictment against 
 the prisoner alone : or where the acquittal was the same identical 
 offence ; i. 830-836.* 
 
 Q. 6.— An indictment for obtaining goods by false pretences 
 stated in substance after the false pretences, " that the prisoner 
 obtained from one William Roe divers goods and merchandize, 
 with intent then and there to cheat and defraud the said William 
 Roe of the same." Is this a good indictment ? — and if not, in 
 what respect is it defective. 
 
 A. — ^The indictment is bad ; an indictment for obtaining goods 
 by false pretences must state them to be the property of some 
 person ; therefore an indictment is defective where it states that the 
 defendant made certain false pretences, by means of which he ob- 
 tains goods fif*r{' a certain person, with intent to cheat and defraud 
 
 • In any plea of autrefois acquit, it shall be sufficient for any defendant to 
 state that he has been lawfully acquitted of the ofiFence charged in the indict- 
 xaeat, see 18 V. c. 92, a. 27,— Can. Con. St. c. 99, s. 48. 
 
170 
 
 BY *Mi{(ATIOlV (il7£8TION8. 
 
 
 such perncn of the name ; u. 307 ; Reg. t;. Norton, 8 0. & P. 196 
 per Aid -oon, B. * 
 
 Q. 7. — What is the definition of burglary ? 
 A^-Burglary is a breaking and en^«ring the dwelling-house of 
 another m the night, with irv ., c. comuut some felony within the 
 •wine, whether such felonious intent be executed or not, i. 785. 
 Q. 8.--H0W may a man become a "felo de ae/"' 
 A.—A man may become a felo de ae, by putting an end to hia 
 :>wn hfe : or by committing some unlawful malicious act, the con- 
 Mquence of which is his own death ; so where two men agree to die 
 together, and one of them at the persuasion of the other buys poison 
 and mixes it in a potion, and both drink it, and he who bought 
 and made the potion survives by using proper remedies, and the 
 other di«s, he who dies shall be adjudged a felo de ,e : so if a man 
 attempting to kill another, mm 'is blow and kill himself, or intend- 
 ing to uhoot at another mortally wound himself by the bi.. , -ajt of 
 the gun, he kfelo de se ; i. 507 et seq. " 
 
 Q. 9.-Give the common law definition of perjury, and suborna- 
 tion of perjury. 
 
 A.~Perjury by the common law, appears to be a wilful false 
 oath by one who, being lawfully required to d ,,08e the trutl. U 
 any proceeding in a court of justice, swears absolutely in a matter 
 ot some consequence to the poin^ in question, whether he be be- 
 lieved or not • .ubornHtfon of ^ rjury. by the common law, is an 
 Offence in proc> ng a man to take a false oath amounting to per- 
 jury, who actually takes such oath ; but if the person, incited to 
 take such an oath .^Muld not actually take tv^ same, the person 
 by whom lie was so incited is not j- ilty of subornation of perjury, 
 (yet he 18 liable to be punished, not only by fine, but alio by 
 iwamous corporal punishment j) i; lye et seq. 
 Q. 10.— What words in r. \tutp reate a felony ? 
 A.~With regard to the fr ,s ated by statute, .ot only those 
 cnioes which are made feloi in -ress words, but alsa all \ose 
 which are decreed to have or undergo judgment of li'' id member 
 of any statute, become felonies thereby, whether the woru "felo- 
 ny be omitted or mentioned. Where a statute declares that 
 the offender shall, under the particular circumstances, be deemed 
 to have feloniously committed the act, it makes the offftn.-.-, & fgU 
 ony, and imposes all the common and ordinary consequrncM 
 
RUSSELL ON CRIS|ES. 
 
 ni 
 
 attending a felony. But where a statute states that an offence, 
 previously a misdemeanor, shall be deemed and construed a felony, 
 instead of declaring it to be such in distinct and positive terms, 
 the offence is not thereby a felony, i. 44. 
 
 Q. 11. — When does a misdemeanor merge in a felony? after 
 such merger can there be a prosecution on the misdemeanor ? 
 
 A Where a statute makes that felony which before was a mifl- 
 
 demeanor only, th«^ misdemeanor is merged ; and there can be no 
 prosecution afterwards for the misdemeanor ; but if it gives a new 
 punishment or a new mode of p jeeding for what was before n 
 misdemeanor, without altering the class or character of the offence, 
 'he lu >, punishment or new mode of proceeding is cumulative only, 
 and the offender may be proceeded against as before for the com- 
 mon law misdemeanor ; i. 50. 
 
 Q. 12.— "What is the distinction between a principal in the second 
 degree, and an accessory ; in what cases can there be no acces- 
 sories ' 
 
 A.— An accessory is one who, though not present at the commit- 
 ti!. !! of the offence, procures, counsels, commands or abets another 
 oommit a felony (i. 30), or knowing a felony to have been com- 
 mitted ^ another, receives, relieves, comforts, or assists the felon, 
 i. 36 ; a ^ iicipal in the second degree is one who is present, aiding 
 and abetting at the commission of the act, i. 26, 31. See Rex v. 
 Winifred & Thomas Gk)rdon, 1 Leach, 515. In high treason tiiere 
 can be no accessories, but ail are principals, on account of the hem- 
 ousnesB of the crime. In the case of forgery it is laid down 
 generally in the book? that all are principals, and tha« h^i^et 
 would make a man accessory in felony would make him a princ |><.l 
 in forgery ; but this must be understood of forgery at conmoix 
 law, and where it is copsidered as a misdemeanor, i. 33. 
 
 Q. 13.— Is a married woman liable for crimes which she com- 
 mita in the presence of her husband, and why ? Does the rule 
 apply to all crimes? if not, state the exceptions. 
 
 A A married woman is so much favour d in respect of that 
 
 power and authority which her husband has over her, that she shall 
 not suffer any punishment for committing a bare theft, or even » 
 burglary, by the coercioi* of h< r husband, or in his company, which 
 
 xi. . 1 X . ^— «:.>^ n.-t- ^-Vio !o /inlir tVio -nrAfliimntion of laws 
 
 lilC iav» uuuai: t:c=B tudv--i3i i---tv vu.^ '• ;; 1 ' 
 
 80 that if upon the evidence it clearly appear that the wife was not 
 
172 
 
 EXAM^KATION qUKHTIONS. 
 
 drawn to th. ffence by her husband, but that she was the princi- 
 pal inciter ot it, she is guilty as well as the husUnd : so if she be 
 m any way guilty of procuring her husband to commit the offence 
 It seems to make her an accessory before the fact in the same man- 
 ner a« if she had been sole. An.l she will be guilty in the same 
 manner of all those cnmes which, like murder, are mala in ,e, and 
 prohibited by the law of nature, i. IH, 19 e^ ggq. 
 
 Q. 14.-Give a definition of larceny : is lucri causd a necessary 
 impediment ? at what time must the animm furandi exist to cou- 
 •titute the conversion of goods found a larceny? 
 
 A.— Larceny is the wrongful or fraudulent taking and carrying 
 away by any person of the mere personal goods of another, from 
 any place, with a felonious intent to convert them to his (the 
 takers) own use. and make them his own property, without the 
 consent of the owner : in Hammond's case. 2 Leach, 1088, Grose. 
 J., said, that the true meaning of larceny is, " the felonious taking 
 the property of another without his consent, and against his will 
 with intent to convert it to the use of the taker ; " ii. 2. It is not 
 essential that the taking should be lucri cau^d, ii. 8. To constitute 
 the conversion of goods found a larceny, the animus furandi should 
 exist at the time the prisoner found the article, ii. 18. 
 
 Q. 15.— Mention some cases in which homicide is justifiable, 
 and some in which it only amounts to manslaughter. 
 
 A. -The officer who. in the execution of his office, either in a 
 cml or criminal case, kills a person who assaults and resists 
 Iwm, the resistance is justified in proceeding to the last ex- 
 tremity ; but, in any misdemeanor short of felony, if the person 
 does not resist, but merely flies to avoid the arrest, and the officer 
 pursues and kills him in the pursuit, it will be murder or manslaugh- 
 ter according to the peculiar circumstances by which such homicide 
 may have been attended; i. 665, 666. Officers in dispersing a 
 mob in case of a riot, are justified in proceeding to the last extre- 
 mity, in case the riot cannot otherwise be suppressed ; and the 
 Ming of dangerous rioters may be justified by private persons 
 Who cannot otherwise suppress them, or defend themselves from 
 them; 1. 6Q7. Gaolers and their officers, in repelling prisoners 
 who resist them, or others in behalf of sr h prisoners, are justified 
 in using force, and if the nnrfv roo«<-;p«. ,.„„«„« *„ l. i.-n-i ., • 
 on the part of the gaoler, or his officer, or any person coming in 
 
UnSflKLL ON CRIMES. 
 
 ITS 
 
 the princi- 
 80 if ahe be 
 ; the offence, 
 e same man- 
 in the aamc 
 la in ae, and 
 
 ■ a necessary 
 exist to cou- 
 
 nd carrying 
 lother, from 
 to his (the 
 without the 
 088, Grose, 
 lious taking 
 St his will, 
 '. It is not 
 constitute 
 'zndi should 
 
 justifiable, 
 
 either in a 
 and resists 
 le last ex- 
 the person 
 
 the officer 
 nanslaugh- 
 b homicide 
 spersing a 
 last extre- 
 ; and the 
 te persons 
 jlves from 
 
 prisoners 
 i justified 
 
 men, laia, 
 
 soming in 
 
 aid of him, will be justifiable homicide ; i. 667, If one come to 
 beat another, or to take his goods merely as a trespasser, though 
 the owner may justify the beating of him, so far as to make him 
 desist, yet if he kill him it is manslaughter ; so if any man kill 
 any person in defence of an injury done by himself, he is guilty of 
 manslaughter at least ; i. 66H, 669. 
 
 Q. 16. — What is considered night M regards burglary : and 
 does this depend upon common law or statute ? 
 
 A. — The Imp. Stat. 1 V., c. 86, s. 4, provides, " that so far as 
 the same is essential to the offence of burglary, the night shall be 
 considered to commence at nine of the clock in the evening of each 
 day, and to conclude at six of the clock in the morning of the 
 next succeeding day," i. 821. 
 
 Note.—StB,t. 4, 5 v., c. 25, s. 16,— Can. Con. St. c. 92, s. 10, 
 contains a similar enactment. 
 
 Q. 17. — If a prisoner is acquitted on the ground of insanity, 
 how should the verdict be returned, and what is the effect of such 
 finding ? Is the question of insanity ever raised before plea ? 
 
 A.— By the Imp. Stat. 89 & 40 Geo. 3, c. 94, it is enacted, that 
 in all cases when it shall be given in evidence upon the trial of any 
 person charged with treason, murder, or felony, that such person 
 was insane at the time of the commission of such offence, and such 
 person shall be acquitted, the jury shall be required to find 
 specially whether such person was insane at the time of the com- 
 mission of such offence, and to declare whether such person was 
 acquitted by them on account of such insanity. The effect of such 
 finding is, that the court before whom such trial is had, shall order 
 such person to be kept in strict custody, in such place and in such 
 manner as to the court shall seem fit, until Her Majesty's pleasure 
 shall be known ; and it shall thereupon be lawful for Her Majesty 
 to give such order for the safe custody of such person during her 
 pleasure, in such place and in such manner as to Her Majesty shall 
 seem fit. i. 15. If a man in liis sound memory commits a capital 
 offence and before arraignment for it he has become mad, he 
 ought not to be arraigned for it, because he is not able to plead to 
 it with the advice and caution that he ought, i. 14. 
 
 Q. 18. — If a servant is entrusted with property of his master 
 and con'-erts it, is thi? larceny or cmberslement ? Give your 
 reason 
 
1 I 
 
 Ml' 
 
 If' 
 
 # 
 
 174 
 
 EXAMINATION QUESTIONS. 
 
 A.-Where a servant is entrusteii with property of his master 
 and converts it to his own use. he is guilty'of Uny at Zln 
 
 ZTl'ZCZX llT'''''' '''" ' ^«^*' ^' ^- ''' ' Bass' 
 
 Do?« 1^7^^''"' ^''l'"'"' '^^"''"^ necessarily involve a trespass? 
 l^oes It differ m this respect from embezzlement, and obtaining 
 money by false pretences ; and if so. how ? ^ 
 
 A—The commission of the crime of laceny involves a tres- 
 pass m the taking of the good, iL 5. Larceny differs in th s 
 re pect from embezzlement and obtaining money by false pretences, 
 for a trespass is not included in either of those crimes, in th^ 
 former of which the goods are lawfully in the possession of the 
 person who embezzles them, and in the latter they are obtained 
 (though fraudulently) with the consent of the owner. 
 Q. 20— What is the common law offence of arson? 
 an^rfr" ' r ^* '°°'°"'" ^'''' ^" ""^''''^ °^*he degree of felony ; 
 S 648. ' ""'^ "^^^"^ burning of the house of another. 
 
 onmJ,\'7^u^''u^ T""?" ^^ ^''''''''y ^^^'' *he fact, to a felony 
 conunuted by her husband, and does this rule apply to treason ? 
 bive your reasons. ^ 
 
 whtch"^ifi''' *'"'r'u ' u^''** '' '^'' ^""'y' ^°^«' «»d tenderness 
 
 accestv to fT k " ^"''"'^' *'^' '' ^''' °°* '"^'^^ ^er an 
 accessory to felony by any receipt whatever which she may give 
 
 i 3P 'i^'^'^'f r^ tbat she ought not to discover her husband. 
 1- 3«. This rule does not apply to treason, for in treason there can 
 
 ne'ss ofT''"''' ^"' "" "■' P""'^^?^'^' ''' ^^^^•^"t «f the heinous- 
 ness ot the crime, i. 33. 
 
 Q. 22 -Are there any crimes for which a woman will be 
 
 A^A woman will be answerable for the crimes of treason 
 murder, or robbery, if committed by her. even in the company 
 
 Tudi Z I r""""" "\ ^" ^"^^'"'*' ^"•^ «^« •« P^'^i^bable as 
 Q. 23.-What is the common h^v definition of forgery f Is it a 
 
RUSSKLL ON CRIMES. 
 
 175 
 
 his master 
 at common 
 sion of the 
 »65; Bass' 
 
 a trespass ? 
 i obtaining 
 
 es a tres- 
 ;rs in this 
 pretences, 
 les, in the 
 on of the 
 i obtained 
 
 of felony ; 
 r another, 
 
 • a felony 
 treason ? 
 
 !nderness 
 e her an 
 nay give 
 lusband, 
 here can 
 heinous- 
 will be 
 
 f If 80 
 
 treason, 
 )mpany 
 able as 
 I those 
 by the 
 
 Is it a 
 
 felony or misdemeanor ? How has the statute law with regard to 
 forgery of the several instruments therein mentioned altered it iu 
 this respect ? 
 
 A. — Forgery at common law has been defined as " the iViiudu* 
 lent making or alteration of a writing to the prejudice of another 
 man's right;" 4 Bla. Com. 247; or more recently as "a Llse 
 making, a making malo aninio, of any written instrument, for the 
 purpose of fraud and deceit ;" 2 East, P. C, c, 19, s. 1, p. 852 ; 
 the word "making," in the last definition, being considered as 
 including even alteration of, or addition to, a true instrument ; ii. 
 318. It is of the degree of misdemeanor only, at common law ; but by 
 a variety of statutes (consolidated by Imp. Stat. 1 W, IV. c. 66,) 
 creating various kinds of forgeries, those forgeries were, for the 
 most part, made capital offences, ii. 318; but Imp. Stat. 1 V., 
 c. 84, enacts that no person shall suffer death as a felon upon con- 
 viction of the crime of forgery ; ii. 412, 413. 
 
 Note.— By 10 & 11 V., c. 9,— Car. Con. St. c. 94, punishment 
 of death for the crime of forgery is done away with, and other 
 punishments provided. 
 
 Q. 24. — If a person is acquitted on an indictment bad on the 
 face of it, can he plead such acquittal as a bar to a subsequent 
 indictment for the same offence ? Give your reasons. 
 
 A. — Whenever the indictment whereon a man is acquitted is so 
 far bad that no good judgment could have Ijcen given upon it 
 against the prisoner, the acquittal is no bar to a subsequent indict- 
 ment, because in judgment of law the prisoner vas never in danger 
 of his life upon it ; for the law will presume, primd facie, that the 
 judge would not have given a judgment, which would have been 
 liable to be reserved ; i. 836. See Rex v. Turner, R. & M. C. C. 
 239 ; Vaux's case, 4 Co. 44. * 
 
 Q. 25. — What is the distinction between robbery and larceny 
 from the perton ? Is it necessary to constitute robbery that the 
 goods should be actually taken from the person ? If not, what 
 taking is sufficient ? 
 
 A.— The distinction between robbery and larceny from the per- 
 son is, robbery is a felonious taking of money or goods of any 
 value from the person of another, or in his presence, against his 
 will, by violence, or putting him in fear, i. 867 ; and larceny is 
 such stealing any property from the person ot another as does 
 
176 
 
 EXAMIITATIOX QUSSTIONS. 
 
 not amount to robbery, (.i. 132,) that is, a taking without violence 
 or her coercion. To constitute a robbeiy the goods mTZ 
 actually taken from the person into the poTsessionTftheThber 
 but It mil be considered a sufficient taking if his possession of them 
 be but momentary, if he has actually had possession, 871-873 
 orV,:^^::::^^'''' of homicides, justi^able and excusable, 
 
 A.-Excusable homicide is of two sorts: ehhev pa^ infortunium 
 by misadventure; o. se et .ua defendendo, u^on tl^e ^c^oi 
 self-defence Justifiable homicide is of several kinds,C7may 
 be occasioned by performance of an act of unavoidable necessi^ 
 where no shadow of blame can be attached to the party Sf^ 
 or by acts done by the permission of the law, either for the 
 advancement of public justice or for the prevention of some 
 atrocious crime, i. 656. Culpable homicide may take placed 
 cases of provocation ; in cases of mutual combat; in ca.es of 
 resistance to officers of justice, to persons acting in their aid, and 
 to private persons lawfully interfering to apprehend felons, ^r to 
 prevent a breach of the peace; in case, where the kilhn; tak s 
 place m the prosecution of some criminal, unlawful or wanton act • 
 
 WfH "Tl ''' ''''• "^'""^ "^^'^ P*««^ ^" consequence of som^ 
 lawful act being criminally or improperly performed, or of some 
 act performed without lawful authority ; i. 579. 
 
 Q. 27.-H0W many kinds of crime are there in which one wit- 
 ness IS not sufficient for a conviction ? Does this depend upon the 
 statute or common law in each case. ^ 
 
 A—Two, treason and perjury, ii. 944. The necessity for two 
 w^^^nesses m the case of treason depends upon various s Jutes ; Z 
 
 tPr » ^f7^^"*f *^« distmction between murd«r and manslaugh- 
 ter and what is the presumption in all cases of homicide ? 
 
 f"T^ '^'^''*'"'*''"'^'' *^** "'"•■^^'* i« the killing any person 
 under the Queen's peace, wi.h malice ;,..^.«.. or fforet'hought! 
 eith r express or implied by law, i. 482 ; and manslaughter is fha 
 species of homicide in which malice, the main ingredient and char 
 ac ens jc of murder, is considered wanting, 1.57! As I get"l 
 rule a 1 homicide is presumed to be malicious, and of course 
 amounting to murder, until the contrary appears, from circumsr 
 ces ot alleviation, excuse or jngtificaHon ■ -r-^ -- -•- - 
 
story's equity jurisprudence. 177 
 
 Srnf .?"'°""' *° "^^^^ ""' '""'^ circumstances to the satisfac 
 tion of the court and jury, unless they arise out of the evtent 
 produced against him ; i. 483 evidence 
 
 ,'„ :ii 1 , , > "x 11 ocverai meet tor the same niirnnso it 
 ^^llegal and the parties may be indicted for a conspirLy ii 674 
 Rex V. Journeymen Tailors of Cambridge, 8 Mod U '• Re/!' 
 Mawbey, 6 T. R. 636. ' ^*^^ ^' 
 
 IIUIUCUI 
 
 STOEPS EQUITY JURISPRUDENCE 
 
 ^estion 1 --What is the most general classification of the 
 
 equitable jurisdiction of the Court of Cbancry ^ 
 
 ^«*«;er.— The Concurrent jurisdiction, the Exclusive in W.^- 
 
 o' 7' *,^^f-^'-.^ - Assistant jurisdiction ;;?'"'"■ 
 
 ^^Q.^2.-Explam and illustrate the maxim " Equity follows the 
 
 fV,<fr"^' T "'^'^ *^''*^ '^"^*y '^^^P*^ «^<^ foU«^« the rules of 
 
 bl o"f"r^ which those rules may, in terms. Vetpl! 
 
 cable, or it may mean, that equity, in dealing with cases of an 
 
 ZIT.:^: T'"^^ '^"^^^ ''' -lo^giesfurXd b" 
 are in tbi T '""^^^^^i^'^' *!»« Statutes of Limitatioi^ 
 
 are m their terms applicable to courts of law only yet Z.>? 
 
 l:^r: theTa ru'te^r^ 1T "^^^ -^'-^-' 
 
 example, where the positive rule o< law is tCi I ^ I ^°' 
 Bball be the Leir to his f^thJT a . ' ^^^ ^^*^®'* ^"^ 
 
 ..u ■ .. 'V ®^^ undevised estate, eauifcv nar,^^. 
 
 •.mciwiBCGispofieof the estate. §§64,64*. ' '~"'' '"^ 
 
 M 
 
178 
 
 EXAMINATION <}USSTIONS, 
 
 
 Q. 3. — What ia the meaning of the maxim " Where there is 
 equal equity, the law must prevail ?" Mention an ordinary but 
 moat important example of the maxim. 
 
 A. — In case the defendant has an equal claim to the protection 
 of a court of equity for his title, as the plaintiff has to the 
 assistance of the court to assert his title, the court will not 
 interpose on either side. A court of equity constantly refuses 
 to interfere either for relief or discovery against a bona fide 
 purchaser of the legal estate for a valuable eonsiderfftion, with 
 notice of the adverse title, if he choose to avail himself of tht 
 defence at the proper time and in the proper mode. § 64 c. 
 
 Q. 4. — Will a purchase by a solicitor from his client be 
 ■upported in equity under any, and what circumstances ? 
 
 A.— It will be supported in equity under the condition that the 
 burden of sustaining the purchase, at least within twenty years, 
 is upon the solicitor, § .^12 a. 
 
 Q. 5.— Will the Court of Chancery decree the cancellation of 
 an instrument which is void at law ? 
 
 A. — If it be auch an instrument as may be used for an impro- 
 per purpose or oppressive litigation, cancellation will be decreed ; 
 but not if it appear on the lace of it to be void, as then no 
 improper use can be made of it ; §§ 700, 700 a. 
 
 Q' 6. — The executor of a mortgagor purchases the mortgage 
 with his own monies, for an amount less than that due on the 
 mortgage: for what sum will a person interested in the equity of 
 redemption be entitled to redeem ? Explain the reasons for your 
 answer. 
 
 A.— He will be entitled io redeem for the amount expended in 
 the purchase of the mortgage by the executor, because executors 
 are not permitted to purchase the debts of the deceased on their 
 own account, or to derive any personal benefit from the manner 
 i» which they transact the business of the estate, § 321. 
 
 Q* ^' — The personal ewtnte of a testator is exhausted in the 
 j^yment of his simple contract debts, which amount to, say, 
 £300. He has bequeathed two legacies of dESOO and £400 
 reBpectiirely, but has not charged them on his real estate, which 
 is of ample value. Have the legatees any mA what claims upon 
 the testator's real estate ? St?}tii the principles involved in the 
 foregoing etate of facta. 
 
STOKl's E,i„„r JBBISPBODEKCE. (79 
 
 ■ paid out of tho perlT „lel ft tto Tf ; "'^ "°° °°'^ "" 
 know that the latter i, the , rlr f J^ f " '""'P™'"' '» 
 
 and if he desires them to be'Z theril , "T u' °' "'«''™'' 
 inteotioa. But if he permit^ 1 riltd to i?h"" '.V' 
 legatee, will, upon delicieue, of pe»ou„l aTsl .,! n'"' " 
 eqmfe, agabat that land a, aimol. cent™ f j' '" '"'™ 
 possible, the bouutv of the t!,t7 i, m ™''"°"''' ' '"'■ 'f 
 
 Q. 8.— What is an Injunction ? 
 aceordiog to the e^.i^L:; ^ZJl^^^ " """""'- "'"■^• 
 
 .nd"^^trd:z;^:tri:fr,r\°""^T""""'-""""- 
 
 (commonly eSnS: J tVLrr °''"^"™"'»*-' 
 the 0.de. of the Cou^t"^^:; ' o "CT 'clr ' '^ 
 
 5it^?a:rtonhiTirrttr''""F^^^^^^^^^^^ 
 
 upon iuterloeutory app ic t^u L t ^^ """ "' '■"''""°'' 
 
 injunctions are graut^d """"■ ^= '"'■'=' "P''^^ 
 
 decirs^L:CLz:fra^:e:rn d°^ h^T 
 
 ground of the jurisdiction ? ^S^rements ? And what ,3 the 
 
 party should ii.^ tu eh eoi o T T^"",^'^^«^ ^^« -J"-d 
 
 "^.nion, make such doc, -o on an a^.ttVT"""! '■-■"' =™"I 
 
 Would it decrPft fl,o „,-r °— "'^"'' -^^ ti^c^jaic- oi a sLtjp? 
 
 decree the performance of au agreement fo. the ^ale 
 
180 
 
 EXAMINATION QUESTIONS. 
 
 And give your reasons for your 
 
 and manufacture of lumber ? 
 Beveral answers. 
 
 A. — Performance of a contract for the sale of chattels will be 
 decreed where pecuniary damages would not be an adequate com- 
 pensation, § 718. We are of opinion that performance of an 
 agreement for the sale of a ship would not be decreed in ordinary 
 cases unattended by special circumstances requiring such inter- 
 ference, because the damages at law are a complete remedy, 
 inasmuch as with such daniages the party may purchase a ship 
 equal in value ; but an agreement for the sale and manufacture of 
 lumber should be specifically performed, for the profits in many 
 cases could not bo correctly estimated or compensated by a court 
 of law. Bee Adderley v. Dixon, 1 Sim. & Stu. 607. 
 
 Q. 12. — Can a creditor be enjoined from proceeding to recover 
 his debt at law after a bill has been filed to administer the estate 
 of the debtor ; and if so, at what stage of the action at law and 
 of the suit respectively ; and how then is the creditor to recover 
 his debt? 
 
 A. — As soon as a decree to account is made in such a suifc, 
 brought on behalf of all the creditors, and not before, the cre- 
 ditor can be enjoined from proceeding to recover his debt at law. 
 He must then come in and prove his debt before the mivster. 
 § 549. Such an injunction may ordinarily be made at any stage 
 of the proceedings at law ; but has been refused where judgment 
 at law was obtained prior to the decree to account ; see Lee v. 
 Park, 1 Keen, R. 714, 719—724. 
 
 Q. 13. — In an ordinary foredosi^re suit, has the Court of 
 Chancery authority to direct a sale instead of a foreclosure of the 
 mortgaged property, at the instance of the mortgagor alone, with- 
 out the consent of the mortgagee ? Has the rule you state always 
 been the practice of the Court ; and if not, state when and by 
 what authority any change has been made in the practice ? 
 
 A. — In any suit for the foreclosure of the equity of redemption 
 in any mortgaged property, the court, upon the request of the' 
 mortgagor, and without the consent of the mortgagee, may 
 direct a sale of ttuch property, upon the condition, that the mor^ 
 gagor making such request, deposit in the court a reasonable s«« 
 of money, to be fixed by the court, for the purpose of securing the 
 periormance of such terms as the court may think lit to impose. 
 
story's equity jurisprudence. 181 
 
 This rule has not always been the practice of the court; but such 
 
 change was made in the practice by Genl. Ord. U. C. xxxii.. 2. 
 ^ote~Bj the practice of our Court of Chancery the amount 
 
 to be deposited ui court by the mortgagor in such case is £20. 
 
 Wo deposit 18 required from an infant defendant; see Bank of 
 
 I'pper Canada v. Scott, Grant, 451. 
 Q. 14— A person enters into a voluntary covenant for payment 
 
 of money ; his assets are distributed under a decree in Chancery ; 
 m what order, with respect to specialty debts for a good consider- 
 ation simple contract debts and legacies, shall the debt under the 
 voluntary covenant be satisfied ? 
 
 A.--A voluntary covenant will not be paid in the course of 
 admmistration so as to place it prior to debts incurred for a valu- 
 able consideration, though by simple contract only; but it will 
 take precedence of legacies, Jones v. Powell, 1 Eq. Abr. 84; the 
 assets therefore will be applied in the following order :-in pay- 
 ment, 1st, of specialty debts for a good consideration ; 2ndly. of 
 Bimple contract debts ; 3rdly, of the voluntary covenants; 4thly, 
 of legacies. See Spence, Eq. Juris, ii. 888. 
 
 Q. 15.-Explain and illustrate the rule that parol evidence is 
 admissable to rebut an equitable presumption ? 
 
 A—It is an established rule, that, where a man buys land and 
 takes a conveyance in the name of another, and pays the consider- 
 ation money, the land will generally be hold by the grantee in 
 toust for the p^on who so pays the consideration money ; this 
 tros is considered a presumption, or an equity arising out of a 
 written instrument ; and parol evidence is admissable to rebut the 
 presumption even where the principal has paid the purchase 
 money, a. m such cases the resulting or implied trust is a mere 
 matter ^ presumption, and may be rebutted by other circum- 
 stances estabhsned in evidence, and even by parol proofs, which 
 satisfac only contradict it : thus, where A. took a mortgage in the 
 name of B declaring that he intended the mortgage to be for B.'s 
 benefit, and that the principal, after his own death, should be 
 B.s; and A. received the interest therefor during his lifetime; 
 It was held, that the mortgage belonged to B. after the death of 
 A. But a more common case of rebutting the presumption of a 
 
 trust by narnl oi7./l«.«/.^ ;„ „i ^i , * . 
 
 -J _ .„_. ,_ w:.^;™ .^jj;. purcnaae may be fairly 
 
 'V 
 
i-H ,. 
 
 t82 
 
 i : '' 
 
 EXAMINATION qUEBTIONS. 
 
 from natural love 
 
 deemed to bo made for another from motives 
 and affection. §§ 1201-1203, 1531. 
 
 Q. 16.— Within what time must a suit for redemption of land 
 mortgaged be brought ? 
 
 A.— Twenty years from the time when the mortgagee has 
 entered iuto possession, after breach of the condition, under big 
 title, by analogy to the ordinary limitation of right of entry and 
 actions of ejectment ; § 1028 «. [See U. C. Con. Stat. c. 88, 
 
 Q. 17.— Who should be the parties defendant in a suit to fo^ 
 close a mortgage, where the mortgagor has died ? 
 
 A.— The mortgagor's heir alone, as he is entitled to the equity 
 of redemption ; but the personal representative must be made a 
 party where ho has any interest in the equity J' redemption, (aa 
 for example, in the case of a*mortgage of a term of years) /also 
 where the bill seeks not only a foreclosure, but also payment of a 
 deficiency of the mortgage money out of the personal estate. See 
 Story's Eq. Plend. § 196. 
 
 Q. 18.— Who should the parties defendant be in a suit to 
 redeem, where the mortgagee has died ? 
 
 A.— The heir at law of the mortgagee or other person in whom 
 the legal estate is vested by devise or otherwise, must be made a 
 party because he has the legal title, and is to be bound by the 
 decree : the personal representative of the mortgagee also must 
 be made a party, because generally be is entitled to the mortgage 
 money, when paid. See Story Eq. Plead , § 188. 
 
 Q. 19.— Can a suit for specific performance be sustained by a 
 vendee against a vendor on a verbal contract for the sale of lands? 
 if yea, in what case ? 
 
 ^' — Y^s ; where the parol agreement has been partly carried 
 into execution, on the grounds that if Courts of Equity did not 
 interfere one party would be able to practice a fraud 'upon the 
 other, § 759. ' 
 
 ^ Q. 20— Can the defendant, in a suit for specific performance, 
 give evidence that the writing sued on does not contain the true 
 terms of the agreement? if yea, in what case? 
 
 A.— The defendant can give evideface to show, that by frau^, 
 accident, or mistake, mateiial terms have been omitted '" *^^^ 
 written agreement, § 770. 
 
story's E4JUITV JVRISPRVOBNCE. 
 
 IBS 
 
 Q. 21.— lu wlint caHes will a court of equity relieve against 
 penalties nrid forfoitures? 
 
 A,— In regnrd to contracts if tliev stipulate to do anything 
 flgauist law or against tlio policy of the law, or if tlH7 contain 
 repugnant and incompatible provisions. In i-egard to conditions : 
 relief will be given as to those which arc possible at the time 
 of then- creation, but afterwards become impossible either by the 
 act of God, or by the act of the party ; those which are impossi- 
 ble at the time of their creation ; those which are against law or 
 public policy, or are mala in ee or mnlaprohibita; and those which 
 are repugnant to the grant or gift, by which they are created, or 
 to which they are annexed. §§ 1303, 1304. 
 
 Q. 22.- When will a legacy bo deemed a satisfaction of a debt 
 duo by the testator to the legatee ? 
 
 A.— The legacy is deemed a satisfaction of the debt when it is 
 equal to, or greater in amount than an existing debt ; when it is 
 of the same nature ; when it is certain and not contingent; and 
 when no particular motive is assigned for the gift ; § 1119. 
 
 Q. 23.— What debts may a mortgagee of personal property 
 tack to his original debt ? 
 
 A.— A subsequent advance made by a mortgagee of chattels 
 would attach bv tacking to the property in favour of such mort- 
 gagee ; § 1034. 
 
 Q. 2-1. -Upon what grounds will a court of enuity decree the . 
 dissolution of a partnership before the expiration of the time 
 limited for its continuance 1 
 
 A.-On account of the impracticability of carrying on the 
 undertaking, either at all or according to the atipulations of the 
 articles ; on account of the insanity, or permaueut incapacity, of 
 one of the partners ; and on account of the gross misconduct of 
 one or more of the partners ; § 673. 
 
 Q. 25.— Can a husband assign his wife's reversionary interest 
 in a chose in action so as to defeat the wife's right of survivor- 
 ship ? Give a reason for your answer. 
 
 A.— He cannot, even with her consent ; because the assignment 
 is not, and cannot from the nature of the thing, amount to a 
 reduction into possession of such r.'\ ere^onnry interest : and har 
 consent during the coverture to the Rssignment, is not an act 
 obligatory upon her ; § 1413. %t, 
 
184 
 
 EXAMIHTATION qaEBTIONS. 
 
 Q. 26.— What constitutes couatructivo noti. o? 
 
 A.— Constructive notice is knowledge imputed by the court on 
 presumption too strong to be rebutted that the knowl- dge must 
 have been communicated, § 399. 
 
 Q. 27.— Can an infant purchM>*^r of lands maintain a bill for 
 the specific performance of hia agreement to purchase ? Givn a 
 reason for your ouswer. 
 
 A.— He cannot, because a suit for the same object could not be 
 brought against him, and courts of equity vill not d.cree speciiio 
 perlonnance upon the application of one party and refuse it in the 
 same case upon the application of anotfier, §§ 734, 787. 
 
 Q. 28.— Will the Court of Chancery in Upper Canada e . orce 
 the specific performance of a contract entered into by persona 
 both domiciled in Upper Canada, for the sale and purchase of 
 lands m Lower Canada ? ' 
 
 A.— ,» ; H 111, for the incapacity of the court to . nforc" the 
 decree ;. t . m, constitutes no objection to the right to entortain the 
 suit, , .'M, 
 
 Q. 2a - is an executor liable in equity for a debt due by him 
 to his tefaiaior's estate ? 
 
 A.— In equity he is he.d to be a trustee of the debt for the 
 partiet^ interested in the estate, § 1209. 
 
 Q. 30.— Where a man purchases land and pays the purchase 
 money, but takes the conveyance to a third person, vho will in 
 equity be deemed the owner ? 
 
 A.— The land will be held by the grantee in trust for the person 
 who so pays the considertion or purchase money, § 1201. 
 
 Q. 31.— How are assets divided; what are the principal differ- 
 ences in the administration of these two species of assets by a 
 court of equity ? 
 
 A.— Assets are divided into legal and equitable sssets. In the 
 administration of assets courts ot equity follow the same rules in 
 regard to legal assets, which are adopted by courts of law ; and 
 give the same priority to the different classes of creditors which is 
 enjoyed at law,— teguitas sequitur legem. But in regard to equit- 
 able assets, courts of equity in the actual adminietration of them, 
 adopt very different rules, and it is a general rule that they shall 
 be disti'ibuted equally,— oequitan est quasi a-qualita-. §§ 551 -.554. 
 
 Q. 32.— In what cases will a bill of peace lie ? 
 
STORV's BquiTY JURISPRUOIENr R. 
 
 185 
 
 A.— Where there is one general right to be established against 
 a great number of peraonH, aud where the plaintiff has after re- 
 peated and satisfactory trials, established his right at law and yet 
 18 in danger of furtlicr litigation and obstruction to his right «rom 
 new attempts to controvert it, §§ 851)-^859. 
 
 Q. 33.— When will a court of equity ope .ated account? 
 
 A.— If there has been any mistake or onn.-.ion, or accident, or 
 fraud, or undue advantage, by which the account stated is viti- 
 ated, and the balance is incorrectly fixed, a couri; of equity will 
 not sui! r it to be conclusive upon the parties, but will allow it 
 to bo 01 ed and re-examined, § 523. 
 Q. 34. -In what cases will a settlement made by a married 
 ^ y womaa after the conclusion of a treaty of marriage, and without 
 ,^J>^^•f;he jMMflnty of the intended husband, be set aside ? 
 ' A.-- If tlio settlement is made secretly to her own separate 
 
 use, or to a person for whom she is under no moral obligation to 
 provide, § 273. 
 
 Q. 35.— Is there any, and wha!, distinction observed by courts 
 of equity in dealing with trusts executed and trust? executory ? 
 
 A.— Courts of equity in dealing with trusts executed and trusts 
 executory, follow , as regards the former, the rules of law in the 
 interpretation of instruments ; but as regards the latter, they often 
 proceed upon an interpretation widely different, § 1066 ; for 
 example, in the case of executory trusts created under marriage 
 articles, from the nature of the instrument, equity will presume 
 it to be intended for the protection and support of the issue of the 
 marriage, and will, therefore, direct the articles to be executed in 
 strict settlement, unless the .ontrary purpose clearly appear ; and 
 in executory trusts under wills, all the parties take from the mere 
 bounty of the testator, and there is no presumption that the tes- 
 tator means one quantity of interest rather than another, § 984. 
 
 Q 36. -How is an equitable mortgage by deposit created ? 
 
 A — By deposit of title deeds to lands by a debtor with his 
 creditor as a security for the debt, § 1020. 
 
 Q. 37.— Mention some cases in which courts of equity will 
 order instruments to be delivered up nnd cancelled ? 
 
 A.— Where the instruments may i vexatiously or injuriously 
 used against a party after the evidence to impeach them is lost ; 
 w.ere t.iere is a goou equitable deleuco agaiust them, but one 
 
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 18^ 
 
 EXAMnVATtON QITCSTIONS. 
 
 U' 
 
 
 which c.n„ot be .nado available at law , where, by accident. mi«. 
 take or fraud the .nstrun^ent fails in it« object, or cannot consclen- 
 t^ously be enforced ; where there u actual fraud in the party Z 
 cndant ,n wh.ch the party plaintiff has not participated ; where 
 there .H constructive fraud against public policy, and the party 
 plaintiff has not participated therein; where thore is a Lad 
 
 therein., but ,t ,s against public policy to allow it to stand ; where 
 
 th^^p^^H:!;!::;:;!?!^ 
 
 A— When the remedy at law by damages would bo utterly in- 
 adeq,, ,, ,„d ,,„,,,. t,,^ .,,.^^^j p^^^^ .^ ^ ^^^^^ ^^ irremediable 
 
 OSS : also under an agreement of sale, or for an exclusive posseso 
 Bion and nyoyment for a term of years, courts of equity v,il inter- 
 fere, and grant full relief by requiring a specific deli ery of ^e 
 thing which ,8 wrongfully withheld; §§ 709 710 
 
 Q 39.--Against whom, and in what cases, will a voluntarr 
 settlement on a w.fe an.l children made after marriage be ^ P^ 
 the hni '? i? POHtnuptial contract will be enforced against 
 the hu band and his representatives, and also against his ci^di- 
 to,s where it is made in pursuance of a duty on the part of the 
 husband, which a court of equity would enforce ; as if made in consi' 
 deral.on of personal property coming to the wife by distribution 
 or bequest to her from her relatives ; § 1377 a. ' 
 
 Q 40. -What must an attorney show to sustain a nurchaae 
 from his^c lent upon its being impeached in equity by th 'Zn^ 
 
 ^- -»ho attorney must shew perfect fairness, adequacy ti.d 
 equity between himself and the client. § 311 ^ ^ 
 
 Q. 41.-Whatis the nature of the vendor's lien for unpaid 
 purchase money ; when does it not arise ? ^ 
 
 T»,o r'V' "' ^^^ ""*"'■'' ''^' *" ««°«t''"ctivo trust. §§ 1217. 1219 
 The l,e„ does not arise against the purchaser under a conv i^nce 
 
 n 1^ if t b ""'' 'rl^'' '''' ' ^"'"«^^« consideration Xu 
 notice, ,f ho have paid the purchase money, § 1228 
 
 t ! '■ »^^'"^ '' '^ ^""'^ ""' *° ''°"«t«'*l securities held 
 
STORt's KQUITT JtRIHPRVDGNCE. 
 
 m 
 
 iJent, mifl- 
 t conscien- 
 B party do- 
 pd ; whero 
 t^e party 
 is a fraud 
 jrticipated 
 id ; where 
 ire not ik 
 
 808, order 
 
 itterly m- 
 einediable 
 ^e posseso 
 »ili inter- 
 fy of the 
 
 raluntary 
 
 i against 
 lis credi- 
 rt of the 
 in conai' 
 bribution 
 
 purchase 
 I client f 
 lacy liud 
 
 unpaid 
 
 7, 1219. 
 veyance 
 without 
 
 by him 
 QB held 
 
 A.— The surety io entitled to the beneBt of all the collateral 
 securities held by the creditor, § 490. 
 
 Q. 43.— In what casea will a bill of interpleader lie ? 
 
 A.— Where two or more persons severally claim the same thing 
 under different titles, or in separate interests, from another per- 
 son, who does not clami ary title or interest therein himaclf and 
 does not know to which of the claimants he ought of right to ren- 
 der the debt or duty claimed, or to deliver the property in hia 
 custody, § 806. 
 
 Q. 44.— What are the rules of courts of equity as to mort- 
 gages taken hy attorneys for their cosis ? 
 
 A,— They may take mortgage securities from their clients for 
 costs already due, but not for costs to become due. See Smith 
 Eq. Juris. 264. 
 
 Q. *5.— Give some illustrations of the doctrine of relief in 
 equity, on the ground of accident. 
 
 A.— A party may come into equity for payment of a lost bond 
 or of a lost negotiable unsealed security ; he may come into equity 
 when a deed of land has been destroyed, or is concealed by the 
 defendant ; so, if a deed concerning land is lost, and the party 
 in possession prays discovery, and to be established in his posses- 
 sion under it, equity will relievo ; and where pliiintifT is out of 
 possession there are cases in which equity will interfere upon lost 
 or suppressed title-deeds and decree possession to the plaintiff; 
 § 84. Relief will also be granted in the case of payment or default 
 of payment of moneys by accident ; or where moneys have been 
 improperly administered by accident ; also in the case of defective 
 execution of powers by accident ; confusion of boundaries by acci- 
 dent ; an omission by accident to endorse a bill of exchange or 
 promissory note ; §§ 81-99. 
 
 Q. 46.— What is it essential that a purchaser seeking to rescind 
 the contract of sale on the ground of the vendors misrepresenta- 
 tions, should shew ? 
 
 A.— He must not only establish the fact of misrepresentation, 
 but also that it is in a matter of substance, or important to kis 
 interests, and that it actually misled him, § 191. 
 
 Q. 47.— la inadequacy of price in any. and what cases, a good 
 
 round of dnfniinn tn n hiU K.. « ....-~L, »• n /• 
 
 — _ ,,j ,^ j.'uitnascr iur Bpccaii; porior- 
 
 inance? 
 

 188 
 
 ll 
 
 1; 
 
 EXAMINATION qUKSTIONS. 
 
 A.~Ifc ia a good defence in cases where it shows cross imooai 
 tion or some undue influence, § 240. ^ 
 
 Q. 48 -What are the rules of courts of equitv as to settini, 
 aside sales of reversion and reversionary interests ? ^ 
 
 A^~In all ca8e3 of sales of revevsion and reversionarv interests 
 
 taes approachuig to an incapacity to bind themselves absolu oTy 
 by any contract ; hence it is incumbent upon the party d 2 
 
 shew tit !% ^^T \'' '" "^'^^ ^^'^^ "'« b«'-g«'"; that is to 
 otherJ r r^ "'•"^"''^^ consideration has been paid' 
 
 otherw.se courts of equity will grant relief to the reverS 
 by settmg aside the sale ; §5 333-338. reversioner 
 
 qurnfarsi^r/' ^^"^^^ ^"^"'^ '^^^"^ "^--'^ ^^ ^^ -bse- 
 
 niettTo^ttTebt"" '''r^^:r''''''^' e'^« -*'-' «f the assign- 
 menttothe debtor; for otherwise, a priority of right mav ba 
 obtained by a subsequent assignee. § 1047 ^ ^ 
 
 .«S.i^~^" '^'"*' ''*'"" """^ * ^o""-' «f equity '^-m a trust 
 created by recommendatory words in a bill ? ai : , 
 
 m wh^h words of recomm'endation will be held't r..e a W 
 
 has no doubt, if the objects, with regard to whom such terms are 
 applied are certain, and the subjects of property to be gTven ar^ 
 
 Sin! r ' 'r' *'''"'"'* ''^°^''^ g^^« ^'000 to A., desiring. 
 w.Bhing. recommending, or hoping that he will, at his death Jo 
 
 the same sum or a certain part thereof, to B.. it would be' held 
 
 U068 , " '^'Z °' ^- ^"^ ^- -"''^ »^e trust for hfm 
 §1068 where, or the other hand, if the testator devises h^ 
 easehod estates to his brother A. forever, '« hoping he wil con 
 >nue them in the family." this will rai.. io trust in thlfLT 
 for no particulars are pointed out, § 1072 ^' 
 
 toL'rl;:[rrparr ^"'^"""^ ''-'^'^ ^^-^ -i-«- 
 
 A— In cases where such orocess •« non«po„-„ 
 
 -_ — ,„- 
 
 «•„ ___ 
 
 prcvcai aw- 
 
TTOEY's EqOITT JURISPRUDENCE. 
 
 189 
 
 '038 impoai. 
 
 « to netting 
 
 ry interests, 
 to the par- 
 i absolutely 
 »rty dealing 
 there ia no 
 ; that is to 
 i)een paid ; 
 reversioner 
 
 hose in ac> 
 7 a Bubse- 
 
 the assign- 
 it may be 
 
 Jn a trust 
 
 instance 
 
 e a trust, 
 
 >e applied. 
 
 of recom- 
 
 B testator 
 
 terms are 
 
 given are 
 
 create a 
 
 eatb, give 
 1 be held 
 for him, 
 svises his 
 will coa- 
 e family, 
 
 junctions 
 
 eat irre- 
 
 parable mischiefs, or to suppress multiplicity of suits, and oppres- 
 sive litigation, § 928 
 
 Q. 52.— What la tho uoual decree made in a suit to e8taMi««h a 
 
 will? 
 
 A.— That the will is well proved, niid that it ought to bo esiiib- 
 lished, and a perpetual injunction will be granted, § 1117. 
 
 Q. 63.— What is the nature of tho equitable right of a married 
 woman usually termed her " equity to a settlement ? " Out of 
 what property will a settlement be enforced ? Will such a settle- 
 ment be enforced against the husband's assignee for a valuable 
 consideration ? 
 
 A.— The wife's equity for a settlement is generally understood 
 to be strictly personal to her, and does not extend to her issue, 
 unless it has been asserted and perfected by her, \u her lifetime,' 
 § 1417; such settlement will be enforced out of the equitable 
 funds, which are brought under tho control of the court, and are 
 subject to its order ; it is ordinarily administered against the hus- 
 band's assignee for a valuable c( asideration ; § 1421. 
 
 Q. 54.— What forfeitures for breaches of covenants in leases 
 will courts of equity relieve against ? 
 
 A.— Forfeitures of the estate . nd an entry for the forfeiture, 
 stipulated for in the lease, in cnao of the non-payment of the rent 
 at ihe regular days of payment ; for the right of entry is deemed 
 to be intended to be a more security ♦or the pavment of the rent ; 
 §§ 1314, 1315. 
 
 Q. 55.— Upon the death of one of several co-partners, do his 
 real or personal representatives become entitled to his share of 
 the real estate belonging to the co-partnership ? Give reasons 
 for your answer. 
 
 A.— The personal representatives become entitled, because a 
 court of equity treats such estate to all intents and purposes as 
 personal estate, which doctrine prevails not only as between the 
 partners themselves and their creditors, but as between the repre- 
 sentatives of the partners also, § 074. 
 
 Q. 56.— Is a general tiiiignment to a trustee in trust for the 
 creditors of the settlor, and to which no creditor is a party, revo- 
 cable ? What will render such an instrument irrevocable ? 
 
 A.~The assignment is revocable by the settlor ; but if the 
 

 lao 
 
 EXA>4INATION qUKSTIOlVfl. 
 
 creditors have aHsentod t„ tl.o trust, and given notico thereof to 
 oT'w^ will then b. l..ld irrevocable; §§ lOJ^MoTc 
 
 Iln '" '"''''"'"'*" ^''^'^"^ '*>•' t^""''^'- itHein to perfect 
 
 aa eau.tablo as.«nn.ent of a d.one in action as again.st ubZueu 
 -.gnces 1 Does thi. doctrine apply to the asHigun.on o c'quit 
 able interests m real estate ? ^ 
 
 A.-Tl,c nssinnco ^l.ould gi.o notice to the debtor immediatelv 
 after the transfer of th., cho«e in actio,, § ,047. 1^1.^1-0 
 appl.es t. ...o a..,n,„cnt of equitable intorestn in real cst^t 
 far-tJ nt u subneqwent assignee or incumbrancer of equitabt 
 pn^perty .nay acquire a priority over an elder assignee orTncun 
 braneer ot the same property, by his giving notice of his Utioto 
 he trustees of the property, and will be preferred to TJl 'n- 
 cu, .braneer. who has omitted to give the like notice of tiL 
 to the trustees; for the notico is an effectuil ,w„ . 
 
 But m such cases it will only interfere whero th^ l\ • i 
 upon determinate and satisfactory ^Zt^lllT '' '""'^ ^"' 
 
 payment. Seo Story Eq. Pleal SH^r 478 """^ '"^ 
 
 Q. 60.-W.ll a bond, void upon its face for illesalitv h« A. 
 «reed m equity to be delivered up to be cancelled ? a- 
 for your answer. P ^o oe cancelled ? Give a reason 
 
 A.-Courts of equity will not interpose their authorifv f^ 
 order a cancellation or deliverv un of «..,!», . a"thonty to 
 there can be no danger thrLTLf. """'"*' ' ^^''^"^^ 
 party of his full ^ea^ oW^^^^^ '^•''-- *»•- 
 
 clou, over hi. .,ht or me'^TiZT^^t::^: ^ 1^ 
 
atcjry's Kqurrv jurispbvukivcc. 
 
 181 
 
 capable of being used uh u meanH of vcxatioua litigation, or acrioui 
 injury ; $ 700 a. 
 
 Q. 6l.~-Wheu a debt for which a surety is bouud, is duo and 
 the principal debtor refusea to pay, has the Hurety auj{, and .vhat 
 remedy in ecpiity to which he uiay have rccourBo without tirst 
 poking the debt himself ? 
 
 A.— The surety may como into equity, and compel the creditor 
 to sue for, and collect the debt from the principal ; at least if he 
 will indemnify the creditor against the risk, delay and expense 
 of the suit, § 327. f » 
 
 Q. 02 —In whose favour will a court ol equity aid the defec- 
 tive execution of a power ? 
 
 A.— In favour of parties for whom the person intrusted with 
 the execution of the power is under a moral or legal obligation to 
 provide by an execution of the power, as a bond fide purchaser for 
 valuable consideration, a creditor, a wife, and a legitimate chUd. 
 $§ M, 109. 
 
 Q G3.— In what cases will a court of equity restrain vrasto 
 by ono of two tenants in common at the instance of the other ? 
 
 A — Where the party committing the waste is insolvent ; or, 
 where the waste is destructive of the estate, and not within the 
 usual legitimate exercise of the right of enjoyment of the estate; 
 J 916. 
 
 Q. 04— Will the publication of private letters by the receiver 
 bo restrained by injunction at the suit of the writcjr ? 
 
 A —The publication of private letters can bo restrained, ''here 
 it has been attempted without the consent of the author - iss 
 the purposes of public justice, publicly ndnjiaistered. accord, 'o 
 the established institutions of the couutry, in the ordinary modes 
 of proceeding, require that they should b<, nruducrd and published ; 
 $§944,948. ' • 
 
 Q. 05.— In what cases will a bill to per(j('tuatc testimony lie? 
 
 A.— In cases where lands are devised by will, away iVoin the 
 heir at law ; and the devisee in order to perpetuate the testimony 
 of the witnesses to the will files a bill in chancery against the heir ; 
 also in all cases where the party who files the bill can by no meana 
 bring the matter in controversy into immediate judicial investiga- 
 tion, which may happen when his title is in remainder, or when 
 he himself is in actual possession of the property, or u in the 
 
192 
 
 LAMINATION qOESTIONg. 
 
 h iH. 
 
 
 present possession of the rights, which ho seeks to perpetuate bv 
 proofs; ^ IDOO, 1508. ^ 
 
 Q. 00. — Will the Court of Chancery rustrain by injunction, 
 proceodin^js in other courts of a criminal nature ? Is there any 
 exception to the general rule on this subject ? 
 
 A.— The Court of Chancery will not restrain by injunction, pro- 
 ceedings in other courts of a crinnnal nature. But this restriction 
 applies only to cases where the parties seeking redress by such 
 proceedings are not the plaintiffs in equity ; for if they are, the 
 court possesses power to restrain them personally from proi'eed- 
 ing at the same time, upon the same matter of right, for redress 
 in the form of a civil suit, and of a criminal prosecution. § 893. 
 Q. 07.— Give an illustration of the doctrine of courts ot equity 
 as to marshalling assets. 
 
 A.— If a specialty creditor whose debt is a lien upon the real 
 estate, receive satisfaction out of the personal assets of the deceaa- 
 ed, a simple contract creditor shall, in equity, stand in the place 
 of a specialty creditor against the real assets so far as the latter 
 shall have exhausted the personal assets in the payment of hia 
 debt ; so if a mortgagee exhaust the personal estate in the pay- 
 ments of his debts, a simple contract creditor will be allowed to 
 stand in the place of the mortgagee; §§ 662, 563, 
 
 Q. 08.-I8 a settlement of property by a husband upon his 
 wife, to her separate use, without the interposition of any trustee 
 valid ? ' 
 
 A.— Whenever real or personal property is given or devised, or 
 tettled upon a married woman, either before or after marriage, 
 and either by her husband or by a mere stranger, for her separate 
 and exclusive use, without the intervention of trustees, the inten- 
 tion of the parties shall be effectuated in equity, and the wife's 
 interest protected against the marital rights and claims of her 
 husband, and of his creditors also : and in all such cases the 
 husband will be held as a trustee for her ; % 1380. 
 
 Q. 69.— Give a definition of a donatio mortia cautd. What 
 are the distinctions between such a gift and a legacy: and how 
 does it differ from a gift inter vivos ? 
 
 A.—A donatio mortis cautd is, properly, a gift of personal 
 property, by a party who is in peril of death, upon condition 
 that It shall presently belvng to the donee, in case the donor 
 
story's EQITITV JURISPHnnRBfClB. 19$ 
 
 0hal] dio of hi« then ill„eB«, but not otherwise. It diifbrH from a 
 legacy m thcso roHpe... : I. it ,.oed not bo proved, nay c nnot 
 be proved, as a toHtnmontary act ; for it t„k 's effoc ^l'i ' ftZm 
 tho dehverv^ by the donor to tl.o donee in l.i. ,i Z 2^ 
 requ.reanoa«8outorotheraet. on tho part of the oxmUor or 
 adm.n. rator. to perfect the title of the Sonee ; the l" " '^ 
 fri! -r. . •'' °<^'"'"i^^tr„tor but against him. It diffe^ 
 from a gut uuer uvos in neveral respects, in whi...h it re«en.hle " 
 TI ' : ;^«"'•'"'«t"'y. ".con,plele, and reeoverabh, during 
 the donor;B hfetune : 2. it n,»y be n.ado to the wife of the Z ^ 
 
 Q. 70-18 there any ,aud what difference in tho princinle 
 
 8 Bohc.tor from h.s chent. and that upon which it* proceeds in 
 settmg asulo a purchase from a cestui ,1 trust by KusteeV 
 A—In the former case tho solicitor is subject to tho onus of 
 
 Erin :f 7 H "?.«^ ''^« •'^^^ ^'^^-^ ^' ''- situational 
 client . m the latter, .t .s not sumdent for tho trustee to show that 
 
 no advantage has been taken, but tho cestui ,ue trust may et 
 aaido the transaction at his own option ; § 311 ^ 
 
 Q. 7l.-Give an in.tanco in which iho equitable doctrine of 
 marshalling of securities is applicable. 
 
 funds, and B. to one, having both tho sane debtor, A. shall take 
 payment from that fund, to which he can resort exclusively hat 
 by those means of distribution both may be paid, § G43. 
 
 y. 72 -In what cases has the vendor of real estate a lien for 
 his purchase money F 
 
 A-Incasesin which the vendor has not agreed to trust to 
 the personal credit of the bujer, § 1220. 
 
 nn?«' /!'~y'"f '°"''' °^ "'l"''^ "' ""J- ""'^ '■» *«'«»* C«8e post- 
 
 pone a registered to a prior unregistered deed ? 
 
 A.-In case a subsequent purchaser has notice, at tho time of 
 h.8 purchase, of any pnor unregistered conveyance, he will not 
 
 «§to;: "^' '^'"^^"" °^ '^^^ '^'^ '^^ ^^« p- -! 
 
 _ Q. 74.-Will a court of equity sustain a gift by a married 
 wuuiau LO ner nuaDuiid, of her separate estate ? 
 
 N 
 
 K- ^•: 
 
 /'. A ^7 
 
104 
 
 KXAMINATION qUBSTIONfl. 
 
 iif| 1 
 
 !l! 
 
 
 mi 
 
 
 A. — A court of equity will Buntain such a gift, but at the name 
 time examine every such transaution with an atixioua watchfulness 
 and caution, and dread of undue influence, ^ 1305. 
 
 Q. 76. — Explain the origin of equity jurisprudence ; and dis- 
 tinguish between courts of law, and courts of equity strictly so 
 called. 
 
 A. — [The answer to the first part of this question would be of 
 Buch a nature, that it would be impossible to abbreviate it suffi- 
 ciently to allow its being placed here ; therefore we would refer the 
 Student to chap. IT.] 
 
 Courts of law must follow certain prescribed rules and forms 
 and can only give a general and unqualifled judgment between 
 party and party, plaintiff and defendant ; but courts of equity 
 follow rules and forms which are flexible and capable of being 
 suited to the different postures of cases, and may bring before 
 them all the parties interested in the matter and adjust the rights 
 of all severally ; §§ 20, et aeq. 
 
 Q. 70.— Give the general heads of equitable relief, with 
 examples to illustrate your meaning. 
 
 A. — ]. Accident : meaning not only inevitable casualty or the 
 act of Providence, but also such unforseen events, misfortunes, 
 losses, acts or omissions, as are not the result of any negligence or 
 misconduct in the party ; thus where a bond is lost, equity will 
 relieve, as formerly an action could not be brought upon a bond 
 at common law without profert, or production before the court ; 
 § 78. 2. Mutake : or some unintentional act or omission, or error, 
 arising from ignorance, surprise, imposition or misplaced confidence, 
 which is divided into mistake of law and mistake of fact ; for 
 example, an agreement entered into in mistake will be remedied 
 in equity; ^ 110, et teg. 8. Fraud: being any deception, 
 (whether wilful or no,) by which an advantage is gained over 
 another ; which is divided into actual fraud and constructive fraud : 
 thus, where one is misled by a misrepresentation of a material fact 
 and thus induced to enter into a contract prejudicial to himself, 
 such contract will be remedied in equity ; or where a sale is made to 
 one holding a fiduciary relation to another by that other, equity 
 will interfere and see that no injustice is done to the vendor ; 
 (§ 184 et teq. 
 
•TOHY'i CqVITY J0RWP«UDENCK. 105 
 
 Q. 77.-Explain •« marihullinK " and '• subatitution " or " lub- 
 rogation." 
 
 A.-" MarBhalling " i. the arrangement of aasota or aocuritiea to 
 a- to prov.de for the 9ati«factio., of claims upon thorn according to 
 the rights, priorities or equities existing in respect of such funds or 
 securities between the several parties hohliug such claims. ^ 650 
 */ seq, m et m/. - Substituti..,. " u where on., creditor L a 
 nght to resort for payment to one of two funds, and another 
 creditor has a right to resort to one only of those funds, if the 
 fii^t creditor elect to take payment out of the latter fund the 
 other creditor will by substitution be allowed to stand in the place 
 ot the Orst creditor and have payment nut of that fund to which 
 he had at first no claim, §§ 5U7. 0:30-688. •' Subrogation " is 
 the prmciple by which a surety paying the debt, is entitled to 
 stand ,n the place of the creditor, and to have a right to the 
 
 *rion rf. ? "'^"' '""""*'«'* ''^•'^ ^""^ the debt by the creditor, 
 §§ 499—502 b. ' 
 
 Q. 78— What is the nature of the remedy by "injunction ?" 
 A—Injunctions issued by courts of equity, partake of the 
 nature of interdicts according to the Eoman law, and are applied 
 to the same general purposes; that is to say, to restrain the 
 imdue exercise of rights, to prevent threatened'wrongs. to restore 
 violent possessions, and to secure the permanent enjoyment of 
 the rights of property ; §§ 806— -soS. 
 
 Q. 79.-What are " construct, o rauds ?" and state the ground 
 of the interference of courts of equity in cases of this kind. 
 
 A.--Such acts or contracts, as although not originating in my 
 actual evil design or contrivance to perpetuate a positive fraud or 
 injury upon otuer persons, are yet, by their tendancy to deceive 
 or mislead other persons, or to violate private or public confidence 
 or to impau- or injure the public interests deemed equaUy repre-' 
 hensible with positive fraud, § 268 ; and the ground upon which 
 courts of equity interfere, is not upon any notion of damage to 
 the individuals concerned, but from considerations of public policy 
 or of the rights of third persons. §§ 250, 260, 807, 328. 
 
 Q. 80— How far are such frauds affected by Provincial 
 Statutes ? J MM 
 
 A-By 9 V. c. 84, 8. 6-U. C. Con. St. c. 89. s. 44. a prior 
 UBx^-««roa convejfaage of lauds is adjudged fraudulent audVoid 
 
* 1 
 
 196 
 
 EXAMINATION ((UKSTIONB. 
 
 fi !l 
 
 ' s 
 
 :i 
 
 h-1 
 
 •I against a ■ubscqtient purohaiier for vnluablo considnration 
 (witht>ut nolicfl) who rt'giBtiTM Iiih convcyunce. 
 
 Q. 81.— 'Mpntion tl<o principal iiiciiiuata of "Burotyahip-" 
 
 A. — Tho contract of aurotyMhip imports ciitiro good fnilh and 
 ootiflditnoo iM'twcen llio partit'sinregnnl to tho wliolo troneinctioti : 
 any miKrcjjrt'Hentatidii, oxprcHi- or inipliod, or cctncoalment of 
 material f'aets, or any undue advanlaj,'(< taken by the wurety, will 
 invalidate) tho contract j he will nUo bo dincluugt'd from liability if 
 without hitt couMunt any Htipnlittion or ngrecnmnt injurioua to him 
 be nmdii bt'lwtu'n tlie creditor and tho dobtnr, or any act dono or 
 omitted to Iiih injury or iucoMHistent with Win rights ; but tho 
 tureiyt though not hound by anything to hiti di«iadvantago, will be 
 entitli'd to tln« bentflt of nil truniiactions to hia advantage, for 
 exaniplo, the giving of collateral or additional security by the 
 debtor to tho creditor ; §§ .Ti I, el aeq. 
 
 Q. 82. — What are the various grounds of defence to a suit for 
 ipecific performance P 
 
 A. — That th(> specific performance sought for would bo against 
 public policy, 730; absence of consiJeratioii, §§ 717, 7lH ; or 
 that the contract is founded on fraud, accident or mistake, 
 §§ 760, 770 ; that the party seeking specific performance has dis- 
 regarded his reciprocal obligations; or has been guilty of gross 
 laches, §§ 730, 771 ; that the specific perlbru-.inco sought for is or 
 has become incapable of being substantially poi formed; or that 
 from change of circumstances it would be inequitable to compel 
 performance, §§ 730, 775 ; that an adequate remedy may be had at 
 law, §§ 707, 718. 
 
 Q. 83. — Explain what is meant by tacking ; how far is tho doc- 
 trine affected by our registry laws, and in what coseti may it still 
 be applied ? 
 
 A. — Tacking means the uniting of securities, given at diflferput 
 times, so as to prevent any intormc late purchui^ers from claiming 
 a title to redeem or otherwise to discharge one lion, which is j)i'ior, 
 without r 'deeming or discharging the other liens also, which are 
 subsequent to his own title, § 412. By our registry laws, (13, 
 14 V. 0. 63, ^ 4,— U. C. Con. St. c. 89, § 56,) the doctrine of 
 tacking having been found productive of injustice, it is enacted 
 that every deed executed subsequent to the first day of January, 
 
 1851. 
 
 a memorial whereof has been or mav be dulv registered Hhall 
 
 - ■ -53- 
 
)nRidorntioQ 
 
 » a suit for 
 
 ■TORY*« Rqurrv ruRiflPRUDENrR. 197 
 
 bo (h.tMn..(i efr.Hm\ both i.. law und ii> oquity. according to tho 
 priority ot «ucli rcgiBtrntion ; ond when id nu-niorial of 8uch deed 
 hail been duly repistered, tlion bikI, dec' sIkiII be deem, i eflectual, 
 both at law and in equity, according to tho priority of time of 
 execution. Th,. doctrino of tacking can .till be a|.plied in the 
 ca«e of iiiortgagOH of chattels. 
 
 Q. 84.- Under what circumstances will a surety bo held to be 
 discharged in equity P 
 
 A.-Tho mirety will be dlHchnrged if any stipulations or agree- 
 mcnts bo mndo between the debtor and the creditor which are not 
 communicated to him, and which are inconsi.tcnt with the terras 
 of his HuretyHhip or are prejudicial to his interests, § ;{24 • or if a 
 creditor does any act injurious to the surety, or inconsistent with 
 his rights, or it he omits to do any net, when required by tho 
 Burety. which his duty enjoiiiH him to do, and the omission proves 
 injurious to the wurety ; § 325. 
 
 Q. H5.~Explain the doctrine of specific performance, and 
 whether It «.ll be put in force with respect to land in foreiaa 
 countries? ® 
 
 A.- By the common law every contract to sell or transfer a 
 thing. It there is no actual tiansCor, is treated us a mere personal 
 contract j and as such, if it .m unperformed bv the party, no redress 
 can bo had. except in damages, or to perform the contract at his 
 Bolfi pleasure. But courts of equity have deemed ««ch a cause 
 wholly inadequate for the purposes of ju.stice ; und they have not 
 hesitated to interpose, and require from the conscience of tho 
 oftciulmg party a strict performance of what ho cannot, without 
 manliest wrong or fraud, refuse. § 714. A bill for u specific 
 performance of a contract respecting lands may bo entertained by 
 courtH ot equity, although the land is situate in a foreign country, 
 It the parties are rcMdent within the territorial jurisdiction ot the 
 court, § 743. 
 
 Q. &t5.~When is n purchase deemed'a tru-.t, and wh. n not ? 
 
 A.— A purchase is deemed a trust, whore a man buya land in 
 the name of another, and pays tho consideration money, in which 
 case the land will generally be held by the grantee in trust for the 
 person who so pays the consideration money, § 1201 : but this 
 doctrine is strictly limited to cases where the purchase has been 
 uiadc m im iiume oi one perao'i, and the purchase money has 
 

 198 
 
 n !' 
 
 [!•■■•; 
 
 Mi ' 
 
 If' 
 
 ^ i 
 
 If' tt 
 
 ! 
 
 EXAMTNATIOIV qUEBTIONS. 
 
 been paid by another : therefore a purchase would not be deemed 
 a trust, where a man employs another by parol as an agent, to buy 
 an estate, and the latter buys it accordingly in his own name, and 
 no part of the purchase money is paid by the principal, § 1201 a. 
 
 Q. 87. — What defences are peculiar to equity ? 
 
 A.— The lapse of time, analagous to the Statute of Limitations 
 at common law : a former decree in equity between the same 
 parties and concerning the same subject matter: an account stated, 
 in defence to a bill to account: plea of purchase for valuable con- 
 sideration without notice : and the want of proper parties to the 
 bill, which defence goes farther than a plea in abatement at com- 
 mon law. which can only set up the non-joinder of the parties who 
 have a direct legal interest, while in equity an objection may be 
 made upon non-joinder of any persons who have interests, however 
 remote, in the cause, and who would be affected by the decree : 
 §§ 1518-1526. 
 
 Q. 88.— Will a court of equity direct the delivery up and can- 
 cellation of a forged instrument before the forgery has been estab- 
 lished by a trial at lav ? 
 
 A.— Forged instruments may be decreed to be delivered up, 
 without any prior trial at law on the point of forgery, § 701. 
 
 Q. 89. — What is a bill of discovery p 
 
 A.— Every bill may properly bo deemed a bill of discovery ; but 
 that which in equity k emphatically called a bill of discovery, is a 
 bill which asks for no relief, but simply seeks a discovery of facta 
 resting in the knowledge of the defendant, or of deeds or writings 
 or other things in the possession or power of the defendant, in 
 order to maintain the right or title of the party asking it, in some 
 suit or proceeding in another court; §§ 689, 1483. 
 
 Q. 90.— What is a constructive trust ? Give some examples. 
 
 A.— A constructive trust may be defined to be a trust which is 
 raised by construction of^ equity, in order to satisfy the demands 
 of justice, without reference to any presumable intention of the 
 parties, §§ 1195, 1254. A constructive trust arises where a person 
 who IS only joint owner, acting bond fide, permanently benefits an 
 estate by repairs or improvements, for a lien or trust arises in his 
 favour, in respect of the sum he has expended in such repairs or 
 
 improvements ; so. where a narfv I»«fiillv/ in nnoo/.^..;-,,, ....j 
 
 aetective title has made permanent improvements, he is entitled 
 
story's equity jurisprudence. 
 
 199 
 
 ot be deemed 
 agent, to buy 
 urn name, and 
 pal, § 1201 a. 
 
 f Limitations 
 ien the same 
 icount stated, 
 valuable con- 
 parties to the 
 tnent at com- 
 B parties who 
 ;tion maj be 
 Bsta, however 
 the decree ; 
 
 up and can- 
 I been -estab- 
 
 lelivered up, 
 . § 701. 
 
 scovery ; but 
 scovery, is a 
 very of facts 
 I or writings 
 efendant, in 
 I it, in some 
 
 te examples. 
 ust which is 
 >he demands 
 ition of the 
 ere a person 
 benefits an 
 arises in hia 
 1 repairs or 
 on uudeFa 
 » ia entitled 
 
 to a lion or trust for the amount so expended, and if relief ia asked 
 in equity by the true owner, he will be compelled to allow for 
 such improvements ; for he who seeks equity must do eauitv • 
 §§ 1234-1237. 
 
 Q. 91.— Can a suit for specific performance be maintained by 
 a purchaser of land against the vendor where the contract is sign- 
 ed by the vendor only ? 
 
 ^' — Yes ; the want of mutuality in the signature merely ia no 
 objection to its enforcement, § 730 a. 
 
 Q.92. — When will the widow of a testator be bound to elect 
 between her dower, and a legacy giv her by the will ? 
 
 A.— When there is some express declaration of the husband to 
 that effect, for it must appear by clear implication, that it was his 
 intention to put his wife to the election between the bequest and 
 the dower, § 632 a. Lord St. Leonards, when Chancellor of Ire- 
 land, in Hall V. Hill, 1 Dru. & Warren, 107, held that to put the 
 wife to her election, there must be a clear repugnance between 
 the devise to the wife, and her right to have dower set out by 
 metes and bounds, § 1088 a. 
 
 Q. 93.— In what manner can a mortgagee of personalty enforce 
 hia security ? 
 
 A.— The mortgagee of personalty may upon due notice sell the 
 personal property mortgaged, without being put to the necessity 
 of bringing a bill for foreclosure, § 1031. 
 
 Q. 94.— When does a bill in equity lie for an " account ?" 
 A.— When there is no adequate remedy at law, a bill in equity 
 lies in matters of account, growing out of privity of contract, 
 where there are mutual accounts, and also where the accounts are 
 on one side, but a discovery is sought, and is material to the 
 relief, § 459. 
 
 Q. 95. What is «« accident " as one of the heads of equitable 
 jurisdiction ? 
 
 A. — "Accident " ia inevitable casualty, or the act of Providence: 
 also such unforseen events, misfortunes, losses, acts or omissions, 
 as are not the result of any negligence or misconduct in the party, 
 § 78. 
 
 Q. 96.— Distinguish between " accident " and " mistake " and 
 give exAmpies of each ? 
 
 ^•— " Accident " ia such an occurence as may arise, but is not 
 
li S 
 
 200 
 
 EXAMnVATION QUESTION8. 
 
 h'. 
 
 in consequence of any negligence or misconduct in the party , 
 "mistake" as contradistinguished from it, is some unintentional 
 act, or omission or error, arising from ignorance, surprise, impo- 
 Bitiou or misplaced confidence ; § 110. An example of the former: 
 upon a lost bond no action could formerly bo maintained as there 
 could be no profert of the instrument, without which the declara- 
 tion would be fatally defective ; and hereupon equity interferes 
 for the relief of the obligee ; § 81. For an example of the latter : 
 where A. buys an estate oT B. to which he (B ) ia supposed to 
 have an unquestionable title, but it turns out upon due investiga- 
 tion of tlie facts, unknown at the time to both parties, that B.haa 
 no title, as (if there be a nearer heir than B. who was supposed to 
 be dead, but is in fact living,) equity will relieve the purchaser 
 and rescind the contract, § 141. 
 
 Q. 97.— Mention cnsesiin which courts of equity have concur- 
 rent jurisdiction with courts of law. 
 
 A.— Courts of equity have concurrent jurisdiction with courts of 
 law in cases of accident, (§78.) mistake, (§ 110,) fraud, (§ 184;) 
 account and incident thereto, apportionment, contribution and 
 average ; liens, rents and profits ; tithes and moduses ; waste ; ad- 
 ministration, legacies and marshalling of assets ; confusion of boun- 
 daries ; dower ; marshalling of securities ; partition ; partnership ; 
 and rents ; § 441 et seq. 
 
 Q. 98.— Distinguish between a bailment and a trust. 
 A.— A bailment is a delivery of goods in trust, upon a contract 
 expressed or implied, that the trust shall be faithfully executed on 
 the part of the bailee. (See Bl. Com. ii. 451.) A trust is a bene- 
 ficial interest in, or a beneficial ownership of, real or personal pro- 
 perty, unattended with the possessory and legal ownership thereof 
 (see Smith Eq. Man. 99.) The principal distinction is, that the 
 former is of a personal property and mus^ be attended with the pes- 
 session thereof; the latter is of real and personal property unat- 
 tended with the possession. §§ 60, 534, 960-982. 
 
 ^ Q. 99.— When is surprise or mistake a ground of equitable iuria- 
 diction ? '' 
 
 A.— Surprise is a ground of equitable jurisdiction, when accom- 
 panied with fraud and circumvention, or at least by such circum- 
 Btancea as demonstrate that the party had no opnortunitv to use 
 suitable deliberation, or that there was some influence or manage^ 
 
story's equity jurisprudknce. 
 
 201 
 
 'e concur- 
 
 ment to mislead him ; also if proper time is not allowed the party 
 and he acts improvidently, if he is importunely pressed, if those in 
 whom he places confidence use strong persuasions, if he ia not 
 fully aware of the consequences but is suddenly drawn into the act, 
 if he is not permitted to consult disinterested friends or counsel 
 before he is called upon to act, in circumstances of sudden emer- 
 gency, or unexpected right or acquisition, surprise wj'' ')e a ground 
 of equitable jurisdiction. § 251. 
 
 Mistake is a ground of equitable jurisdiction, when it is, in its 
 large sense, the result of accident, in some unintentional act, or 
 omission, or error arising from ignorance, surprise, imposition, or 
 misplaced confidence, § 1 10. 
 
 Q. 100. — When is relief in equity with respect to sureties more 
 complete than at law ? 
 
 A. — When an account and discovery is wanted ; or where there 
 are numerous parties in interest, which would occasion a multi- 
 plicity of suits ; § 496. 
 
 Q. 101. — How, and when are receivers appoiuted, and what are 
 their rights and duties ? 
 
 A. — Receivers are appointed by the Court of Chancery, § 826 : 
 when such appointment is directed, it is made for the benefit and 
 on behalf of all the parties in interest, and not for the benefit of the 
 plaintiff, or of one defendant only ; and such appointment may be 
 granted in any case of equitable property upon suitable circumstan- 
 ces : and, where there are creditors, annuitants and others, some of 
 whom are creditors at law claiming under judgments, and others 
 are creditors claiming upon equitable debts ; if the property be of 
 Buch a nature, that, if legal, it may be taken in execution, it may, 
 if equitable, be put into possession of a receiver, to hold the same 
 and apply the profits under the directon of the court for the benefit 
 of all the parties, according to their respective rights and priorities ; 
 § 829 : a receiver, will also be appointed in cases where an estate 
 is held by a party, under a title obtained by fraud, actual or con- 
 Btructive, § 834. The receiver, when appointed, is treated as 
 virtually an ofiiccr and representative of the court and subject 
 t3 its orders, § 831 : his rights and duties are, — upon his ap- 
 pointment as receiver of the rents and profits of real estate, if 
 v.. ore are tenants m poascssion of the premises they are obliged to 
 attorn ; and the court thus becontDS virtually, pro hac vice, the 
 
s .' 
 
 I- 
 
 202 
 
 ♦ If 
 
 EXAMINATION (QUESTIONS. 
 
 landlord; and the receiver is entitled to possession of the premises. 
 $ W3 : when in possession hehaa very little discretion allowed, and 
 must apply from time tc time to the court for authority to do such 
 acts ds may be beneficial to the estate, § 833 a. : if the property is 
 in the possession of a third person, who claims a right to retain it 
 It becomes the duty of such receiver to proceed by a suit in the 
 ordinary way to try his right to it, or the plaintiff in equitv should 
 make sucn third person a party to the suit, and apply to the court 
 to We the receivership extended to the property in his hands; 
 
 Q. 102 -How are purchases from persons in fiduciary relations 
 regarded in equity ? ' 
 
 A.— They are regarded with so great suspicion that the purchaser 
 will be compelled to show that the purchase was made in perfect 
 good faiih, otherwise thqy will be set aside: and in the case of a 
 purchase by a trustee from the cestui que trust, the latter may 
 avoid the sale at his option ; §§311, 322, 323. 
 
 Q. lOS.—What consequences result from the principle that a 
 surety is entitled to all the securities of the creditor ? 
 
 A.-That the surety has, as regards such securities, precisely 
 the same rights the creditor had, and is entitled to stand in his 
 place, § 499 a, 
 
 Q. 104.— Distingu:sh between actual and constructive notice. 
 
 A— Actual notice is where knowledge of the fact is brought di- 
 rectlyhome to the party: constructive notice is in its nature no 
 more than evidence of notice, the presumption of which is so violent 
 that the court will not even allow of its being controverted; § 399. 
 
 Q. 105.— In what cases will an interpleader lie at law and in 
 equity, and when not ? 
 
 A.— It will lie in cases where two or more persons severaUy 
 claim the same thing under different titles, or in separate interests^ 
 from another person, who, not claiming any title or interest therein 
 himself, and not knowing to which of the claimants he ought of 
 right to render tlie debt or duty claimed, or to deliver the property 
 m his custody, is either molested by an action or actions brought 
 against him, or fears that he may suffer injury from the conflicting 
 claims of the parties, § 806 : at law the process of interpleader 
 arose in tne case of a joint bailment, or where the depositary had 
 fouur. the thing in controversy, and the claimants brought several 
 
STOBV'S EQUITY JURISPRUDENCE. 
 
 203 
 
 the premises, 
 allowed, and 
 y to do such 
 B property is 
 to retain it, 
 I suit in the 
 quity should 
 to the court 
 > his hands ; 
 
 iry relationa 
 
 le purchaser 
 e in perfect 
 he case of a 
 ■ latter may 
 
 :iple that a 
 
 s, precisely 
 and in his 
 
 i notice, 
 brought di- 
 8 nature no 
 s so violent 
 «d; §399. 
 law and in 
 
 a severally 
 e interests, 
 est therein 
 e ought of 
 e property 
 IS brought 
 conflicting 
 terpleader 
 sitary had 
 ;ht several 
 
 actions of detinue against the depositary ; and was allowed in no 
 personal action, except detinue, and then only when it was founded 
 either in privity of contract between the depositary and the several 
 claimants, or upon a finding , §§ 801-804 : a bill of interjdeader 
 cannot be maintained by any person, who does not admit a title in 
 two claimantc, and does not also show two claimant? in existence 
 capable of interpleading, § 821. A court of equity will not exercise 
 its jurisdiction where the party can have an adequate remedy at 
 law, § 807. 
 
 Q. 106. — What is the doctrine of election ? 
 
 A. — Election is the choosing between two rights by a person who 
 derives one of them under an instrument in which a clear intention 
 appears that he should not enjoy both, § 1075. (See Smith 
 Eq. Man. 303.) 
 
 Q. 107. — Distinguish between a bill for account and an action 
 of account at law. 
 
 A. — A bill for account may be maintained in all cases, growing 
 out of privity of contract, where there are mutual accounts, or 
 where there are accounts on one side and a discovery is sought, 
 § 459 : an action of account lies only in cases where there is privity 
 in deed or in law between the parties, or between merchant and 
 merchant, § 445. 
 
 Q. 108. — Give the principal rules attending the administration 
 of assets in equity. 
 
 A.— Assets are now generally applied in the payment of debts, 
 in the following order : first, the general personal estate is applied, 
 unless exempted expressly, or by plain implication ; secondly, any 
 estate particularly devised for the payment of debts and only for 
 that purpose ; thirdly, estates descended to the heir ; fourthly, 
 estates specifically devised to parti<;ular devisees, but charged with 
 the payment of debts ; (§ 577) ; fifthly, lands comprised in a 
 residuary devise; sixthly, specific legacies and lands specially 
 devised ; seventhly, freehold estates over which the testator has a 
 general power of appointment, and which he appoints by his will. 
 Smith's Eq, Man. 223. 
 
 Q. 109. — Distinguish between revocable and irrevocable assign- 
 ments. 
 
 ^' — lievoeablc assignments are sueh as are made voiuutariiy by 
 the debtor for the benefit of the creditors, whether specially named 
 
204 
 
 CXAMINATION QUESTIONS. 
 
 
 in the instrument, or by a general description, if such creditors arc 
 not parties tlicreto, and l.ave not executed tlic same, $ 1036 b 
 And such assignments will become irrevocable on the assent 
 thereto, upon notice, of the creditors, §§ lO.'JC b, 1015. An 
 irrevocable assignment is one to which the creditors are partiea, 
 and which they execute. 
 
 Q. 1 10.— When is a misrepresentation fraudulent ? 
 A.— When it is a wilfid misrepresentation of a fact which is 
 material, and not a matter of opinion or one which the party 
 deceived might have ascertained upon reasonable enquiry, and 
 when the party is actually misled by it, §§ 19I-20:J. 
 
 Q. 111.— "Qkj prior est in tempore, potior eat injure." Is 
 this principle of universal application in ecpiity ? 
 
 A.— As between persons having only equitable interests, if their 
 equities are in all other respects equal, their "priority of times 
 gives the better equity." or, qui prior est in tempore, potior est in 
 jure; but this is not applicable unless their equities are eaual 
 § 64 d. Smith's Eq. Man. 26. 
 
 Q. 112.— How must trusts be evidenced ? And what exceptiong 
 are there to the general rule ? 
 
 A.— The Statute of Frauds requires all declarations of trust of 
 any lands, tenements or hereditaments to be evidenced by some 
 writing signed by the party declaring the same, or by his last will 
 m writing. The statute excepts trusts arising, transferred, or 
 extinguished by operation of law ; also declarations of trust of money 
 secured on real estate, or of chattels personal ; which need not be 
 80 evidenced, § 972. See 1 Sp. 497, 498; 2 Sp. 19, 20,897- 
 and Smith's Eq. Man. 100. 
 
 Q. 113.— What difference is there in the nature of a contract at 
 law and in equity ? 
 
 A.— By the common law every contract to sell or transfer a 
 thing, if there is no actual transfer, is treated as a mere personal 
 contract : and as such, if it is unperformed by the party, no redress 
 can be had, except in damages ; thus allowing the party the 
 election either to pay damages or to peform the contract at his 
 sole pleasure : but courts of equity have deemed such a course 
 wholly inadequate for the purposes of justice ; and they will 
 therefore interpose, and require from the cn«H«5oj,.«» ^f ^}jg 
 
story's EqUITV JUKI8PRUDENCR. 
 
 t06 
 
 offending party a strict performance of what he cannot, without 
 manifeBt wrong or fraud, refuse; § 714. 
 
 Q. 114— «ive examples of the jurisdiction of "Auxiliary 
 Equity ?" ^ 
 
 A.— Bills of discovery, bills to perpetuate testimony, and bill» to 
 take testimony de bene esse, pending n suit ; all of which arc 
 employed as auxiliary to the remedial justice of other courts, § 1482. 
 
 Q. 115.— Under what eircunistances may a discovery be com- 
 pelled, notwithstanding a forfeiture or penalty may result there- 
 from ? 
 
 A.— When the bill charges the parties with corruption, fraud, 
 or other gross misconduct, they arc compelled to make the dis- 
 covery, and to answer the bill, § \r>00. Smith Hq. Man. 400. 
 
 Q. 1 16.— When is a cross bill proper ? 
 
 A.~A cross bill is propei.y brought by a defendant against the 
 plaintiff in the same suit, or against other defendants in the same 
 suit or against both, touching the matters in question in the origi- 
 nal bill, either to obtain a necessary discovery of fact in aid of the 
 defence to the original bill, or to obtain full relief to all the par- 
 ties, touching the matters of the original bill. Story, Eq. Plead. 
 § 389. ^ 
 
 Q. 1 17. — What should an answer contain ? 
 
 A.— An answer should contain matter which either controverts 
 the facts stated in the bill, or which controverts some of them and 
 states other facts to shesv the rights of the defendant in the subject 
 of the suit ; or it may admit the truth of the case made by the 
 bill, and, either with or without stating additional facts, submit 
 the questions arising upon the case thus made to the judgment of 
 the couit. Story Eq. Plead. § 849. 
 
 Q. 118.— How far does equity interfere in matters of rent ? 
 
 A.— Equity will relieve in cases where there is no adequate or 
 complete remedy at law for the recovery of rent, either by an ac- 
 tion or distress ; for instance, where the premises out of which the 
 rent is payable are uncertain ; or where the time or amou it of pay- 
 ment is uncertain ; or where a discovery or an apportionment is 
 wanted ; or where the remedy at law is obstructed or evaded by 
 fraud, or is gone without laches : or where none ever existed ; or 
 Wt.cre it IS iaadequate, iacompletc or doubtful ; § C84 — 687. 
 
)y 
 
 ! !l 
 
 206 
 
 EXAMINATION qUESTIONS. 
 
 Q. 119. — What exceptions prevail to the general rule, as to par- 
 ties to suits ? 
 
 A. — An exception to the general rule occurs \jhere it is utterly 
 impracticable to make the proper or necessary parties ; as where 
 parties whose interests will not be prejudiced by the decree and 
 who are not indispensable to the just ascertainment of the merits 
 of the case, are without the jurisdif'tion and cannot be reached 
 by process of the court, Story Eq. Plead., §§ 78, 82 : or where 
 the parties cannot be found, tb. § 90 : or in the case where a per- 
 flonal representative is a necessary party, but there is none such in 
 existence, ib. § 91 : another exception to the general rule is, where 
 the parties are exceedingly numerous, and it would be impractica- 
 ble to join them without great inconvenience, unless the decree 
 would directly affect their interests : or where one or a small num- 
 ber of them, may be taken to represent the interests of the whole, 
 ib. §§ 94 et seq : also where there is a known interest, but one 
 which will not be bound or concluded by the decree, courts of 
 equity will sometimes dispense with the persons representing that 
 interest, being made parties, ib. §§ 15; cc «eq. 
 
 Q. 120. — What is the right of contribution, and between whom 
 will it be enforced ? 
 
 A. — Contribution is where a charge or liability is divided amongst 
 several persons interested, who are required to contribute thereto in 
 due proportion according to their respective interests. It will be en- 
 forced in the case of any persons in respect of a charge or claim 
 affecting the interests of them all ; as for example, where a man, 
 owning several acres of land, is bound by a judgment operating as 
 a lien upon the land, and afterwards aliens one acre to A., another 
 to B., and another to C, &c, if one alienee is compelled, in order 
 to save his land, to pay the judgment, he will be entitled to contri- 
 bution from the other alienees. §§ 477 et seq. 
 
 Q. 121.— Distinguish between " legal " and '« equitable " assets. 
 
 A. — Legal assets are those which by law are directly liable, in 
 the hands of the executor or administrator, to the payment of 
 debts and legacies, § 551 ; equitable assets, those which are 
 chargeable with the payment of debts or legacies in equity, and 
 can only be reached by the aid of a court of equity, § 552. See 
 Smith £q. Man. 221. 
 
story's equity jurisprudence. 
 
 207 
 
 Q. 122.— When will an agreement to enter into a partnership be 
 specifically performed ? and when not 1 
 
 A.— It will he sp.ecifically performed when the apreement is for 
 a limited time, and to furtiish a share of the capital btock ; but 
 not if the partnership can he dissolved instantly, at the will of 
 either party ; § (]66. 
 
 Q. 123.— What is "equitable set off?" 
 
 A.— It is relief granted in all cases in courts of equity where 
 there are mutual and independent debts, yet there is a mutual 
 credit between the parties, founded at the time on the existence of 
 some debt due by the crediting party to the other ; or where pecu- 
 liar equities intervene. And where there are cross demands, of 
 such a nature that if both were recoverable at law, they would be 
 the subject of a set-off, there, if either of the demands be a mat- 
 ter of equitable jurisdiction, the set-off will be enforced in equity. 
 § 1436, etseq. 
 
 Q. 124.— What is " auxiliary " equity ? 
 
 A.—" Auxiliary equity " is that part of equity jurisdiction 
 which is auxiliary or assistant to courts of Law in the administra- 
 tion of justice by them, in removing legal impediments to the 
 fair decision of a question depending therein, obtaining a disco- 
 very of evidence, perpetuating evidence, and the like. Chap. XLII. 
 
 Q. 125.— When does equity relieve against the breach of a condi- 
 tion ? and give instances. 
 
 A.— When a penalty or forfeiture appears to have been inserted 
 merely to secure the performance of some condition, equity regards 
 the performance of such condition as the substantial object of the 
 party interested therein ; and if a compensation can be made for 
 the nonperformance thereof, it will relieve against the penalty or 
 forfeiture, by simply decreeing a compensation in lieu of the same, 
 proportionate to the damage really sustained ; §§ 1314, 1320. 
 
 Q. 126. — What relief does equity afford to sureties ? 
 • A. — Equity will relieve a surety from any undue advantage gained 
 upon him, or from the consequences of any fraud upon him, as for 
 example any misrepresentation or concealment in respect of his 
 suretyship, or of any act done by the creditor, without the consent 
 of the surety, which may be prejudicial to him or increase his risk. 
 
 Enui*^ n\af\ mill o* fKo inofo^^n «<■ *!,„ -a_ __- i .■! j.. 
 
 1 — J — —■^- ■■•niniivv \si tnc -i^ Cuiupci t'.;e TCultor 
 
 to pay the debt, or will compel thecreai^ur, upon being indv.nnified 
 
f^^ 
 
 'f,. 'I 
 
 iilt. hi 
 
 WM 
 
 h f" 
 
 H. 
 
 ■XAMTIfATION qUKflTIOirS. 
 
 against the oxpenBc by the Hunty, to sue for it. The nurety upon 
 paying the debt of his principnl, ia entitled to be substituted in the 
 plaec of the creditor hn to nil securities held by the latter for the 
 debt. §§ 324-327. 499-502 6. and see $$ 7;J0, 883. If one of 
 several sureties pay the debt, equity will compel the others to con- 
 tribute proportionally. § 492. 
 
 Q. 127.— Explain the maxim " /Equitiu aequitur legem," and 
 state what (if any) exceptions exist thereto. 
 
 A.— This maxim may mean that equity is bound by the positive 
 rules of law in all cases to which those rules may, in terms, bo 
 applicable ; or it may mean that equity, in dealing with cases of an 
 equitable nature, adopts and follows the analogies furnished by 
 the rules of law. An exception is made to the rule in cases where 
 there are peculiar circumstances rendering it absolutely necessary 
 to deviate from the rule, or creating an equitable obligation in one 
 of the litigant parties, and an equitable correlative right in favour 
 of another litigant party, and requiring a different course to bo 
 taken in the particular case. §§ 64, 64 a; Smith Eq. Man. Id. 
 Q. 128. — In what cases has equity jurisdiction exclusive of the 
 common law ? 
 
 A.—In cases where there are rights which courts of law do 
 not recognize at all, or which, if they do recognize them, they leave 
 wholly to the conscience and good-will of the parties, § 29. This 
 head of equity jurisdiction is divided into two branches, the one 
 dependent upon the subject matter, the other upon the nature of 
 the remedy ; the former comprehending Trusts, express or implied, 
 direct or constructive, created by the parties or resulting by opera- 
 tion of law ; and the latter comprehending all those processes or 
 remedies, which are peculiar and exclusive in Courts of Equity, and 
 through the instrumentality of which they endeavour to reach the 
 purposes of justice, in a manner unknown or unattainable at law • 
 §§ 960, 1464. 
 
 Q. 129.— Will a court of 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 legia non excusaf, § 111 et aeq. ; hi t where 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, ' 
 
 §§ 
 
 *eq„ i37. 
 
story's xquiTV juhisprudenci:. 209 
 
 Q. I8O.-H0W far k tlu' maxim " Caveat emptor^ fli.plicahle in 
 case of gjiecific jterformaiico .' 
 
 A.--In ca«. of specific lUTfornmnce the maxim caveat emptor 
 18 applicable, unless there he some misrepresentation or artifice 
 to disguise tl... contract or the thing sohl. or some warranty as to 
 Its character or (juality, § 21:i. 
 
 Q. 131.— State the several divisions of the subject matter which 
 are discussed in the first volume, beginning with " Accident." 
 
 A.-Accidcut, mistake, aetuui or positive fraud, constructive 
 Iraud, account, administration, legacies, confusion of boundaries 
 dower, marshalling of securities, partition, partnership, matters of 
 rent, peculiar remedies' in equity, discovery, caucellutiou and 
 delivery up of instruments, specific performance of agreements and 
 other duties. 
 
 Q. 132.-What are bills quia timet ? And give an example. 
 A.-They are proceedings in the nature of writs of prevention 
 to accomplish the ends of precautionary justice, and are ordinarily 
 applied to prevent wrongs or anticipated mischiefs, and not merely 
 to redress them when done, § 82ti. For example, where a party 
 seised of lands in fee, grants a rent charge in fee issuing thereout 
 and afterwards devises the lands to A. for life with remainder to b' 
 m fee. B. may maintain a bill quia timet to compel A. to pay the 
 arrears during his life, for fear that otherwise the whole would 
 fall on his reversionary estate. § 848. 
 
 Q. 133.— Define implied as contra-distinguished from express 
 
 A.-Implied trusts are those which are founded in the unexpres- 
 sed, but presumable intentions of the parties, or which arise by 
 operation of law ; whereas express trusts are those which are created 
 by the direct aii positive acts of the parties by some writing, deed 
 or will; §§980, .195, 1254. 
 
 Q. 134.— What is the vendor's lien ? State the probable origin 
 and present extent of the doctrine. 
 
 A.— The vendor's lien is his right, recognized by equity, to 
 resort for payment of the purchase money to the property sold, in 
 the hands of the vendee and his heirs and' other privies in estate, 
 and also of subsequent purchasers having notice that the purchase 
 money is unpaid, all of whom are held to be trustees for the ven- 
 dor to the extent of such lien, § 1217. The probable origin of 
 
mxAmtik-m^if qcMTioirs. 
 
 thitt (Joctrim- is the Roman Lnw, from whioh it wm imported iato 
 the equity jurisprudence of England, $ 1221. Such lieu u 
 ordinarily coufineil to eaaes of the sale of immovables, aud does 
 not ejiteiid to movables, where there has been a transfer of posses- 
 lion; $ 1222. 
 
 Q, 185.— What is requisite to constitute a valid assignment (rf 
 equital)Ie property ? 
 
 A.— No particular form is requisite to coniititute a valid assign- 
 mout of equitable property ; thus any order, writing, or act which 
 make an appropriation of a fund amounts to an equitable assig!>. 
 m^nt of that fund ; or a tl.-lit may be assighed by parol ; $ 1047. 
 Q. 136.— What juriailiction has equity in cases of awards ' 
 A. — In ea»«s of fraud, mistake, or nccident, courts of equity 
 may, in virtue of their general jurisdiction, interfere to set aside 
 awards upon the same principles and for the same reasons which 
 justify their interference in regard to other matters, where is no 
 adequate remedy at law, § 14.51. 
 
 Q. 187.— When will equity decree the cancellation of a deed T 
 and on what principle is the jurisdiction exercised ? 
 
 A. — The Court of Chancery frequently cancels, or rescinds, or 
 orders the delivery up of instruments which have answered the end 
 for which they were created ; or of instruments which are voidable ; 
 or of instruments which are in reality void and yet apparently 
 valid. This is done upon the principle, as it is technically called, 
 quia timet, that is, for fear that such instrument may be vexa- 
 tiously or injuriously used, when the evidence to iiro ich them 
 may be lost or diminished; or ^or fear that they may ^; -r.s a 
 cloud or suspicion over the plaintiff's title and inter ^t, ',* »>^, i- 
 705. See Smith's Eq. Man. 324. 
 
 Q. 138.— Distinguish between the Stat. 13 filiz, aud the Stat. 
 'J7 Eliz., as to fraudulent conveyances. 
 
 It has been determined that by the Stat, 13 Eliz. c », if a 
 pert n"'* es ?, conveyance of any property which is liable to the 
 piny.nv vo; df ii a, (unless for valuable consideration and bonajide, 
 t« Si ]Mi- ■■■ a ' i.o has no /^ ice of a fraudulent intent,) and at the same 
 tiir.c. or I tiiediately aiierwards, he is indebted to such an amount 
 that hjB has not ample means available to pay the debts, such con- 
 veyances are fraudulent and void as against the creditors, §§ 352- 
 374, Smith Eq. Man. 79. And by the Statute 27 E!iz. c. 4, the 
 
story's KquiTY JViti8PKui)fe:ivci:. 
 
 211 
 
 ortod iato 
 
 ch lieu it 
 
 aud does 
 
 of posses- 
 
 gtinient of 
 
 lid aasigD- 
 act which 
 lie a8sig!>- 
 ; $ 1047. 
 irda ' 
 of oquiij 
 i set aside 
 Dns which 
 here is no 
 
 f a deed ? 
 
 scinds, or 
 id the cod 
 voidable ; 
 pparcntly 
 ly called, 
 ' be vexa- 
 ach f hem 
 ' tL-.. a 
 
 the Stat. 
 
 . c 5, if a 
 le to the 
 honajide, 
 the same 
 1 amount 
 luch con- 
 §§ 352- 
 c. 4, the 
 
 object of which wh« to give full protection to subsequent purchwers 
 •gaintit voluntary prior conveyances, a prior conveyance is deemed 
 void a.4 afjfiinst a suhseqiient purchaser or mortgagee, whether with 
 Of withouw notice, §§ 425-483. 
 
 O. 139. — Ilow may incumbrances upon nn estate b*« ertin- 
 guished ? 
 
 A.— If a tenant in tail in possession pays off an incnmbranre, it 
 is extinguished, unless he has kept it alivt- by taking an assignment, 
 or by some act which imports a positive intention to hold himself 
 out as a creditor of the estate ; but it is not extinguished by pay- 
 ment by a tenant in tail in remainder or a tenant for life ; § 480. 
 Where there are several in interest, incumbrances are discharged by 
 contribution by them in due proportion, §§ 4H6 et t>eq. 
 
 Q. 140.— State tl\e two kinds of mistakes, and the general rules 
 as to the interference of the court in each case, 
 
 A.—Mistakes in matters of law, and mistakes in matters of 
 fact, § 110. In regard to mistakes in matters at law, it is a 
 maxim that ignorantia legia non extusat, yet there are a few ex- 
 ceptional cases where equity will interfere, §§ \\\ et »eq : and in 
 regard to mistakes in matters of fact, relief will be granted where 
 the mistake is unilateral, and the fact was material to the act or 
 contract, §§ 117, et aeq ; also Smith's Eq. Man. 41. 
 
 Q. 141.— What are the rights of the cestui que trust in respect 
 of a purchase of his estate by his trustee ? and on what principle 
 are these rights founded ? 
 
 A.— In all cases where a purchase has been made by a trustee on 
 bib own account oJ the estate of his cestui que trust, although sold 
 at public auction, it is in the option of the cestui que trust to set 
 aside the sale, whether bond fide or not ; upon the principle ' 
 that the trustee is bound not to do anything, which can place him 
 in a position inconsistent with the interests of the trust, or which 
 have a tendency to interfere with his duty in discharging it : §4 
 321, 322. 
 
 Q. 142 — When is time deenAed in equity to be the essence of 
 the contract ? 
 
 A.— When the parties have expressly so treated it, or it neces- 
 sarily follows from the nature and circumstances of the contract 
 § 776, 
 
m 
 
 212 
 
 EXAMINATION QUESTIONS. 
 
 Q. 143.— What is the ef ,"ct when property, real or personal, is 
 ■willed in trust, without the appointment of a trustee^? 
 
 A.-— In such a case a clear trust is created ; of which courts of 
 law will take no cognizance; but which equity will enforce, 
 declaring who is the proper party to execute the trust, or if no 
 one is designated, by proceeding to execute the trust by its own 
 authority ; § 1060. 
 
 Q. 144.— Against what classes of persons will the vendor's lien 
 attach ? and what is the effect on thf lien of a receipt for the 
 consideration money expressed in, or indorsed on, the deed ? 
 
 A.— -Against the vendee and his heir, and against volunteers 
 claiming under him ; against purchasers under him, with notice 
 that he had not paid the purchase money ; against purchasers even 
 without notice, having an equitable title only ; against assignees 
 claiming by a general assignment under the bankrupt and insolvent 
 laws ; against assignees claiming under a general assignment made 
 by a failing debtor for the benefit of creditors ; and against the 
 judgment creditor of the vendee, at least before the actual convey- 
 ance of the estate has been made to him. The lien is not gone 
 even if upon the face of the conveyance the consideration is 
 expressed to be paid, or if a receipt be endorsed. §§ 1225, 1228. 
 
 % 
 
 JUSTINIAN'S INSTITUTES, 
 
 Question 1 .—Under the civil law up to what age did the state 
 ^of tutelage last ? and in what relation did minors stand to parents 
 and guardians in regard to personal control, and the control of the 
 property ? 
 
 Answer. — In the case of women twelve years, and fourteen 
 years in the case of men. Lib. i., t. 23. In the relation of minor 
 and p8-»nt the power of the parent gav6 the father whatever the 
 son acquired, stripped the son of ail his rights, and made him in 
 some respect, part of his father's property : this power, therefore, 
 was chiefly for the father's benefit. But guardianship, though it 
 conferred on the tutor a power to direct and administer, gave him 
 no rights of property, either over the person or goods of the minor. 
 
 Lib. u, t. 13> 
 
 .j& 
 
Justinian's institutes. 
 
 313 
 
 aasers even 
 
 Q. 2.--Explain the nature and extent of Riparian Rights under 
 the civil law. 
 
 A.— Under the civil law the Riparian Rights were not public; the 
 use of the banks of a river belonged to the riparian proprietor: any 
 one might land on the bank, discharge his freight, or tie his cable 
 to the trees there, but he did not become proprietor of the place 
 thus occupied for the time ; nor had he the right to cut rushes or 
 grass, or to take the fruit of the trees, for these belonged to the 
 riparian proprietor. Lib. ii., t. 1. 
 
 Q. 3.~Give some prominent instances of other incorporeal rights 
 and easements and the manner in which they were acquired under 
 the civil law. 
 
 A.— A right of succession, of usufruct, of use, and of an obliga- 
 tion, are instances of incorporeal rights; though they might be, and 
 generally were, derived out of corporeal things. Lib. ii. t. 2 : ease- 
 ments, or servitudes are divided into two kmAs-servitudes rustico- 
 rum and servitudes urbanorum prcediorum, or rural and urban 
 survitudcs ; the right of drawing water, of watering or depasturing 
 with cattle are instances of the former; and the right to pass on 
 foot or horse back, to drive a beast of burden or a vehicle, and the 
 right to use a way for any purpose, are instances of the latter. 
 Lib. ii. t. 3. By the civil law these rights were acquired by manci- 
 vatto, (that is, a solemn quasi delivery accompanied by solemn 
 words and gestures, before a scalesman and five witnesses, being 
 Roman citizens,) cessio injure (that is the purchaser vindicabat, or 
 claimed the right in question in proper form, the seller acknow- 
 ledged or did not dispute his claim, and the magistrate adjudged in 
 favour of the claimant) ; adjudicatio, (that is. the acquiring of the 
 right when the judex in a suit brought for partition of an h(Bri- 
 ditas, or of a thing held jointly, settled the respective rights of 
 the parties) ; lege (that is in cases where the right was acquired 
 by special provision of law). Lib. ii. tt. 1, 3. 
 
 Q. 4.— Were any and what testamentary dispositions of property 
 admitted under the civil law ? 
 
 A.— There were testamentary dispositions of property in the 
 earliest times of Rome, which were of two sorts :— 1, the testament 
 calatis comitiis, which was made in an assembly of the comitia 
 curtuia, convoked twice a year for this purpose : 2, the testament 
 tnprocmctu^a military testament-which was made just before an 
 
214 
 
 JeXAMINTATION QUESTIONS. 
 
 
 engagement, or before setting out on an expedition, in presence of 
 the troops in marching and fighting order : to these two was added 
 a third, the testament perces et libram. Lib. ii, t. 10. 
 
 Q. 5.— How were partnerships in business created ? and state 
 the leading rules by which they were t^overned under the civil l«w. 
 A — Partnerships in business were created by the parties agree- 
 ing to put their goods or industry into a common fund, in order 
 to share the resulting profits and losses ; Lib. iii, t. 26. The lead- 
 ing rules are, 1, if the partners agreed as to the share of each, the 
 agreement was the standard; 2, if the share in the profits was fixed, 
 and nothing was said of the loss, or vice versd, the amount fixed for 
 the one determined that of the other ; 3, if there was no agreement 
 each of the partners had an equal share in the profits and losses ; 
 Lib. iii, t. 25. « 
 
 Q- 6.— To what persons were curators appointed ; and by whom 
 was the appointment of a curator made ? 
 
 A. — Curators when appointed to, 1, impuberes, whose tutors were 
 unfit for their duty, or who had been excused for a time from the 
 tutela ; for if a person had one tutor, he could not have a second ; 
 2, adolescentes (puberes and under twenty-five) ; 3, furiosi and pro- 
 diffi (spendthrifts under interdict, though above twenty-five) ; 4, 
 lunatics and persons suffering under incurable disease ; 5, or deaf 
 and dumb. The curators were, in the case of lunatics and spend- 
 thrifts, appointed by the affuati through the authority vested in 
 them by the twelve tables ; in other cases by those magistrates who 
 named the tutors. Lib. i, t. 23. 
 
 Q. 7.— What were servitudes ; mention some of the principal real 
 servitudes : how were they created ? 
 
 A.— Servitudes were burdens affecting property and rights. 
 Some of the priftcipal real servitudes were, the right of draining 
 water ; of burning lime ; of taking sand from the field ; the right of 
 way across another's land ; the right of que man to have his build- 
 ing supported by that of his neighbour ; the right to receive or not 
 to receive the rain drops from a roof; Lib. ii. t. 3. Servitudes were 
 created : 1, by agreements with quasi delivery, or even without 
 quasi delivery ; 2, by testament ; 3, by prescriptio or usucapio in 
 case of some servitudes ; 4, by adjudicatio ; Lib. ii. t. 3. 
 
 Q. 8.— Give a definition of the ris-ht of *' usufruct " in the cin! 
 
Justinian's institutes. 
 
 215 
 
 1 presence of 
 m was added 
 
 ? and state 
 the civil law. 
 >arties agree- 
 id, in order 
 . The lead- 
 ofeach, the 
 its was fixed, 
 [lut fixed for 
 
 agreement 
 
 1 and losses ; 
 
 [id by whom 
 
 ! tutors were 
 me from the 
 re a second ; 
 losi and prO' 
 ity-five); 4, 
 ; 5, or deaf 
 and spend- 
 y vested in 
 istrates who 
 
 rincipal real 
 
 md rights, 
 of draining 
 the right of 
 e his build- 
 jeive or not 
 itndes were 
 en without 
 usucapio in 
 
 th 
 
 A /«1V1 
 
 41 
 
 law. How was an "usufruct" created? How determined; and 
 what things could have been made the subject of this right ? 
 
 A.— The right of usufruct was the right of using (usus,) and en- 
 joying ifructus,) the thing of another, without altering the sub- 
 stance thereof. An usufruct was created by testament, by cessio in 
 jure, and by adjudicatio in suits for partition ; but in later times, 
 under the same law, a usufruct was created, 1, by testament ; 2, by 
 facts followed by quasi delivery ; or by preserving the usufruct of a 
 thing when it was alienated by delivery ; 3, by the adjudication of 
 a judex in suits for partition ; 4, directly by the law, in certain 
 cases. An usufruct was determined, 1, by the death of the usu- 
 fructuary, or by his diminutio capitis; 2, by non-user {non utendo) ; 
 3, by assignment to the person having the bare property ; 4, by 
 eoHsolidatio ; 5, by ctianges in the substance of the thing : unlike 
 the case of servitudes (proper), there might be a usufruct not only 
 in lands and buildings, but also in beasts, slaves, and other move- 
 ables. Lib, ii. t. 4). 
 
 Q. 9.— What was the enactment of the Falcidian Law 1 
 A.— The enactment of the Lex Falcidia (A. U. C 714), was : — 
 that a testator was prohibited from bequeathing in legacies more 
 than three-fourths of the hareditas, so that the ha-redes together, 
 whatever their number {sine umis hceres sit, sine plures), should 
 have one-fourth of the testators goods ; this reserve sum was called 
 after the law which created it, quarta falcidia, or the falcidian 
 fourth. Lib. ii. t. 22. 
 
 Q. 10. —On what ground could a " donatio inter vivos," after it 
 had beei completed, have been revoked by the donor? • 
 
 A.— On the ground of ingratitude ; as when the donee has been 
 guilty of maltreatiiiL' or seriously injuring the donor, when he has 
 done any considerable damage to the donor's goods, or has failed 
 to perform the conditions imposed upon him ; 'in such cases the 
 right belonged exclusively to the donor who could exercise it only 
 Airing the life of the donee ; nor did it descend to the donor's 
 heeredes. Lib. ii. t. 7. 
 
 Q. 11. — Where several "fidejussores," or sureties, were bound 
 each for the whole debt, could the creditor enforce the payment of 
 the whole from any one? If one of several ''fide jussores" so 
 bound for the whole debt, voluntarily paid the whole, could he 
 
M 
 
 216 
 
 EXAMINATION QUESTIONS. 
 
 till 
 
 Give reasons for your 
 
 enforce contribution from his co-sureties ? 
 answer. 
 
 A -The old law held each liable for the whole debt, and he had 
 no claim for contribution against the others ; so the creditor might 
 choose any one of the sureties, and might sue him for the whole • 
 but the strictness of the old law was relaxed by various privilege; 
 in favor of sureties ; these privileges were, that the surety against 
 whom the creditor sought an action, might require the prJor in 
 granting one against him, not to grant it for the whole debt, but 
 only for a portion, so as to compel the creditor to sue each of the 
 sureties for their portions respectively ; and if one of several sure- 
 
 oulLr f '''"^''".'^'^*' ^''^""^'^"'y P^'^i '^' -hole, he 
 could not enforce contribution against his co-sureties, unless he 
 
 before paying, required the creditor to assi|n to him his actions, 
 either for the purpose of compelling his co-sureties to refund to 
 him the shares respectively due by them, or to enforce payment 
 trom the principal debtor. Lib. iii., t. 20. 
 Q. 12. — What was "novation?" 
 
 A.--Novation consisted in substituting a new obligation, either 
 natura or cml, for an original liability ; it operated by means of a 
 stipulation, concluded to the intent that it should be substituted for 
 an existing obligation ; and since the fact of this intention was a 
 matter to be proved by presumptions more or less conclusive, Justi- 
 man decreed that such intention should be formally expressed, and 
 that, If not, the stipulation should create a new obligation without 
 extinguishing the original one. Lib, iii., t. 29. 
 
 nrS l^'~i7u'^ Tu'"'* ""^ '"^'' ^y ^^^«h '* -«« ^g'-^^d that the 
 price should be fixed by a third person, good in civil law ; and what 
 was the consequence if the person to whom the question of price 
 was referred, refused or became unable to fix it ? 
 
 A.-The contract of sale was good ; the price must be fixed, for 
 an agreement would.not bind if one party was free to determine 
 the urn to be paid or received ; but the obligation was not the less 
 an obligation when the price was left to the arbitration of a third 
 party though it were a conditional one ; for the s.le was complete if 
 the third party made his award ; it was void if he could not or 
 would not do so. Lib. iii., t. 23 
 
 Q. H.-Could a mandatory or agent, after having accepted the 
 oftee. renounce tne performance of the duty delegated to him ? 
 
Justinian's institutes. 
 
 217 
 
 A.— He must renounce before the commission was executed. 
 If he died, the performance vvouhl be renounced for the future 
 from the time of such death. Lib. iii., t. 27. 
 
 Q. 15.— Give a definition of the legal term " obHgation " as 
 used in the civil law. 
 
 A.— By the civil law, an obligation is a legal tic binding a man 
 personally, by such moans as the civil law affords, to the necessitv 
 of furnishing some thing. Lib. iii., t. 13. 
 
 Q. IC— How were contracts divided in the civil law, with 
 reference to the manner of their creation ? 
 
 A.— Into four ; for they arose by the delivery of some thing 
 {re) ; by solemn words {verbis) ; by writing {Uteris) ; or by mere 
 consent {consensu) : hence contracts were real, verbal, written, and 
 consensual; Lib. iii., t. 13. 
 
 Q. 17.— Give an instance of a contract created " verbis." 
 A.— The following are instances of contracts created verbis : where 
 a freedman bound himself by oath to do certain services for his 
 patron ; also, where a wife and her paternal ancestors bound them- 
 selves by dictio dotis to give the dos to the husband ; Lib. iii., 1. 15. 
 Q. 18.— Give definitions of the contracts of « mutuum " and 
 " commodatum'' and explain the distinction between them. 
 
 h..— Mutuum is the contract by which one contractor gives to 
 the nther a certain quantity of things, estimated in weight, number, 
 or measure, such other party being bound to return an equal 
 quantity of txie same species and quality ; and commodatum is a 
 contract in which one party lends another a thing, to be used by 
 him gratis, the boi.ower undertaking to restore it after it has 
 served his purpose. The distinction is,— in case of mutuum, the 
 property in the thing was transferred to the borrower ; in case of 
 cornmodatum, the delivery of the thing to the borrower vested 
 neither the whole property, nor even such part thereof as the 
 right of use sometimes implied ; the borrower had a mere license, 
 an authority to use it : in case of mutuum, the borrower might 
 give back one thing for another ; in case of commodatum, he was 
 bound to give back the very same thing he had received. Lib. iii., 
 t. 14. 
 
 Q. 19.— What was essential to make the contract jf sale com- 
 plete in the civil law? 
 
 A.— It was complete whenever the parties had agreed as to the 
 
I 
 
 .. t 
 
 S I 
 
 318 
 
 
 
 
 ■V i 
 
 KXAMIITATION (QUESTIONS. 
 
 hing and the price, though the thing ha.i not been delivered, nor 
 the price paid. After Justinian's .time. if. during the treaty for 
 sale, u was intended that the terms of sale should be drawn up in 
 writing the contract was not complete until such instrument was 
 regularly prepared ; till then there was no sale, and either party 
 might change his mind, and withdraw with impunity. Lib. in., 
 
 formed^'"^" ''^"'* '"*""^' "^^^ *^'^ """^'"^''^ of mandate (mandatum) 
 A.-The contract of mandate was formed by one person under- 
 taking gratuitously and from motives of kindness, an honourable 
 and lawful commission for another, Lib. iii., t. 26. 
 ^ Q. 21._Disti.igui8h between " obliffatio ex' contractu ^ and 
 obltqatio quasi ex contractu ." and give examples of each 
 A.-The leading distinction between obligations ex contractu and 
 those ex quasi cmtractu is. that in the former a person bound him- 
 Belf to another in the latter he placed himself in such circumstances 
 that he was thereby bound to another : for example,-if a person 
 took upon himself the management of his neighbour's affairs, to 
 become tutor, to have things in common with others who were yet 
 not his partners, to accept an inheritance, or to receive money not 
 due to him, the mere fact of such person so conducting himself 
 imposed on him certain duties which the law would force him to 
 iulfil ; but if luch person made an express agreement in any of 
 these cases, he would then be bound by the agreement, and not by 
 the circumstances of his position ; it is only in the absence of any 
 agreement that a person would be bound by an obligatio quasi ex 
 contractu; Lib. iii., t, 27, 
 
 Q. 22. -What was the " lex Jquilia r Was it in any. and if so 
 in what manner, affected by the " lex Cornelia r 
 
 A.-The Aquilian law (A. U. C. 468) established the actio 
 called Legis Aquilice, or damni injuria, because it awarded punish- 
 ment for damage wrongfully caused: the provisions of this law 
 contamed three heads ; 1, that any one who wrongfully killed 
 another s slave, or a four-footed beast, amongst those called pecus, 
 should be condemned to pay the proprietor a sum equal to the 
 highest price which the thing had reached during the year pre- 
 ceding ; 2, It gave an action against the adstipulator, who in order 
 to „efraud the person to whom the promise had been made, released 
 
lelivered, nor 
 ;he treaty for 
 drawn up in 
 strument was 
 I either party 
 ty. Lib. iii., 
 
 ! (inandatum) 
 
 lerson under- 
 1 honourable 
 
 raotu," and 
 each. 
 mtraotu and 
 
 bound him- 
 ircumstanees 
 -if a person 
 *s affairs, to 
 'ho were yet 
 ' money not 
 ting himself 
 brce him to 
 nt in any of 
 
 and not by 
 Jnce of any 
 tio quasi ex 
 
 y> and if so 
 
 1 the actio 
 led punish- 
 of this law 
 fully killed 
 lied pecus, 
 qu»I to the 
 p year pre- 
 10 in order 
 e, released 
 
 Justinian's institutes. 
 
 219 
 
 the debt to the promissor, discharging by acceptilatio ; fhis second 
 head was practically unknown in Justinian's time, who rendered 
 rdatipulationes useless ; 3, it gave an action for all kinds of 
 damage other than those specified in the two first heads ; thus if a 
 slave or beast of the class pecm were wounded, or if any four- 
 footed beast, not being of the class of pecus, as a dog or a wild 
 beast, were wounded or killed, this third head gave an action. By 
 the lex Cornelia, a person who injured the slave of another might 
 be prosecuted both civilly and criminally. Lib. iv., t. 4. 
 
 Q. 23.— Distinguish between the right of use, and of usufruct. 
 
 A. — The distinction is, — the use was the right to make use of a 
 thing belonging to another, but not to enjoy the fruits thereof 
 {sine fructu), Lib. ii., t. 6 ; the usufruct was the right of using 
 («««*), and of enjoying (//-Mc^Ma) the thing of an other, Zt6. ii„ t. 5. 
 
 Q. 24.— Explain the term "familia." 
 
 A. — The term familia meant the collective body of persons who 
 lived in one house, and under one head or manager. By the civil 
 law every person was either the head, or subject to the head of a 
 familia. Lib. i. t. 8. 
 
 Q. 25.— Translate Lib. iv., t. 6, sec. 1, and give explanatory 
 notes upon the legal terms used therein. 
 
 A. — " Omnium actionuvi quibus inter aliqnos apud juiices arbi- 
 trosve de quacumque re queeritur, summa divisio in duo genera de- 
 ducitur : aut enim in rem sunt, aut in personam. Namque agit 
 unusquisque aut cum eo qui ei ohligatus est vel ex contractu vel e% 
 maleficioyquo casu prodita sunt actiones in personam, per quas in- 
 tendit adversarium ei dare facer e oportere, et aliis quibusdam modis ; 
 aut cum eo agit qui nullojure ei obligatus est, movet tamen alicui 
 de aliqua re controversiam, quo casu proditee actiones in rem sunt ; 
 veluti si rem corporalem possident quis, quam Titius suam esse 
 affirmet et possessor dominum se esse dicat ; nam si Titius suam 
 esse intendat, in rem actio est." 
 
 " The grand division of all actions by which a complaint is made 
 concerning some matter between any parties before judges or arbi- 
 trators, is reduced to two kinds,— for actions are either real {in rem) 
 or personal (in j»e*'«o?2««j.) For one person sues another who is 
 liable to him either on contract or for a tort, in which case per- 
 aoual actions are brought, by which he contends that his adversary 
 ought to give to, or do something for him, or makes some other 
 
220 
 
 EXAMINATION QUESTIONS. 
 
 8U»dar alle,at.on ; or elso he sues a person who is not liable to 
 h m by any obhgat.on, lut with whom he has a controversy Z 
 8pectu>g some [corporeal] thing (..,). in which case real actions 
 are brought, as ,f any one is in possession of some corporeal tZ 
 
 htif :r"""*"" '^ '' ^''' ^"'^ ^^« possessor say that £ 
 
 acln LrJ;^^''^""^'' ' '-' '' ^^*'"« '"-^-^ ^'^^ ---^^ his. the 
 
 Actio is the proceeding by which a person recovers at law com- 
 
 pen^txon for an njnry done by him to another, or for brealh of a 
 
 thtro t" T '" ''" '' ^^'^' '^' S'^* «^ '^^ ««tion is the 
 thing or snbject matter in respect of which it is brought; an ac! 
 
 ^mn personam .s where the action is directed against th person 
 
 J;f -"Z" r *'^^ J""^^^^^-' «^^h^^-^- with respect to 
 A -The ^m^r had jurisdiction with respect to damnum infee 
 
 dangerously defective .. g., an insecure house, was obliged by h! 
 prator to guarantee his neighbour agaiust the damage wherewith 
 
 Lbir ^""*"'^'' ^''^^ P'«P"^*«^ r«^-«d ^« undertakeTh^ 
 habd ty. he^..... p„t the demandant in possession of the house 
 
 Q. 27. — Classify servitudes. 
 
 nectd~f,-/l!lV"'^'' ■^''' ^""f"^ '"'" ''"''"^ ^^'•"*"'^^«' «" those con- 
 nected with the soil ; and urban servitudes, all those having a ne- 
 cessary connection with buildings ; Lib. ii., t. 3. 
 Q. 28.- What is the capitm diminutio, and how may it arise ^ 
 
 fl,rr, '' t T "^ °"' °^ *he three elements which constitute 
 the.«.«j of a Roman citizen, namely, liberty, citizenship, and 
 family. It arose. 1. when a citizen lost his liberty, {maxima d c ) 
 the loss of which involved the other two. citizenship and family ^ 
 2 ^here a citizen lost his citizenship but retained his Hberty' 
 (rned^a d. c.) as when a man was forbidden fire and water ; 3, whTn 
 
 'i.» 
 
STORY ON THE CONFLICT OF LAWS. 221 
 
 A.— By the twelve tables the addictio was the means by which 
 the insolvent debtor was ruaJe a slave, and compelled to work for 
 his creditor until the debt was discharge.! ; Lih. [., t. 3 ; a^Toaatio 
 (adoption) was the act by which a citizen acquired the patria 
 potestas, through the mere effect of the civil law. apart from am- 
 tie of blood, by which the arrogatus himself, and uU natural and 
 adopted children, then under his power, became subject to the 
 arrogator, Lib. i., t. 11; inteniictio was where, under certain cir- 
 cumstances. when it was required to prevent conflicts, and to repress 
 acs of violence, and especially in disputes as to possession of things 
 corporeal, or the quasi-possessio of things incorporeal, the pr^tor 
 instead of granting an action made an order of command or pro- 
 hibition, which the parties were required to obey. Lib. iv t 15 • 
 exceptio was an equitable restriction introduced by the pr<Btor, upon 
 the general order to condemn gi.en to th^ judex by the action, and 
 was so called because it excepted or wrote away from the effect of 
 the action. Lib. iv., t. 13 ; depositum was a contract in which one 
 man (deposttariua) received the thing belonging to another, which 
 he was to keep gratis, and to restore at the will of the depositor. 
 Lib. III., t. 14; delegatio was the assignment of a debt to another* 
 as when the debtor transferred to another person the obligation tJ 
 pay, or a creditor made over to a third person the right to receive 
 the payment. Lib. iii., t. 29; md pecuUum was n portion of goods 
 distinct from the common patrimony ; particular goods, bona pe- 
 cultaria, Lib. ii.. t. 9. 
 
 Q. 30.— Give an outline of the Roman law treated of in the In- 
 stitutes. 
 
 A.— The institutes treat. 1. of the nature, divisions and the 
 sources of law ; 2. of persons, and their rights and duties; 3, of 
 things {res) ; 4. of successions to deceased persons ; 5, of obliga- 
 tions ; and 6. of actions. 
 
 STORY ON THE CONFLICT OF LAWS. 
 
 Queation 1.— What is the law of Scotland as to the status of one 
 not bom in wedlock, by the subsequent intermarriage of the 
 parents ? 
 
 Answer.~^y the law of Scotland illegitimate children, upon the 
 subsequent marriage of the parents, become legitimate, § 87. 
 
 .1 
 
222 
 
 EXAMINATION qOKSTIONS. 
 
 Q. 2. — tVhat is the law of fMs country in such a case? and is 
 there any diversity in its application as to personalty or realty 
 situate here ? 
 
 A.— By the law of this country marriage of the parents does not 
 legitimatise a child born before marriage, § 87. Ir. tiie succession 
 
 to realty the lex loci situs is to govern as to capacity and heirship, 
 
 as to personalty, the lex iiominf!\ §§ 98/, 93 h, 481 a. 
 
 Q. 3. — If one in a foreign country hired himself to pay money 
 or to do any other act in this country, by which law will such cm- 
 tract be go^ ci ned ? 
 
 A. — Where a contract is expressly or tacitly to be performed in 
 any place other than the place where it is made, the general rule 
 is, in conformity to the presumed intention of the parties, that the 
 contract, as to its validity, nature, obligation, and interpretatiott, 
 is to be governed by the law of the place of performance, § 280. 
 
 Q- 4.— If a note be endorsed in blank, when, b-j the law of the 
 country where such endorsement was made, it sL'^iuld have been in 
 a special form, and it be sued upon in a country where a blank 
 endorsation is sufficient, by which law will the endorsement be 
 governed ? 
 
 ^- — A negotiable instrument is to be governed, as to its form 
 and solemnities, by the lex loci contractus,— in anch case, therefore, 
 the endorsement must be in the special form, § 318 ; see Trimby 
 V. Vignier, 1 Bing. N. C. 151 ; 4 M. & Scott, 695. 
 
 Q. 6.— What would be the effect of a contract made by a 
 Canadian, in a country permitting it, to raise funds for Russia to 
 prosecute a war with the mother country, if sued upon here ? 
 
 A.— Such a contract would be held utterly void, whatever might 
 be its validity in the country where it is made, as being inconsistent 
 with the public policy of our country, § 259. 
 
 Q. 6 — What law is applicable in determining the nature, obli- 
 gation, and interpretation of a contract ? 
 
 A.— The law of the place where the contract is made,— /oct« 
 contractus regit actttm, § 263. 
 
 Q- 7.— If a sale of goods were made in a country where a 
 warranty was annexed to the sale, and an action on the warranty 
 was brought in a country where no such warranty was annexed, by 
 which, law would the question be determined ? 
 
 •A- — Wlrere a contract is made in a country where a warranty is 
 
STORY OK THE CONFLICT Or LAW9. 
 
 233 
 
 impUed, to be per^ rmed in a country where there is no such 
 implication, the question is determined by the law of the place 
 of performance, and no warranty will be implied ; for where 
 a contract is in the intention of the parties to be performed in 
 a country oth^r than the place where it is made, the law of that 
 country governs the nature, obligation, and interpretation of the 
 contract ; §§ 264, 2H0 ; l)ut if performance in another country is 
 not contemplated, the lex loci contractus will govern, and the war- 
 ranty will be implied, § 264. 
 
 Q. H.—If a verbal contract for the sale or purchase of land 
 lying here were made in a country where by the law of that 
 country a sale or purchase of land might be verbally made, could it 
 be enforced here ? State why, or why not. 
 
 A.— It could not be enforced here, as all real contracts must be 
 governed by the lex rei sitce, and such contract is void by our law, 
 (Statute of Fmuds, 29 Car. II., c. 3.) §§ 363. 364. 
 
 Q. 9.— By what law is the liability of an acceptor of a bill of 
 exchange determined ? 
 
 A.— -By the lex loci contractu^, § 263. Byles on bills, 316. 
 
 Q. 10. — What law governs the rate of interest ? 
 
 A.—Interest, as a general rule, is to be paid on contracts 
 according to the law of the place where they are to be performed, 
 § 291. 
 
 Q. 11.— Give a definition of the term " domicil ;" and state 
 some of the principal rules to be applied in determining the ques- 
 tion of domicil ? 
 
 A.— By the word "domicil," in its ordinary acceptation, is 
 meant the place where a person lives or has his home ; in this 
 sense the place where a person has his actual residence, inhabitancy 
 or commorancy, is sometimes called his domicil. In a strict and 
 legal sense, that is properly the domicil of a person where he has 
 his true, fixed and permanent home, and principal establishment, 
 and to which, whenever he is absent, he has the intention of 
 returning. § 41 . The following are the principal rules applicable 
 in determining the question of domicil ;— 1, the place of birth of 
 a person is considered as his domicil, if it is at the time of his 
 birth the domicil of his parents, and this is called the domicil of 
 birth or nativity : if fbp nnrAnfa am «^l.«»i />« o ,.;=:«■ «- «.. _ : 
 
 the home of the parents (at least if it be in tjie same country) 
 
224 
 
 EXAMIITATION QUESTIONS. 
 
 m 
 
 will be deemed the doniicil of birth or nativity ; 2, tlie domicil of 
 birth of minors continues until they have obtained a new domicil ; 
 3, minors are generally deemed incapable of changing their domi- 
 cil dnring their minority ; but if the parents change their domicil, 
 that of the minor follows it ; 4, a married woman follows the 
 domicil of her husband ; 5, a widow retains the domicil of her 
 deceased husband, until she obtains another domicil ; (i, the place 
 where a person lives is taken primd facie to be be his domicil ; 7 
 where a person of M\ age removes to another place with an inten- 
 tion of making it his permanent residence, it becomes instantaneously 
 his domicil ; 8, where a person removes to a place with an intention 
 of remaining there for an indefinite time, and as a fixed place of 
 present domicil, it is to be deemed his place of domicil, though he 
 may intend to return at some future period ; J), the place where a 
 married man's family resides is ordinarily deemed his domicil ; 10, 
 if a married man has his family fixed in one place, and does his 
 business in another, the former is his domicil ; 11, where a married 
 man has two places of residence at different times of the year, 
 that is his domicil which he himself considers to be his home, or 
 which appears to be the centre of his affairs, or where he votes or 
 exercises the rights and duties of a citizen ; 12, the domicil of an 
 unmarried man is generally the place where he transacts his 
 business, exercises his profession, or assumes and exercises municipal 
 duties and privileges ; 13, residence in a place must be voluntary, to 
 produce a change of domicil ; 14, to produce a change of domicil 
 there must be an actual removal and an intention to acquire a new 
 domicil ; 15, presumptions from mere circumstances will not pre- 
 vail against positive facts which fix the domicil ; 16, a domicil 
 remains till a new one be acquired ; 17, if a man has acquired a 
 new domicil, different from that of his birth, and he removes from 
 it with an intention of resuming his native domicil, the latter is 
 re-acquired the moment the other is given up, §§ 46, 47. 
 
 Q. 12.— By what law is the validity of a will of personalty to be 
 determined where the property bequeathed is situate in one coun- 
 try, the domicil of the testator being in a different country, whilst 
 the will is made in a third ? 
 
 A.~The validity of the will must be governed by the law of 
 the plage where made, §§ 467, 471. 
 
 Q. 13. — What is essential to make a foreign judgment an estop- 
 
8TORV ON THE CONFLICT Or LAWS. 
 
 386 
 
 pel by the law of England ? Give a short outline of the law of 
 estoppel by foreign judgment. 
 
 A.— The judgment must have been obtained bond Jide, and 
 without fraud, and it must a|)pear that the proceedings upon which 
 it ia founded are regular, and that the parties interested have had 
 an opportunity to appear and defend their interests, § r»y2 ; and 
 the court by whom the judgment was given, must have had juris- 
 diction; $ 593. 
 
 [As to the latter part of the question, see answer to Q. 29.] 
 Q. 11.— Su{)posing a debt, not transferable by the law of Upper 
 Canada, is contracted in a foreign country, and there assigned over 
 by the creditor to a third person, who by the law of the foreign 
 country, could maintain an action as assignee in his own name, — who 
 would be the proper person to sue in Upper Canada for the reco- 
 very of the debt ? 
 
 A.— The assignee may sue ; for the endorsement in the place 
 where it is made creates a direct contract between the debtor and 
 the endorsee, and that contract should be enforceable between them 
 every where, §§ [\:a, 3.55, 5G6 ; see Trimbey v. Vignier, 1 Bing. 
 N. C. 159 ; O'Callaghan v. Thomond, 3 Taunt. 82. 
 
 Q. 15 — Would a child born before marriage in Scotland, whose 
 parents afterwards intermarried, be considered legitimate in Eng- 
 land ? Give your reasons ; and state how far the law of England 
 is goverened in cases of legitimacy by the law of the country where 
 the birth takes place. 
 
 A.— He would not ; for though a marriage, valid by a foreign 
 local law, is held good every where, yet it does not follow that all 
 the consequences of such marriage by such foreign local law are to 
 be adopted, § 87 ; Doe d. Birthwhistle v. Vardell, 5 B. & C. 438; 
 S. C. 9 Bligh, 32-88. The law of foreign countries as to legiti- 
 macy is so far respected in England, that a person, illegitimate by 
 the law of his domicil of birth, will be held illegitimate in Eng- 
 land, § 87 o. 
 
 Q. 16.— Are there any, and if so, what exceptions to the rule, 
 that a marriage is valid in England when valid according to the 
 laws of the country where it was celebrated ? 
 
 ^' — The exceptions are ; 1, marriages involving polygamy or 
 incest ; 2, those positively prohibited by the law of England, 
 from motives of policy ; and 3, those celebrated in foreign coun- 
 
226 
 
 EXAMINATION QUESTIONS. 
 
 ^•|U 
 
 I: 
 
 tries by English subjects under special circumstances entitling them 
 to the benefit of the laws of their own country ; §§ 113 et seq. 
 
 Q. 17. — If a debt contracted in England be there barred by the 
 Statute of Limitations, can the creditor recover it in this country ? 
 Give your reasons. 
 
 A.— The limitations of actions, as affecting the remedy and not 
 the contract, are governed by the lex fori, or law of the countiy 
 where the action is brought ; a foreign statute of limitations, there- 
 fore, is no defence to an action on a foreign debt in our courts, 
 unless it have the effect of extinguishing the contract, and the 
 parties are living in the foreign country at the time of the extinc- 
 tion ; §§ 576 et seq., 582. Huber v. Steiner, 2 Bing. N. C. 202. 
 
 Q. 18. — If one enter into a contract in a foreign country to pay 
 money, or to do any other act in this, which contract is void by 
 the law of the foreign country, but valid here, by which law is its 
 validity to be determined in our courts ? 
 
 A. — Where a contract is made in one country to be performed 
 in another, its validity is determined by the law of that in which 
 it is to be performed ; § 280. 
 
 Q. 19. — Can an action be maintained here on a contract void 
 under the Statute of Frauds, but made and to be performed in a 
 foreign country, by the law of which It is valid ? Give reasons for 
 your answer. 
 
 A. — It may ; for the validity of a contract is governed by the 
 place where it is to be performed, §§ 280, 262. 
 
 Q. 20. — By what law is the succession to the movable estate of 
 an intestate to be regulated, where the intestate's domicil is in one 
 country, and the movable property in another ? Give reasons for 
 your answer. 
 
 A. — The succession to personal property is governed by the law 
 of the actual domicil of the intestate at the time of his death ; 
 because movables have no situs, and accompany the person of the 
 owner ; §§481,481 b. 
 
 Q. 21. — If a testator domiciled in Scotland, but seised of real 
 estate in this country,' make a will in Scotland disposing of his 
 lands here, upon what law would the construction of the will 
 depend ? Give reasons for your answer. 
 
 A^.: The interpretation of the will must be according to the l^^ 
 
 domicilii, unless it can be clearly gathered from the terms used in 
 
 
 I,.* 
 
STORY ON THE CONFLICT OF LAWS. 227 
 
 the will that the testator had i^ view the law of the place of the 
 
 0% with the law of his domicil, hut if he use terms clearly appli- 
 cable to the law of the situs that presumption mvftt fail ; I7IT 
 
 ,n. Tr !f T°* ^^ '^' ^'' ^''' contractus, lex fori, lex 
 
 loci soluttoms ; and when do they respectively apply / 
 
 ..t'~?^' ^Z ^'"' ''"'*'''''^''' '« tl'« 1«^ of the country in which a 
 contract IS made ; it governs the validity, nature, obligation and in! 
 erpre tation of the contract, (unless the contract is to'be performed 
 m another country,) and the proofs by which it is to be auhenti 
 cated ; §§242, 260 263. The le.fori is the law of the placTwhere 
 an action IS brought upon a contract ; by it is regulated the remedy 
 for breach of the contract • & 'i'ifi tL 7 / • , re'neaj 
 
 Iflw nf th. 1 ^"""^^^ ' * ^^^- The lex loci solutionis is the 
 law of the place where a contract is to be performed or paid • this 
 
 ctrtf^rs^' """'^' ''''-'-' -' ^-pretatLoft 
 
 domiciH"~~ir'*r *^'"^' are necessary for the acquisition of a 
 domiciH Is residence necessary for retaining a domicil once ac 
 
 A.--TWO things are necessary to constitute domicil, -residence 
 and the intention of making it the home of the par y, Hr A 
 domicil once acquired remains until a new one is acquired, § 47. 
 
 per?y g:;:n'e^df ^^^ '' ^'" ^^""^^^ ^^ ''' ^^^ «^ -1 pro- 
 b ATi^^' tT"' '""^ ^""'^'P "^ '''^ ''''' '' ^^^'"^i-^ly governed 
 
 «»1 1 7. " **"' '*""' P""'"*" ^' '" «"y ^^y "able to the crim- 
 nal laws of two countries at the same time ? If so, how ? 
 
 A -The laws of a country bind all persons within its territory 
 whether natural born subjects or aliens, § 18 ; but the ul ts^f 
 a state may, though in a foreign country, be bound by the aw of 
 their native country, § 21. * 
 
 domicif?'""'" '' ^'^^^^Pacity of a person affected by change of 
 
 Upon change of domicil the capacity or incapacity of the person 
 IS regulated by the law of the new domicil. § 69 
 --.?'. 27--Upon what principles are the laws of one country r», 
 Z::f^rrZJr''''^-'--^^ bankruptcy/and 
 
jimiiiiiiiii.iiiiB 
 
 228 
 
 EXAMINATION QUESTIONS. 
 
 A. — Upon the principle that the rejection of the laws of a foreign 
 nation may, in many cases, work less injustice, than the enforce- 
 ment of them will remedy, § 34. Thus if the bankrupt laws of 
 one state are not recognized by another, the transfer of ownership 
 in the bankrupt property could not be recognized, and a manifest 
 injustice might ensue, §§ 403, 404. 
 
 Q. 28. — Show how the lex loci actHs or contracts is to be con- 
 sidered with respect to the disposition of movable and immovable 
 property, situate within another state or jurisdiction 1 
 
 A. — The lex loci actios or cOntraetHs governs the disposition of 
 immovables, § 368 ; but does not affect the disposition of immov- 
 able property, which is governed by the lex loci rei sitce, § 364. 
 
 Q. 29. — What is the effect of a foreign probate and administra- 
 tion upon assets" in this country ? 
 
 A.— Foreign probate and administration is not recognized in this 
 country ; the executor or administrator therefore must obtain pro- 
 bate or letters of administration from our courts before dealing 
 with assets in this country ; § 513. See Pipon v. Pipon, Amb. 25 ; 
 Price V. Dewhurst, 4 My. & Cr. 76. 
 
 Q. 80. — What force and effect has a foreign judgment (exceptio 
 rei judicata) ? and give the opinion of different jurists upon this 
 question ? 
 
 A. — In matters relating to immovable property the judgment of 
 the forum rei sitae is held absolutely conclusive ; a judgment in 
 any foreign country touching such property, will be held of no obli- 
 gation ; § 591. A judgment in rem against movable property 
 within the jurisdiction of the court pronouncing the judgment, will 
 be held conclusive not only in rem, but also as to all the points and 
 facts which it professedly or incidentally decides, § 593. As regards 
 a foreign judgment in personam, where it is sought to be enforced, 
 it is not considered conclusive, — where it is set up in bar of a suit 
 by way of defence, it is held conclusive, § 598. [For the opinions 
 of the different jurists given by Mr. Story, we must refer the stu- 
 dent to §§ 584 et seq., as they are too voluminous to be trans- 
 cribed.] 
 
TAYLOR ON EVIDENCE. 
 
 229 
 
 TAYLOR ON EVIDENCE. 
 
 Question 1.— What are the four general rules which govern the 
 production of evidence to prove a case ? 
 
 Jnswer.^1, The evidence must correspond with the allegations ; 
 but It is sufficient if the substance only of the issues be proved. 2, 
 The evidence must be confined to the points in issue. 3, The 
 burden of proving a proposition at issue lies on the party holding 
 the substantial affirmative. 4, The best evidence of which the 
 case m its nature is susceptible, must always be produced. § 172. 
 
 Q. 2.~What are the meaning and object of the rule which 
 requires the production of the best evidence, of which the case is 
 susceptible ? 
 
 A. -It means that no evidence shall be received which is merely 
 substitutionary in its nature, so long as the original evidence is 
 attainable. The rule does not demand the greatest amount of 
 evidence which can possibly be .c-iven of any fact ; but its design 
 IS to prevent the introduction of any, which, from the nature of the 
 case, supposes that better evidence is in the possession of the party. 
 It is adopted for the prevention of fraud ; for when better evidence 
 18 withheld, it is only fair to presume that the party has some 
 smister motive for not producing it, and that, if offered, his design 
 would be frustrated. § 363. 
 
 Q. 3.— What is the most general classification of evidence ? and 
 define each class. 
 
 A.— Evidence is divided into two classes, ^nwiary and secondary. 
 Primary evidence is the best evidence of which the case is in its 
 nature susceptible, or in other words, that kind of proof which, in 
 the eye of the law, affords the greatest certainty of the fact in 
 question : all evidence falling short of this in its degree, is termed 
 secondary. The distinction between them is one of law and not 
 of fact ; referring only to the quality and not to the strength of 
 the proof: evidence which carries on its face no indication that 
 better remains behind, is not secondary but primary. § 365. 
 
 Q. 4.— When is a party at liberty to have recourse to secondary 
 evidence ? 
 
 A.— When it is shewn that the production of primary evidence 
 18 out of the party's power, § 398. With respect to dfocuments, 
 proof of their contents may be established by secondary evidence. 
 
:li 
 
 \m 1 
 
 ' 
 
 !i 
 
 
 >5- 1-r/. 
 
 
 230 
 
 EXAMINATION QUESTIONS. 
 
 first, when the original writing is destroyed or lost ; secondly, 
 when its production is physically impossible, or at least highly 
 inconvenient ; thirdly, when the document is in the possession of 
 the adverse party, who refuses after notice, and in some cases with- 
 out notice, to produce it ; fourthly, when it is in the hands of a 
 third party, who is not compellable by law to produce it, and who 
 being called as a witness with a subpoena duces tecum relies upon 
 his right to withhold it ; fifthly, when the law raises a strong pre- 
 sumption in favour of the existence of the document ; sixthly, when 
 the papers are voluminous, and it is only necessary to prove their 
 general results 5 and lastly, when the question arises upon the 
 examination of a witness upon the voir dire ; § 398. With respect 
 to secondary evidence of oral testimony, where a witness duly sworn 
 has given his testimony in a judicial proceeding, to the authority 
 of which the party against whom the testimony is offered was 
 legally bound to submit, and in which he has the power to cross- 
 examine (whether he has exercised that power or not), the testi- 
 mony so given, will, if the witness himself cannot be called, be 
 admitted in any subsequent suit between the same parties or those 
 claiming under them, provided it relate to the same subject, or 
 substantially involve the same material questions ; § 434. 
 
 Q. 5. — If it be necessary to prove the receipt of moneys by a 
 public officer, a collector for instance (who is not a party to the 
 cause), in how many ways may the fact be proved, if the collector 
 be living ? and if he be dead, how may the same fact be proved ? 
 And state the qualifications or quasi exception to the rule requiring 
 the best evidence, upon which the latter part of the case put rests. 
 
 ^' — If he be living, the fact may be proved by calling either 
 the collector himself, or the parties who paid him, both these 
 proofs being equally primary : if he be dead, the only primary 
 evidence is the testimony of the persons from whom the moneys 
 were received ; but the law does not require the production of 
 these persons, but on proof of the collector's death, will admit any 
 entries in his book acknowledging the receipt, though such entries 
 are merely secondary evidence,— and if the book be in the hands 
 of the opposite party, who, after notice, refuses to produce it, even 
 secondary evidence of its contents will be admissible ; § 366. 
 
 Q. 6.'^— If the subscribing witnesses to the execution of a deed 
 be dead, how is the deed proved ? 
 
 k 
 
 m 
 
TAYLOR ON EVIDENCE. 
 
 231 
 
 A. — It is sufficient if the aignature of the witness be proved ; 
 § 1649. 
 
 Q- 7. — What is the proper mode of proving a deed to which 
 there are two attesting witnesses, of whom one is dead and the 
 other living ? And upon what ground does the distinction rest 
 between this case and that contained in the latter part of ques- 
 tion 5 ? 
 
 A.—The proper mode of proving the deed is to call the witness 
 who is living ; for proof of the signature of the one who is dead, 
 would merely raise & presumption that the deceased had witnessed 
 all which the law requires for the due execution of the instrument, 
 whereas the surviving witness would be able to give direct proof, 
 § 363. The distinction between this case and that put in the latter 
 part of question 5, rests on this, that the attesting witnesses are either 
 rendered necessary by statute, or have been solemnly chosen by the 
 parties as \ ic persons on whose united testimony they wish to rely, 
 and consequently, so long as one of them can be called, secondary 
 evidence respecting the other cannot be admitted, § 366. 
 Q. 8. — What are the divisions of presumptive evidence ? 
 A. — The general head of presumptive evidence is divided into 
 two branches,- presumptions of law and presumptions of fact, of 
 which the former class are divided into conclusive and disputable 
 presumptions, § 61. 
 
 Q. 9. — Explain what is meant by conclusive, or absolute, and 
 disputable presumptions of law ; and explain upon what principles 
 they rest ; and give some examples of each. 
 
 A. — Conclusive or absolute -esumptions of law, are rules 
 determining the quantity of evidence requisite for the support of 
 any particular averment, which is not permitted to be overcome by 
 any proof that the fact is otherwise, § 62 ; disputable presumptions 
 are those which may be overcome by opposing proof, § 95. These 
 presumptions are founded either upon the first principles of justice, 
 or the laws of nature, or the experienced course of human conduct 
 and affairs, and the connection usually found to exist between 
 certain things ; so where one fact is proved and ascertained, the 
 other, its uniform concomitant, is universally and safely presumed ; 
 thus a malicious attempt to kill may be presumed from the deliber- 
 ate use" of a deadly weapon, § 6i. For examples of conclusive 
 presumptions. — where one has been in possession of land for the 
 
'^irrP 
 
 232 
 
 EXAMINATION QUESTIONS. 
 
 time mentioned in the statutes of limitations, under a claim of 
 absolute title and ownership, a conclusive presumption will be raised 
 against all persons but the Sovereign, of a valid grant, § 65 : every 
 Bane person, above the age of fourteen, is conclusively presumed to 
 be acquainted with the law of the land,—" ignorantia juris, quod 
 quisque tenetur scire, neminem excusat," § 68 : where one has 
 solemnly admitted a fact, it is, as against him, conclusively pre- 
 sumed to be true, and he is estopped from afterwards denying it, 
 § 7Q. For examples of disputable presumptions,— as men do not 
 generally violate the penal code, the law presumes every man to be 
 innocent ; but as some do transgress it, evidence is received to repel 
 the presumption, ^Qd; as men seldom do unlawful acts vnth 
 innocent intentions, the law presumes every act, in itself unlawful, 
 to have been wrongfully intended, till the contrary appears,— thus, 
 on a charge of murder, malice is presumed from the fact of killing, 
 but the presumption may be rebutted by proof of want of malice, 
 § 103 : as men generally own the property they possess, procf of 
 possession is presumptive proof of ownership, § 108. 
 
 Q. 10.— When a person is once proved to have been living, for 
 what period, by the law of England, will the presumption of his 
 being alive continue ? When, by the civil law, did the presumption 
 cease ? And what is the law of Scotland on the subject ? 
 
 A.— Where a person is once shewn to have been living, the law, 
 in the absence of proof that he has not been heard of within the 
 last seven years, will in general presume that he is still alive, un- 
 less after a lapse of time considerably exceeding the ordinary 
 , duration of human life ; but no definite period has been conclusively 
 fixed during which the presumption is to prevail. In the civil law 
 the legal presumption of life ceases at the expiration of one hund- 
 red years from the date of the birth ; and the same rule prevails 
 in Scotland, § 156. 
 
 Q. 11.— After what lapse of time will the presumption of life 
 cease, if proof be given of the person's continued absence from 
 home, and of the non-receipt of intelligence after due inquiry ? 
 
 A.— In such case the presumption of life ceases after the lapse 
 of seven years, § 157, 
 
 Q. 1 2.— In the case of a father and son perishing in the same wreck, 
 battle or conflagration, and the circumstances of their deaths are 
 unknown, does the law of England make any presumption of sur- 
 
TAYLOR ON EVIDENCE. 
 
 2SS 
 
 vivorship ? And in such case what was the presumption of the 
 Roman law ? and what of tue French code ? What cases on this 
 subject in EngUsh law are referred to by >Ir. Taylor ? 
 
 A.— In cases of this nature the law of England recognises no 
 presumption of survivorship ; but where the circumstances of their 
 deaths are unknown, the matter will be treated as if both had 
 perished at the same moment, § 160. Mr. Taylor refers on this 
 subject to R. V. Hay, 1 W. Bl. 640 ; Underwood r. Wing, 19 Beav. 
 459, per Romilly, M. R., affirmed on appeal, 4 De Gex, M. & G. 
 1 ; Mason v. Mason, 1 Meriv. 308 ; Wright v. Netherwood, 2 
 Salk. 593, n. o ; 2 Phill. Ec. R. 266-277, n. c. In such case the 
 Roman law presumed that the son died first if he was under the 
 age of puberty, but if he was above that age, that he was the sur- 
 vivor, upon the principle that in the former case the elder is 
 generally the more robust, and in the latter, the younger, § 169. 
 The French code, if the father were above the age of sixty and the 
 son under the age of fifteen, presumes the father to have been the 
 survivor ; if they were both between those ages, the presumption 
 is in favour of the survivorship of the son, § 159. 
 
 Q. 13.— What is the distinction between legal presumptions and 
 rules of construction ? What instance does Mr. Taylor give to 
 illustrate the difference ? 
 
 A.— Legal presumptions may be rebutted, and if rebutted, sup- 
 ported also by parol testimony ; but no evidence can be received on 
 either side, if the court by construction can arrive at a conclusion 
 respecting the meaning of the instrument ; § 11 13. Mr. Taylor 
 illustrates the difference by giving as an instance the rule of con- 
 struction which a- Yards to a stranger legatee as many legacies as are 
 bequeathed to him by separate instruments, unless the instruments 
 themselves contain intrinsic evidence that the legacies were not 
 intended to be cumulative, or unless the double coincidence of the 
 same amounts and the same expressed motives appearing in each 
 instrument, induces the court to presume that repetition, and not 
 accumulation was intended ; extrinsic evidence cannot be received 
 to impugn this rule, for to admit 't would be to construe a writing 
 by parol evidence. 
 Q. U.— Is it necessary in order to prove a deed to call a sub- 
 
 A.— Formerly it was necessary to call the subscribing witness to 
 
if 
 
 234 
 
 EXAMINATION QUESTIONS. 
 
 prove a deed, but by Imp. Stat. 17 & 18 V. c. 125, s. 26 it is 
 provided that it shall not bo necessary to pro re a deed by the sub- 
 scribing witness, where attestation is not requisite to the validity of 
 the deed, § 1637. [Our Stat. 19 V. c. 43, s. 163— U. C. Con. Stat. 
 c. 22, s. 212, applies this enactment to Upper Canada.] But where 
 the validity of the deed depends upon its formal attestation, the 
 subscribing witness must be called, § 1641. 
 
 Q. 15. — What proof is necessary on a trial for perjury in order 
 to convict the accused ? 
 
 A. — To procure a conviction for perjurV; evidence must be given 
 amounting to something more than sufficient to counterbalance the 
 oath of the accused, and the legal prdsun ption of his innocence ; so 
 that the oath of a single opposing witness will not avail unless it 
 be corroborated by material and independent circumstances ; § 876. 
 Q. 16. — Are accomplices good witnesses ? and what is the rule 
 of law respecting the same ? 
 
 A.— The testimony of accomplices is admissible. There is no 
 positive rule of law respecting the degree of credit to be placed 
 upon their testimony, that being a matter exclusively within the 
 province of the jury, who may reject the evidence if it be not cor- 
 roborated by other evidence, or may if they please act upon it. It 
 is the practice with judges to advise the jury not to convict upon 
 sucli evidence, without corroboration. § 887. 
 
 Q. 17. — Can a party in any case impeach his own witness ? If 
 yea, how, and in what cases ? 
 
 A.— By Imp. Stat. 17 & 18 V. c. 125, s. 22, a party may, in 
 case the witness shall in the opinion of the judge prove adverse, 
 contradict him by other evidence, or by leave of the judge prove 
 that he has made at other times a statement inconsistent with his 
 present testimony ; but before such last mentioned proof can be 
 given, the circumstances of the supposed statement, sufficient to- 
 designate the particular occasion, must be mentioned to the witness, 
 and he must be asked whether or not he has made such statement ; 
 § 1282. [An enactment in the same words is contained in our 
 Stat. 19 V. c. 43, s. 159— U. C. Con. St. c. 22, s. 214.] 
 
 Q- 18- — If a witness on cross-examination give an answer on a 
 collateral point which is untrue, can you call a witness to contra- 
 dict his statement ? 
 A. — The answer of a witness on cross-examination on a collateral 
 
TAYLOR ON EVIDENCE. 
 
 235 
 
 point is conclusive, and a witness cannot be called to contradict 
 his statement, § 1292, 
 
 Q. i 9.— What is the necessary proof on the part of the Crown 
 on a trial for bigamy ? 
 
 A.— An actual valid marriage must be proved j proof of a cere- 
 mony which the parties suppose to be sufficient to constitute the 
 relation of husband and wife is not enough, but it must be shewn 
 to be sufficient according to law for that purpose ; § 140. 
 
 Q. 20.— What is the evidence necessary to prove a will on a 
 trial respecting real property ? 
 
 A.— The will may be proved at law by one of the attesting wit- 
 nesses, m equity by all of them, § I(j.52. By Imp. Stat. 20 & 21 
 V. c. n, s. 62 probate is made evidence, § 1565 a. 
 
 iVo^e.— Probate is made evidence in Upper Canada in actions 
 respecting real estate by 22 V. c. 93, s. 33-U. C. Con. St. c. 32, 
 8. 9. 
 
 Q. 21 — Can a married woman be witness for her husband in any 
 and if so what cases ? 
 
 A.- A married woman may, by recent imperial enactments, be 
 a witness for her husband in civil cases, but not in criminal pro- 
 ceedings, §§1219, 1227. 
 
 Q. 22.— What is meant by impeaching a witness bv general and 
 particular evidence ; and which is permitted in the case of a party 
 seeking to impeach his own witness? What is the reason for the 
 distinction ? 
 
 A.— The former is where evidence is given reflecting on the 
 general reputation of the witness ; the latter is where evidence is 
 given of particular facts reflecting upon his character; § 1324, 
 ^^3 the Common Law Procedure Act, s. 22 (s. 159 of our Act— 
 U. C. Con. Stat., c. 22, s. 214,) a party is not allowed to impeach 
 his own witness by general evidence, but may, if in the opinion of 
 the judge he prove adverse, contradict him by particular evidence, 
 § 1282. The reason for the distinction between general and par- 
 ticular evidence is, that every man is supposed to be capable of 
 supporting his general reputation, but it is not likely that he should 
 be prepared, without notice, to answer the'other, § 1324. 
 
 Q. 23.— What effect, as an admission, has the payment of money 
 mto court in an action of tort ? 
 
 A.— Where the declaration is general and unspecific, the pay- 
 
236 
 
 EXAMINATION QUESTIONS. 
 
 
 y^' ^1 
 
 ment of money into court, although it admits a cause of action, 
 does not admit the cause of action sued for ; and the plaintiff must 
 give evidence of the cause of action sued for, before he can have 
 larger damages than the amount paid into court. If the declara- 
 tion is specific, so that nothing would he due to the plaintiff from 
 the defendant unless the defendant admitted the particular claim 
 made by the declaration, the payment of money into court admits 
 the cause of action sued for, and so stated in the declaration. 
 §765. 
 
 Q. 24. — Can the admission of a party to the record as to the 
 contents of a written instrument in any case dispense with its pro- 
 duction at the trial ? 
 
 A. — The admission of a party to the record tr to the contents of 
 a written instrument are receivable as primary proof against him- 
 self and those claiming upder him, without notice to produce the 
 instrument, or accounting for its absence, § vS81. 
 
 Q. 25. — Is an entry made by a deceased person in the ordinary 
 course of business evidence of every thing contained in such 
 entry ? 
 
 A.— Such an entry is no evidence of collateral circumstances 
 stated in it, § 637. 
 
 Q. 26. — Are any persons except parties to the record [or inlict- 
 ment,] incompetent witnesses ? If so, who ? 
 
 A. — The following persons, not parties to the record or indict- 
 ment, are incompetent : 1 , the husbands and wives of all persons, 
 who are defendants in any criminal proceeding ; 2, the wives of 
 supposed paramours who are made respondents in suits for dissolu- 
 tion of marriage, or for damages by reason of adultery ; 3, in cases 
 of high treason and misprision of treason, other than such as con- 
 sist in injuring or attempting to injure the Queen's person, those 
 persons who are not included or properly described in the list of 
 witnesses delivered to the defendant pursuant to the statute of 
 Anne, c. 21 ; and 4, persons insensible to the obligations of an 
 oath ; §§ 1220, et 8eq. 
 
 Q. 27. — To what extent is hearsay of declarations by members 
 of the family admissible in questions of pedigree ? Does the re- 
 moteness of the relationship affect the admissibility of the evidence ; 
 and dpes the rule apply to relations by marriape ? 
 
 A. — Such declarations, to be aimissible in evidence, must be 
 
se of action, 
 ilaintifi* must 
 he can have 
 the declara- 
 laintifF from 
 icular claim 
 ;ourt admits 
 declaration. 
 
 'd as to the 
 with its pro- 
 
 e contents of 
 igainst him- 
 produce the 
 
 he ordinary 
 (led in such 
 
 ircumstances 
 
 i [or iniict- 
 
 cl or indict- 
 all persons, 
 he wives of 
 I for dissolu- 
 ; 3, incases 
 such as con- 
 erson, those 
 the list of 
 e statute of 
 itions of an 
 
 )y members 
 >oes the re- 
 tie evidence ; 
 
 :e, must be 
 
 TAYLOR ON EVIDENCE. 
 
 237 
 
 
 made an/e litem motam, § .OG.J. They can only be received when 
 made by persons dejure related by blood or marriage to the family 
 in question, but the remoteness of the relationship does not affect 
 their admissibility, §§ 571, ^76. 
 
 Q. 28. -What is a latent and what a patent ambiguity in a deed ? 
 which may be explained by parol evidence ? 
 
 A.— A patent ambiguity is that which appears to be ambigu- 
 ous upon the deed ; a latent ambiguity is that which seems certain 
 and without ambiguity, for anything that appears upon the deed, 
 but there is some collateral matter out of the deed that breeds the 
 ambiguity. The latter may be explained by parol evidence, the 
 former cannot. § l()!)8. 
 
 Q. 29.— Give some instances of evidence excluded on the ground 
 of public policy '( 
 
 A.— Communications between husband and wife, § 830 ; profes- 
 sional communications between barristers, solicitors or attorneys and 
 their clients, § 832 ; judges, arbitrators and counsel are not com- 
 pellable to give evidence upon matters in which they have been judi- 
 cially or professionally engaged, § 859: secrets of state, § 860; 
 proceedings of grand jurors. § 863 ; the evidence of petty jurors when 
 offered to prove mistake or misconduct in the jury in regard to the 
 verdict, § 864 ; evidence which is indecent, or offensive to public 
 morals, or injurious to the feelings of third persons, the parties 
 themselves having no interest in the matter, except what they have 
 impertmently created, § 867. 
 
 Q. 30.— Are there any. and if so, what cases in which more than 
 one witness is required ? 
 
 A— Two witnesses are by statute necessary in treason and mis- 
 prision of treason, § 869. To prove the crime of perjury the oath 
 of one witness is insufficiejit ; it must be corroborated by material 
 and independent circumstances, § 876. In cases of bastardy, a 
 man cannot be adjudged to be the putative father of an illegiti- 
 mate child on the single testimony of the mother ; her evidence 
 must be corroborated in some material particular by other testi- 
 mony, § 881. Where a material fact is directly put in issue 
 by an answer in Chancery, it must be corroborated by additional 
 evidence, § 883. In the Ecclesiastical Courts the testimony of a 
 single witness is insufficient to support a decree, § 883. 
 
m 
 
 238 
 
 H 
 
 KXAMINATION qVESTIONS. 
 
 Q. 31.— What is the meaning cf ante litem motaml— does it 
 mean a suit actually comtneuceil ? 
 
 A.— The term lis motu means tliu commencement of the con- 
 troversy, and not the commencement of the suit, ^ 564. 
 
 Q. 32.— What amount of religious belief is necessary to render 
 a witness competent ? 
 
 A.— A witness is competent to testify, if he believes in the ex- 
 istence of God, and that Divine punishment will be the certain 
 consequence of perjury ; it is not material whether the witness 
 believes that the ijunishment will be inflicted in this world or in 
 the next,— it is enough if he hn« the religious sense of accounta- 
 bihty to the Omniscient Being wiio is invoked by an oath ; § 1252. 
 Q. .33.— What exceptions are there to the presumption that the 
 date of a letter or other writing is correct ? 
 
 A.— There are two exceptions,— the first is, where, in order to 
 prove a petitioning creditor's debt, the assignees put in an instru- 
 ment signed by the bankrupt, which bears date before the act of 
 bankruptcy ; and the second is, where, in petitions for damages on 
 the ground of adultery, letters are put in evidence to shew the 
 terms on which the husband and wife were living before the 
 seduction. There is also a third exception, (though it is not a 
 settled point,) where indorsements made by a deceased obligee on 
 a bond, acknowledging the receipt of interest, are tendered in evi- 
 dence by his assignee, with the view of dcieating a plea of the 
 Statute of LimitatioiiH, set up by the obligor § 137. 
 
 Q. 34.— Is there any and what distinction between secondary 
 and second-hand evidence ? 
 
 A.— Secondary evidence is that which is admissible when 
 primary evidence cannot be produced, as affording the next best 
 proof of the fact in controversy ; second-hand evidence is that 
 which is not within the knowledge of the witness himself, but 
 which he has obtained from the mere word of some other person, 
 and which therefore is inadmissible, as no credit can safely be 
 placed upon a mere assertion by a person not under oath ; Ss 365. 
 507. ' ^s ' 
 
 Q. 35.— Are there any cases in which a defendant is an admissible 
 witness for his co-defendant? 
 
 A.— A def( udant may l)e a witness for his co-defendant, except 
 in crimii \ vmv^ where the indictment is so framed as to give him 
 
TAYLOR ON EVIDENCE. 
 
 i«9 
 
 tarn \ — (JoflS it 
 
 fin admissible 
 
 a direct interest in obtniiiiug the discharge of his co-defendant, as 
 in the case of a conspiiacy where the concurrence of two or more 
 individuals is necessary to constitute the offence, §§ 1217, 122.'). 
 
 Q. 36.— In what cases prior to the Common Law iVocedure'rct 
 was a comparison of hand-writing admissible ? 
 
 A.— Tliere were two cases in which comparison of hand-writing 
 was allowed ; the first was, where other documents, admitted to be 
 genuine, had already been produced as evidence in the cause, the 
 jury were allowed to compare them with the writing in dispute, 
 § 1675 ; the second was, where, in order to raise an inference that 
 a certain document had been written by a party, another im- 
 material document proved to be in his hand-writing was put in 
 evidence, for the purpose of shewing that each paper contained 
 similar specimens of peculiar spelling, § 1677. 
 
 Q. 37 — Does the fact that the issue is on the defendant in all 
 cases entitle him to begin ? If not, state any exception. 
 
 A.— It does not ; where the plaintiff «eeks substantial and un- 
 liquidated damages, he shall honu, , „i,gh the issue be on the 
 defendant, § 353, 
 
 Q. 38.— Where a fact in issue in the cause requires to be decided 
 during the progress of the trial, for the purpose of rendering evi- 
 dence admissible, is it a (luestion for the court ov for the jury • and 
 IS such decision final 1 
 
 A.— Questions respecting the competency or admissibility of 
 evidence are ex >lusively within the province of the court, and when 
 the admissibilu V depends on a disputed fact, all the evidence to 
 prove or disprove that fact must be received by the judge and 
 adjudicated on by him alone, §§ 2, 22. The decision is merely 
 whether there is, prinid facie, any reason for presenting tl e evi- 
 dence at all to the jury, and if erroneous, it may be reviewed by 
 the court above, § 22. 
 
 Q. 39.- If a witness give evidence which may tend to criminate 
 him without claiming the protection of the court, is such admission 
 admissible evidence against him? Does it make any difference if 
 he claim the protection of the court, and is compelled to answer? 
 
 A.— Where a witness voluntarily makes a statement on his 
 examination, such statement may be used afterwards as evidence 
 
 against him, unless he be nrotentpd hv flio <.po«;oi lo _- .c 
 
 some statute, § 821. But where he is compelled to answer he is 
 
"^f 
 
 240 
 
 EXAMINATION QUESTIONS. 
 
 entitled to the protection of tlie court, and his answer should not 
 be admitted as evidence in any future criminal proceedings against 
 him, § 1309. 
 
 Q. 40. — What papers is an attorney justified in refusing to 
 produce under a subpoena duces tecum ? If he refuses and is not 
 compelled by the judge to produce the papers asked for, can the 
 party requiriiig them give secondary evidence of their contents; if 
 not, what further steps must he tn^ce before he can do so 1 
 
 A. — An attorney is justified in refusing to produce all such 
 papers as are delivered to him professionally, or written by him in 
 his professional capacity, § 832. If an attorney refuses to produce 
 such papers under a subpoena duces tecum, the party who requires 
 them may give secondary evidence of them ; but before doing so, 
 he should subpoena the client to whom the papers belong, unless 
 the attorney swear that he refuses to produce them under in- 
 structions to that effect from his client, § 427- 
 
 Q. 4 1 . — State some cases in which a notice to produce is not 
 necessary for the purpose of making secondary evidence admissible ? 
 
 A. — A notice to produce before giving secondary evidence is 
 unnecessary in the following cases : — where the instrument to be 
 proved is itself a notice, § 420 ; where from the nature of the 
 action, or from the form of the pleadings, the defendant must 
 know that he will be charged with the possession of an instrument, 
 and be called upon to produce it, § 422 ; where the opposite party 
 has obtained possession of the document fraudulently or forcibly, 
 or where after action brought, he has received it from a witness in 
 •fraud of a subpoena duces tecum, § 423 ; in the case of an agree- 
 ment between the master of a merchant ship and a seaman, the 
 latter may give secondary evidence of its contents without giving 
 notice to produce, § 424 ; where the adverse party or his attorney 
 has admitted the loss of the document, or where the party in pos- 
 session of the writing might himself give secondary evidence of 
 its contents without producing it, § 425 ; where it is proved that 
 the adverse party or his attorney has the original instrument in 
 court, § 426. 
 
 Q. 42. — Is a witness who refuses to answer a question on the 
 ground that it may criminate him, bound to shew how his answer 
 would have tiiat cueet ; give your reasous. 
 
 A.^He is not ; for if he were required to do so, the protection 
 
TAYLOR ON EVIDENCE. 
 
 241 
 
 sr should not 
 dings against 
 
 . refusing to 
 es and is not 
 I for, can the 
 ' contents; if 
 ) so? 
 
 uce all such 
 en by him in 
 BS to produce 
 who requires 
 'ore doing so, 
 lelong, unless 
 in under in- 
 
 iroduce is not 
 le admissible ? 
 T evidence is 
 rument to be 
 lature of the 
 fendant must 
 n instrument, 
 pposite party 
 y or forcibly, 
 I a witness in 
 ! of an agree- 
 a seaman, the 
 ithout giving 
 r his attorney 
 party in pos- 
 j evidence of 
 s proved that 
 nstrument in 
 
 lestion on the 
 )w his answer 
 
 he protection 
 
 which the rule is designed to a£ford to the witness would be at once 
 anihiliated, § 1311. 
 
 Q. 43._when a written receipt has been given, is oral evidence 
 of payment admissible, and why ? 
 
 A.— In such case oral evidence is admissible ; for oral evidence 
 is not excluded by the existence of written, except in the case of an 
 mstrument which the law requires to be in writing, in the case of a 
 contract which the parties have put in writing, and in the case of a 
 wnting, the existence or contents of which are disputed, and which 
 is material to the issue between the parties, and is not merely the 
 memorandum of some other fact ; §§ 385, 372—380. 
 
 Q. 44.— In what cases, and of what facts, is a dying declaration 
 admissible evidence ? 
 
 A.— A dying declaration is only admissible in the case of homi- 
 cide where the death of the deceased is the subject of the charge, 
 and the circumstances of the death are the subject of the dying 
 declaration, § 644 ; and to make such declaration admissible evi- 
 dence, it is essential that at the time when it was made the decla- 
 rant should have been in actual danger of death, that he should 
 then have had a full apprehension of his danger, and that death 
 should have ensued, § 648. A dying declaration is admissible 
 only as to matters to which the deceased would have been compe- 
 tent to testify, if sworn in the cause ; and so must, in general be a 
 narration of facts only, § 650. 
 
 Q.45.— Is it necessary to object at all, and if so, to what extent, 
 to inadmissible evidence tendered at Nisi Prius in order to be allowed 
 to make the reception of such evidence a ground for a new trial ? 
 
 A.— In moving for a new trial on the ground of the reception of 
 inadmissible evidence, the party will not be permitted to rely on 
 any other objections than those taken at Nisi Prius, § 1681. 
 
 Q. 46.— Mention some cases in which hearsay evidence is admis- 
 sible. 
 
 A.— Hearsay evidence is admissible, 1, in cases relating to mat- 
 ters of public and general interest, where rights are claimed of 
 which the origin is of so ancient a date, and the rights themselves 
 are of so undefined and general a character, that direct proof of 
 
 their exiatennp nnd nntnrp nnnnnf \\a nUfninnf) (H (^ * A\ . n •_, 
 
 „ .... ...,rainea ^^ o-i-i); ^, m cases 
 
 relating to pedigree ; 3, m those relating to ancient possession j 
 
 Q 
 
■n* 
 
 242 
 
 EXAMINATION QUESTIONS. 
 
 4, declarations against interest ; 5, declarations in the course or 
 office or business ; and 6, dying declarations ; § 543. 
 
 Q. 47.— What is the effect, at Nisi Prius, of a party omitting to 
 produce documents under a notice to produce ? 
 
 A. If a party, having received notice to produce documents at 
 
 the trial, omits to produce them, his adversary may give secondary 
 evidence of their contents, § 410. A party declining to produce 
 . documents after notice, cannot subsequently produce and prove 
 them as part of hie own case, § 1615. 
 
 Q. 48. — Mention some cases in which parol evidence is admis- 
 sible to explain, and state whether it is ever admissible to vary a 
 written contract ? 
 
 A.— Parol evidence may be admitted to explain a written contract 
 in the following cases ; 1, where it is written in short-hand, or 
 characters difficult to be decyphered, or where it is written in a 
 language which, as being foreign, obsolete, technical, local or pro- 
 vincial, is not understood by the court, or is capable of bearing two 
 or more interpretations, the testimony of persons skilled in de- 
 cyphering writings, or who understand the language or terms used, 
 is admissible to explain the instrument, § 1059 ; 2, parol evidence 
 will be received of every material fact which will enable the court 
 to ascertain the nature and qualities of the subject matter of the 
 instrument, or, in other words, to identify the persons and things 
 to which it refers, § 1082. Courts of equity will receive parol 
 evidence to va'y a writing where, by some mistake of fact, it speaks 
 . a different language from what the parties intended, and where it 
 would, consequently, be unconscientious or unjust to enforce it ac- 
 cording to its expressed terms, § 1041. The rule excluding parol 
 evidence to vary a written contract does not affect strangers to 
 the instrument, who may therefore give evidence for that purpose, 
 
 § 1051. 
 
 Q. 49. — What is meant by swearing a witness on the voir dire ? 
 
 for what purpose is this done ? 
 
 A.— Where an objection is taken to the competency of a witness, 
 he may be examined as to the facts on which the objection rests, 
 on the voir dire ; beicg sworn to answer " all such questions as 
 the court shall demand of him," § 1242. 
 
 D 50. — ^What is the meanine; of the rule "that the best evi- 
 dence of which the case is susceptible should be presented to the 
 
TAYLOR ON EVIDENCE. 
 
 248 
 
 jury ?" Does this rule apply any, and what test for distinguishinB 
 betveenprimary and secondary evidence? 
 
 A.-This rule does not mean that the greatest amount of evi- 
 dence which can possibly be given should be required ; but its de- 
 sign 18 to prevent the introduction of any which, from the nature 
 of the case, suppose, that better evidence is in the possession of 
 the party ; and thus it distinguishes between primary and secon- 
 dary evidence, the former being that which carries with it no indi- 
 cation that better evidence remains behind, the latter being such 
 as shews that better evidence does exist ; § 363—365. 
 
 Q. 61 -What will amount to such an inducement held out to an 
 accused person as will render his confession inadmissible as evidence 
 against him? and L, whom must it have been held out to have 
 this effect? 
 
 A.-Jny r J -I^e made or advice given to the accused, relating 
 to his escape from the charge against him is sufficient to render 
 his confession inadmissible in evidence against him, as the law can- 
 not measure the force of the influence used, or decide upon its 
 effect upon the mind of the accused, § 803 ; Russel on Crimes, ii. 
 «2b. The mducement must have been held out to the accused bv 
 some one having authority over him in connexion with the prosi 
 cution,--as for instance the prosecutor, or the officer in whose cus- 
 
 8 707 '''7^?^ T""' ""' •" ^" '^'''"''' ^^*^ ^^' t««t sanction, 
 §797 ; and It has been considered by some that an inducement 
 offered by a person having no authority would exclude the confes- 
 sion as evidence, but this is doubted, §799. 
 
 de^ce?^^'"^" ''^** '''*'' °^ ''*'"" '" reputation admissible evi- 
 A.-Reputation is admissible to prove marriage, except in peti- 
 
 ^ons tor damages by reason of adultery, and in indictments for 
 
 bigamy ; m which cases it is received as original evidence and not 
 
 as hearsay ; § 517. [And see answer to Q, 47] 
 Q. 53.-What is the effect of a judgment in rem and a judgment 
 
 inter partes, respectively? j«"gnieni 
 
 A.— A judgment in rem, when tendered in evidence, will bind all 
 persons whomsoever ; and this too, perhaps, although it has not 
 been pleaded ;-b„t a judgment ,-.^.r^ar^« will, in general, bind 
 only parcies ana privies thereto ; and even as against them, it will 
 
244 
 
 EXAMIMA.TION QUESTIONS. 
 
 not bo re^iirded as absolutely conclusive evidence, unless it be 
 specially pleaded by way of estoppel; § 1486. 
 
 Q. 54. — In what cases and against whom are depositions taken 
 on a formal trial admissible as evidence ? 
 
 A. — Where primary evidence cannot be produced, the deposi- 
 tions of a witness on a former trial, in which the party against 
 whom they are used has had an opportunity of cross-examining 
 the witness, mny be given as secondary evidence against either 
 party in a subsequent suit between the same parties, § 434 et seq. 
 Depositions are receivable, like any other admission, against the 
 deponent wnenever he is a party, § 1561. 
 
 Q. 55. — What are the several functions of a judge and of a jury 
 with regard to written instruments produced at a trial ? 
 
 A. — The construction of written instruments belongs to tha 
 judge alone ; but the true meaning of the words in which they are 
 couched, and the surrounding circumstances, if any, are to be as- 
 certained as facts by the jury ; § 36. But the nature of a libel- 
 lous publication is one upon which the jury must decide as a mat- 
 ter of fact, § 38. 
 
 Q. 56. — After how long a period will a deed prove itself? and 
 what is the meaning of proper custody ? 
 
 A.— When a deed is thirty years old it proves itself, its bare 
 production being sufficient, §§ 74, 1643. A deed is considered to 
 come from the proper custody when it is found in a place in which, 
 and under the care of persons with whom it might naturally and 
 reasonably be expected to be found, § 595. 
 
 Q. 57. — What is the effect of not pleading an estoppel when 
 there has been -xn opportunity of so doing ? 
 
 A. — If a party, having an opportunity of pleading an estoppel, 
 does not avail himself of it, the court will conclusively presume that 
 he has intended to waive all benefit derivable from the estoppel, and 
 will leave the jury to form their own conclusion from the facts pre- 
 sented to them in evidence, §§ 78, 1486. 
 
 Q. 58. — Are there any degrees of secondary evidence ? Shew 
 how this necessarily arises from the distinction between primary and 
 secondary evidence. 
 
 A. — All evidence falling short of primary evidence is in its de- 
 
 mary and secondary evidence refers only to the quality, and not to 
 
 
TAYLOR ON EVIDENCE. 
 
 246 
 
 unless it be 
 
 itions taken 
 
 the deposi- 
 irty against 
 s-examining 
 ;ainst either 
 434 et seq. 
 against the 
 
 nd of a jury 
 
 }ngs to the 
 ich they are 
 re to be as- 
 ! of a libel- 
 e as a mat- 
 
 itself? and 
 
 elf, its bare 
 ansidered to 
 ice in which, 
 iturally and 
 
 toppel when 
 
 an estoppel, 
 ►resume that 
 ;stoppel, and 
 he facts pre- 
 
 nce ? Shew 
 primary and 
 
 is in its de> 
 between pri- 
 , and not to 
 
 the strenffth of proof, and therefore evidence, of whatever strength 
 It may be, is secondary if it carries with it an indication that better 
 remains behind, § 365. 
 
 Q. 59— Are there any, and if so, what cases in which parol 
 evidence of intention is admissible to explain a written instrument? 
 
 A.~-Parol evidence of intention will be receivable where extrinsic 
 evidence has shewn that a description in the instrument is alike 
 applicable, with legd certainty, to two or more persons or things, 
 
 Q. 60.— Would the rule that there are no degrees of secondary 
 evidence make a copy of a copy sufficient, in cases where secondary 
 evidence is admissible ? Give your reasons, -^ 
 
 A.— It would not ; for that rule does not make all sorts of evi- 
 dence, however loose, which a party chooses to tender, admissible ; 
 and m the case put. the opponent might object that, assuming the 
 second copy to correspond exactly with the first, the first must be 
 produced and proved to have been compared with the original or 
 otherwise there would be nothing to shew that the second copy 
 and the original were identical ; § 497. 
 
 Q. 61.— When, if at all, do the declarations of co-conspirators 
 become admissible against each other? 
 
 A— Before the declarations of a co-conspirator are receivable as 
 evidence against the other conspirators, proof must, in general, be 
 given sufficient, in the opinion of the judge, to establish primd facie 
 the fact ol conspiracy between the parties, or, at least, proper to be 
 laid before the jury as tending to establish such fact ; § 527. 
 
 Q. 62.— Upon what principle are declavations accompanying 
 acts admissible as evidence ? Is this in reality an exception to the 
 rule rejecting hearsay evidence ? Give your reasons. 
 
 A.— Declarai ions accompanying acts are admissible as evidence 
 on account of their close connexion with the principal fact under 
 investigation ; and by such connexion they are distinguished from 
 hearsay, and are admitted as original evidence ; § 521. 
 
 Q. 63.— What is the rule as to the competency of witnesses, 
 and wherein does the law of Canada diflftr from the law of England 
 in this respect ? 
 
 A.— In England, by recent enactments, witnesses are rendered 
 copipetent in cases where the verdict or judgment in the action 
 would be admissible as evidence for or against him ; and in cases 
 
ne 
 
 EXAMINATION QUESTIONS. 
 
 
 where they were formerly excluded by reaaon of incapacity from 
 crime, or interest — excepting persons under criminal charge, who 
 are precluded from giving evidence for or against themselves, and 
 excepting in the case of suits instituted in consequence of adultery, 
 and actions for breach of promise of marriage ; §§ 1213-1217. 
 Our law differs from the English law in precluding parties to the 
 record, or persons directly interested in the action, from giving 
 evidence on their own behalf ; 16 V. c. 19, s. 1 — U. C. C&n. St. 
 0. 32, s. 5. 
 
 Q. 64. — What writings is a witness not bound tc produce ? 
 
 A. — A witness is not bound to produce writings in his custody, 
 the production of which would tend to render him liable to punish- 
 ment, or expose him to penalty or forfeiture, unless they be of a 
 public nature, or such as are directed by statute to be kept and 
 produced; § 1318. , 
 
 Q. 65. — How far is a witness compelled to a' iwer questions 
 degrading in their nature ? 
 
 A. — Where the transaction to which the witness is interrogated, 
 forms any material part of the issue, he will be obliged to give 
 evidence, however strongly it may reflect upon himself; but there 
 is much doubt whether he can be compelled to answer such ques- 
 tions when they are not material to the issue, but only put to test 
 his character and credit, — formerly it was considered that he could 
 not, but later decisions tend to discountenance the privilege ; §§ 
 1813 et seq. 
 
 Q. 66.— When are admissions evidence ? 
 
 A. — Admissions are receivable as evidence when made by the 
 party against whom they are tendered in evidence, or by some one 
 identified in interest with him, § 669. They are admissible also, if 
 made by strangers to the suit, when the issue is substantially upon 
 their mutual rights at a particular time ; § 688. 
 
 Q. 67. — Distinguish between evidence, competent evidence, and 
 satisfactory evidence. 
 
 A..— Evidence indniea all the legal means (exclusive of mere 
 argument) which tend to prove or disprove any matter of fact, the 
 truth of which is submitted to judicial investigation : competent 
 evidence is that which the law requires . " the fit and appropriate 
 proof in the "articular case ; and sstisfsctop" svidsnce is such as 
 
TAYLOR ON EVIDENCK. 
 
 247 
 
 ipacity from 
 charge, who 
 
 mselves, and 
 of adultery, 
 1213-1217. 
 
 irties to the 
 
 from giving 
 C. Con. St. 
 
 oduce? 
 
 his custody, 
 le to punish- 
 they be of a 
 
 be kept and 
 
 rer questions 
 
 interrogated, 
 iiged to give 
 fj but there 
 r such ques- 
 y put to test 
 hat he could 
 privilege ; §§ 
 
 nade by the 
 by some one 
 3sible also, if 
 intially upon 
 
 ividence, and 
 
 sive of mere 
 
 • of fact, the 
 
 : competent 
 
 appropriate 
 
 ? is such as 
 
 ordinarily satisaes an unprejudiced mind beyond reasonable doubt : 
 §§ 1, 2. 
 
 Q. 68. — What exceptions are there to the rule that communica- 
 tions between attorney and client are privileged ? 
 
 A.— Where it appears from independent evidence that the com- 
 munications were made for a criminal purpose, the attorney will be 
 bound to disclose them, § 833. 
 
 Q. 69.— What are the rules -especting the right to begin and 
 reply ? 
 
 A.— 1. The party on whom the onus probandi lies, as developed 
 
 on the record, must begin ; except where the defendant admits the 
 
 whole pnmd facie case of the plaintiff, in which case he vrill be 
 
 entitled to begin, provided he could not by his pleading have made 
 
 this admission at an earlier period ; and except where the plaintiff 
 
 seeks substantial and unliquidated damages, in which case he shall 
 
 begin, though the general issue be not pleaded, and the affirmative 
 
 lie on the defendant; §§ 350, 353. 2. If the record contains 
 
 several issi-s, and the burthen of proving any one of them lies on 
 
 the plaintiff, he is entitled to begin, provided he will undertake to 
 
 give evidence upon it, § 356. The person who begins has the right 
 
 to reply whenever his adversary adduces evidence to the jury ia 
 
 support of his v^ause, § 361 : on the trial of public prosecutions 
 
 instituted by the Crown, the law officers of the Crown have the 
 
 nght of reply, although no evidence be adduced on the part of the 
 
 defendant, § 362. [See U. C. Con. St. c. 22, s. 209.] 
 
 Q. 70.— What are res gesfce, and how do they affect the admis- 
 sibility of evidence ? 
 
 k.—Res gestce are the matters in controversy. Declarations and 
 acts connected with the res gestce are admissible in evidence, being 
 distinguished from mere hearsay by such connection, § 521. 
 
 Q. 71.— Explain the principles by which the evidence of 
 "exp ;ts" is regulated. 
 
 A.— The evidence of " experts " is admitted in questions of 
 science or trade ; where from the difficulty or impossibility of ob- 
 taining more direct and positive evidence, they are allowed, not only 
 to testify to facts, but to give their opinions in evidence; §§ 1276 
 -et seq. 
 
 'X- » -.-^Distinguijh between the admissibiiUy and the credibility 
 -of a witness. 
 
248 
 
 EXAMINATION QUESTIONS. 
 
 ill 
 
 A. — The former is a question to be decided by the judge alone, 
 the latter is a question for the jury, § 22. 
 
 Q. 73. — How may a discovery at law be obtained from the 
 opposite party ? 
 
 A. — By order of the court or a judge, the plaintiff may with his 
 declaration, and the defendant may with his plea, or either of them 
 by leave of the court or a judge, may, at any other time, deliver to 
 the opposite party or his attorney (provided such part ', if not a 
 body corporate, would be liable to be called and examined as a 
 ^fitness upon such matter) interrogatories in writing upon any 
 latter as to which discovery may be sought, and require such 
 ^larty, or in the case of a body corporate, any of its officers, within 
 ten days to answer the questions in writing by affidavit ; § 482, 
 [See 19 V. c. 43, ss. 1/5, 176— U. C. 'Jon. St. c. 22, ss. 189, 190.] 
 
 Q. 74. — When may parol evidence be gone into, notwithstanding 
 a written agreement exists ? 
 
 A. — When the agreement is in the possession of the opposite 
 party, who refuses to produce it upon notice, § 410 ; when it is in 
 the hands of a stranger who is not compellable to produce it, and 
 refuses to do so, upon being summoned by a subpoena duces tecum, 
 or who being sworn without a subpoena admits that he has the ins- 
 trument in court, § 427 ; when it is collateral to the issue, § 376. 
 
 Q. 75. — Under what general heads is the law of evidence treated 
 of by Mr. Taylor ? 
 
 A. — 1. The nature and principles of evidence; 2, rules govern- 
 ing the production of testimony ; 3, instruments of evidence, 
 
 Q. 76. — When are declarations against interest admissible ? and 
 why? 
 
 A.— When the declarant is dead, when he is shewn to have had 
 a competent knowledge of the facts stated, and when the statement 
 was against his interest — pecuniary or proprietary, §§ 603, 604. 
 Such declarations are admissible as evidence on the ground of the 
 extreme improbability of their falsehood, § 602. 
 
 Q. 77. — Mention some of the matters of which the courts will 
 take judicial notice. 
 
 A. — The courts will judicially recognize the existence and titles 
 of all the sovereign powers in the civilised world which are recog- 
 nized by the government ; they refiQgni?,e the common and statute 
 law, the law of nations, the law and custom of parliament, and the 
 
TAYLOR ON EVIDENCE. 
 
 £49 
 
 privileges and course of proceedings of each branch of the legisla- 
 ture. the prerogatives of the crown, and the privileges of the royal 
 palaces, the maritime law, the ecclesiastical ' iw, the articles of war, 
 royal proclamations, the rules of equity, the doctrines of trusts in 
 some cases, the general practice of conveyancers, the custom of 
 merchants where it has been settled by judicial determinations, the 
 custom or law of the road, rules of navigation ; particular customs 
 tned, determined and recorded in a court are recognised by that 
 court ; the courts will also judicially notice public official seals ; 
 also facts which may certainly be known from the invariable course 
 of nature ; the territorial extent of the jurisdiction and sovereignty 
 exercised de facto by their own government, and the local divisions 
 of their country ; the political constitution of their own govern- 
 ment, and its essential poUtical agents or public officers ; the acces- 
 sion and demise of the sovereign ; the existence of a war in which 
 their country is engaged ; days of special public fast or thanks- 
 giving ; and their own rules and course of proceeding. Chap. II. 
 Q. 78.--In what cases will a leading question be allowed ? 
 A.— Where the witness, by his conduct in the box, obviously 
 appears to be hostile to the party producing him, or interested for 
 the other party, or unwilling to give evidence, the judge will in his 
 discretion allow leading questions to be put to him : if he stand in 
 a situation which of necessity makes him adverse, as if he be the 
 adversary, leading questions may be asked him as a matter of right. 
 A leading question may also be allowed where an omission in the 
 witness' testimony is evidently caused by want of recollection, 
 which a suggestion may assist. §§ 1262, 1263. Upon cross- 
 examination leading questions may in general be asked, § 1288. 
 
 Q. 79— How is the question of a privileged communication 
 affected by the doctrine of Us mota ? 
 
 A— Where the professional adviser is the party interrogated 
 the question is not affected by the doctrine oilis mota, § 834; but 
 the client may be compelled to disclose communications which pass 
 ante litem motam, but not those made post litem motam, § 845. 
 
250 
 
 EXAMINATION QUESTIONS. 
 
 .1 i 
 
 STEPHEN ON PLEADING. 
 
 Question 1.— What is the distinction between a plea in ibate* 
 irent and a plea in bar ? 
 
 Answer, — The former is an answer to the action itself merely, 
 while the latter is a plea to the right of action, 46, 48. 
 
 Q. 2. —If in an action of debt for goods sold or work done, the 
 defendant could shew that the goods were not of the quality 
 ordered, or that the work was not done in such manner as ordered, 
 what should be the defendant's plea 1 Explain your reasons for 
 your answer to this question, and how you prove the sufficiency of 
 the plea. 
 
 A. — The plea should be never indebted; because those defences 
 deny the matters of fact upon which the implied contract declared 
 on would arise, — for in the first instance there is adenial of the 
 sale or delivery of any goods according to the order of the defend- 
 ant, and in the latter case a denial of the performance of any 
 work according to the order given ; 148, 149 ; Cousins v. Paddon, 
 2 C. M. & R. 547 ; Gardner v. Alexander, 3 Dowl. 146 ; Ground- 
 Bell V. Lamb, 1 M. & W. 352. 
 
 Q. 3. — Explain the rule that pleadings must shew authority. 
 
 A. — Where any party has occasion to justify under a writ, 
 warrant, precept or other authority whatever, he must set it forth 
 particularly in his pleading, and shew that he has substantially 
 pursued such authority, Co2. 
 
 Q. 4. — Mention the rules which tend to prevent obscurity and 
 confusion in pleading. 
 
 A. — 1, Pleadings must not be insensible, i. e., unintelligible by 
 the omission of material words, &c., nor repugnant, t. e., incon- 
 sistent with itself, 309 ; 2, pleadings must not be ambiguous or 
 doubtful in meaning ; and when two different meanings present 
 themselves, that construction shall be adopted which is most un- 
 favourable to the party pleading, 310 ; 3, pleadings should not be 
 hypothetical, or in the alternative, 314 ; 4, things are to be 
 pleaded according to their legal effect or operation, 316 ; 5, plead- 
 ings should have their proper commencements and conclusions, 318; 
 
 \j, R pica ui auuacjjUeiir pirauiug wuzv;ii is utux lu post lo u^-js 
 
 altogether, 324. 
 
lea in ibate* 
 
 tself merely, 
 
 rk done, the 
 the quality 
 * as ordered, 
 ■ reasons for 
 ufficiency of 
 
 lose defences 
 ract declared 
 denial of the 
 ' the defend- 
 ;ance of any 
 iS V. Paddon, 
 16 ; Grouud- 
 
 uthority. 
 ider a writ. 
 It set it forth 
 substantially 
 
 bscurity and 
 
 itelligible by 
 , t. e,, incon- 
 .mbiguous or 
 lings present 
 is most un- 
 hould not be 
 8 are to be 
 5 ; 6, plead- 
 lusions, 318; 
 
 w^****^ met t^'k'* 
 
 STEPHEN ON PLEADING. 
 
 flSl 
 
 Q. fi.— What does tiie plea of not guilty, in trespass, put in 
 issue ? 
 
 A.— In trespass, the plen of not guilty operates as a denial of 
 the trespasses alleged, and no more, 155 ; Heath v. Milward, 2 
 Bing. N. C. 98; Browne v. Dawson, 12 A. & E. 624 , Jones v. 
 Chapman, 2 Kxch. 803. 
 Q. 6.— State some of the rules as t shewing derivation of title. 
 ^-—'^' Where a party claims by inheritance, he must in general 
 shew how he is heir, and if he claim l._ mediate, not immediate 
 descent he must shew his pedigree ; 236 ;" 2, where a party claims 
 by conveyance or alienati-jn, the nature of the conveyance or 
 alienation must in general be stated, 236 ; 3, the nature of the 
 conveyance or alienation should be stated according to its legal 
 effect, rather than its form of words, 237 j 4, where the nature of 
 the conveyance is such that it would at common law be valid with- 
 out deed or writing, there no deeds or writing need be alleged in 
 the pleading, though such document may in fact exist ; but where 
 the nature of the conveyance requires at common law a deed or 
 other written instrument, such instrument must be allctreil, 238. 
 Q- 7.— When is duplicity a fault in the declaration ? 
 A.— When the declaration alleges in support of a single demand, 
 several disanct matters, by any one of which that demand is 
 sufficiently supported, 291 . 
 
 Q. 8.— In what order must pleas of different degree be pleaded? 
 and what is the effect of pleading any of them on a defendant's 
 right to plead one prior in degree ? 
 
 A.— Pleas must be pleaded in the following order : 1, pleas to 
 the jurisdiction of the court; 2, pleas to the disability of the 
 person— 1, of the plaintiff, 2, of the defendant ; J, pleas to the 
 declaration ; 4, pleas to the action itself, in bar thereof, 344. If 
 the defendant plead any of them, he is taken to waive or renounce 
 all pleas of a kind prior in the series, 344. 
 
 Q. 9.— What is a new assignment, and in what cases is it 
 necessary ? 
 
 A.— A new assignment is a pleading in the nature of a replica- 
 tion, containing a more definite statement of the plaintiff 's case 
 than is given in the declaration ; and is necessary in cases where, 
 
 "'"^ a;^.<c:a« ixrTiiss in wnich tue declaration is worded, the 
 
 defendant is not sufficiently guided by it to the real cause of com- 
 
m 
 
 ■XAMINATION qUCSTTONS. 
 
 plaint, and is tliercfore led to apply his plea to a difTcretit matter 
 from that which the plui itifFhas in view ; 187, 192. 
 
 Q. 10. — What is the effect of demurring to a pleading as regards 
 the facts stated in the pleading demurred to ? 
 
 A. — The party demurring is taken to admit that the facts 
 alleged in the pleading demurred to are true, 133; Gundry v. 
 Feltham, 1 T. R. 834 ; Tyler v. Bland, !> M. & W. 888. 
 
 Q. 1 1 . — Sliow how liherum tenementum amounts to n good plea 
 in confession and avoidance. 
 
 A. — A plea of liherum tenementum amounts to a good plea in 
 confession and avoidance, because while it admits such a possession 
 in the plaintiff u.-^ would entitle him to maintain the action against 
 a wrong-doer, it asserts a freehold in the defendant with a right 
 to the immediate possession, 241 ; Doe v. Wright, 10 A & E. 763. 
 
 Q. 12. — What construction will he put on the language of a 
 pleading which admits of two constructions ? 
 
 A. — That construction will be put on the pleading which is most 
 unfavourable to the party pleading; 310; Dovaston v. Payne, 2 
 H. Bl. 530 ; Thci-nton v. Adams, 5 M. & S. 38. 
 
 Q. 13. — Is there any, and if so, what class of pleas which 
 neither traverse nor confess and avoid the declaration ? 
 
 A. — Dilatory pleas, 1H3: also pleas in estoppel, 183, and pleas 
 of tender, and payment into court, 186. 
 
 Q. 14. — What is a departure ? and what is the first stage in plead- 
 ing at which it can occur ? 
 
 A. — A departure is when in any pleading the party deserts the 
 ground that he took in his last antecedent pleading, and resorts to 
 another, 327. The replication is the first pleading in which it can 
 occur, 328. 
 
 Q. 15. — In what cases, in pleading a conveyance, should such 
 conveyance be alleged to be in writing ? 
 
 A. — Where the nature of the conveyance requires at common 
 law a written instrument, 238 
 
 Q. 16. — What alteration has been made by the Common Law 
 Procedure Act in new assigning, where several pleas are pleaded to 
 the declaration P 
 
 A. — ^That act prohibits the old practice of new assigning to each 
 
 plcu, uuu provides tnat ici future tiicrc eavi 
 
 Lsc uuC Oil" new assign 
 
 meat, though there be several pleas ; and that the defendant shall 
 
I'rent matter 
 
 p; as regards 
 
 ,t the facta 
 Gundry v. 
 8. 
 a good plea 
 
 ;uod plea in 
 a ))ussesBion 
 ;tiun againat 
 with a right 
 \&E. 763. 
 ingiiage of a 
 
 hich is most 
 V. Payne, 2 
 
 pleas which 
 
 i, and pleas 
 
 age in plead- 
 
 deserts the 
 id resorts to 
 which it can 
 
 should such 
 
 at common 
 
 ommon Law 
 ■e pleaded to 
 
 ning to each 
 : new assign-' 
 'endant shall 
 
 STEPHEN ON PLEaDINO. 
 
 263 
 
 not be at liberty to plcu.l to tlu- cmsos of action newlv nasigno.l 
 any pica which he has aln-ndy pleadtd to the .h clnration (except a 
 plea in denial), unless by leave of the court or ajudpo • 191 rsee 
 U. C. Con. St. 0. 22, ss. 115, 116] " 
 
 Q. 1 7.— Is a plaintiff entitled to judgment non oh^faate veredicto 
 in every case in which the issue fovr.i .;. the defendant is no 
 answer to the declaration? if not, ir what cas-a is he entitled to 
 such judgment ; and what, if any, . nis rem. ly in cases where 
 such issue being found for the defenu,<M he is u^i entitled to judK- 
 raent ? •' * 
 
 A— The plaintiff is entitled to judgment non oUtantr ^unodicto 
 in cases where the pleading which should' have been demurred to 
 discloses facts which shew that the case of the party is incurably 
 bad. and could not be set right by any manner of allegation ; but 
 he IS not entitled where the defective pleading is such that it might 
 be made good by a different manner of pleading: in such cases his 
 remedy is a repleader ; 88. 91 ; Ilex v. Philips, 2 Str. 294 Fan- 
 court V. Bell, 1 Bing. N. C. 668. 
 
 Q. 18.— What is the proper form of traversing, a deed by a 
 party, and by a stranger, respectively; and upon what doctrine 
 does the distinction depend? 
 
 A.— A traverse by a party must be non est factum,— r traverse 
 by a stranger should be non concessit, or non demisit. The reason 
 of the distinction is that the doctrine of estoppel forbids a party to 
 contradict his own deed (which he would in effect do by a plea of 
 non concessit or von demisit), but that d,,(;trine does not affect a 
 stranger. 172. Taylors. Needham, 2 Taunt. 2/8; Morris r. 
 Dimes, 3 Nev. & M. 671. 
 
 Q. 19— What is judgment ot respondeat ouster, and to what 
 class of pleas does it apply ? 
 
 A.— Judgment of respondeat ouster is a judgment for the plain- 
 tiff that the defendant shall answer over, or plead anew to the 
 plamtiff 's action : it is given in the case of an issue of law, arisine 
 on a dilatory plea ; 97. • * 
 
 Q. 20.— When docs a discontinuance take place in pleading ? 
 
 A.— A discontinuance takes place when, upon a demurrer or plea 
 to part only of the declaration, the plaintiff is entitled to sign 
 judgfi;ent of nil dictl in respect of the part unanswered, but 
 demurs or replies to the plea without doing so ; the plaintiff, by 
 
254 
 
 BXAMINATION QUESTIONS. 
 
 not taking judgment as he was entitled to do for the part unan- 
 Bwered, does not follow up his entire demand, and a discontinuance 
 
 ensues, 180. 
 
 Q. 21.— "What is the diflFerence between the old and the present 
 system of pleading as regards profert and oyer ? 
 
 A.— Before the Common Law Procedure Act, it was necessary in 
 pleading a document, to make profert, or a statement in the plead- 
 ing that the party brings the document into court, and thereupon 
 the defendant might crave oyer, that is, to hear the document read, 
 or rather to have an inspection, and might then set it forth in his 
 pleading. By that act profert and oyer a: e abolished ; and a party 
 pleading in answer to any pleading in which any document is men- 
 tioned or referred to is allowed to set it out in his pleading, without 
 oyer. [See U. 0. Con. St. c. 22, ss. 78, 79.] 
 
 Q. 22.— Is the damage in any, and if so, what cases, a material 
 point in issue ? and if so, how is it put in issue ? 
 
 A.— If an action be brought, not for specific recovery of goods, 
 or sums of money, but for damages only, as in covenant, trespass, 
 &c., and if the issue he an issue in law, or any issue in fact not 
 tried by jury, the damages become a material point in issue — 
 for the judgment of the court, in banc, is only that the plain- 
 tiff ought to recover his damages, without specifying their amount : 
 it is put in issue by means of a writ of enquiry directed to the 
 sheriff of the county where the facts are alleged by the pleadings 
 to have occurred, before whom a trial is had to assess the damages ; 
 
 97, 98. 
 
 Q. 23.— What is the method, if rny, at present for taking 
 objection to a pleading which, under the old system, would have 
 been bad on special demurrrr ? 
 
 A.— In such cases the party objecting should apply to the court 
 or a judge to strike out or amend the pleading, 132. [See U. C. 
 Con. St. c. 22, s. 119.] 
 
STATUTES, PLEACmo AND PHAC3TICE — LAW. 
 
 255 
 
 3 part unan- 
 icontinuancfr 
 
 [ the present 
 
 necessary iu 
 in the plead- 
 id thereupon 
 jument read, 
 
 forth in his 
 ; and a party 
 nent is men- 
 ling, without 
 
 ;s, a material 
 
 ;ry of goods, 
 ant, trespass, 
 in fact not 
 it in issue — 
 It the plain- 
 beir amount : 
 rected to the 
 the pleadings 
 the damages ; 
 
 it for taking 
 I, would have 
 
 f to the court 
 [See U. C. 
 
 STATUTES, PLEADING AND PRACTICE-LAW. 
 
 Quesiion L— Within m hat time must a new trial he moved for 
 in criminal cases ? 
 
 Jnswer.— It must be moved for on or before the last day of *ho 
 first week of the term next succeeding the Court of Oyer and 
 Terminer or Gaol Delivery at which the conviction takes place. 
 V. C. Con. St. c. 113, 8. 2. 
 
 ^T.^'^T^^*^ '^ ^^^ '''^® ^'^^ regard to counsel's speeches at 
 Nisi Prius ? 
 
 A.— Upon the trial of any cause the addresses of counsel to 
 the jury are regulated as follows :-the party who begins, or his 
 counsel, m the event of his opponent not announcing at the close 
 of the case of the party who begins, his intention to adduce evi- 
 dence, will be allowed to address the jury a second time at the 
 close of such case, for the purpose of summing up the evidence • 
 and the party on the other side, or his counsel, is then allowed to' 
 open his case, and also to sum up the evidence, if any • U C 
 Con. St c. 22, 8. 209 ; the party who begins has then the right to 
 reply if his adversary has adduced evidence ; Tayl. Evid. § 361 
 In criminal prosecutions instituted by the Crown, the Crown has 
 the right to reply although no evidence be adduced by the 
 defendant ; ib. § 362. 
 
 Q. 3.— When distinct parties to a note or bill are sued in the 
 same action, are they competent witnesses for each other? 
 
 A— When parties are so sued in one action, any defendant 
 shall be entitled to the testimony of any co-defendant as a 
 witness, m case such party so calling him would have been 
 entitled to his testimony had he not been a party to the suit, or 
 mdmdually named in the record. 5 W. 4, c. 1, a. 9— U C 
 Con. St. c. 42, 8, 27. 
 
 Q. 4.— Is probate out of Upper Canada good evidence in the 
 case of a will of realty ; if so, are any and what steps to be taken 
 before using it in evidence ? 
 
 A— By 16 v., c. 19, s. 6,— U. C. Con. St. c. 32, s. 11, where 
 any person dies in any of Her Majesty's possessions out of Upper 
 Canada, having made a wi'11 Biifflc'ent t" n-"" -"-il ^'•*-*-~ -- tt 
 
 ^ - i--c;.i.j (-,. pt|,,7K7 .i\.tEt ^ottiLc; IU Upper' 
 
 Canada, and by which lands in Upper Canada are devised or 
 
EXAMINATION QUESTIONS. 
 
 affected, and such will is duly proved and remains filed in any 
 court having the proof and issuing probate of wills in such place, 
 the probate is made sufficient primd facie evidence of thewUl 
 and its contents, and of the proper execution of it, in Upper Cana- 
 <la. Before using it in evidence one mouth's notice of the intention 
 to do so must be given to the opposite party. 
 
 Q. 5._What is neci ssflry to be stated in the rule msi for a 
 
 new trial ? 
 
 A.— In every rule nisi for a new trial or to enter a verdict or 
 nonsuit, the grounds upon which such rule has been granted shaU 
 be shortly stated therein ; 19 V. c. 43, s. 168-U. C. Con. St. 
 
 c. 22, 8. 231. 
 
 Q. 6.— If a new trial is granted as contrary to evidence, wnat 
 
 is the rule with regard to cosfs ? 
 
 A.— The U. 0. Con. St. c. 22, s. 232, enacts that if a new- 
 trial' be granted on the ground that the verdict is against evi- 
 dence, the costs of the first trial shall abide the event, unless the 
 court otherwise order. Before that enactment, it was usually 
 granted upon payment of costs ; Ch. Arch. 1472. 
 
 Q. 7.— Where a party pleads and demurs to the same pleading, 
 in what order are the issues of law and fact to be disposed of? 
 
 A.— By U. C. Con. St. c. 22, s. 109, the court or judge upon 
 giving leave to a party to plead and demur to the same pleading 
 at the same time, is empowered to direct which issue shall be 
 first disposed of. If no direction be given, it is optional with the 
 plaintiff which he will have determined first ; Ch, Arch. 885. 
 
 Q. 8.— How many days' notice of trial is necessary ? Has 
 there been any change in this respect ? 
 
 A —Eight dayb notice of trial is necessary— the first and last 
 days' being inclusive; U. C. Con. St. c. 22, s. 201. Formerly 
 eight days' notice was requisite in the Superior Courts, and six 
 days' notice in the County Courts, but by that enactment eight 
 days' notice has been made requisite in all the courts. 
 . Q, 9,_At whose instance can a new trial, in criminal matters, 
 
 be granted ? 
 
 ^^ A new trial may be granted in criminal matters, upon the 
 
 application of any person convie^'^d of any treason, felony^ or 
 misdemeanor, before a Court o/ 'i.^er and Termiuor 
 Delivery or Quarter Sessions. 20 V. c. 61, s. 1 — U. C 
 c. 113, s. 1. 
 
 Con. St. 
 
filed in any 
 such place, 
 I of the will 
 Jpper Cana- 
 he inteution 
 
 >le nisi for a 
 
 a verdict or 
 
 granted shall 
 
 C. Con. St. 
 
 idence, wbat 
 
 lat if a new 
 
 } against evi- 
 
 it, unless the 
 
 was usually 
 
 ime pleading, 
 sposed of ? 
 )r judge upon 
 iame pleading 
 issue shall be 
 ional with thr 
 rch. 885. 
 3S8ary ? Has 
 
 > first and last 
 
 il. Formerly 
 
 lourts, and six 
 
 lactment eight 
 
 bs. 
 
 minal matters, 
 
 iters, upon the 
 
 ion, felony, or 
 • _.. n 1 
 
 uuur ur yxauL 
 
 n. C. Con. St. 
 
 STATUTES, PLEADING AND PRACTICE— LAW. 257 
 
 Q. lO.-Where a commission is issued to examine witnesses in 
 itrZZT'' '"' ""' ''' "^'"^" totheinterx.gatorie« 
 
 A -The examination must be proved by an affidavit of the 
 due takmg of such examinatiou sworn before and certified by the 
 mayor or chief magistrate of the city or place where t.e same hal 
 been taken, and must be returned annexed to the commission 
 and such affidavit, to the court from which the commissTonTred 
 clpse under the hand and seal of one or more of the commrsbn: 
 ers^ U. C. Con. St. c. 32, s. 21. See N. E. Prac. 22 
 
 ;:'~7*'^^'' *^^ P^"^^' of a judge at J^isi Prius with 
 regard to adjourning the trial ? 
 
 A ^—^^^^'^^^^ J"dge at the trial of any cause may, when 
 
 deemed nght for the purposes of justice, order an adjou;nre„t 
 
 for such time and subject to such terms and conditions, as to 
 
 costs and otherwise, as they or he may think fit. 19 V c 43 
 
 s. 158-TJ. C. Con. St. c. 22, s. 208. ' 
 
 Q. 12.-ln what cases will an order be granted for the 
 
 inspection of documents in the possession of the opposite party ? 
 
 A.-A party to any suit havmg documents in his custody or 
 
 power relating to the suit, may, upon application by the opposite 
 
 party, be compelled to produce such documents for inspection, in 
 
 all cases m which formerly a discovery might have been obtained 
 
 by bill or other proceeding in equity at the instance of the party 
 
 applying. 16 V. c. 19. s. 8-U. C. Con. St. c. 22, s. 197. 
 
 Q. 13.-What are the proceedinfjs in replevin, and in what 
 cases can the action be brought in this Province ? 
 
 A -Before the writ of replevin issues, an order for the issue 
 ot It must be obtained from the courier a judge upon aa affidavit 
 of the person claiming the property or some other person, shew- 
 mg to the satisfaction ofthe court or judge, the facts of the taking 
 or detention complained ot) the value and description of the 
 property and that the person claiming it is the owner, or that he 
 18 lawfully entitled to the possession of it. But this order may 
 be dispensed with in certain cases. [See answer to question 82.] 
 
 iLl' ^' ' f' IV ^P*''' '""^ °'^^^ ^^'""S granted a writ issues 
 m tbe form A., U. C. Con. St. c. 29, s. 22, upon which the sheriff 
 reolevies t.ha nnnA« u^^ — i!_-f .l_i_ , , ., . , 
 
 , -, , ^, — s — ••' "-""=5 "i=t i-aitun a Dona ol ludemnity in 
 
 treble the value of the property, in the form B., ib, [see answer to 
 
 B 
 
258 
 
 EXAMINATION QUESTIONS. 
 
 question 53,] which bond is assignable to the defendant. After 
 the goods have been replevied, a copy of the writ is served upon the 
 defendant personally, or if he cannot be found, by leaving it at his 
 usual or last place of abode with his wife or some grown person, 
 being a member oi his household or an inmate of such house : the 
 defendant also is summoned to appear within eight days after 
 service, and if he fail to appear the plaintiff may enter an appear- 
 ance for him ; and upon appearance the suit usually proceeds as 
 in ordinary cases, except where the taking is by a distress, .in 
 which case the defendant avows, and to his avowry the plaintiff 
 pleads. See XJ. C. Con. St. c. 29. In this Province replevin 
 may be brought where goods have been wrongfully distrained, or 
 where goods have been otherwise wrongfully taken or detained, 
 in cases in which trespass or trover will lie ; U. C. Con. St. c. 29, 
 
 8.1. 
 
 Q. 14.— When is judgment non obstante veredicto ; and when 
 is a repleader granted ? Has the Common Law Procedure Act 
 made any change with regard to costs on judgment non obstante ? 
 A. — Judgment non obstante veredicto will be given in cases 
 where, though a verdict has been found for the defendant, it 
 appears to the court on retrospective examination of the record, 
 that the cause of action stands confessed by him thereon ; Steph. PI. 
 88 ; Ch. Arch. 1481. A repleader will be granted when after issue 
 joined ana verdict thereon, the pleading is found (upon examina- 
 tion) to have miscarried, and failed to effect its proper object of rais- 
 ing an apt and material question, and one proper to decide the 
 action, between the parties ; Steph. PI. 90. Ch. Arch. 1483. The 
 C. L. P. Act, s. 219— U. 0. Con. St. c. 22, s. 319, enacts, that 
 upon judgment non obstante veredicto, the party against whom 
 judgment is given shall have his costs occasioned by the trial of 
 any issues in fact arising out of the pleading for defect of which 
 such judgment is given. Before that enactment neither Tby 
 was entitled to the costs of the issues ; Ch. Arch. 1483. 
 
 Q. 15. — What is the eltect of a defendant in eject»rienf not 
 appearing at the trial ? 
 
 A. — If the claimant appears and the defendant fails to appear 
 at the trial, the defendant is taken to have admitted the claimant's 
 ^l^jo otid the latter ia entitled to a verdict and to indgment for 
 his costs, without any proof of his title. 19 V., c. 43, s. 237 — 
 U. 0. Con. St., C: 27, s. 24. N. K. Prac, c. 94. 
 
nt. After 
 d upon the 
 ag it at his 
 wn person, 
 house : the 
 days after 
 an appear- 
 proceeds as 
 distress, .in 
 ;he plaintiflF 
 ice replevin 
 [trained, or 
 ir detained, 
 a. St. c. 29, 
 
 ; »nd when 
 •cedure Act 
 t obstante ? 
 en in cases 
 jfendant, it 
 the record, 
 i;Steph.Pl. 
 1 after issue 
 an examina- 
 bject of rais- 
 
 decide the 
 , 1483. The 
 enacts, that 
 ;ainst whom 
 
 the trial of 
 ;ct of which 
 icither I'iy 
 1.83. 
 ectrrient not 
 
 s to appear 
 le claimant's 
 iidcment for 
 1.3/ B. 237— 
 
 STATUTES, PLEADING AND PRACTICE— LAW. 269 
 
 Q. 16.~What changes have recently taken place with regard 
 to the law of vrest ? *^ 
 
 A.— The principal changes with regard to the law of arrest 
 were made by 22 V., c. J)6, which enacted that no person should 
 bo held to bail for less than one hundred dollars; and that no 
 writ oicapia, should issue except upon a judge's order, upon the 
 affidavit of the plaintiff or of some other person shewing a cause 
 of action to one hundred dollars, and stating such facts and cir- 
 cumstances as may satisfy the judge that there is good and pro- 
 bable cause for believing that the debtor, unless fo^^hwitb appre- 
 hended is about to quit r.-^per Canada with int.nt to defraud 
 his creditors generally or the plaintiff in particular. By 22 V 
 c. 33, It 18 enacted that no person shall be arrested for costs, and 
 that no married woman shall be arrested: by that act also arrest 
 under process of the Court of Chancery is restricted as arrest at 
 law la restricted by c. 96. U. C. Con. St., c. 24. 
 
 Q. 17.- Within what time after the date of the first writ of 
 attachment against an absconding debtor must a creditor place h.8 
 attachment m the hands of the sheriff to entitle him to share, if 
 the property of the debtor is inr^fficient to satisfy all demands ? 
 , -"r ^.f *^^ property of the a. jconding debtor is insufficient 
 to satisfy ail demands, none shall share unless their writs of attach- 
 meut were placed in the hands of the sheriff for execution within 
 SIX months from the date of the first writ of attachment. 19 V 
 c. 43. s. 57.— U. C. Con. St., c. 25, s. 31. 
 
 f.i^:.\^'~^°'^ ""^"^ peremptory challenges is a prisoner en- 
 titled to; and what is the right of the Crown in objecting to 
 jurors i JO 
 
 A.-A prisoner arraigned for murder or other felony is entitled 
 to twenty peremptory challenges; a person arraigned for a mis- 
 demeanor is entitled to three. U. C. Con. St., c. 31, ss. 99, 100 : 
 If the officers of the crown challenge any jurors, they must assign 
 a cause certain, the truth of which i« to be tried according to the 
 custom of the court, ih, s. 101. 
 
 Q. 19.— When will lands acquired after the making of ^ wiU 
 pass under it? ^ 
 
 ,„^'T^*'^° ^^^ ^i» (if made by a person dvin^ after f?fli M«r«h 
 
 estlt:??.*"'^ " ^^^'^^ '^ '"y ^""'"^ °^ ^^^^^ °f ^» «»ch "real 
 estate as the testator shall die seised or possessed of, or of any^ 
 
 -•*>^»- 
 
260 
 
 EXiliMINA'i JOX QUESTIONS. 
 
 i 
 
 part or proportion thereof, lands subsequently acquired wiii naas 
 under it. U. C. Con. Stat., c. 82, s. 11. ^ 
 
 Q. 20.— From what time does a Ji. fa. b-nd the property of 
 
 th*? debtor ? 
 
 A.— From the time of delivery to the shenti. for execution. 2L» 
 
 Car. 2, c. 3, s. IG. Ch. Arch. 578. 
 
 Q, 21 How are coisrs taxed where a plaintiff .u s superior 
 
 court leco?' Tv jidgmet;. for an amount within the jun.idictiu.i 
 of an inferic* • >uit •' 
 
 A.— Unless the p''m beforo xhom the case was tried has cer- 
 tiaed for full co^i'.. tie vl^iialiff can only recover the costs which 
 would have been Iv.oirred iu the inferior court ; and so much of 
 the def.:>adiiut"i5 ct-sts as between attorney and client as exceed the 
 costs which he would have incurred in the inferior court, hall be 
 set off against the plaintiff's verdict and costs, and if tii^ defen- 
 dant's costs, so allowed, exceed the plaintiff's verdict and. costs, 
 the defendant may issue execution for the excess. U. C. Con. 
 
 St., c. 22, a. 328. 
 
 Q. 22.— What is the effect of misjoinder of defendants in an 
 action of contract ; has any change taken place in this respect ? 
 
 A.— In case of the joinder of too many defendants in any ac- 
 tion on contract, the court or a judge, if it appears that injustice 
 will not be doi^e thereby, may at any time before the trial or aa- 
 sesament of damages, order the name or names of one or more 
 of such defendants to be struck out, upon such terma as to the 
 court or judge may seem meet ; and in case it appears at the trial 
 of any action on contract, that there has been a misjoinder of de- 
 fendants, such misjoinder may be amended as a variance at the 
 trial, and upon such terms as the court or judge or other presiding 
 officer by whom such amendment is made thinks proper; 19 "V., 
 «. 43, 8. 70— U. C. Con. St., c. 22, s. 68. Formerly, where a 
 misjoinder appeared on the pleadings, either of the de^'ondants 
 might demur, move in arrest of judgment, or bring it of 
 
 error ; and if the objection did not appear on the plep .. ^i. the 
 plaintill" might be n- -. lited at the trial, upon xu i" prove a 
 joint contract. 
 
 Q. 23.— In what case may a writ of summons be cially en- 
 doreed ; and what is the effect of such endoraemenl ' 
 
 A.— Where the defendant resides within the jurisdicr , \ 4 the 
 
STATUTES, PLEADING AND PRACTICE— LAW. 361 
 
 court, and the demand is for a debt or liquidated demand in money 
 with or without interest, ariaing upon a contract express or im- 
 phed. U. C. Con. St., c. 22. s. 15. Upon filing a summons so 
 endorsed ^.th an affidavit of service after a default in appearance, 
 the plaintiff may sign final judgment for a sum not exceeding the 
 sum claimed by the writ, with interest and costs, and issue execu- 
 tion at the expiration of eight days from the last day for ap- 
 pearance; ib., s. 55. Upon such judgment uo proceedings in 
 error or appeal lie, but upon application upon satisfactory affidavits 
 accounting for non-appearance and disclosing a defence upon the 
 merits, the court or a judge will let in the defendant to appear; 
 lb. 65. See Ch. Arch. 176. 
 
 Q. 24.— In what cases may a commission for the examination 
 01 witnesses be issued ? 
 
 A.— Where a party to a suit is desirous of having at the trial of a 
 cause the testimony of any aged or infirm person resident in Upper 
 Canada, or of any person about to withdraw therefrom or who is 
 residing without the limits thereof, a commission may issue to 
 take the evidence of such person. U. C. Con. St., c. 32, s 19. 
 See Ch. Arch. 316. > - ^ 
 
 Q. 25.-What special remedy is provided by a statute in this 
 province against overholding tenants ? 
 
 A.-Where a tenant overholds after the expiration of his 
 term, the landlord may apply to either of the superior courts of 
 common law m term, or to a judge in vacation, upon an affidavit 
 stating the circumstances, upon which the court or judge may 
 order a writ to issue directed to such person as they or he may 
 appoint, upon which such person holds an inquisition by a jury of 
 twelve men. to be summoned by the sheriff, to try whether the 
 person complained of was tenant to the complainant for a term 
 which has expired, and whether he overholds wrongtullv ; upon 
 the return of the writ, the court or a judge may issue a p;ecept to 
 
 the sheriff commanding him to place the landlord in possession; 
 U. C. Con. St., c. 27, ss. 63—73. 
 
 By Stat. 23 V. c. 43. jurisdiction is given to Countv Courts in 
 actions of ejectment brought by landlords against overholding 
 tenants, where the yearly value of the premises, or the rent. dn4 
 not exceed two hundred dollars. ' '~" 
 
 Q. 26.— What causes of action are now permitted to be joined ? 
 
262 
 
 EXAMINATION qUESTIONS. 
 
 
 A. — Causes of action of whatever kind provided they be by and 
 against the same parties and in the same rights ; excepting replevin 
 and ejectment, and causes in County Courts where the causes of 
 action are local and arise in different counties. U. C. Con. St,, 
 c. 22, s. 73. Ch. Arch. 206. 
 
 Q. 27.— What is essential to the validity of a chattel mortgage ? 
 
 A. — A chattel mortgage is absolutely null and void as against cre- 
 ditors of the mortgagor and as against subsequent bond fide pur- 
 chasers for value, unless it be registered within five days* after the 
 ■execution in the offieeof the clerkof the County Court of the county 
 or union of counties in which the mortgagor resides, or if he be not 
 resident in Upper Canada, in which the property is at the time of 
 execution of the instrument ; U. C. Con. St. c. 45, ss. 1, 8, 7. 
 Together with the instrument must be filed an affidavit of execu- 
 tion, and an affidavit of the mortgagee or his agent— if the agent 
 be aware of all the circumstances connected therewith, and be 
 properly authorised in writing to take the mortgage (in which 
 case a copy of the authority must be filed,)— stating "that the 
 mortgagor is justly and truly indebted to the mortgagee in the 
 sum mentioned in the mortgage, that it was executed in good 
 faith and for the express purpose of securing the payment of 
 the money justly due or accruing due, and not for the purpose oV 
 protecting the goods and chattels mentioned therein against the 
 creditors of the mortgagor, or of preventing the creditors of such 
 mortgagor from obtaining payment of any claim against him ;" ih. 
 ss. 1, 2. 
 
 Q. 28.— From what office can writs of summons in local and 
 transitory actions respectively be issued ? 
 
 A.— Where the cause of action is local, the writ issues from the 
 office of the clerk or deputy clerk of a superior court within the 
 proper county or from the county court of that county ; where it- 
 is transitory, the writ issues from the office of the clerk or deputy 
 clerk of a superior court in any county, or from any county court. 
 19 V. c. 43, ss. 6, 7— U. C. Con. St., c. 22, ss. 7, 8. 
 
 • The Queen's Bench hold that the filing of a bill of sale or chattel mort- 
 gage within the five days allowed by the statute has relation to the date 6t 
 the instrument, so as to protect the chattels assigned from the effect of in- 
 termediate writs of execution ; Fceban v. Bank of Toroiito, IS U. C. Q. B, 474, 
 The Common Pleas hold the reverse ; Peehan v. Bank of Toronto, 10 U. 0. 
 0. P. 32. 
 
be by and 
 I replevin 
 causes of 
 Don. St., 
 
 lortgage ? 
 [ainat cre- 
 Jide pur- 
 after the 
 he county 
 he be not 
 le time of 
 1, 8, 7. 
 of execu- 
 the agent 
 I, and be 
 (in which 
 •that the 
 ee in the 
 1 in good 
 lyment of 
 lurpose of 
 rainst the 
 rs of such 
 him;" ih. 
 
 local and 
 
 s from the 
 within the 
 , where it 
 or deputy 
 nty court. 
 
 lattel mort- 
 > the date df 
 eflfect of in- 
 C.Q. 8.474. 
 ito, 10 U. 0. 
 
 STATUTES, PLEADING AND PRACTICE— LAW. 263 
 
 ..f?o" ^^;~^? "° f '^"'**^^° '^'^'°'' ^' ''* "P "^ «°">'no" law in an 
 action of ejectment, or m a case stated for the opinion of the 
 court, without pleadings ? Give your reasons. 
 
 .ntu}^ '^°°nV f'i' '"°°''^ ^' ''* "P '^ ^^''' ^l>«re there are 
 no pleadings. Ch Arch. 995. Neave v. Avery, 24. L. J. C. P. 207. 
 
 i.fl r r "". !''''''' "'^ '^"'*^'^^« jurisdiction in cases of 
 ejectment; Ch. Arch., 974 ; Thrustoutt,. Shenton lOB. & C 110 
 
 .. aJ rY^f '" *^' '^''^ °^ ^^' ™*''"^g« °f «» ^o'aa^ plaintiff 
 or defendant, during the progress of the suit ? 
 
 A.-By 19 V. c. 43, s. 215~U. C. Con. St. c. 22, s. 144 
 It .8 enacted that marriage of a woman plaintiff or defendant', 
 shall not cause the action to abate, (as it would have done in the 
 caseof a woman plaintiff before that enactment; Ch. Arch. 1504) • 
 but the action may notwithstanding be proceeded with to judg- 
 ment ; and such judgment may be executed against the wife alone. 
 
 bLwTT^T Z "^^ °^ '''''''' J"^^'"^"* "^^y be obtained 
 against husband and wife ; if judgment be for the wife, execution 
 may be issued by the authority of the husband without any writ of 
 revivor or suggestion. 
 
 th?'JklY^^\'' ^^""^'"^ '^^^^^'^ '^b>«* *o arbitration, what ia 
 the method of enforcing the award ? 
 
 vel-j'^^" successful party may enter up judgment upon the 
 verict as awarded, and issue execution in th: ordinary way • Ch 
 Arch. 1630 : but if the award be not made until afterVe e^pL.' 
 tion of the time when judgment may be entered (the fifth day of 
 the term following the trial), the submission must be made a rule 
 
 Pri! E. 36 65 ^ ""^ '' '°*"'''^' ^'''"' "^ ^"'''"' ^ ^- ^• 
 
 W f -^i^^^^/^l^at time must a rule enlarged from a previous 
 term be mentioned to the court to prevent its lapsing ? 
 A.-A11 enlarged rules must be drawn up for the first day in 
 
 «n,2"w'"~^''T^'* T" ''° *^^ ^°'''^ or a judge make a compul- 
 80^ reference to arbi. .ation, and at what period of a suit ? 
 
 A.~In cases where the matters in dispute consist wholly or in 
 part of matters of mere account, which cannot conveniently be 
 *«" V-T J' """"'"•> "^>'' " compulsory reference of such matters 
 to arbitration may b. made. This may be done at any time after 
 the wnt has issued. U. C Con. St. c. 22, s. 158. 
 
S64 
 
 ■ZAIaiJtATIOIf qUKSTIONB. 
 
 ill 
 
 Q. 84 In wiiat oases is a sheriff entitled to an interpleader ? 
 
 is he bound to make any and what enquiry into the nature of the 
 claim set up ? 
 
 \.— Where any claim is made to . j gouab or ohnHole taken 
 or intended to be taken under an attachment against an abscond- 
 ing debtor, or in execution, or to the proceeds or value thereof, by 
 any pur.inn other than the person against whom the writ issued, 
 the sher if may apply to the court from which the process issued, 
 or to any judge having jurisdiction in the case, to grant an inter- 
 ple;.dor summons; U. C. Con. St. c. 30, s. 8. The sheriff, before 
 he malsos the application, is bound to inquire of the nature of the 
 claims set up, and to ascertain whether the execution creditor 
 submits to, or intends to contest them ; for if it appear to have 
 been brought before the court witlu at reasonable cause, the 
 sheriff may be ordered to pay tlie costs ; Ch. Ai-ch. 1341 ; se" 
 Bishops V. Hinxmau, 2 Dowl. 166. 
 
 Q, 35.— Ha. there been any statutory alteration with regard to 
 coats where judgmpnt is arrested ? 
 
 A. — Formerly when judgment was arrested, each party paid 
 his own costs; Ch. Arch. 1486. By 19 V., c. 43, s. 219— 
 U. C. Con. St. c. 22, s. 319, itir enacted that the court shall adjudge 
 to the party against whom judgment is 'iven, the costs occasioned 
 by the trial of any : 'es in kit arisi? out of the pleading for 
 defect of which judgi^.tnt is given, and upon which such party has 
 succeeded. 
 
 Q. 36.— Wh *^ is thr ■' .'se under the Common Ij^w Procedure 
 Act for compelling a plaintiff to proceed 'o trial ? 
 
 A. — Where issue has been joined, but the pmintiff negl:^>.8 to 
 bring it to trial in the following cases, \ ' —in town causes where 
 issue is joined in, or in the v;. ion ^ fore Hilary, Trinity or 
 Michaelmas term, and he plaint: jgi 3 to bring the isue to 
 trial at . r before the aecond assi/ foil, ng such term, (,/- if the 
 issue be joined iu, or in the vacation before Easter term ad if 
 the plaintiff neglects to bring the issue to trial at or before the 
 first assizes thereafter ; and in country causes where issue is joined 
 in, or in the vacation before Hilary or Trinity term, and the 
 plaintiff neglects to bring the issue to trial before the second 
 asaizea following such term, or if issue be joined in, 05 in the 
 vacation before Easter or Michaelmas term, and the plaintiff 
 
ierpleader ? 
 ture of the 
 
 H.ele taken 
 an abscond" 
 ) thereof, by 
 writ isaued, 
 icess issued, 
 it an intcr- 
 leriff, before 
 ature of the 
 ion creditor 
 ear to have 
 cause, the 
 . 1341; se** 
 
 ith regard to 
 
 I party paid 
 3, 8. 219— 
 shall adjudge 
 a occasioned 
 pleading for 
 ch party baa 
 
 vr Procedure 
 
 [ negl:;.Ls to 
 causes where 
 y, Trinity or 
 the -tsue to 
 rm, (.,' if the 
 term ad if 
 ir betore the 
 ssue is joined 
 )rm, and the 
 e the second 
 in, ox in the 
 the plaintitf 
 
 8TATUTKS, PLKADIJrO AND PRACtlCE—LAW. 285 
 
 neglects to bring the issue to trial at or before the first assizes 
 after such tenn,-or in cases in the County Court, if tho plaintiff 
 neglects to bnng the issue to trial at the first sittings after issue 
 
 joined.-the defendant may give the plaintiff twentv days' notice 
 to bring the issue to trial at the assizes or sittings'next after tho 
 oxpiration of the notice; and if the plaintiff does not then 
 proceed to trial, the defendant, upon entering a suggestion of the 
 facts, may sign judgment for his costs ; TJ. C. Con. St c 22 
 8. 227. ■ ' 
 
 Q. 87.— What is the distinction between an avowrv and a coff- 
 nizan .'9 P ' * 
 
 A.— An avowry is where the defendant in replevin sets up right 
 or title m himself, -a cognizance is when he alleges the right or 
 title to be in another person, by whose command he acted ; Stenh 
 Pi 169 (p.) ^ 
 
 (i 88.-~What is necessary in dower to entitle the plaintiff to 
 »co,f costs? ^ 
 
 A.—Posts are allowable to the demandant where a demand in 
 wntm; .. been made of the dower claimed from the tenant one 
 montli before a on brought, and if the action be brought within 
 a year from si. mand ; unless it appear that the tenant offered 
 to assign the dower demanded before action brought. 13 & 14 
 V. c. 58, s. 6~I7. C. Con. St. c. 28, s. 7. 
 
 Q. 89.— At what period of a suic can a commission be obtained 
 for the examination of witnesses ? 
 
 A.— In general the application cannot be made until after issu^ 
 joined. Mondell v. Steele, 8 M. & W. 300 ; 9 Dowl. 812 ; but this 
 pule may be and often is relaxed where a case of necessity is made 
 out, Fyiiney v. Beasley, 20 L. J. (Q. B.) 395 ; the application 
 may be refused if not made within a reasonable time after issue 
 joined. Ch. Arch. 317. 
 
 Q. 40.— What is the effect of a plaintiff omitting to endorse 
 his wnt specially, when he might have done so? 
 ^ A.— He will not be entitled to the costs of the declaration upon 
 judgment being signed f(Jr want of a p], a, or to more costs than 
 rf e nad made such special end -rsemeut, and signed judgment 
 for non-appearance ; 19 V., c 43, a. 61 : U. C. Con. St., c. 22. 
 B. 57 ; Ch. Arch. 178, 940, 
 
 Q. 41.— What is the effect of suing the different parties to the 
 same note or bill in different actions ? 
 
M6 
 
 EXAMINATION QUESTIONS. 
 
 a 
 
 
 A. — If Boveral Huitti bo brought on one' instrument against the 
 different parties to it, there shaJI be collected or received from the 
 defenduutd the costs taxed iu one suit only, at the election of the 
 plaintiff, and in the other suits the actual diubursements only shall 
 be collected or received from the defendant ; 6 W. IV. o. 1. s. 1, 
 — U. C. Con. St. c. 22, 8. 32£^, and c. 42, s. 35, 
 
 Q. 42. — Where two arbitrators are appointed, one by each 
 party, and by the terms of the submission the two are to choose a 
 third arbitrator, but are unable to agree upon one, how can such 
 third arbitrator be appointed ? 
 
 A. — Any party to the Bubmission may, upon default of the 
 arbitrators to appoint such third aibitrator, serve them with a 
 written notice to make the appointment ; and if they fail to do so 
 within seven clear days after service of the notice, such party 
 may apply to any judge of either of the Superior Courts of Law, 
 or of the Court of Chancery, or to a County Court judge if the 
 Bubmission be made in a cause in his County Court, to appoint a 
 third arbitrator, and such judge may, upon summons to be taken 
 out by the party, make the appointment ; U. C. Con. St. o. 22t 
 8. 168. 
 
 Q. 43 — Is there any, and if so, what difference, between the 
 effect of a nolle prosequi entered before and after judgment ? 
 
 A. — If a nolle prosequi be entered before judgment, it is no bar 
 to a future action for the same cause, except where it is entered 
 against one of several defendants, and where, from the nature of 
 the action, judgment and execution against one is a satisfaction of 
 all the damages sustained by the plaintiff; Cooper v. Tiffin, 8 
 T. E. 511 ; 1 Wils. 90 ; 1 Saund. 207. If entered after judgment 
 it operates as a retraxit, and bars any future action for the same 
 cause; Bowden v. Horn, 7 Bing. 716. Ch. Arch. 1442. 
 
 Q. 44. — What facts must a sheriff shew to entitle him to 
 interplead ? 
 
 A.— He must shew that the goods have been seized by him 
 under execution, that they are in his hands and that a claim has 
 been made in respect of them by some third person ; Ch. Arch. 
 1340 ; Northcote v. Beauchamp, 1 M. & Sc 158. 
 
 Q. 45. — In what cases can damages be recov ed in an action 
 of dower t 
 
 A. — Damages may be recovered where the tenant has refused 
 
8TATUTK8, PLEADING AND PRACTICE LAW. 
 
 a67 
 
 to asHign the dower, to the value of the dower from the time the 
 nght accrued until it is assigned ; Park on Dower, 301. 
 
 Q. 46.- Wh.it is the course of proceeding for the purpose of 
 garnishing a debt .' 
 
 A -The judgment creditor (either before or after examination 
 of the judgment debtor as to debts due to him) makes an ex parte 
 application to a judge, upon an affidavit stating that judgment has 
 been recovered and is still unsatisfied, and stating to what amount, 
 and that the garnishee is indebted to the judgment debtor and is 
 withm the jurisdiction, (and also stating the nature of the debt 
 to be garnished, and that af,.fa. has been issued and returned nulla 
 bona, or lacts sufficient to show to the court or judge that if a 
 Ji.fa. had been issued it would have been so returned), for an at- 
 taclung order by which the debt is bound in the hands of the gar- 
 mshee from the time of service of it upon him ; by the same or a 
 subsequent order, the garnishee is ordered to appear before the 
 judge or any officer of the court appointed by him, to shew cause 
 why he should not pay over the debt to the judgment creditor, or 
 so much of It as may be sufficient to satisfy the judguiciit debt- 
 m cases m the Superior Courts where the amount to be garnished 
 IS withm the jurisdiction of a County or Division Court, the or- 
 der to appear is to appear before the Judge of the County Court 
 or Division Court of the county within which the garnishee 
 resides ; if the garnishee fail to appear to shew cause, or if he 
 do not forthwith pay the debt into court, or do not dispute the 
 debt, execution may be immediately issued ipon a judge's 
 order for the amount of the debt, or a sufficient part of it to 
 satisfy the judgment debt. If the garnishee dispute the debt 
 upon obtaining an order of the judge to that effect, the judgment 
 creditor may proceed against the garnishee, by writ calling upon 
 him to shew cause why there should rot br. execution against him 
 tor the debt, or so much of it as may be sufficient to satisfy the 
 judgment debt, and costs; upon which writ the proceedings are 
 similar to the proceedings upon a writ of revivor. U C. Con 
 St., c. 22, 8. 288 ei seq. 
 
 Q. 47.— Within what time must a defendant appear in an 
 action of ejectment ? 
 
 A, — Within sixt' II dava aftor aonn'^o />*" ♦•h^ ir-Ji- TT p r^- 
 
 St. c. iS7, 8. 2. TL.a is exclusive of the day of service, but inclu- 
 sive of the day of appearance. 
 
 ' ' i 
 
268 
 
 EXAMINATION QUESTIONS. 
 
 i'M 
 
 ■■Sip ; . 
 
 '- 
 
 ^BB'^i 
 
 1 
 
 ^W« :. 
 
 
 
 
 Q. 48. — What instruments are the proper subjects of registra- 
 tion under the registry laws of Upper Canada ? 
 
 A. — 1, Deeds, conveyances and assurances of or affecting in 
 law or in fequity lands in Upper Canada, subsequent to the grant 
 from the Crown. 2, Powers of attorney under which any such 
 deed, conveyance or assurance has boen executed. 3, Wills and de- 
 vises of or affecting lands, after the testator's death. 4. Decrees of 
 foreclosure, and all other decrees affecting any title or interest in 
 land. 5, The filing of a bill or taking of proceedings in Chancery, 
 or of a County Court on its equity side, whereby any title or 
 interest in lands in Upper Canada may be brought in question. 6, 
 Satisfaction of mortgages. U. C. Con. St. c. 89, s. 17. 
 
 Q. 49. — Where a ca. re. has been obtained against a defendant, 
 is anything further necessary to entitle the plaintiff in the same 
 cause subsequently to issue a ca. sa 1 
 
 A. — In such case it is no( necessary before issuing a writ of ca, 
 sa. to obtain a judge's order or file any further or other affidavit 
 than that upon which th« order authorizing the defendant's arrest 
 was obtained in the first instance ; U. C. Con. St. c. 24, s. 12. 
 
 Q. 50. — In what case is attachment for contempt abolished ? 
 
 A. — Process of contempt for non- payment of any sum of mo- 
 ney, or for non payment of costs, payable by decree or order of 
 the Court of Chancery, or by any rule or order of the Courts of 
 Queen's Bench or Common Pleas, or of a judge thereof, or by 
 any decree, rule or order of a County Court or a judge thereof; 
 TJ. C. Con. St., c. 24, s. 13. 
 
 •Q,. 51. — What is the effect of pleading a plea on equitable 
 grounds without leave of a judge ? 
 
 A. — Wher3 a plea on equitable grounds is pleaded with other * 
 pleas without leave, interlocutory judgment may be signed against 
 such plea; Watt v. George, U. C. L. J., April, 1857. 
 
 Q. 52. — In what may the performance of conditions precedent 
 be now stated in pleading ; and how must the performance-be 
 traversed by the opposite party ? 
 
 A. — The performance of conditions precedent may be averred 
 generally ; but the opposite party shall rot deny such performance 
 generally, but shall specify in his pleading the condition or con- 
 ditions 'nrecedent the nfirformance of which hp intends to content : 
 19 v., c. 98, s. 106— U. C. Con. St. c. 22, s. 80. 
 
 
of registra- 
 
 affecting in 
 ;o the grant 
 h any such 
 T\\h and de- 
 . Decrees of 
 interest in 
 n Chancery, 
 my title or 
 uestion. 6, 
 
 r 
 
 El defendant; 
 in the same 
 
 a writ of ca, 
 her affidavit 
 lant's arrest 
 24, s. 12. 
 bolished ? 
 sum of mo- 
 I or order of 
 le Courts of 
 ereof, or by 
 ige thereof; 
 
 jn equitable 
 
 d with other » 
 gned against 
 
 Ds precedent 
 :formance,be 
 
 y be averred 
 performance 
 ition or con- 
 3 to content : 
 
 
 STATUTES, PLEADING AND PRACTICE— LAW. 269 
 
 Q. 53.— What are the usual conditions in a replevin boud ? 
 
 A.-The conditions are that the plaintiff shall prosecute his 
 suit against the defendant for the taking or detention complained 
 of, with effect and without delay, and that lie will make a return 
 of the property if a return be adjudged, and that he will pay such 
 damages as the defendant shall sustain by the issuing of the writ 
 of replevin, if the plaintiff fails to recover .judgment, and that he 
 will observe, keep, and perform all rules and orders made by the 
 court m the suit ; U. C. Con. St. c. 29, Form Ji ; 23 V. c. 45. 
 
 8« D» 
 
 Q. 54— What must a judge certify to entitle plaintiff to full 
 costs in an action of trespass where the verdict is for less than 
 forty shillings ? 
 
 A.— The judge must certify on the back of the record that the 
 action has really been brought to try a right besides the right to 
 recover damages for the trespass or grievance complained of, or 
 that the trespass or grievance in respect of which the action was 
 brought was wilful and malicious ; 19 V., c. 43, s. 312— U C 
 Con. St. c. 22, s. 324. ' ' 
 
 Q. 55.— Mention some pleas which may be pleaded together 
 without leave. 
 
 ^ A.— A plea denying any contract or debt alleged in the declara- 
 tion, .1 plea of tender as to part, a plea of the statute of limita- 
 tions, set off, discharge of the defendant under any Bankrupt or 
 Insolvent law, plene adminisfravit, plene administravit pmier, in- 
 fancy, coverture, payment, accord and satisfaction, release,' not 
 guilty, a denial that the property any injury to which is complain- 
 ed of IS the plaintiff's, leave and license, son assault demesne; 
 U. C. Con. St. c. 22, s. 112: also a plea containing a defence 
 arising after action, and pleas containing defences arising before 
 action ; N. E. Plead. 22. 
 
 Q. 56.— What is the effect of a garnishee order attaching a 
 debt before an order to pay over is made ? 
 
 A.— It binds the debt due from the garnishee in his bands • 
 U. C. Con. St. c. 22, s. 289. 
 
 Q- 57.— What are the exceptions to the statut ^n-y prohibition 
 against a person insolvent, or on the eve of insolvency making a 
 transfer of his property t 
 
 A — ^A transfer of his property ahall not be deemed fraudulent 
 
270 
 
 EXAMINATION QUESTIONS. 
 
 and void if made by him more than three months before the filing 
 of his petition, and not with the view and intention of petitioning 
 the court for protection from process ; 8 V. c. 48, s. 27 — U. C. 
 Con. St c. 18, 8. 57. 
 
 Q. 58. — In an action of slander where the plaintiff recovers 
 less than 40s., what costs can he recover without a certificate, and 
 ■what must a judge certify to entitle him to recover more? 
 
 A. — He can recover no costs unless the judge certify that the 
 slander, in respect of which the action is brought, was wilful and 
 malicious ; U. C. Con. St. c 22, b. 324. 
 
 Q. 59.— What objections can a defendant take to an award 
 upon a plea of nul tiel award ? 
 
 A. — A plea of nul tiel award to an ordinary action on award, 
 simply puts in issue the fact of the making of the award : if 
 pleaded to an action on a bond with a condition to abide by an 
 award, it raises the question of the validity of the award ; if 
 pleaded to a declaration which avers that an award was made of 
 and concerning the premises, it puts in issue the fact of an award 
 being made respecting all the matters referred, but does not raise 
 the question of validity ; Tayl. Evid. § 272. 
 
 Q. 60. — How many years' arrears of interest is a mortgagee out 
 of possession entitled to recover ? 
 
 A. — He can only recover six years' arrears ; except in the case 
 of a subsequent mortgagee when a prior mortgagee or other incum- 
 brancer has been in possession or in receipt of the profits, who 
 may recover the arrears of interest which accrue due during the 
 whole time that such prior mortgagee or incumbrancer remains 
 in possession or receipt; 4 "W. IV. c. 1, s. 45 — U. C. Con. St. c. 
 88, ss. 19, 20. 
 
 Q. 61. — How many years' arrears of dower are recoverable in 
 Upper Canada ? 
 
 A.— Six years'. U. C. Con. St. c. 88, ss. 18, 19. 
 
 Q. 62. — If a mortgagee dies, who can convey the legal estate 
 upon the mortgage debt being paid off ? 
 
 A. — By U. C. Con. St. c. 87, s. 5, the executor or administra- 
 tor of the mortgagee is empowered to convey the legal estate, 
 when such executor or administrator is entitled to the money 
 secured by the mortgage, or has assented to a bequest thereof, or 
 has assigned the mortgage debt. 
 
;o an award 
 
 icoverable in 
 
 STATUTES, PLEADING AN' PRACTICE-LAW. 271 
 
 Q. 63— If the defendant in an action of eiectmpnf ^n»o ^ 
 3^^ at the t™,, what . oeces^ar, to entit.f^Tpltff t^l 
 
 A.-If the plaintiff appears at the trial, and the defenr],mf 
 does not appear, the plaintiff shall be entitled to recover So!f 
 any^proof of hia title ; 19 V. c. 43, s. 237-F. C cTst c 27^ 
 
 Q. 64.— When will a devise of lands by a tenant in ft.. .• i 
 without words of inheritance, carry the fee ? ""^^'' 
 
 A.— By4W.IV.c. 1.S.50-U. C.Con. St c S2 « lo i 
 ^^ is devised, it shall be considered that the dw L^^^^^^^^^^^ 
 devise all such estate as he was seised of in the land u?*^ > 
 appears on the face of the will that he intended tlVet; a 
 less estate than he was so seised of. ^ * 
 
 Q. 65.-HOW must a will of lands be attested ? 
 
 A.— A will of lands must. by4WlVp1aSi rr^^ 
 St. 0. 82, s. 13, be executed in the p e e„c e of „!J~« f^^ 
 twoor„„,ewitae,se,,who „u,t subj" ti'^ZTt^L 
 
 woi ■:dLr;;hXTe7.rtr.r°'" '''^" "■■'^-' 
 
 tenant, in colon, how wi^f th; wt rreTL*'""'"' °' 
 
 =n,trr.%i--^^^^^^^ 
 
 - t™.es a. e.p.., e.cepte/-lTt°C^ ^^S 
 
 Q. 67.-Hon^ do relatives of the half blood take by descent P 
 A.— Eelatives of the half hln^^ *-„i u ^ ' aescent r' 
 
 after relatives in .he 1„: de ' e, "the"' IT"^; °"' "' °*' 
 «sue, who,., fhe eommoranceZ ,. T''*,'""'* '"'<' *eir 
 
 common ancestor whet 21 I' "' "' '"'' "''""• *" 
 
 4.tt J:; o^l^ittTittr::;!:^- - •"*- 
 
272 
 
 EXAMINATION QUESTIONS. 
 
 liitj 
 
 Q. 69. — Mention some causes of action in which money cannot 
 be paid into court. 
 
 A. — Money cannot be paid into court in actions for assault and 
 battery, false imprisonmemt, libel, slander when not within the 
 Gfth section of the Act respecting libel and slander (U. C. Con. 
 St. c. 103), malicious arrest or prosecution, criminal conversation, 
 or debauching of the plaintiff's daughter or servant ; U. C, Con. 
 St. c. 22, a. 99. 
 
 Q. 70. — Where the time for making an award is enlarged by 
 judge's order, and no time is specified in such order, for how long 
 a time is the enlargement ? 
 
 A.— Where no period of enlargement is stated in the order it 
 is deemed an enlargement for one month ; TJ. C. Con. St., c. 22, 
 s. 172. 
 
 Q. 71. — What is the efifect of a creditor obtaining judgment 
 against bis debtor as an absconding debtor, where it afterwards 
 appears to the court that such debtor was not an absconding 
 debtor ? 
 
 A. — The defendant will recover his costs of defence ; and the 
 plaintiff will, by rule of court, be disabled from issuing execution 
 for the amount of his verdict, unless it exceeds the defendant's 
 costs, and then only for the excess : if the defendant's costs 
 exceed the verdict, he will be entitled to have execution for the 
 balance after deducting the amount of the verdict. U. C. Con. 
 St. c 25, 8. 20. 
 
 Q. 72. — What is the course to be pursued when a plaintiff dies 
 during the progreHS of a suit ? 
 
 A. — If there be two or more plaintiffs, and the cause of action 
 survive to the others upon the death of one of them, the death 
 should be suggested on the record, upon which the action will 
 proceed at the suit of the survivors : if a sole plaintiff die, his 
 legal representative may, by leave of the court or a judge, enter 
 a suggestion of the death, and that he is the legal representative, 
 and the action shall thereupon proceed : if such suggestion be 
 entered before trial, the truth of it shall be tried. TJ. C. Con. 
 St. c. 22, 88. 1G2, 133. 
 
 Q. 73. — In what cases can the court or a judge direct that a 
 plaintiff shall be at liberty to proceed against an absent defeud- 
 
 snt 
 
 rviiauit; 
 
 t his haviag eat-ered as sppc-",: 
 
 
noney cannot 
 
 STATUTES, PLEADING AND PRACTICE— LAW. 273 
 
 whtr^^''' i^"^ 'n "''''^'^ *^'* "^^''^ ^« « ««"«« of action 
 which arose ,n Upper Canada, or in respect of a breach of a con^ 
 
 tract made therein, and that the writ has been personally served 
 
 or that reasonable efforts have been made to effect personal serTce' 
 
 ^d that It came to his knowledge, and either that the defendant 
 
 wilfuUy neglects to appear, or that he is living out of Up^r 
 
 Canada in order to defeat or delay his creditors. U. C. Con St. 
 
 «^"/^'I^*'*' 'V^^ ^*'''"^*^ ^"""'■'"'''^ ^y « t^»ant who is 
 TllnZd ? ""' ^' ^^"''""^' ^' ^""^^^ " '-''^ ''^ -- *<> 
 A.-He forfeits to his landlord -the value of three years' im. 
 proved or rack rent of the premises, which may be recovered in 
 any court of common law having jurisdiction for the amount; 
 V. L. Con. St. c. 27, s. 50. 
 
 wit^esItT^'"" ^'' ''' ^'''°°' ^"'''''*'^ '" " ^"^* ^■^'"^««^'^^« ^ 
 
 nfff 'T^^ ^' •?• ^''°' ?*• '• ^'^' ''• ^' ^' '' '' ^°^«*«d that no person 
 offered as a witness, shall be excluded from giving evidence bv 
 
 enabled to call his opponent as a witness, upon serving him with 
 ^.ubp^na, or gmng due notice of his intention to examine him. 
 ay 8. 5, It 18 enacted that, unless called by the opposite party a 
 person cannot be a witness who is a party to the suit, individuaW 
 named in the record, or a claimant or tenant of premises sought to 
 be recovered in ejectment, or the landlord or other person in 
 whose right any defendant in replevin makes cognizance, or anr 
 beneficial plaintiff or defendant, or the huP.baud or wife of any 
 such. By the same section, the wife of a party to a suit is disa- 
 Wed from being called as a .r>reP. by the opposite partr. 
 Where a party to the suit i. cali.d as a witness by the on 
 posite party, there is much d.c.bt «^ to how far he is a comne 
 tent witness ; the Court of f-?.een^s Bench has decided that he 
 can only give evidence touching points upon which he is examined 
 by the party calling him, and that the nross-examination must be 
 restricted to those points; the Court of Common Pleas holds the 
 
 uTc. a R Ma^"'' '' "• '• ^ ^- ''' ■' ^^^^^«" "• '^-^' 
 
 Q. 7o..-iu what cases can the court or a judge direct that a 
 
 S 
 
274 
 
 EXAMINATION QUESTIONS. 
 
 
 % m 
 
 plaintiff shall be at liberty to proceed against an absent defend- 
 ant without his having entered an appearance ? 
 
 A. Where a summons has been issued against a British sub- 
 ject residing out of Upper Canada, the court or a judge may di- 
 rect that the plaintiff shall be at liberty to proceed, without ap- 
 pearance having been entered by the defendant, upon being satis- 
 fied that there is a cause of action which arose in Upper Canada, or 
 in respect of the breach of a contract made therein, and that the 
 writ has been personally served on the defendant, or that reason- 
 able efforts have been made to effect personal service upon him, and 
 that it came to hie knowledge, and either that he wilfully neglects 
 to appear to the writ, or that he is living out of Upper Canada in 
 order to defeat or delay his creditors ; 19 V., c. 43, s. 35|; U. C. 
 Con. St., c. 22, s. 44. 
 
 Q. 77. — In what, if any, cases of ejectment can mesne profits 
 be recovered at the trial of the action of ejectment ? 
 
 A. — "Whenever it appears on the trial of an ejectment at the 
 suit of a landlord against his tenant, that the tenant or his attor- 
 ney has been served with due notice of trial, the judge may per- 
 mit the plaintiff, after proof of his right to recover possession of 
 the lands or any part thereof, to go into evidence of the mesne 
 profits which have or might have accrued from the day of the 
 expiration or determination of the tenant's interest down to the 
 time of the verdict or a day preceding to be specially men- 
 tioned therein, and if the jury find for the claimant they shall give 
 a verdict for the amount of the damages to be paid for such mesne 
 profits; 19 V., c. 43, s. 267 ; U. C. Con. St., c. 27, s. 60. 
 
 Q. 78, — In what cases is the venue in replevin local, and in 
 what transitory ? 
 
 A. — When replevin is brought for goods distrained for any 
 cause, the venue must be laid in the county in which the distress 
 has been made ; in other cases it may be laid in any county ; 
 U. C. Con. St., c. 29, s- 13. 
 
 Q. 7f)._In what manner can a plaintiff" suing upon a lost ne- 
 gotiable instrument prevent such loss being set up as a defence ? 
 
 A.— If a plaintiff, suing upon a lost negotiable instrument, 
 give to the defendant an indemnity to .the satisfaction of the 
 court^or a judge, or of any officer oi" the court to whom such in- 
 demnity 13 i-efevred, agaiast the ciiiin;s of any other person upon 
 
absent defend- 
 
 a British sub- 
 judge may di- 
 d, without ap- 
 lon being aatis- 
 )per Canada, or 
 n, and that the 
 or that reason- 
 ) upon him, and 
 ilfully neglects 
 pper Canada iu 
 ), 8. 351; U. C. 
 
 1 mesne profits 
 ;? 
 
 ectment at the 
 int or his attor- 
 judge may per- 
 3r possession of 
 e of the mesne 
 the day of the 
 jst down to the 
 specially men- 
 t they shall give 
 [ for such mesne 
 7, s. 60. 
 in local, and in 
 
 trained for any 
 lich the distress 
 in any county ; 
 
 upon a lost ne- 
 ) as a defence? 
 ble instrument, 
 ist'action of the 
 3 whom such in 
 
 STATUT-ES, PLEADING AND PRACTICE— LAW. 275 
 
 him in respect of such instrument, the court or a judge may or- 
 der that such los. shall not be set up as a defence in the action ; 
 19 v., c. 43, s. 292 ; U. C. Con. St., c. 42, s. 33 
 
 Q. 80.-Wlmt is the effect of a party to a suit refusing to ad- 
 mi a document saving just exceptions after having been duly 
 called on by notice to do so ? and what is the effect of omitting to 
 give such notice ? ^ 
 
 A.-In case of refusal to admit a document after notice to ad- 
 mit the costs of proving it shall be paid by the party so refusing, 
 whatever the result of the trial may be, unless at the trial the 
 judge certify that the refusal to admit was reasonable; N. R. 
 30. If such notice be not given, no costs of proving the do- 
 cument shall be allowed, except in cases where the omlsion to 
 
 Spense'-T'' ''' "" '^'°'°'' °^ ^^' *'^^"S °^*'"^' ^ ^^""^ °^ 
 
 . ^:^^T^^,r P'''"^^^*'"^ °f tfa« Consolidated Statutes differ 
 m effect from the statutes for which they are substituted, which 
 provisions are to prevail ? 
 
 ri'Ttl Tir^' "^^^^'^'^ antecedent to the time when the 
 Consolidated Statutes took effect, the provisions of the repealed 
 acts prevail; as to matters subsequent to that time, the provi- 
 sions of the Consolidated Statutes are to prevail ; 22 Vic, c. 29., 
 sec. y, 
 
 Q. 82.-. In what, if any, cases can a writ of replevin issue with- 
 out an order of a judge 1 
 
 A.— A writ of replevin may issue without a judge's order 1st 
 where the affidavit for the writ, in addition to tiie usual statomenti 
 oi ownership and value, states that the property was wrongfully 
 
 !ot?,.r^ t ''' P"""'"^ '' '''' claimant, or was fraudufently 
 got out of his possession, within two calendar months next before 
 the making o the affidavit, and that the deponent is advised and 
 
 thtnr *'' f ""^'^^ '' ^°*'*^^^ *° - -'i- f- *'- writ, and 
 
 that there is good reason to apprehend that unless the writ is is- 
 
 sued without waiting for an order, the delay would materially 
 prejudice the just rights of the claimant in respect of the proper- 
 ty ; and 2nd, m case the property was distrained for rent or 
 damage feasant, and the affidavit states, in addition to the usual 
 statements, that the property was distrained and taken under 
 vOxvui ui a uiscreso iur rcuc or damage leasant ; 23 V., c. 45, s. 1. 
 
S76 
 
 EXAMINATION QUESTIONS. 
 
 .1' I' 
 
 H 
 
 Q. 83. — What is the proper mode of enforcing tho attendance 
 of witneflses before an arbitrator, when the submisBion has been 
 mode a rule of court 1 
 
 A. — The party requiring the attendance of the witness should 
 make an application to the court by which the rule was made, or 
 to the court, if any, named in the agreement, or a judge thereof, or 
 if there be none such, to either of the Superior Courts or a judge 
 thereof, setting forth the place of residence of the witness, upon 
 which the court or judge may make a rule or order compelling the 
 attendance of the witness ; U. C. Con. St., c. 22, s. 180. 
 
 Q. 84. — What is the proper course to be taken by a plaintiff 
 when an equitable plea is pleaded which cannot properly be dealt 
 with by the court 1 
 
 A. — The plaintiff must apply to the court or a j dge to strike 
 it out ;— U. C. Con. St., c. 22, s. 127. 
 
 Q, 85. — In what cases, in which an appeal lies from the common 
 law courts, is it necessary to obtain leave to appeal ? 
 
 A. — In criminal cases ; U. C. Con. St., c. 13, s. 29. 
 
 Q. 86. — What is the effect of demurring to evidence ? 
 
 A. — All the facts proved are admitted by the demurrer, but 
 their sufficiency to maintain the issue is denied ; Ch. Arch. 48. 
 
 Q. 87 Can an award under a compulsory reference be en- 
 forced, and if so, how, before the time for moving to set it aside 
 has elapsed 1 
 
 A. — An award made under a compulsory reference may, by 
 authority of a judge, on such terms as to him seems reasonable, 
 be enforced at any time after six days from the time of publica- 
 tion, notwithstanding that the time for moving to set aside has not 
 elapsed; U. C. Cou. St., c. 22, s. 166. 
 
 Q. 88. — Within what time must a bond be perfected and exe- 
 c«ted so as to stay execution in the case of an appeal from the 
 decision of a County Court judge ? 
 
 A. — It must be perfected and executed within four days after 
 the decision to be appealed has been given; U. C. Con St., c. 15, 
 s. 67. 
 
 Q. 89.— What is a departure in pleading ? 
 
 A.--A departure is where in any pleading a party deserts the 
 ground that lie took in his last antecedent pleading and resorts to 
 another ; Steph. Plead, 327. 
 
STATUTES, PLEADING AND PRACTICE— LAW. 
 
 277 
 
 the common 
 
 Q. 90.— At what period of a suit may either party with or 
 without leave of the court or a judge serve interrogatories on the 
 opposite party ? 
 
 A.— The plaintiff with the declaration or the defendant with 
 his plea may serve interrogatories without such leave ; U. C. Con. 
 St., c. 22, 8. 190: either of them may serve interrogatories at 
 any other time by leave of the court or judge, ib. 
 
 Q. 91.— What is the effect of a reversal of a judgment, by 
 wtue of which a judgment creditor has garnished a debt, upon 
 the garmshee, who has paid over to such creditor the amount due 
 from him to the judgment debtor, under a regular order ? 
 
 A— It does not affect him, as such payment by him is a valid 
 discharge ; U. C. Con. St., c. 22, a. 297. 
 
 Q. 92— When a cause has been sent from one of the Superior 
 Courts to the County Court, what steps should be taken to pre- 
 vent entering judgment if it is desired that the case should stand 
 for motion in the superior courts ? 
 
 A.— In such case the judge who tries the cause, should endorse 
 on the record under his hand a certificate that the case is on© 
 which, in his opinion, should stand for motion in the court in 
 wlucL It was brought, in which case judgment cannot be entered 
 until the fifth day of the following Superior Court term • 23 V. 
 c. 42, s. 4. 
 
 Q. 93.— What notice of appeal to the Court of Error and 
 Appeal must be given to the opposite party, in cases in wL.,h 
 notice IS necessary ? 
 
 A.— A memorandum, entitled in the court and cause, signeJ br 
 the party or his attorney, alleging that there is error in law in the 
 record a-d proceedings (which must also be filed with the clei'k 
 of the Crown of the court wherein the suit was instituted), toga- 
 therwitn a statement of tho grounds of error intended to be 
 argued; U. C. Con. St. c. 13, ss. 33, 34. 
 
 Q. 94.— What is the statutory rule with regard to speeches of 
 counsel at Nisi Prius ? 
 
 A.— U. C. Con. St. c. 22, s. 209, enacts: "The party who 
 begins, or his counsel, in the event of his opponent not announ- 
 cuig at the close of the case of the party who begi^^, hu Intention 
 to adduce evidence, shall be allnwA^ f.o nrlHn^aa fj,o ,-..^, - s^™j 
 time at the close ot such case, for the purpoee of sumu ing up the 
 
«78 
 
 EXAMINATION QUESTIONS. 
 
 evidence ; and the party on the other side, or his couusel, shall 
 then be allowed to open his case and also to sum up the evidenon 
 (if any), and the right to reply shall bo the same as at present.' 
 
 Q. 95. — In vvhat cases can a submission to arbitration be made 
 a rule of court ? 
 
 A. — In all cases where it is not expressly agreed that it shui 
 not be made a rule of court ; U. C. Con. St. c 22, s. 176. 
 
 Q. 96. — What is the courf*; to be pursued where several causes 
 of action have been joined, if, in the opinion of tho judge, f^hey 
 cannot be conveniently tried together ? 
 
 A. — The court or a judge may order separate records to be 
 made up, and separate trials to be had ; U. C Con. St. c. 22, 
 
 8. 74. 
 
 Q. ,97. — To what extent and of what facts is a protest, by the 
 law of Upper '^■'ihn.'a, evidence? 
 
 A. — It ia '■ : 1 facie evidence of the allegations and facts 
 therein coi taait'f] ;' Can. Con. St. c. 57, s. 6. 
 
 Q. 98.— In 'vi.nt cases can a suit within the jurisdiction of the 
 superior courts be sent for trial before a county court judge ? 
 
 A. — A suit may be sent from the superior courts to be tried in 
 a county court, when the amount of the demand is ascertained by 
 the signature of the defendant, or in the case of an action for any 
 debt in which a judge of either of the superior courts shall be 
 satisfied that the case may safely be tried in the county court ; 
 23 V. c. 42, s. 4. 
 
 Q. 9d. — Under what circumstances can the court or a judge 
 order a person not originally joined as plaintiff in an action to be 
 so joined ? 
 
 A. — If it appears to the court or judge that injustice will not 
 be done by such amendment, and if the person so to be joined 
 consents in writing under his hand to be joined ; 19 V. c. 43, 
 8. 67—17. C. Con. St. c. 22, s. 63. 
 
 Q. 100. — What is necessary i» entering an appearance to a 
 writ of ejectment when the defendant intends to set up title in 
 himself ? 
 
 A. — The defendant must file with the appearance a notice 
 stating that besides denying the plaintiff's title, he asserts title in 
 himself, and aettins^ forth the mode in which such title is claimed ; 
 TJ. C. Con. St. c, 27, 3. 8. 
 
STATUTES, PLEADING AND PRACTICE LAW. 
 
 279 
 
 uuael, Hhall 
 he evidenc 
 1 present." 
 on be made 
 
 Ihat it shal 
 176. 
 
 veral causes 
 judge, ' hey 
 
 cords to be 
 n. St. c. 22, 
 
 test, by the 
 
 ns and facts 
 
 ctiou of the 
 ; judge ? 
 ) bo tried in 
 jertained by 
 tion for any 
 irts shall be 
 anty court ; 
 
 or a judge 
 action to be 
 
 bice will not 
 to be joined 
 .9 V. "c. 43, 
 
 larance to a 
 b up title in 
 
 ce a notice 
 serts title in 
 i is claimed ; 
 
 be 
 
 Q. 101.— Under what circumstances will iin iiinendment 
 allowed at the trial in case of misjoinder of defendants ? 
 
 A. — If it appear to the court or judge, or oHicer presiding 
 at tue trial, that such misjoinder was not for the purnn^e of 
 obtaining an undue advantage, ami (hat injustice will m one 
 
 by such urnenduK'nt, and that tlie person or persons to .truck 
 out were joined without their consent, or consent in writing under 
 '.'is or ' ' ir hand or hands to be struck out; U. C, Con. St. c 22, 
 3. 68. 
 
 Q. 102.— What i:- the present course (instead of attachment) 
 to enforce an award lur payment of money where the order of 
 reference has been, made a rule of court ? 
 
 A,— Judgment may be signed upon the order of reference, and 
 execution issued thereon. See U. C. Con. St., c. 22, s. 158. 
 
 Q. 108.— What must be the nature of a debt to be the subject 
 of garnishment ? 
 
 A.— It t jst be a debt for which the defendant can sue, and 
 the pay mi t of which is not secured by a bill of exchange or pro- 
 misaory note,— and must be a liquidated amount ; Ch. Arch. 57. 
 
 Q. 104.— What is the effect of withdrawing a record, with- 
 drawing a juror, and the jms being discharged, respectively ? 
 
 A.— Where a record is withdrawn, tho trial is postponed ; and 
 the record cannot be re-entered at the same assize, except under 
 special circumstances ; Ch. Arch. 360. 
 
 Withdrawing a juror puts an end to the cause ; and each party 
 pays his own costs : if any further proceedings be taken, they will 
 be stayed upon applii-ation ; and so if a second action be brought, 
 it will be r tayed upon application within a reasonable time. Ch. 
 Arch. 386; Gibbs v. :*'alph, 15 L. J. (Exch.) 7; 14 M. & W. 
 804; Stodhard v. Johnson, 3 T. K. 657. 
 
 Where the jury is discharged by consent, the trial is postponed, 
 but the suit is not terminated. Ch. Arch. 386 ; Everett v. 
 Youells, 3 B. & Aid. 349. 
 
 Q. 105.— What was the effect of the registration of a judg- 
 ment, and how haf. this been changed by a recent statute ? 
 
 A.— A judgment, when registered, became a c .rge upon all 
 the lands of the defendant within the county where registered. 
 By 24 V. c. 41, the registration of judgments is abolished on and 
 after 1st September, 1861. 
 

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380 
 
 BXAM1NATION QOBSTIONS. 
 
 i 
 
 m 
 
 Q. 106. — What steps must be taken to enforce an award, — lat, 
 where a verdict is taken subject to an award ; 2nd, where no ver* 
 diet is taken, but the submission is made a rule of court p 
 
 A. — [Aa to first part of this question, see answer to Q. 81.] 
 Iq the latter case judgment is entered upon the rule and exeoU' 
 tion issued thereon. 
 
 Q. 107. — Under what circumstances can the master of a female 
 servant still maintain an action for the seduction of such servant ? 
 
 A. — Where tiie father or mother of the female seduced have, 
 before the seduction, abandoned her and refused to provide for and 
 retain her as an inmate ; if the father or mother be not resident 
 in Upper Canada at the time of the birth of the child, or being 
 resident therein does not bring an action within six months from 
 the birth of the child. U. C. Con. St., c. 77, ss. 2, 3. 
 
 Q. 108.— What are the provisions of the statutes as to ware* 
 house receipts? 
 
 A. — By Can. Con. St., c. 92, s. 68, it is enacted that any person 
 wilfiilly and knowingly giving warehouse receipts for goods before 
 the goods have been delivered to him, with intent to mislead, de- 
 ceive, injure or defraud any person or persons, or if any person 
 knowingly and wilfully accepts, transmits or uses such receipt, such 
 person shall be guilty of a misdemeanor, punishable by imprison- 
 ment in the penitentiary for any term not exceeding three years 
 nor less than two years, or in any other prison for any term less 
 than two years but not less than one year. By Can. Con. St., 
 c. 54i, 8. 8, warehouse receipts may be endorsed as collateral 
 security for the payment of bills and notes discounted by in- 
 corporated banks or for any debt due to private persons ; and 
 by 24 v., c. 23, s. 1, this may be done where the person by whom 
 the warehouse receipt is given is himself the owner of or entitled 
 to the goods. By the latter enactment the wilful making of any 
 false statement in any such receipt, or wilfully parting with or not 
 delivering the goods, is made a misdemeanor punishable as above. 
 
 Q. 109. — What statutory provisions exist as to the registration 
 of different instruments ? 
 
 A. — By Stat, ."i.") 6. III., c. 5, registry offices were originally es- 
 Ublished, and by 9 V., c. 84, and 16 V., c. 187, they were regulat- 
 ed upon their present footing. The several enactments as to the 
 instruments which may be registcrf :' —e consolidated by U. C. Con. 
 
STATUTES, >>LEADING AND PRACTICE LAW. 
 
 281 
 
 St , c. 89, 8. 17, -which sec. has been repealed as to the registering 
 of judgments, and decrees, rules and orders for payment of money, 
 by 24 V , c. 41 : the instruments which may be registered are • 1 
 deeds, conveyances and assurances of or affecting in law or equity' 
 Unds ui Upper Canada subsequent to the grant of such 'ands by the 
 Crown, excepting leases for a term not exceeding twenty-one vears • 
 2, powers of attorney under which such instruments have been 
 executed ; 3, wills and devises of and affecting such lands, the 
 testator bema: dead; 4, decrees of foreclosure and other decree* 
 affecting the title or intereat in land ; 5, the filing of -. SiP or taking 
 of proceedmgs in a court of equity, whereby any title or interest 
 in lands in Upper Canada may be brought in question ; 6. satisfac- 
 tion of mortgages. 9 V.. c. 34, ss. 7, 8_U. C. Con. St.. c. 89 
 88. 19-22, regulates the requisites of a memorial for registry- 
 every memorial must oe in writing or partly printed and partly 
 written, and must contain, 1. the date of the instrument or will 
 the names and additions of all the parties to the instrument, or of 
 the devisor, testator or testatrix of the will, as set forth in the 
 instrument or will ; 2, the names and additions of all the v* in.esses 
 to the instrument or will, and their places of abode j and 3, it must 
 mention the lands contained in the instrument or will, and the 
 city, town, township or place in the county or ridin.^ where the 
 lands are situate, as (iescribed in the instrument or will, or to the 
 same effect ; the memorial of an instrument other than a power of 
 attorney, must be under the hand and seal of some one or more of 
 the parties thereto, or of the grantee's heir, ezecutors or adminis- 
 trators, guardians or trustees; the memorial of a power of attorue, 
 nir.8t be under the hand and seal of one or more of the constituents 
 or of the constituted ; the memorial of a will must be under the 
 hand and se«l of a devisee, or of the executors, administrators, 
 guardians or trustees of a devisee : every memorial must be attested 
 by two witnesses, one of whom, in the case of all instruments, and 
 m the case of wills made and published out of Upper Canada, must 
 be a witness to the instrument or will, by the affidavit of which 
 latter witness the execution of the instrument or will, or probate 
 thereof, and of the memorial is proved ; the mode of proof for 
 registration is regulated by „everal statutes, consolidated by the 
 same Act, ss. 23. 28, 34, 35. By 9 V., c= 34, a. 6— U. C. Con. 
 St. c. 89, 8. 44. assurances not registered are to be deemed fraudu- 
 
 3i 
 
282 
 
 EXAMI\ATION qt;E!»7IONS. 
 
 lent and void ns npninst suhsi-fjucnt purchasers for valiu' (without 
 notice.) By !) V., c. 34, s. 83— U. C. Con. St. c. H9, s. 78, regis- 
 try of plans of subdivisions of land into towns or villages is nade 
 compulsory, liy !> V., ell, s. '2!)— U. C. (^on. St., c. S'A, s. .SI, 
 conveyances by tenants in tail are repaired to he registered within 
 six months after execution. 
 
 Q. 1 10. — When will replevin lie ? 
 
 A. — When goods liavo been wrongfully distrained ; and where 
 there is a wrongful taking or detention of goods (except by a 
 sheriff or other officer under execution) for which an action of 
 trespass or trover might l)e brought. U. C. Con. St. c. 29, ss. 1, 2. 
 Ch. Arch. 1034. 
 
 Q 111. — What circumstances must exist to permit "a defence 
 on equitable grounds " to an action at law ( 
 
 A. — The party pleading must undor the facts disclosed thereby 
 be entitled to an absolute and unconditional injunction in a court 
 of equity against the judgment which the opfiosite party might 
 otherwise obtain at law. Stephen on Pleading, 197. U. C. Cou. 
 St., c. 22, 8. 124. Teede v. Johnson, 11 Ex. 840. 
 
 Q. 112. — How is an action of ejectment revived ? 
 
 A. — Upon the death of one of several claimants, whose right 
 survives to the others, the suit may be proceeded with by such 
 survivors upon a suggestion of the death ; if his right does not 
 survive, or in the case of a sole claimant, his legal represejitmlve 
 may by leave of the court or a judge, carry on the suit upon enter- 
 ing a suggestion of the death, and that he is such legal representa- 
 tive ; if he do not do so, t!«' survivors, in the case of several 
 claimants may proceed for their shares upon suggesting the death. 
 After a verdict for two or more claimants if one die, the others may 
 suggest the death and proceed to judgment and execution. Upon 
 the death of one of several defendants who defend jointly, a sug- 
 gestion may be made of the death, and the action may proceed 
 against the survivors. Upon the dc<tth of a sole defendant or 
 of several defendants, upon a suggestion thereof, the claimants 
 shall be entitled to recover unless some one appears rnd defends 
 within a time appointed for that purpose by order of the court or 
 a judge, made upon application by ti.e claimants. Upon the death 
 of a defendant after verdict, the claimanto may proceed to judg- 
 ment without making a suggestion. lU V., c. 43, sa. 246 — 252 — 
 U. C.Con. St. c. 27, 88. 31— 41. 
 
 
 »*4» 
 
 i.V: 
 
STATUTES, PLFADING AND PRACTICE LAW. 
 
 283 
 
 (without 
 
 78, regis- 
 
 •!i is nade 
 
 , 8.S, s. :n, 
 
 ?rt'il within 
 
 iiiul where 
 cci'pt hy a 
 I HCtion of 
 >9, ss. I, 2. 
 
 ' a di'fenco 
 
 sd thereby 
 in a court 
 arty might 
 L C. Cou. 
 
 vhose right 
 h by sucii 
 it does not 
 )rc9eutniive 
 upon enter- 
 representa- 
 of several 
 the death, 
 others may 
 iou. Upon 
 tly, a sug- 
 lay proceed 
 daiit or 
 L> claimants 
 nd defends 
 le court or 
 n the death 
 id to judg- 
 145—252— 
 
 
 Q. 113,— In what cases is a jud-ruicnt debtor wlio obtains jndg- 
 ment subsequent to the attachment of an absconding debtor's goods 
 entitled to priority over the attaching creditor? 
 
 A.— v/hcrea suit has been commenced against a defendant in 
 any court of record in Upper Canada before the issuing of a writ of 
 attachment against him as an absconding debtor, the plaintiff may 
 proceed to judgment and execution in the usual manner ; and if he 
 obtains execution before the plaintiff in the writ of attachment, he 
 shall have priority over him, but subject to the prior satisfaction of 
 the costs of suing out and executing the attachment if the court or 
 a judge so order ; 19 V., c. 43. s. 55-U. C. Con. St., c. 25, s. 21. 
 Q. 1!4.-What is the effect of a verdict for the defendant on a 
 plea of non uepit in replevin ? and to what extent, if at all. .-ue the 
 sureties in the replevin bond liable in such a case / 
 
 A.— The defendant cannot have a return of the goods; Chit. 
 Plead., 7th ed., 291. In such case the sureties? on the replevin 
 bond are liable for the costs of defence. 
 
 Q. 115.— From what date is a recovery in ejectment evidence of 
 the plaintiff's title in a subsequent action for mesne profits? 
 
 A.— From the date of the verdict, or from some day specially 
 mentioned therein ; 19 V.. e. 43, s. 267-U. C. Con. Stat. c. 27. 
 8. 60. 
 
 Q. lit). -What, if any, cases are tnere over which a County 
 Court has no jurisdiction ? 
 
 A.—County Courts have no jurisdiction in the following cases : 
 I, where the title to land is brought in question,— excepting in the 
 case of ejectment against overholding tenants, where the yearly 
 value of the premises, or the rent, does not exceed $200, (23 V. 
 c. 43) ; 2, where the validity of any devise, bequest, or limitation 
 under any will or settlement is disputed ; 3, in actions of libel or 
 slander ; 4, in actions for criminal conversation or seduction ; 5, 
 in any action against a Justice of the Peace for anything done by 
 him in the execution of his office, if he objects * thereto ; 6, in 
 personal actions where the debt or damages claimed exceeds the 
 sum of $200 ; and 7, in causes and suits relating to debt, covenant 
 and contract, where the amount claimed exceeds $400,— excepting 
 cases sent down for trial from the Superior Courts under 23 V. 
 c. 42, 8. 4. U. C. Con. St. c. 15, ss. 16, 37, 
 
 Q. 117.— What is the effect of an omission to state in the 
 

 384 
 
 RXAMIlfATION qniiSTIOlfS. 
 
 lil 
 
 ■1 y 
 
 margin of a demurrer some Auhstantial matter of law intended to 
 he argued ? Is it any objection to the demurrer being argued ? 
 
 A. — If it be omitted, the court or a judjte may set aside the 
 demurrer, and may give leave to sign judgment as for want of a 
 plea; U. C. Con. St. c. 22, s. 121. The want of a marginal note 
 is no ground for objecting to the argument of the demurrer, 
 Ch. Arch. 88 ; ; Lacy r. Umbers, 3 Dowl. 732. 
 
 Q. 118. — How many different kinds of juries can be had for the 
 trial of civil causes in Upper Canada ? 
 
 A. — Two kinds ; a common jury, and a special jury ; U. C. 
 Con. St. c. 31, ss. 2, 108. 
 
 Q. 119.— Can an action be brought as for lands bargained and 
 sold on an indebitatut count, when no conveyance is made ? Give 
 your reasons. 
 
 A.— It cannot; for tho vendor cannot have the land and the 
 value of it ; Laird v. Pirn, 7 M. & W., 474. 
 
 Q. 120. — Draft a plea in abatement for non-joinder of a co- 
 . contractor as a defendant ? 
 
 A.-" The defendant, by E. F. his attorney, prays judgment of 
 the said writ and declaration, because he says that the supposed 
 promises in the said declaration mentioned were made jointly with 
 one G. H., who is still living, and at the commencement of this 
 suit and still is resident within the jurisdiction of this court, to 
 wit, at the Town of St. Catharines, in the County of Lincoln, and 
 not by the defendant alone : and this the defendant is ready to 
 verify. Wherefore inasmuch as the said G. H. is not named in 
 the said writ and declaration, together with the said defendant, the 
 defendant prays judgment of the said writ and declaration, and 
 that the same may be quashed." See Steph. Plead. 4.5. 
 Q. 121. — How many days are allowed to plead in abatement ? 
 
 A. — Four day 8 after service of declaration ; of which the first 
 is inclusive and the last exclusive ; Ch. Arch. 869. Byland v. 
 Worwald, 5 Dowl. P. C, 581. 
 
 Q. 122. — State what must be shown by affidavit to obtain the 
 oral examination of a judgment debtor, pursuant to 22 V. c. 96 — 
 U. C. Con. St. c. 24, s. 41. 
 
 A. — The affidavit must state the judgment recovered, and the 
 amount remaining due; the issue of a writ of fi. fa. upon the 
 judgment, and that such writ has been returned nutla bona to the 
 
intended to 
 rgued ? 
 ;t aside the 
 ' want of a 
 rginal note 
 demurrer, 
 
 STATUTES, PLBAUIltG AND PRACTICE — EqUITY. 285 
 
 whole or part, or facts sufficient to satisfy tlie court or judge that 
 if such writ had been insued it would have been returned nulh 
 bona . that the defeiiduul is witliin the jurisdiction of the court ; 
 and that the action was not commenced or carried ou against the 
 defendant as an absconding debtor. 
 
 had for the 
 
 7; U. C. 
 
 gained and 
 »de ? Oirc 
 
 id and the 
 
 r of a CO* 
 
 dgment of 
 ! supposed 
 jintly with 
 ent of this 
 18 court, to 
 nco/n, and 
 8 ready to 
 t named ia 
 ndant, the 
 >ation, and 
 
 tement ? 
 hthe first 
 Byland v. 
 
 obtain the 
 
 V. 0. ge- 
 lt and the 
 upon the 
 ona to the 
 
 STATUTES, PLEADING AND PRACTICE,-EQUITY. 
 
 Question l.—Into how many parts is a bill in equity now divided? 
 
 ^n«r«fr. — Into four parts. It must contain, 1, the name und 
 description of each party complainant; 2, the name of each 
 party defendant ; 3, a statement of the plaintiff's case in clear 
 and concise language ; 4, a prayer for the specific relief to which 
 the plaintiff supposes himself entitled ; but the prayer for general 
 relief may be added ; Ch. Ord. IX. 
 
 Q. 2 — Is a mortgagee, after a sale under a decree producing a 
 sum insufficient to pay the mortgage debt, entitled to any personal 
 remedy in equity against the mortgagor for the unpaid residue of 
 the debt ? 
 
 A.— Where the mortgagee's bill prays a mUc, and that any 
 balance of the mortgage debt which may remain due after such 
 sale may be paid by the mortgagor, the same may be decreed 
 ascordingly ; Ch. Ord. XXXII. sec. 3. The order for payment of 
 such balance must be against the mortgagor, and not his assignee ; 
 Turnbull p. Symmonds, 6 Grant, 6 1. 5. When a sale is ordered at 
 the instance of an incumbrancer, the mortgagee may have the 
 same order against the mortgagor if he is a party to the suit. 
 
 Q. 3.— -Is there any, and what statutory provision in Upper 
 Canada as to the liability of purchasers from trustees to see to 
 the application of the purchase money ? 
 
 A —12 V. c. 71, s. 10-U. C. Con. St. c. 90, s. 9. enacts that 
 the bond fide payment of any money to, and the receipt thereof 
 by any person to whom the same shall be payable upon any express 
 
 or implied trust, shall pffpptnallir ri;s<il<o..»o fl,» n^r-nr -f- »• 
 
 same from seeing to the application, or being answerable ' for the 
 
 Id 
 
 i 
 
286 
 
 EXAMINATION QUESTIONS. 
 
 Jj 
 
 misapplication thereof, unless the contrary be expressly declared 
 by the instrnnient creatinsr the trnst or security ; Place v. Spawn, 
 7 Grant, 40(). 
 
 Q. 4. — In what cases will an infant be entitled to a day to shew 
 cause in the decree ? 
 
 A. — Where an infant is a defendant in a suit, he has six months 
 after he comes of age to show cause against the decree, and a 
 rcbiTvation to that tU'ccl must be made in the (h-crec ; Smith's 
 Ch. Pr. 4.'i3. Mair v. Kerr, 2 Grant, 223. But when such 
 infant defendant is a trustee of real estate, it is not necessary to 
 reserve a day to shew cause ; Lake v. Mcintosh, 7 Grant, ft.'}-'. 
 
 Q. .5. — What course should a receiver take if he is resisted in 
 acquiring possession of property which he claims luider the order 1 
 
 A. — He should apply to the plaintitF to make application to the 
 court for an order to commit the party interfering with the pro- 
 perty. It is a contempt of court for any person to disturb the 
 possession of the receiver, or to attempt to exercise any rights in 
 relation to the ])roperty over which he is appointed ; Smith's Ch. 
 Pr. 012. 
 
 Q. 0. — When the plaintiff in a foreclosure suit dies before 
 decree, what is the course of ])roceeding to revive the suit ? 
 
 A. — When a suit abates before final decree, the court may direct 
 an amendment of the record by an order to be applied for on notice 
 of motion specifying the nature of the amendment, and the appli- 
 cant's title to the same ; Ch. Ord. IX. sec. 1.'). 
 
 Q. 7. — What matters of account can the master investigate 
 without a special reference ? 
 
 A. — In taking accounts in the master's office, it is within the 
 cognizance of the master to take the same with rests or otherwise ; 
 to take account of rents and profits received, or which, but for 
 wilful neglect or default, might have been received ; to set occupa- 
 tion rent ; to take into account, necessary repairs and lasting 
 improvements, and costs and other expenses properly incurred or 
 claimed to be so. And generally, in taking accounts, to enquire 
 and adjudge as to all matters relating thereto, as if the same had 
 been specially referred — subject to the revision of the court on 
 appeal ; Ch. Ord. XLII. sec. 13. 
 , Q. 8. — ^State the practice as to motion for decrees. 
 
 A.— Where a party has given notice of motion for decree, he is 
 
STATUTES, PLEADING AND PRACTFCE — EQUITY. 287 
 
 to set the cause down to be heard on such motion not less than n-n 
 days before the day for which sncli notice is given, unh-ss he shall 
 have obtained an order allowing a less time for such purpose. 
 
 Motions for decrees are allowed only in three eases, namely :— 
 1, where there is no evidence : 2, where the evidence consists 
 only of documents, and sueh affi.Iavits as are necessary to j)rovp 
 their execution or identity, without any necessity of any cross- 
 examination : :i, nhcre infants are concerned, and evidence is 
 necessary only so far as they are concerned for the purpose of 
 proving facts which are not disputed; Ch. Ord. i.'9th June, 
 1861 : hut this order does not apply to cases in which, but for the 
 order, the court would grant leave to serve short notice of motion 
 for decree, no order to prevent irreparable injury. 
 
 Q. 9.— What is the effect of a plaintiff dismissing his own bill 
 after the cause is set down for hearin"- ' 
 
 A.~Sueh (lisu'i.-iMd is ecpiivalont to n dismissal oi\ the merits, 
 mdess the court order otherwise, •im! it may be set up in bar to 
 another suit for the same matter; Ch. Ord. ill. (1857). 
 
 Q. 10.— In what eases has tlie Court of cnmnecry jurisdiction 
 to decree alimony ? 
 
 A.-By 7 W. IV. c. 2. s. 3-20 V. c. ■>(]. s. 2-U. C. Con. St. c. 
 12, 8. 29, the Court of Chancery has jurisdiction to decree alimony to 
 any wife who would be entitled to alimony by the law of England, 
 or to any wife who would be entitled by the law of England" to a 
 divorce and to alimony as incident thereto, or to any wife whose 
 husband lives separate from her without any sufficient cause, ami 
 under circumstances which would entitle her by the law of En*- 
 land to a decree for restitution of conjugal rights ; ..ad such 
 alimony, when decreed, will continue until the further order of 
 the court. Interim alimony will be ordered on proof of the mar- 
 riage without reference to the merits oi' tiie case. 
 
 Q- 11.— What is necessary to make a suit in chancery a lis pen- 
 dens so as to bind the property in litigation .' 
 
 A.— The registration, in the proper county registry office, of a 
 eertilicate from the registrar or deputy registrar, setting forth that 
 "in a suit or proceeding in Chancery, between A. B. and C. D , 
 some title or interest is called in question in the following land 
 (describing it.)" U. C. Con. Stat. c. 12, s. (54. 
 Q. 12.— From what time does the Statute of Limitations move 
 
288 
 
 RXAMINATION ()UE8TI01«8. 
 
 Ill 
 
 ill cases of bill to redeem inurtji;R)<t'd property, »iid what is the 
 period witliiii wliicli Huits must lie instituted? 
 
 >rtgagee obtained possession, or 
 
 A. From tlie time when the mo 
 
 receipt of the profits, or from the date of any aeknowledij;meiit in 
 writing of the iiiortgiiKorV title or rijfht to redeem, signed by the 
 mortgagee or person cluiming through him. Such suit must be 
 instituted within twenty years from the time wlieii tlie statute com- 
 menced to r-ju ; U. C. Con. St. e MS, s. 21. The disabilities clause* 
 of the statute apply to redemption of mortgages ; Caldwell v. 
 Hall, 6 U. C. L. J., Nl. 
 
 Q. 13.— What is the statute law as to sales of equities of 
 redemption under execution ? what are its provisions as to the 
 liability of the purchaser at sheriff's sale to pay the mortgage 
 debt, and as to the indemnity of the mortgagor against such debt ? 
 
 A.— By 12 V. c 73, s. 1 — U. C. Con. St. c. 22, •. 257, the legal 
 and equitable interest of a mortgagor in the mortgaged property 
 may be sold under a /. fa. laiuls issued against him, and upon 
 such sale, by m. 2, all the legal and equitable estate therein which 
 he had at the time the writ was placed in the sheriff's hands, and 
 the same rights as he would have had if such sale had not taken 
 place, vest in the purchuser, his hfir8 and assigns, who may pay 
 off the mortgage debt in the same manner as the mortgagor might 
 have done, and will, upon such payment, be entitled to a discharge 
 of the mortgage, which has the same effect as a discharge given to 
 the mortgagor. By s. 3, the mortgagee, whether n party to the suit 
 or not, may purchase the equity of redemption at such sale, but is 
 compelled to give the mortgagor a release o( the mortgage debt, or 
 if he enforce payment of the mortgage debt, the mortgagor may 
 demand re-payment, and bring an action for money had and 
 received therefor in one month after such demand, and until re-pay- 
 ment, the mortgagor has a charge upon the mortgaged lands there- 
 for. By 20 V. c.3,8. 11— U. C. Con. St. c. 22, s. 260, the equity 
 of redemption iu chattels is made subject to sale under execution. 
 
 Q. 14. — How many days must intervene between the service of 
 a notice of motion and the making of the motion ? 
 
 A. — At least two clear days, (unless the court give special leave 
 to the contrary,) not reckoning Sundays, or days on which the 
 offices are closed. Ch. Ord. XXXIX., sec. 2. 
 
 Q. 15. — Wiliiiu wiittl limeullter answer can an order as of course 
 to amend a bill be obtained ? « 
 
vliat ia the 
 
 tssession, or 
 lc(li;in«'iit in 
 lied l)y the 
 it must be 
 itatute com* 
 itics clauses 
 Caldwell v. 
 
 equities of 
 I as to the 
 L* mortgage 
 such debt ? 
 7, the legal 
 d property 
 . and upon 
 ■rein which 
 
 hands, and 
 1 not taken 
 lo may pay 
 iigor might 
 a discharge 
 ge given to 
 r to the suit 
 sale, but is 
 ige debt, or 
 gagor may 
 f had and 
 ntil re-pay- 
 ands there- 
 
 the equity 
 execution, 
 e service of 
 
 pecial leave 
 which the 
 
 la of course 
 
 ■lATUTl., PLKADINO .»« 1.«,ct,cx_k,„,t,. SB!) 
 ^^A.-.Wi,„i„ f„u, w„.k.. .„„ |„.f„„. „,„,, „,,„^,.,;„„ ^.^ ^^^ 
 
 purn,,,,. CI, > IV "' "''°" ■ "'""^'•1 "">'"'" t«r tl« 
 
 A.~Any party who might under the old practice have mnv,... . 
 
 given by any and what statute ? " J""«d«ct.ou 
 
 A.-In every case ir. which the Court of Chancery has authoritv 
 Unorder the execution of „ deed, conveyance, tran'sfe: ortsTgu^ 
 ment .f any property, real or personal, the court may make an 
 order or a decree vecCing such real or personal estate i'such per" 
 «o„ or persons and in such manner and for such .m^LZJ".: 
 -■ done uy any such deed, conveyance, assigun.ent^r'we; U' 
 
 T 
 
^m 
 
 290 
 
 KXAMINATION (^irRVTIONM. 
 
 exeoutnd ; this jiiriidirtion is jjivcn by «t»tut«' 20 V. c. 56, $. 8 — 
 U. C. Coil. St. («. 12, t. fu\. 
 
 Q. 20. — Ilow many yearn' arroHM n( intj'ri'iit on a logacy it ii 
 lenati'f I'lititled to ? 
 
 A.— Six yearn ; I W. 1, v. 1, «. 4.')— U. C. Cm. St. c b8, s. 10. 
 
 Q '21. —What i« the t'oriii of proceeding to be adopted by an 
 execntor who dcHireo to have the estate administered nndcr the 
 direction of the Conrt of Chancery ? 
 
 A. — The executor may apply to the court upon motion, without 
 bill filed or any other pri'limiiiary i)roci'eding, for an order for the 
 administration of the estate, and the court may tlureupon make 
 an order for adininistralion as the circnnistances of the ease may 
 require. Ch. Ord. XV. 
 
 Q. 22.— What statutory powers has the Court of Chancery in 
 Upper Canada over the real estate of infants and lunatics ? 
 
 A.— The Court of Chancery in Upper Canada is empowered by 
 12 V. c. 72, to sell the real estate of infants where such sale is deemed 
 necessary for the infant's interest, (see more fully, answer to 
 question 83.) imleas there are provisions to the contrary in some 
 will or conveyance by which such lands have been devised or 
 granted to, or for the use of, the infant, and to order the infant, or 
 some one for him to convey the estate ; but to an application for 
 such sale the infant's consent is requisite, if he is seven years of 
 age or upwards. By 9 V. c. 10, s. I— U. C. Con. St. c. 12, s. 31. 
 the Court of Chancery in Upper Canada is given the same juris- 
 diction over the property of lunatics as is in England conferred by 
 the Crown upon the Lord Chancellor. Upon a person being found 
 lunatic, his property is committed to the care of some person, 
 (1 Bl. Com. 30.'),) who is required to manage the same under the 
 general supervision of the court, and who may b» authorized to 
 mortgage or sell the real estate, if it be necessary for the main- 
 tenance of the lunatic or his family, or for the education of his 
 children, U. C. Con. St. c. 12, ss. 37-44. By 13 & 14 V. c. 50, 
 8. 6— U. C. Con. St., c. 12, s. 47, the court is empowered to bind 
 infants and lunatics by partition of estates held by them as 
 joint-tenants, tenants in common, or co-parceners. 
 
 Q. 23.— From what time does the Statute of Limitations run 
 against a eestui que trust asking relief in cqttity ag.isn.it. a sale of 
 real estate by an express trustee in breach of trust ? 
 
«TATt;TB«, PLBABINO AND PRACTICB— R^JUITT. 891 
 
 A.-Pro,n »Im. time ^.u-h land .lull Imve been conveyed to a 
 purch«.er for a valuHhle .•on^uler.tion, MV i.e. I n ' I r 
 Con at.e.HH. ,. ,, , ,ee .Uo Deekit v. Wr;,g. 7 o'ram >20 
 •'' I/. C. L. J.. IHl. 209. ^'^ ' -^" = 
 
 Q. 24.-.('a„ ,1... Statute of Fraudi. be taken advantORe of in 
 
 A—The Statute of Frauds on„„ot l.e taken advantage of l,v 
 
 1 1 ; I * 7 . ^''•'"' '* "I'l""*" "" '»'«• <•«<•«' "♦• the hill 
 
 of ;. \ fi ' ' '^ ^''' "•'J'*^''''" '*"^''' "»t appear on the face 
 of the bdl. u must he taken advantage of hy answet. ,6. § 503 
 
 . .^i n7 , '"•"JoinJ" of co-plaintiffs an ohjection for which 
 « bdl wdl he dismissed at the hearing ? J "«r which 
 
 A.-No suit is to be dismissed hy reason only of misjoinder of 
 persons as plaintiffs therein. But the court may'modif; t dele 
 
 do^r:;;;i'::^i,:^zr' *"^ '- ^'''' -'^^"^^ 
 
 A.- When a husband dies beneficially entitled to any land for 
 «. mterest wh.ch does not entitle his widow to dower out of t^e 
 same at law and such interest whether wholly equitable or partly 
 legal and partly suitable, is an estate of inheritance in pos cs ion 
 or equal to an estate of inheritance (other than an esta eTn^„; 
 tenancy.) then his widow shall be entitled in equity to dowe oi of 
 the same land. 4 W. 4. c. ,. ss. 13. ,4. 1,-1 L Con. St c 84^ 
 
 Q. 27.-By what statute was a Court of Chancery erected in 
 Upper Canada? Does the act referred to contain any and wha 
 special provisions as to the redemption of mortgages ^ 
 
 A.-Stat. 7 Wm. 4. c. 2.-1837. By that Act the court is em- 
 powered in all cases of mortgage where the mortgagee's estate hTd 
 become absolute at law before 4th March. 1 837. tf make such order 
 and decree with respect to foreclosure or redemption as m gh 
 rr/"C ""''•"'''^ ""'^^^ «" '^^ circumstances of the cfse! 
 
 ' I'i 
 
r 
 
 S9£ 
 
 KXAMINATION QUESTIONS. 
 
 r \l 
 
 ■i , ' 
 
 Q. 28.— If a bill to redeem is digmissed at the hearing, what ia 
 the effect of the decree ? 
 
 A.— To foreclose the plaintiff of all right, title, interest, and 
 equity of redemption in tlie mortgaged premises. 
 
 Q. 29.— If a suit by the vendor for the specific performance of a 
 contract for the sale of rial estate become abated by the death of 
 the vendor before decree, who are the proper parties to revive the 
 suit, and what is the course of proceeding to revive? 
 
 A. — The personal representatives ; a..d unless they have power 
 to convey the vendor's interest in the estate, the person in whom 
 the same is vested, or who has such power must also be brought 
 before the court; Smith's Ch. Pr. 241. The amendment is by 
 notice of motion, Ch. Ord. IX., sec. l.'i. 
 
 Q. 30.— "Will the Court of Chancery make a decree declaratory 
 of the rights of the parties merely, without granting any conse- 
 quential relief? 
 
 A. — No suit is to be open to objection on the ground that a 
 merely declaratory decree or order is sought thereby ; but the court 
 may make a binding declaration of right without granting conse- 
 quential relief. Ch. Ord. XXVIII. 
 
 Q. 31. — Has the Court of Chancery jurisdiction in any and 
 what cases to decree the cancellation of a grant by letters patent 
 of Crown Lands ? Does the jurisdiction depend on statute, or is it 
 inherent in the court ? 
 
 A. — The Court of Chancery has jurisdiction in cases where 
 letters patent of crown lands have issued through fraud, or in 
 error or improvidence to decree such patents to be void : this juris- 
 diction is given by statute 23 Vic. c. 2, s. 25. 
 
 Q. 32. — If a sole plaintiflF die before decree, what steps must be 
 taken by the defendant to obtain an order for the dismissal of the 
 bill for want of prosecution ? 
 
 A. — The defendant may move the court on notice to the personal 
 representatives of the deceased plaintiff, for an order directing such 
 personal representatives to revive the suit within a limited time, or 
 in default that the bill be dismissed without costs ; Smith's Ch. 
 Pr. 372. 
 
 Q. 33, — At what stage of the cause can a defendant in a suit in 
 equity obtain an order to elect ? and how is such an order obtained ? 
 
 A. — After he has filed his answer. The order is obtained on 
 praecipe. 
 
i;, what is 
 
 erest, and 
 
 nance of a 
 e death of 
 revive the 
 
 ave power 
 1 in whom 
 )e brought 
 nent is by 
 
 leclaratory 
 ,ny conse- 
 
 nd that a 
 t the court 
 
 1 any and 
 ers patent 
 ite, or is it 
 
 ises where 
 
 aud, or in 
 
 this juris* 
 
 )3 must be 
 isal of the 
 
 le personal 
 icting such 
 id time, or 
 nith's Gh. 
 
 n a suit in 
 
 obtained? 
 
 btained on 
 
 
 STATUTES, PLEADING AND PRACTICE EQUITY. 293 
 
 Q. 34.— Is a party to a suit in equity entitled to treat an order 
 clearly irregular as void, and disregard it ; or is he bound to obey 
 It untd set aside ? 
 
 A.— Ue cannot treat it as void and disregard it ; but should 
 move without delay to set it aside ; Smith's Ch. Pr. 69. 
 
 Q. 35.-18 a defendant against whom apro con/esso decree haa 
 been made entitled upon any and what conditions to have the* 
 cause re-heard ? 
 
 A,— A defendant waiving all objections to the order to take a bill 
 pro con/esso, and submitting to pay such costs as the <urt may 
 direct, may have the cause re-heard upon the merits statcu . . the bill- 
 the petition for re-hearing being signed by counsel as other petitions 
 for re-hearing. Ch. Ord. XIV., sec 8. 
 
 Q. 36.— Can a bill be taken pro con/esso against an infant defend- 
 ant? 
 
 A.— An order to take a bill pro confesso against a defendant who 
 at the time of the making of such order is an infant, is irregular 
 and of no validity; ci.. Ord. XIH. sec 5. 
 
 Q. 37— Who are the necessary parties to a bill filed to carry 
 into execution the trusts oF ai^ ordinary deed of assignment for the 
 benefit of creditors ? 
 
 A.— The creditors, or one of them on behalf of all others, the 
 assignee and the debtor. 
 
 Q. 38. -What alteration has been made in the practice as to 
 granting commissions of lunacy, by a late Act of Parliament ? 
 
 A.— The Court of Chancery may, on sufficient evidence, declare 
 a person a lunatic without the delay or expense of issuing a com- 
 mission to inquire into the alleged lunacy, except in /easonable 
 doubt; 20 V. c. .56. s. 5.— U. C. Con. St. c. 12. s. 33. 
 
 Q. 39.— At what stage of a cause can the plaintiflF give notice 
 of motion for a decree ? 
 
 A.— When the defendants have answered the original or amended 
 bill, or when the time for answering the amended bill has expired, 
 and before replication ; Ch. Ord. XVI. * 
 
 Q. 40. —In what manner is an abatement before decree remedied ? 
 
 A.— When a suit becomes defective, or abates, bv an event sub- 
 sequent to its institution, and before final decree,' the court may 
 direct an amendment of the record, in order that such defect may 
 
S»4 
 
 SXAMINATION QUESTIONS. 
 
 mk 
 
 be" remedied, and the suit continued, and the benefit thereof ob- 
 tained ; Ch. Ord. IX. sec. 15. 
 
 Q. 4 1 . — How must an infant sue in equity ? 
 
 A. — By his next friend. 
 
 Q. 42. — What is the proper proceeding to enforce obedience to 
 ^he decrees or orders of the Court of Chancery ? 
 
 A.— First by an order nisi that the party do the act within a 
 time limited, or stand committed then by an order absolute to 
 commit, and then by writs of attachment and sequestration. 
 
 Q. 43. — What is the next proceeding in a cause in Chancery, 
 after a demurrer to the bill has been overruled ? 
 
 A. — The defendant answers the bill or it may be taken pro con- 
 /esso against him. 
 
 Q. 44. — An answer to a bill having been filed, and no subsequent 
 proceedings having been taken by the plaintiff within the time 
 limited for that purpose, what course of proceeding is open to 
 the defendant ? 
 
 A.— The defendant may move the court, upon notice, that the 
 bill may be dismissed with costs for want of prosecution, and the 
 court may order the same accordingly. Ch. Ord. XXIV. sec. 1. 
 
 Q. 45. — What is meant by the expression that a suit is abated ? 
 in what manner is an abatement remedied ? 
 
 A. — By the expression that a suit is abated, is meant that it has 
 ceased, and cannot be further prosecuted. When some event 
 occurs after the commencement of the suit which alters the case 
 made by the bill, such as the death of plaintiff or defendant, 
 change of interest, or marriage of a female plaintiff. 
 
 Q. 46.-^To a suit by a cestui que trust to carry into execution 
 the trusts of a deed of assignment for the benefit of creditors, who 
 are the necessary parties ? 
 
 A. — The debtor and his assignees. 
 
 Q. 47. — What is the effect upon a future suit between the same 
 parties, in respect of the same matter, of a plaintiff taking an order 
 to dismiss his own bill after the cause is set down for hearing ? 
 
 A. — Such dismissal is equivalent to a dismissal on the merits, 
 unless the court order otherwise, and may be set up as a bar to 
 
 sec. 8. 
 
 '^Wii i\rt viii. oniiav tliatLCX* 
 
 
 
 lUc 
 
 I OCT \ 
 
 III. 
 
STATUTES, PLEADING AND PRACTICE EQUITY. 
 
 Q. 48.— What are the requisites of a hill ! 
 A —It is to be ill the form of a petition addressed to the Chan- 
 cellor and must contain: 1st, the name and description of the party 
 complainant ; Jnd, the name of each party defendant ; 3rd, a state- 
 ment of the plaintiffs case in clear and concise language ; 4th, a 
 prayer for the specific relief to which the plaintiff considers himself 
 entitled, hut the prayer for general relief may he added; Ch. Ord. 
 IX. The bill must also be divided into paragraphs, and each pa- 
 ragraph must be numbered; Ch. Ord., 13 April, 1859. 
 Q. 49.— What are the requisites of an answer ? 
 A.— An answer is to consist of a clear and concise statement of 
 such defence or defences as the defendant may desire to make, Ch. 
 Ord. XII., and must be divided into paragraphs, and each paragraph 
 numbered ; Ch. Ord., 13 April, 1859. 
 
 Q. 50.— What changes have the general orders made as to par- 
 ties ? ^ 
 
 A.— The practice of setting down a cause on an objection for 
 want of parties merely is abolished ; Ch. Ord. VI. It is provided 
 that legatees or heirs may apply for a decree for administration of 
 the real or personal estate of a deceased person, without joining 
 co-legatees or co-heirs ; also, that any one of several cestuis que 
 trust may apply for a decree for the execution of the trusts or for 
 the appointment of new trustees, without joining the others, and 
 one person may move on behalf of himself and of all persons hav- 
 mg the same interest, for the protection of property pending liti- 
 gation, ib. 
 
 Q. 5i._What is the practice in this country and England res- 
 pectively as to obtaining discovery ? 
 
 A. -In this country no bill can be filed for discovery merely 
 except m aid of the prosecution or defence of an action at law '; 
 Ch. Ord. IX., 8. 19. In England such a bill may be filed for the 
 discovery of facts, deeds or writings, &c., and seeking no relief in 
 consequence of the discovery ; Mitford Eq. PI., (J4. 
 
 Q. .52.— Under what circumstances in equity is a demurrer 
 proper? 
 
 A— Whenever any ground of defence is apparent on the face of 
 the bdl, either from matter contained in it or from defect in its 
 lr.%me or in the case made by it, the proper mode of defence is Hv 
 demurrer; Mitforrf Eq. PI., 128. 
 
296 
 
 EXAMINATION QUESTIONS. 
 
 pi 
 
 Q. ftS.— What is the effect of a replication in equity, and when 
 should it be filed ? 
 
 A.— The effect of a replication in equity is, that immediately 
 upon the filing thereof the cause is to be deemed to be completely 
 at issue ; such filing must be within one month after the filing of 
 the last answer. Ch. Ord. XVIII. 
 
 Q. 54.— Clas>,.,y the different kinds of bills in Chancery, und 
 state how far they are affected by the general orders. 
 
 A.— They are as follows : I. Original bills, which relate to some 
 matter not before litigated upon by the parties— such are (a) those 
 praying relief, as : 1, ordinary original bills praying the decree 
 touching some righf claimed by the plaintii.'; 2, bills of inter- 
 pleader ; 3, bills of certiorari, but such bills are in effect abolish- 
 ed by U. C. Con. St., c. l.'i, a. 57, which provides for the removal 
 of equity claims from the County Court to the Court of Chancery 
 by a summary application on motion or petition supported by affi- 
 davit : (i) those not praying relief, as : 1, bills to perpetuate the 
 testimony of witnesses ; 2, bills for the discovery of facts, deeds, 
 writings or other things in the knowledge, custody, or power of the 
 defendant. II. Bills not original, where a suit is imperfect in its 
 frame or becomes so by accident before its end has been obtained : 
 such are: I, suj)plemental bills which are merely an addition to 
 the original ; 2, bills of revivor ; .3, bills of revivor and supple- 
 ment, which continue a suit upon abatement and remedy defects. 
 III. Bills in the nature of original bills : such are : 1, cross bills ; 
 2, bills of review ; 3, bills in the nature of bills of review ; 4, bills 
 to impeach decrees for fraud ; .5, bills to suspend or avoid a de- 
 cree ; 6, bills to carry decrees into execution ; 7, bills in the na- 
 ture of bills of revivor ; 8, bills in the nature of supplemental 
 bills. The general orders have abolished supplemental bills, bills 
 of revivor, bills of revivor and supplement , bills in the nature of 
 bills of revivor ; bills in the nature of supplemental bills, and sub- 
 stitutes therefor motions to amend, supported by affidavits ; bills 
 of review, bills in the nature of bills of review, bills to impeach 
 decrees for fraud, bills to suspend or avoid decree ; bills to carry 
 decrees into execution are abolished, and in th-'ir place the general 
 orders substitute petitions. Where a suit abates before decree it 
 may be revised on motion : but where it abates after decree, then 
 by petition. Mitford Ch. PI. 3.'J ; Ch. Oni. IX, s. i J~18. 
 
 : . , m 
 
', and when 
 
 in mediately 
 completely 
 lie tiling of 
 
 mcery, and 
 
 ite to some 
 e (a) those 
 the decree 
 3 of inter- 
 !Ct abolish- 
 le removal 
 ' Chancery 
 ed by affi- 
 )etuate the 
 icts, deeds, 
 »wer of the 
 feet in its 
 obtained : 
 iddition to 
 id supple- 
 ly defects. 
 TOSS bills ; 
 V ; 4, bills 
 'oid a de- 
 in the na- 
 iplemental 
 bills, bills 
 nature of 
 , and sub- 
 fits ; bills 
 impeach 
 1 to carry 
 e general 
 decree it 
 ree, then 
 H. 
 
 STATUTR8, PLEADING AVD PRACTICE— EQUITY. 297 
 
 f.,^i'' ~r''? '' "" •"■''" *'^' ^*"' P'-'«'"^'tio" «'♦■ (locunuMUH. and 
 ine etieet of it : 
 
 A.-It is a., order that tho party a,. i„st whom it is obtained do. 
 w tlun our days after service, produce an.l leave with the Kegistrar 
 a I deeds books, papers, writings and documents in his possession 
 
 eir r/ ?' '" ''"' "•"""" '" 'l"^'^^''- '» t''^' ^■«"«-. the 
 upon what documents his case rests. 
 
 Q. 5(i.-«y what process can subsequent incumbrancers ol,tain 
 JoreXuIo ? " "'"" " '"" '-"n'-ancer prays for a decree of 
 
 coifr't^llf "r"'". '"' ?"•' "' '^' '^''"""'^' ""'* ''y I'^J'^'S ^^'20 into 
 court w, bin fourteen days, to meet the expenses of the sale ; or by 
 
 taking the conduct of the sale at their own expense. 
 
 Q. 57.-By what process is a guardian o,/ litem appointed ' 
 
 the r .7 7''"'"'''' ''^' "'■^''' "^' '^" '^^"'"•^ "P"" application of 
 the plaintiff at any time after bill Hjerl ; ch. Qrd XIII s 5 • or 
 
 the party desirous of appointing a guardian for him to 'dd'end a 
 8UU, may go before a judge or master with snch guardian, and the 
 judge or master may appoint such g„„rdia« if be ..hall think fit • 
 Ord. fith Juiif, iSS.S. • 
 
 Q. ."iS. — How is a decree registered f 
 
 A. -By a certificate thereof issued by the Regi.strar under the 
 seal of the court. 
 
 Q. .59. -Give the provisions of the provincial statute which is 
 commonly known as the " dormant equities act." 
 
 A.-It provides that no title or interest in real estate which is 
 valid at law. shall be disturbed or otherwise affected in equity by 
 reason ot any matter or upon any ground which arose beforV the 
 fourth day ot March, one thousand eight hundred and thirty-seven 
 or for the purpose of giving effect to any equitable claim, interesj 
 or es ate. which arose before the said date, unless there has been 
 actual or positive fraud in Uie party whose title is sought to be dis- 
 turbed or affected : in regard to any other equitable claim or right 
 which may have arisen before that date, the court shall have au- * 
 thonty (subject to appeal,) to make snch decree as may appear to 
 the courtjust and reasonable, under all the circumstances of the 
 particular case, provided that tb.e suit bo brought within twenty 
 years from the time when the right or claim arose ; and no further 
 
 3\ 
 
 ^■•tM 
 
298 
 
 EXAMINATION qUKSTTONS. 
 
 time stmll he allowed for bringing any such suit, iiotwithstanding 
 any disability of the claimant or of any one thronjjh whom his 
 right accrued. 18 V., c. 12-1, ss. 1, 2—11. ('. Con. St. c. 12, ss. 
 59, (iO. 
 
 Q. 60. — How are corporations, foreign and domestic, served with 
 process in chancery ? 
 
 A.— A foreign corporation having an agency office within Upper 
 Canada may be served at such agency ; but if it has no such agency 
 there, then at the head office without Upjter Canada, after an order 
 for that purpose. A domestic corporation, or one whose head 
 office is within Upper Canada, must be served at such head office. 
 Ch. Ord. l/th March, 1857. 
 
 Q. 61.— What effect has the receipt of rents and i>rofits during 
 the progress of a foreclosure suit before the final order is obtained ? 
 A.— If the rents and profits are received after the master's re- 
 port, then the plaintiff must take a new account, and give credit 
 for the moneys so received, and which he will receive up to the day 
 appointed for payment. 
 
 Q. 62.— When some instalments only of the mortgage nearly are 
 due can a forclosure suit be instituted ? 
 
 A.— Upon default in payment by a mortgagor of any instalment 
 of, or interest on the mortgage money, the mortgagee has a right 
 to call in the whole amount secured by the mortgage. See Cameron 
 c. McRae, li Grant, 311; Sparks v. Redhead, ibid. 
 
 Q. 63— When two or more mortgages become luiited in one 
 mortgagee, can the mortgagor redeem one or both at his option ? 
 and give reasons for your opinion. 
 
 A.— It is equity that the creditor shall not be deprived of hia 
 pledge without payment of all sums of money due to him from his 
 debtor which form a general or specific lien on the land ; and 
 therefore if the mortgagee advance further sums of money to the 
 mortgagor expressly by way of further charge (forming a speciSc 
 lien,) or on a judgment now forming an actual charge (or a general 
 lien,) n-ither the mortgagor nor, generally speaking, any one claim- 
 ing under him shall be allowed to redeem without paying the full 
 amount. Coote on Mortgages, p. 389. 
 
 Q. 6*.— Does the dismissal of a bill for want of prosecution 
 operate as a bar to another suit of the same sort ? 
 
 A.— The dismissal of a bill for want of prosecution cannot be 
 
served with 
 
 rosecution 
 
 STATUTES, PLEADINU AND PRACTICE — EQUITY. 299 
 
 set up in bar to another suit. See Tayl. Ch. Ord., 105. 
 
 Q. ()5 — What is the practice in proceeding under a reference to 
 the master as to title ? 
 
 A.— When an enquiry into title lias been directed by the court, 
 the vendor is to dehver an abstract of the title to the purchaser! 
 and if the latter do not object to the title, and obtain and serve an 
 appointment or warrant from the judge or master to consider the 
 same, within fourteen days after the delivery of the abstract, he is 
 to be deemed to have accepted the title ; at the time of serving the 
 appointment or warrant the purchaser must deliver to the vendor a 
 written notice of the objections to the title ; at the time appointed 
 a duplicate of such notice is to be brought into the judge's cham- 
 bers or master's office by the objecting party, and such objections 
 are to be argued before the judge or master, v,ho is to allow or 
 disallow them ; and such allowance or disallowance may be the 
 subject of appeal by way of motion to the court ; the judge 
 or master is to make no report upon the title, but is merely to mark 
 the objections allowed or disallowed as the case may be; such ob- 
 jections so marked are to be Hied, and such allowance or disallow- 
 ance is to stand absolutely confirmed, unless appealed from within 
 fourteen days after filing. Ch. Ord. XXXVI., s. 12. 
 
 Q. ee.—When a person, not an infant nor of unsound mind, 
 has been served with an office copy of the bill, within the jurisdic- 
 tion, but not personally ; in what manner must an order pro con- 
 fetao be applied for against him ? 
 
 A.— The plaintiff must snrve on the defendant personally, or by 
 his solicitor, if he have one, a notice of motion to be made on 
 some day not less than three weeks after service; but where a 
 solicitor has accepted service of an office copy of the bill for the 
 defendant two days notice is sufficient, and may be served upon 
 the solicitor ; Ross v. Hayes, 6 Grant, 277. Upon giving such 
 notice he may in due time apply to the court for an order pro 
 confe^8o, unless the defendant has in the meantime put in his 
 answer. Ch. Ord. XIII. s. 3. If substituted service has been 
 ordered then on the expiration of the time limited by the order, 
 the plaintiff may move ex parte for the order ;>ro confeaso. 
 
 Q. 67.— Can a decree be obtained before the time for answer- 
 ins has exni«-«»rl ? fifcofo fUn ^ri^i-t — i- v. -.-^ 
 
 A — Where it can be made to appear to the court that it will 
 
 
 fir 
 
"i' 1 
 
 r 
 
 111 
 
 ■300 
 
 RXAMIWATION qUESTIONfl. 
 
 be conducive to the enJs of justice to permit a motion for de- 
 cree before the time for answering haS expired, the plaintiff may 
 npply to the court, rx parte, (or tiiat purpose, at any. time after 
 the bill has been filed, and the court, if it thinks fit, may order 
 the same accordingly. When such permission is granted, the 
 court is to give such directions as to service of the notice of 
 motion and the filing of affidavits, as it may deem expedient. Ch 
 Ord. XVII. ^ 
 
 Q. (i8.— What is the difference between a demurrer at law and 
 in equity in point of pleading ? 
 
 A.— At law the demurrer consists of a statement that the count 
 or other pleading is «' bad in s ibstance." In equity it is a state- 
 ment that the plaintiff shows no ground whereon the court can 
 make a decree, and demands the judgment of the court whether 
 the defendant shall be compelled to make answer to the plaintiffs 
 bill or to some certain part of it. 
 
 Q. 69. -Can the silence of the answer as to any statement in 
 the bill be construed into an implied admission of its truth ? 
 
 A — The silence of the answer as to any statem -nt of the bill is 
 not to be construed into an implied admission of its truth. Ch 
 Ord. XII. s. I. 
 
 Q. 70.— What is the effect of admissions made in an answer by 
 one defendant as regards his co-defendant ? 
 
 A— They may be read by the plaintiff against the co-defendant 
 If notice be given to such co-defendant of the intention of the plain- 
 tiff to read them. Smith's Ch, Pr, 390. 
 
 Q. 71 — What effect has an unproved allegation of fraud in the 
 bill, on the costs of the suit, when the plaintiff succeeds generally? 
 
 A.— The plaintiff has to pay his own costs. 
 
 Q. 72.— How is a bill taken pro confesso against a married 
 woman ? 
 
 A.— If the defendant be a married woman, an order that she 
 shall answer separate from her husband must first be served, and the 
 time within which she is to answer must be expressed in the order, 
 before a bill can be taken pro con/esso against her ; see Miller v. 
 Gordon, 5 Grant, 134. 
 
 Q. 73.— Give briefly the statutory provisions affecting the exer- 
 cise of the jurisdiction of the Court of Chancery in this province. 
 
 A — The statutory provisions are : that the Court of Chancery 
 
r at law and 
 
 STATUTES, ri^JBADINU AND PRACTICE— KHOITY. 301 
 
 Shall have like jurimlictioi. and power as bv the laws of EnKlaud 
 were at the time of passing of ^tnt. 7 W. J. ... 2, ». 2,—i March 
 1837, possessed l.y the Court of Chancery i,» England- 1 in all 
 matters of fraud and acciucnt ; 2, in all n.atters relating to trusts 
 executors and administrators, co-partnership and account mort^ 
 gages, awards, dower, infants, idiots, lunatics and their estates • 3 
 also to stay waste ; 4. 4o compel the specitic performance of 
 agreements J 5, to compel the discovery of concealed papers or 
 evidence, or such as may he wrongfully withheld from the party 
 claiming the benefit of the same ; 0, to prevent multiplicity of 
 smts ; 7. to stay proceedings in a court of law prosecuted against 
 equity and good conscience ; S, to decree the issue of letters patent 
 from the crown to rightful claimants ; 9. to repeal and avoid letters 
 patent issued erroneously or by mistake or improvidently or through 
 fraud; 10 and generally the like jurisdiction and power as the 
 Court of Chancery in England possessed on the tenth day of June 
 1857 as a court of equity, to administer justice iu all cases in 
 which there exists no adequate remedy at law. The various 
 enactments are consolidated by U. C Con. St. c. 12. s. 26. 
 Q. 74.— When does publication pass ? 
 
 A.-When issue has been joined in a cause three weeks before 
 the commencement of the next ensuing examination term, at the 
 place where the venue has been laid, publication is to pass at the 
 close of such term : and when issue has been joined less than three 
 weeks before the commencement of the next ensuing examination 
 term at the place where the venue has been laid, publication is to 
 pass at the close of the following term. Ch. Ord. H s 5 2^ 
 Deer. 1857. ' ' '^^ 
 
 Q. 75.-When may a statute be relied upon as a ground of 
 demurrer, in equity, and when not? 
 
 A.-When the hill shews the omission of requirements made 
 necessary by the statute to be complied with to entitle a party to 
 relief. But such can not be relied upon when a charge of fraud or 
 trust or part performance is pleaded. 
 
 Q. 76.— What are valid objections to discovery ^ 
 .^■-y^^l'fJ''''''^^^^on; want of interest ; no privity between 
 plwntiflF and defendant; that discovery not material ; that it would 
 subject the defendant to penalties, forfeiture, criminal prr. n.-.Jon 
 or hazard of title, Mitford Eq. PI. 220. "" * 
 
d' 
 
 302 
 
 m 
 
 EXAMINATION qUESTIONS. 
 
 Q. 77.— When will u writ of arrpst bo grantod ? 
 
 A.— When the party appearing for the writ has a cause of suit 
 to at least $100, and hy affidavit shows such facts and circumstances 
 as will satisfy a judge that there is good and probable cause for 
 I'olieving that the person against whom the writ is to be issued, 
 unless lie be forthwith apprehended, is about to quit Canada with 
 intent to defraud his creHtors generally or such party pnrtieulnrly. 
 U. C. Con. St. c. 24, s. H. 
 
 Q. 78. — When may the court proceed without a personal repre- 
 sentative ? 
 
 A.— When there is no legal representative, and the interest of 
 the deceased defendant in the matter in question in the suit is of 
 little consequence, and where there is difficulty in obtaining re- 
 presentation to his estate. See Ch. Ord. XXX. ; Daniel's Ch. 
 Prac. Ileadlam's Ed. 1158. 
 
 Q. 79. — In what cases will a receiver be granted ? 
 
 A.— When it does not appear reasonable that either party to the 
 suit should be in receipt of the rents, issues or profits of land or 
 other things in question in the cause, the court will appoint an in- 
 difl'erent person between the parties to be receiver. Smith's Ch. Pr. 
 607. 
 
 Q. 80.— What old forms of bills have the general orders 
 abolished ? 
 
 A.— Supplemental bills, bills of revivor, bills of revivor and 
 supplement, original bills in the nature of bills of revivor and 
 original bills in the nature of supplemental bills, bills of review, 
 bills in the nature of bills of review, bills to impeach the decree 
 on the ground of fraud, bills to suspend the operation of decrees, 
 bills to carry decress into operation. Ch. Ord. XIX., XX., XXI. 
 
 Q. 81.— Sketch the ordinary proceedings in a suit in Chancery, 
 from the beginning to its termination ? 
 
 A.— The plaintiff files his bill setting forth his claim to the 
 assistance of the court ; makes an office copy of the bill for each 
 defendant, that is a copy of the bill on file, certified to by the regis- 
 trar and stamped with the seal of the court. He then serves each 
 defendant with such office copy bill. At the end of the time for 
 answering, if the defendants have not answered, the plaintiff takes 
 the bill pro con/esso and sets the cause down to be heard, without 
 any evidence save the bill, and on the hearing obtains a decree, 
 
STATUTES, PLEADINU AND HKACTICK— KQUITY. 303 
 
 giving tlH- rrli,.f to whid, ti„. plaintiff sl.ow^ hin.^Hf to be entitl...! 
 If t u. defendants answer tl.e l,ill. not netting «nt a cane differ- 
 ent f ron, that .n the plaintiff's hill, tl.e eause n.ay he heard on hill 
 and an,.w r. Hut if there is a conflict as t(, facts, then the plaintiff 
 after the last answer is tiled, files a replication, sets the cause down 
 for the examination of witnesses at the place where the venue is 
 laid ; the evidence on both sides is then taken and the cause may 
 then he set down for argument during the hearing term, and upon 
 such argument the court makes such a decree as the parties arc 
 entitled to. If there is a reference to the master, the party having 
 t^. carnage of the reference must take the decree into the master's 
 office within fourteen days, or any other party to the suit may obtain 
 the reference. If the master's report has to go before the court, 
 the original is filed, and the cause set down to be heard on further 
 directions at the end of fourteen dkys from filing the report. Upon 
 the hearing on further directions, the court finally adjudicates upon 
 the rights ot all parties. ^ 
 
 Q. H2.-H0W must a defence in equity be set up? and distin- 
 guish between the present and the former practice. 
 
 A.-By demurrer or answer, or demurrer to part and answer to 
 
 remainder of the plaintiffs bill. Pleas were allowed under the 
 
 former practice ; hut since the orders of 18.53, pleas are abolished. 
 
 ^l. 8.}.-What jurisdiction has the court of Chancery over 
 
 infants and their estates ? ' 
 
 A.-The Court oi" Chancery has power (concurrent with the 
 Superior Courts of Law) to compel a father or guardian of an infant 
 to allow access by the mother to the infant, and if the infanf be 
 under twelve years of age, to order delivery up of such infant to 
 the mother; U. C. Con. St. c. 74 s. 8. The court has power, 
 when of opinion that a lease or isposition of real estate of an 
 mfant is necessary or proper for his maintenance and education, or 
 when the property is exposed to dilapidation or depreciation in 
 value and the interest of the infant requires it, to order the sale or 
 lease of the estate or any part of it to be made under the direction 
 of the court or one of its officers, or by the guardian of the infant, 
 or by any c^her person appointed for that purpose, in such manner 
 as may be deemed expedient, and may order the infant to convey 
 r. ' ""'-" ="*^'= ""^ *^'^c can De made against the pro- 
 visions of any will or conveyance by which the estate has been 
 
 Ml 
 
304 
 
 ATION qUKtlTIOIN* 
 
 
 m :\t 
 
 I i ■ 
 
 devised or granted m the infant ur tor \m mv \ Hiid if the infant be 
 above seven yearn of age, his coiiseiit is requisite. The court has 
 power to npplv tlie niouiew arising from such tab;. The court also 
 has power to innke a composition in eases of dower, to which the 
 real estate of an infant is Nubject. U. C. Con. St. e. 12, ss. 49- ."»7. 
 
 Q. 84.— What is tlie aHidavit of production, and what should it 
 contain ? 
 
 A. — It is the affidavit to be made by a party who has been served 
 with an order for the production of (hieuments ; Ch. Ord. XX. 
 sec. 2. It should . mtain statements of the documents in the 
 deponent's possession relating to the matters in controversy, the 
 documents which have been in his possession, and the time when 
 they were las^ in his possessicn, and what has become of them, and 
 I statement of those which he objects to produce ; and should also 
 contain a statement that the deponent has not nor has bad any 
 documents in his possession other than those named. 
 
 Q. 85.— In what cases will the Court of Chancery still commit 
 by the writ of attachment ? 
 
 A. — For breach of injunctions, and disobedience to orders or 
 decrees directing an act or duty to be performed which are not in 
 the nature of ordern or decrees for the payment of money or costs ; 
 or for interfering with the process of the court, and for other 
 contempts. 
 
 Q. 86.— '-!.\ what cases is a guardian ad litem necessary ? 
 
 A-. — When infants, or persons of unsound mind, not so found 
 by inquisition, are made parties to suits after decree, or are served 
 with a notice of motion under Order XV. of th.; '?eneral orders of 
 June, 1853, guardians ad litem are necessary to be appointed for 
 them. Ch. Ord., 8th Nov., 1856. 
 
 Q. 87. — What are the statutory limitations as to suits in equity ? 
 
 A. — U. C. Con. St. c. 88, s. 31, enacts that no suit in equity 
 shall be brough. ' >r any land or rent but within twenty years from 
 the time when vhe ' f ' crucs. [See also answer to question 59.] 
 
 Q. 88. — Menti?;u r diflPer.^tt statutory enactments in relation 
 to the rights of :«jo»ti'!- ee uud mortf('>-.or in respect of the mort> 
 gaged estate. 
 
 A. — See answer to Q. 3, on Coote on Mortgages, p. 149, ante. 
 Q. 89. — When should a demurrer, and not an answer, be filed ? 
 
 A. — When any ground of defence is apparent on the bill itself. 
 
 % 
 
IP infant be 
 
 court ilRB 
 
 court also 
 
 which the 
 
 MS. 19 ;»7. 
 
 it should it 
 
 iceu Mcrved 
 Ord. XX. 
 ntH iu the 
 (versy, the 
 time when 
 them, and 
 hould also 
 »a had any 
 
 ill commit 
 
 orders or 
 are not in 
 
 ' or costs i 
 for other 
 
 so found 
 are served 
 
 orders of 
 tointed for 
 
 in equity ? 
 iu equity 
 rears from 
 stion 59 •] 
 n relation 
 the mort- 
 
 19( ante. 
 be filed ? 
 bill itself. 
 
 •TATUTM, HLRADINO A1»D PRACriCI>--EqUITV. 306 
 
 either from matter contained in it. or from defect in it. frame, or 
 
 MiltrCl" 1^2^'; '"' ''-''' ""''' '''-'-- '- 'y ^— 
 
 plc^idinTr'""'' '" '" '""^'"^ ""' -presentation in equity 
 A.- All persons materially interested in the subject matter of 
 heht,.,..o„ouKht generally to be made parties to the s" t ,o 
 hat the. court may do complete justice by deciding upon and et- 
 I.ng the r.ghts of all persons interested, and that fhe'order of he 
 ourt may be safely executed by those who are compelled to obey 
 them and future ht.gat.ons may be prevented ; Mitford Eq. PI. 1 90 
 But th.s rule .s qualified, and when parties are out of the jurisdic- 
 t.on, or are too numerous to be made plaintiffs, the court will allow 
 one or a ew havmg the same interest to sue on behalf of th mT 
 selves and of all others entitled to the relief prayed for 
 
 hisl'se ;;ltri.?; "'"" ""'''' '' -"'''' ^ p'-^'^ -^ ^-« 
 
 A.-By hearing pro con/e,»o ; bill and answer motion for 
 decree ; and upon evidence taken in court during the regular 
 
 Q. 92.-What is requisite in an answer setting up the plea of a 
 purchase for valuable consideration without notice ? 
 
 A -The defendant must aver that the person who conveyed or 
 mortgaged to h.m was seised in fee. or pretended to be so seised 
 
 trltr'f r"'''""'.^*'''"""'^^""''^ P^'P^'t^d an immediate 
 transfer of the possession of the time; that the conveyance was 
 duly executed; wh:t the considerafon was. and the actual pay. 
 rnentth ..ot. He must also deny notice of the plaintiff's title or 
 claim previous to the execution of the deed and payment of the 
 consideration. If peculiar circumstances of fraud or notice are 
 charged, they should be denied as specially and particularly L 
 charged m the bill. Story's Eq. PI. 805. 
 
 •»?■ fC"^**'" ""y ^ defendant obtain relief from a plaintiff 
 without filing a cross-bill ? F'^'nun 
 
 A.-Where the original bill is for specific performance, and the 
 defendant sets up and proves an agreement different from that 
 mgisted on by the plaintiff, and submits to perform the same, 
 the court will decree the performance of the contract as s«t „n K„ 
 tne aefendant. Story's Eq. Plead. § 394. *" "' 
 
 I 
 
 # 
 
 ll 
 
 I 
 
! 1 
 
 306 
 
 EXAMINATION QOESTIONi*. 
 
 Q. 94. — How is a decree in equity enforced ? 
 
 A. — By orders nisi and absolute, writs of attachment and seques- 
 tration. If for the payment of money, then by writs of^. fa, goods 
 and chattels, writs of ^. fa. lands, and writs of sequestration. 
 
 Q. 95. — What is the object of enrolling a decree, and how is it 
 done ? 
 
 A. — To enable the party objecting to the decree to appeal to the 
 Court of Error and Appeal. The enrolment of the decree is done 
 thus : the registrar, at the instance of any party to the cause, 
 attaches together the bill, pleadings and other proceedings in the 
 cause with a fair copy of the decree or decretal order annexed, 
 signed by the chancellor, and countersigned by the registrar ; and 
 the papers and proceedings so annexed and signed are to remain 
 of record in the registrar's office, and such filing is to be deemed 
 and taken to be an enrolment of the decree for all purposes. Ch. 
 Ord. XLIII. 
 
 Q. 96. — May a defendant in equity, when under examination at 
 the instance of the opposite party, enter into any facts material to his 
 own defence, or to what extent is his examination on his own 
 behalf limited? 
 
 A. — He cannot enter into any facts material to his own defence. 
 His examination is limited to an explanation of any matters or 
 things referred to or brought out in his examination in chief. 
 
 Q. 97. — In what cases will equity assume jurisdiction without 
 requiring a bill to be filed ? 
 
 A. — In the administration of the estates of deceased persons. 
 Ch. Ord. XV. 
 
 Q. 98. — What statutory provisions exist as to partition ? 
 
 A.— U. C. Con. St. c. 86, s. 3, enacts that every partition of 
 lands voluntarily made must be made by deed. The same Act, 
 ss. 4 et seq., enacts that joint tenants, tenants in common, and 
 co-parceners may be compelled to make partition of the lands held by 
 them as such, upon the petition of any one of them or his agent, or 
 guardian if a minor, to any of the superior courts of law and equity ; 
 or, where the lands are situate in one county only, to the county court 
 of such county. The same Act, s. 40, gives the Court of Chancery 
 power to make partition as the Court of Chancery in England has 
 jurisdiction. See also U. C. Con. St. c. 12, ss. 45-48. 
 
 Q. 99. — In what cases is it necessary to make all the ee»tui» que 
 
STATUTES, PLEADING Awn db *#«»..» 
 
 , ^^AAv.MU AWD PHACnOE — EQUITY. 307 
 
 A—If the bill is filed to set aside a settlempnf nr ,v *i . 
 
 M,'. tt X" °izr"" "^' ""'■°"' "^^"'^ --'= 
 
 of tr'^^n ^°T "^ ^'""""^ ■■" J"™<li«io„ to ery the validitv 
 ofast «,lls and ^laments, whether respecting reaf orperS 
 estate, and to pronounce such wills to h. Ju f I P™""^ 
 undue influence or other™. ,2V cM „ 'r r °f 
 c. 12, 8. 28. ' '"—I'. C. Con. St, 
 
 ti^^ «^h7^'"'" """' "«"-»«'«»"«= and on what terms will the 
 A If .r ■■??"' °' '"°"»'8^ "■""'J' l" delayed ? 
 
 ^a/rp^fi;";: rLTS^iz iriL'i^tr^' 
 Ser"'t,;rth:r' °' "-^ """="'"■■ '-- "r c:2 ' ^ 
 
 due, if the raortgafsor an„|ie» ,?Tu / !. ■" '' °'"°""' " 
 
 for e.te„ding thf fL:Tz":r;:''Z's:^, "-'""' 
 
 payment of costs. ^ indulgence on 
 
 ^2 m-S.a.e the process for obtaining the usual administration 
 
 A. 
 
 or 
 
 Any peFson claiming to be a creditor 
 residuary legatee, or the next of kin. o 
 
 or 
 
 specific, pecuniary, 
 some one of the next 
 
308 
 
 ■XAMINATION QUESTIONS. 
 
 fill 
 
 
 .41' 
 
 of kin, or the heir or the devisee interested under the will of any 
 deceased person, may apply to the court upon motion, without bill 
 filed or any other preliminary proceeding, for an order for the ad- 
 ministration of the estate real or personal of such deceased person. 
 The notice of motion in such case must be served upon the 
 executor or 'administrator, as the case may be, of such deceased 
 person, at least fourteen days before the day fixed for hearing the 
 application. Ch. Ord. XV. 
 
 DI 
 
! will of any 
 without bill 
 for the ad- 
 ased person, 
 d upon the 
 ich deceased 
 hearing the 
 
 THE 
 
 STUDENT'S GUIDE: 
 
 A OOLLKOTION OF 
 
 DIRECTIONS AND FORMS FOR THE USE OF STUDENTS-AT-LAW 
 AND ARTICLED CLERKS 
 
THE STUDENT'S GUIDE. 
 
 PART I. 
 
 Examination of candidates for admission on the Books of the 
 Society as Students-at-law. ^ 
 
 No person may be admitted on the Books of the Society as a 
 st«dent-at.law who is not of the full age of sixteen years* 
 
 a student-at.law signed by a bencher, and containing the name 
 addition aiul family residence of the candidate. ^Form No. 1.) mus 
 be dehvered to the Secretary of the Society, at his office in OsCde 
 HaJl. on some day in the term next preceding the term in whfch he 
 
 ^:!:zz\. ''-' '''''''^' '-' -'^'^ ^'^ —y ^ 
 
 e^aZlrT'" ■'"'* '" ''"' '°"^^"'^"* ^^y' P'«-'«»« to the 
 exam,„ae day report himself to the sub-treasurer at Osgoode 
 
 fl tavlbl '"1 "^'' ''" '^^ P'-^^^"^«^^«" -'^ the amount of 
 tees payable on admission, together ^ith his petition for admission 
 The presentation (Forn. No. 2.) is an instrument in writing, s gned 
 
 to the Examming Committee. The fees payable by candidates for 
 admission as students-at-law amount to ^u' 12s 6d 
 
 Notice of the day on which candidates are required to attend 
 tlrZ'rr " ^T*"^"'^ to each candidate; if none be so 
 transmitted, the candidate must attend at Osgoode Hall on the 
 Tuesday in the last week but one of the vacation, at ten o'lck 
 don ■; "^ . . ' '^" examination commences. The examina- 
 tion 18 conducted m the Convocation Chamber at Os-«d° HaM 
 by the Examiner for Matriculation, in the presence of a'^Committ^; 
 Of Benchers appointed for the purpose. 
 
31S 
 
 THE student's OCIDE. 
 
 111 I ':'ii 
 
 The examination of candidates is divided into three classes — 
 the University Class, the Senior Class, and the Junior Class. 
 
 Candidates in the former class must be graduates of a University 
 entitled to confer degrees, and established in some part of Her 
 Majesty's dominions; and are examined separately from other 
 candidaieo in the following books : — 
 
 In Homer, — B. 1 of Iliad. 
 
 In LutiiAN, — Charon, Life or Dream of Lucian and Timon. 
 
 In Horace, — the Odes. 
 
 In Mathematics or Metaphysics, — At the option of the can- 
 didate, according to the following courses respectively : — 
 
 Mathematics, — Euclid, Bb. I., II., III., IV., and VI ; or 
 Legendre's Geometric, Bb. I., II., III., and IV. ; Hind's Algebra 
 to the end of Simultaneous Equations. 
 
 Metaphysics, — Walker and Whateley's Logic, and Locke's Essay 
 on the Human Understanding. 
 
 In Herschell's Astronomy, — Ch. I., III., IV., and V. 
 
 In Ancient and Modern Geography and History, — Such 
 works as the candidates may have read. 
 
 Candidates for admission in this class or in the Senior Class, 
 who do not pass therefor, if not rejected in toto, are passed in 
 in the Junior Class. 
 
 Candidates for admission in the Senior Class are examined in 
 the same books as candidates foi admission in the University Class. 
 
 Candidates for admission in the Junior Class are examined in 
 the following books : — 
 
 In Horace,— Bb. I. and III. of the Odes. 
 
 In Mathematics, — Euclid, Bb. I., II., and III., or Legendre's 
 Geometric, by Davies, Bb. I. and III. with Problems. 
 
 In English History and Modern Geography, — Such works 
 as the candidates may have read. 
 
 The forms required may be obtained upon application to the 
 Secretary or Steward at Osgoode Hall. 
 
 1. Notice of application for admission. 
 Law SocifcTv of Upper Canavia, Osgoode Hall-, to wit ? 
 
 Mr. A. B. [a Bencher} gives notice that C. D. [names in full, 
 no initials,'] of , in the County of , in this Province, 
 
THE student's OUIDE. 
 
 313 
 
 gentleman, son of E. D.. of the same place, gentleman, [pr as the 
 case may be^] will, next Term, be presented to the Benchers of this 
 bociety, m Convocation, for the purpose of being entered of, and 
 admitted into, the Society as a Student of the Laws. 
 
 2. Presentation for admission. 
 
 Law SociE-Y of Upper Canada, Osgoode Hall, to wit : 
 
 To the Benchers of the Law Society of Upper Canada, in Con- 
 vocation : 
 
 Gentlemen,— I hereby present to the Examining Committee 
 and to the Convocation, C. D. [names in full, no initials'] of 
 m the county of , in this Province, gentleman, son of E. D., 
 
 ot the same place, gentleman, [or as the case may be] for the pur- 
 pose of his being examined and entered of, and admitted into, the 
 Society as a Student of the Laws. 
 
 [Some member of the Society, of the degree of 
 
 Barrister at Law.] 
 
 3. Petition for admission as Student at Law. 
 
 (Forms of petition are given by the Secretary to the candidates 
 to be filled up by them.) 
 
 Law Society of Upper Canada, Osgoode Hall, to wit : 
 
 To the Benchers of the Law Society of Upper Canada, in Con- 
 vocation. 
 
 _ The petition of C. D., [names at length, no initials] f 
 m the county of , in this Province, gentleman, son of E. D., 
 
 of the same phce, gentleman, [or as the case may be] most res- 
 pectfully showeth, 
 
 That your petitioner is of the full age of years ; 
 
 That he has received an education which he trusts sufficiently 
 qualifies l.im to commence the study of the profession of the law : 
 
 That iie received his education at the University of Toronto, [or 
 at the County Grammar School at , in the county of 
 
314 
 
 THE STUDIINT's GUIDE. 
 
 or 
 
 or at the school of J. S., at , in the county of 
 
 aa the case may be, being as full and particular as posaihle] ; 
 
 That he has been instructed in the following branches of learning, 
 that is to say, in , [as the case may be] ; 
 
 That in the course of such instruction he has read the following 
 books, that is to say, , [as the case may be] ; 
 
 That your petitioner is desirous of becoming a member of the 
 Law Society of Upper Canada, and of being entered thereof as a 
 student of the laws ; 
 
 Your petitioner therefore most respectfully prays that, his quali- 
 fications being first examined and found suflicient, according to the 
 Rules of the Society, and Standing Orders of Convocation in that 
 behalf, he may be admitted and entered accordingly ; and he doth 
 hereby undertake and promise that he will well, faithfully and 
 truly submit and conform himself to, and obey, observe, perform, 
 fulfil and keep all the rules, resolutions, orders and regulations of 
 the Society, during such time as he shall continue on the books of 
 the said Society as a menil)er thereof. 
 
 Witness : ) 
 
 G. H. \ I-niaiy Term, 25 Vic, \pr as the case may be.] 
 
 Candidates passed in the University Class are passed according 
 to their rank, if graduates of the same University ; or according 
 to the dates of their diplomas or degrees, if graduates of different 
 Universities. Candidfites in the Senior or Junior Class are classed 
 according to their merits. 
 
 Attending Lectures. 
 
 Students at law, previous to application for call to the Bar, must 
 attend four courses of lectures at Osgoode Hall, each course last- 
 ing for a Term. They are required to attend every lecture of each 
 course, of which there are two each day, unless excused by Convoca- 
 tion during the same Term, upon the ground of sickness or other 
 unavoidable cause, from attendance for one or more lectures ; but no 
 excuse can be allowed for non-attendance on more than three lec- 
 ture days of the Term. The Terms kept need not be conseciitive. 
 
 Upon the last day of the Term, the student receives from the leo- 
 
THE STUDBNT's OUIDB. 315 
 
 turer a certificate of his attendance, which he nmst exhibit or trans- 
 
 Examination of Caudidates for Call to the Bar. 
 
 No person can be called to the Bar. unless he be of the full a^e 
 or twenty-one years. * 
 
 The following persons may be called to the Bar : (U. C Con 
 St., c. 34.) 
 
 1. Any person who has entered the Law Society, and has been 
 
 t^tl^ Z '""I' Z*^"^^^ ^'' ^'^ y^'''' -d has conforn,ed 
 himself to the rules of the Society ; 
 
 2. Any person who has been standing on tl.e books of the So- 
 ciety for three years, and has conformed himself to its rules and 
 who. before entering the Society (see 23 V.. c. 47) has taken a 
 degree m arts or law in any of the Universities of the United King- 
 dom of Great Britain and Ireland, or in any University or cl 
 lege m Canada, having power to grant degrees ; 
 
 3. Any person who has been duly called to the Bar of any of 
 Her Majesty s Superior Courts in England. Scotland or Ireland, 
 not being courts ot merely local jurisdiction ; and 
 
 4. Any person who has been duly called to the Bar of any of 
 Her Majesty s Superior Courts in any of Her Majesty's Provi^.ces 
 m North America, in which the same privilege would be extended 
 to Barristers from Lpper Canada, and who produces sufficient evi- 
 dence of such call, and testimonials of good character and conduct 
 to the satisfaction of the Law Society 
 
 Every candidate for call to the B^r must cause a written notice 
 {Form No 4.) of lus uitention to present himself for call, signed 
 by a Bencher, to be given to the Secretary of his office in Ost^oode 
 Hall, some day in the term preceding that in which he inte.rds so 
 to present himself. With such notice the Secretary is entitled to 
 a fee of 5s. * 
 
 The candidate must be presented to the convocation by an in- 
 strument m writing, (Form No. 6.) signed by a Barrister of the 
 -J Fper -panada x.ar ; and must execute a bond to the Society (Fonn 
 No. 8,) m the penal sum of ^lUO, with two responsible sureties, 
 
 
316 
 
 THK flTUDKirr's GUIDE. 
 
 I 
 
 iW 
 
 to be approved of by the Treasurer, conditioned to pay fees, and to 
 observe the rules and regulations of the Society. 
 
 The candidate mu8t, at least one day before the examination day, 
 report himself to the Sub-Treasurer at Osgoode Hall, and deposit 
 with him his presentation and bond, and his petition for call, which 
 petition must contain a statement of his age, of the day on which 
 the period of his standing on the books, necessary to entitle him 
 to be called to the Bar, expires, the terms he has kept, and the 
 names of the persons under whose superintendence he has received 
 his professional education (Form No. 7.) At the same time he must 
 deposit with the Sub-Treasurer the fees payable on being called, 
 which amount to jf'il lOs., and the Sub-Treasurer's .oceiptfor 
 such fees entitles the candidate to appear for examination. 
 
 The examinations for call to the Bar are divided into two classes, 
 "call" simply and "call with honours;" and candidates for call 
 with honours are considered as candidates for call simply, in .'h« 
 event of their not passing with honours. Candidates for call with 
 honours must give to the Secretary notice in writing of their desire 
 to be examined for honours, (Form No. 5,) at latest on the Saturday 
 next but one before the term ; and also must endorse their petitions 
 for call with the words " for honours." 
 
 The examination is partly written and partly oral. The written 
 examination of candidates for call with honours takes place on the 
 Thursday and Friday of the week next preceding the term, and the 
 written examination for call simply on the Thursday of the same 
 week, commencing at ten o'clock A. M. each day. The answers 
 to the written questions must be in writing, and must be delivered 
 to the examiners (in whose presence they are to be framed) before 
 three o'clock P. M. of the day on which the questions are given. 
 
 The written part of the examination is in the following books : 
 For call simply :— Blackstone's Commentaries, vol. I., Addison on 
 Contracts, Smith's .Mercantile Law, Williams on Real Property, 
 Story's Equity Jurisprudence, Stephen on Pleading, Taylor on 
 Evidence, Byles on Bills ; besides the Public Statutes relating to 
 Upper Canada, and the Pleading and Practice of the Upper Can- 
 adian Courts of Law and Equity. And for call with honours, 
 in addition to those books, in Russell on Crimes, Story on Partner- 
 ship, Watkius' Principles of Conveyancing, Coote on Mortg-ige.?, 
 
THE HTUDENT'a ODIDK. 
 
 317 
 
 < fees, and to 
 
 ninntion day, 
 and deposit 
 X call, which 
 lay on which 
 ) entitle him 
 ept, and the 
 has received 
 time he must 
 being called, 
 s .oceipt for 
 on. 
 
 two classes, 
 ates for call 
 iply, in 'hfl 
 for call wi:h 
 
 their desire 
 he Saturday 
 eir petitions 
 
 The written 
 dace on the 
 rm, and the 
 )f the same 
 'he answers 
 36 delivered 
 ned) before 
 ire given. 
 
 ing hooks : 
 Addison on 
 1 Property, 
 Taylor on 
 relating to 
 Jpper Can- 
 1 honours, 
 >n Partner- 
 
 Vf nff i>Qf»nq 
 
 Dart on Vendors and Purchasers. Jarman on Wills. Story on the 
 Conflict of Laws, and .Iiistininn's Institutes. 
 
 The oral examination of candidates of both classes takes place 
 on the first Monday ni term. 
 
 The candidate, upon being called to the bar. must appear before 
 the (.onvocatiou in a barrister's gown, for the purpose of his beine 
 presented to the Superior Courts. He may be so presented by any 
 bencher present in court. 
 
 4. Noticf of Presentation for Call. 
 Law Soceta of Upper Canada, Osgoode Hall, to w,t : 
 
 ^u ^- ^* f« **'«'^''-] gives notice that C. D. [names in fuU\ a 
 member of this Society, now standing on the boots as a student of 
 he laws, and who has received his professional education under 
 the supenntendence of E. F. and G. H.. members of this* Society, 
 of the degree of Barrister-at-Law [or as the case may bel will 
 neit term, be presented to the benchers of this Society in Convo^ 
 oation. for the purpose of being called to the bar. 
 
 5. Notice that the Candidate desires to be examined for 
 
 Honours. 
 Law Society of Upper Canada. Osgoode Hall, to wit : 
 ■ C. D. [names in full], who intends to present himself next term, 
 to the benchers of this Society in Convocation for the purpose of 
 bemg called to the bar, pursuant to notice to that effect given last 
 tern, gives notice that he desires to be examined for honours 
 
 [pate.] 
 
 6. Presentation for Call. 
 
 Law Society of Upper Canada, Osgoode Hall, to wit : 
 
 To the Benchers of the Law Society of Upper Canada, in Convo- 
 cation. 
 
 Gbntlemen,-! hereby present to the convocation, C. D. 
 
 »,p 
 
 
 ■ i 
 
S18 
 
 THE STUDENT 8 GUIDE. 
 
 [naniet in yViW], a member of this Society, now standing on the 
 books as a student of the laws, and who has received his profes- 
 sional cc.acation under my superintendence, [or, under the superin- 
 tendence of A. B„ a member of this Society of tiie degree of Barris- 
 ter-at-Law, or, as the case may be], for the purpose of his being 
 called to the degree of Barrister-at-Law. G. H. 
 
 [Some member of the Societi/, of the degree of 
 
 liarrister-at'Law.] 
 
 7. Petition for Call. 
 
 Law Society of Upper Canada, Osooode Hall, to wit : 
 
 To the Benchers of the Law Society of Upper Canada, in Con- 
 vocation. 
 
 The petition of C. D. [names in full] of in the County of 
 
 in this Province, gentleman, son of E. D. of the same place, 
 gentleman, [or as the case mag be,"] and a member of this Society, 
 now standing on the books as a Student of the Laws, most respect- 
 fully sheweth, 
 
 That your petitioner is of the full age of years ; 
 
 That he has received a professional education, which he trusts 
 sufBciently qualifies him to commence the practice of the profession 
 of the law ; 
 
 That he is of years standing on the books of the Society 
 
 as a student of the laws ; 
 
 That he has received his professional education under the super- 
 intendence of a A. B., a member of this Society, of the degree of 
 Barrister-at-Law, for the space of years, and of G. H. a member 
 of this Society, of the degree of Barrister-at-Law, for the space of 
 years [or as the case mag be] ; 
 
 That he nas since his admission into the Society, attended 
 Lectures pursuant to the Rules of this Society in that behalf, that 
 is to say,— the Term of Hilarg, 186 , the Term of Easter, 186 , 
 the Term of Trinitg, 186 , and the Term of Michaelmas, 186 , 
 [as the case mag be.] 
 
 That ,he has since his admission into the Society pursued the 
 following branches of general learning, that is to say, [at the case 
 may be] ; 
 
ing on the 
 his profes* 
 ;he Buperiu- 
 !e of Barris- 
 )f hiH being 
 
 G. II. 
 teyree of 
 er-at-Law,'\ 
 
 TO WIT I 
 
 la, in CoU' 
 
 e County of 
 same place, 
 his Society, 
 tost respect* 
 
 i; 
 
 ch he trusts 
 
 e profession 
 
 the Society 
 
 r the snper- 
 le degree of 
 [. a member 
 the space of 
 
 ty, attended 
 behalf, that 
 later, 186 ^ 
 Imaa, 186 , 
 
 pursued the 
 'a» the cast 
 
 THK student's OITIDE. 319 
 
 wlkn\!\ ^! """"'r "^ T"^ '•"""'' *•" '^^ "'"'• ^»'« f«»owiug 
 works, that 18 to say. [a* (he caae may he] ■ ^ 
 
 That he ha« particnlurly «tudie,l the following branches of the 
 Law, that IS to say. [aa the caae may he] ; 
 
 That in the course of such study h.'lms read the following 
 workH, that is to say. \aa the ca,e may he] ; 'ollow.ng 
 
 That ho iH .uuler no artiel.s of clerkship of any kind whatsoever 
 to any person or per.s..n8 \_or as the caae may he] • 
 
 And that he is desirous of being called to the degree of Barrister- 
 
 Your petitioner therefore most respectfully prays that, his nuali- 
 fic.Uonsbe.ngt.rst exan.i.,ed u..d found s..,Hcie„t according to the 
 Rule so the So,nety and St.u.di..g Orders of (Convocation i,. that 
 behalf, he may be called to the said degree accordingly; and he 
 doth hereby u,.dertake and promise that he will well, faifl.fully and 
 truly sub„..t a..d conform himself to. obey, observe, perform, 
 fu fil and keep all the rules, resolutions, orders and regdadons of 
 O^esaidSocety ,dur.ng such time as he shall continue on the 
 books of the sa.d Society as a member thereof 
 Witness : ) ^ ^ 
 
 J. K. I C. D. 
 
 Bitary Term, 25 Fictoria [or as the cate may be.] 
 
 8. Bond. 
 Law Society of Upper Canada, Osgoode Hall, to wit: 
 
 Know all men by these presents that we, C. D.. [namea in 
 full] of ,n the county of , i„ this Province, gentle- 
 
 man member of the Law Society of Upper Canadu. now standing 
 on the books of the said Society as a student of the laws for Es! 
 qu.re. member of he Honourable Society of Lincoln's Iiin, or a, 
 the case may he, or duly called to practise at the Bar of Her Ma 
 ^sty s Superior Courts in England, or at the Bar in Her Majesty's 
 
 S!T"7n^r"'.^'""'^' ^'' "' '^^ '''' ^««^ *^)' >° North Ame- 
 riea.] and O. P., of , gentleman, and R. S., of aen- 
 
 tleman, are jointly and severally held and firmlv bound to .1.1 r.^ 
 
 Society of Upper Canada in the penal sum of one hundred pou'nds 
 
 [ ■ % 
 
 iff;, 
 
 Iti 
 
 
320 
 
 THE student's GUIDE. 
 
 of lawful money of Upper Canada, to be paid to the Law Society 
 of Upper Canada aforesaid; for which payment to be well and 
 truly made we bind ourselves, and each of us binds himself, our, 
 and each and every of our heirs, executors and administrators 
 firmly by these presents. Sealed with our seals. Dated this 
 day of , in the year of Her Majesty's reign, and in the 
 
 year of our Lord one thousand eight hundred and sixty 
 
 The condition of this obligation is such, that if the above 
 bounden G. D. shall and wil Iwell and truly pay, or cause to be paid, 
 to the Law Society of Upper Canada aforesaid, all such fees and 
 dues of what nature or kind soever, as are now due or payable by 
 or from him to the said Society, by or under any Statute or by any 
 Rule, Resolution, Order or Regulation of the said Society, passed 
 by the said Society, or by the Benchers thereof, with the approba- 
 tion of the Judges of the Province, as Visitors of the said Society, 
 or which shall or may hereafter become due or payable by or from 
 him to the said Society, under the same, or under any other Stat- 
 ute or by any other Rule, Resolution, Order or Regulation to be 
 passed by the Benchers of the said Society in Convocation, with 
 such approbation as aforesaid ; and also do and shall moreover well, 
 faithfully and :ruly obey, observe, perform, fulfil and keep all the 
 Rules, Resolutions, Orders and Regulations of tlie said Society, 
 passed, as aforesaid, and now in force, or hereafter to be passed, as 
 aforesaid, during such time as he shall continue on the books of the 
 said Society as a member thereof— then this obligation shall be void, 
 otherwise shall be and remain in full force, virtue and effect. 
 
 Sealed and delivered "^ 
 in the presence of v 
 A. B. J 
 
 C. 
 O. 
 R. 
 
 D. 
 
 P. 
 
 S. 
 
 (l. 8.) 
 
 (l. s.) 
 
 9. Certificate on Bond. 
 
 Law Society of Upper Canada, Osgoode Hall, to wit : 
 
 These are to certify that we, the subscribers hereunto, are well 
 acquainted with the within named O. P. and R. S., and that they 
 are freeholders of substance amply sufficient to secure the perform- 
 ance of the condition of the within bond. 
 
 J. S. 
 
 J. R. 
 
THE student's GUIDE. 
 
 321 
 
 PART II. 
 
 ARTICLED CLERKS. 
 
 The following persons may be admitted and enrolled as Attor 
 «eys and Solicitors (see TJ. C. Con. St. c. 35, s. 2) : 
 
 1. Any person bound by contract in writing to a practising 
 
 2. Any person bound by contract in writing to a practising 
 attorney or solicitor in Upper Canada, to serve hfm as his clerk fof 
 ^h^ee years, and who before being so bound, has taken a dtg ee L 
 Arts or Law in any of the Universities of the United Kin Jom of 
 Great Britain and Ireland, or of this Province, having powe" to 
 ZJTcT' ^""t'-'/^y^'-'^-^ose articl^ date^fre 1 
 
 3. Any person bound by contract in writing to a practising 
 attorney or solicitor in Upper Canada to serve him as his cTerrfof 
 one year, having been called to the Bar of Upper Canadtort 
 
 Scotland, or Ireland, not having merely local jurisdiction ^' 
 
 4. Any person bound by contract in writing to a practising 
 attorney or solictor in Upper Canada to serve him as his cTertfof 
 
 e'X'an a^t " '"" f -^ '''' ^^^^""^ -«™' admitted i^ 
 enrolled an attorney or solicitor of Her Majesty's High Court of 
 Chancer, or Court of Queen's Bench. Common Pleas or Exche 
 quer m England or Ireland, or who has been writer to the signet 
 or solictor in the Supreme Courts in Scotland. ^ 
 
 CottfoJr'"'"^'-''^'"*^'" "^"^"^ «^Her Majesty's Superior 
 Courts of Law or Equity in any of Her Majesty's Colonies whereL 
 the common law of England is the common lat of th land «„" 
 v.ho has been bound by contract in writing to a .rJZ'J^^ 
 ney or solicitor in Upper Canada to serve hin ^"" " " '"^"" 
 
 year 
 
 his clerk for one 
 
THE STUDENT'S GUIDE. 
 
 P. i 
 
 - 
 *. t 
 
 1 . Form of Articles of Clerkship. 
 
 Articles of Agreement made entered into and concluded 
 on the day of in the year of our Lord one thousand 
 
 eight hundred and sixty between A. B. of the of 
 
 in the County of gentleman one of the attorneys of Her 
 
 Majesty's Courts of Queen's Bench and Common Pleas at Toronto 
 and a solicitor in the Court of Chancery for Upper Canada of the 
 one part and C. D. (a) of the of in the County of 
 
 gentleman and E. D. son of the said C. D. of the other part 
 Witness that the said E. D. of his own free will and by and with 
 the consent and approbation of the said C. D. hath put placed 
 and bound himself and by these presents doth put place and bind, 
 himself clerk to the said A. B. to serve him from the day of the 
 date hereof for and during and until the full end and term of five 
 years [o?- three years or one year as the case may be\ from hence 
 next ensuing and fully to be complete and ended And the said C. 
 D. doth hereby for himself his heirs executors and administrators 
 covenant promise and agree to and with the said A. B. his executors 
 administrators and assigns that the said E. D. shall and will well faith- 
 fully and diligently serve the said A. B. as his clerk in the business 
 practice and employment of an attorney at law and solicitor in Chan- 
 cery from the day of the date hereof for and during and unto the 
 full end of the said term oifive years And that the said E. D. shall 
 not at any time during such term cancel obliterate spoil destroy 
 waste embezzle spend or make away with any of the books papers 
 writings moneys stamps chattels or other property of the said 
 A. B. his executors administrators or assigns or any of his clients 
 or employers which shall be deposited in his hands or entrusted to 
 his custody or possession or which shall come or be entrusted to 
 the care custody or possession of the said E. D. And that in 
 case the said E. D. shall act contrary to the said last-mentioned 
 covenant or if the said A. B. his executors administrators or 
 assigns shall sustain or suffer any loss damage or prejudice by the 
 misbehaviour neglect or improper conduct of the said E. D. the 
 said C. D. his executors or administrators shall indemnify the said 
 A. B. and make good and reimburse the said A. B. the amount or 
 
 (u) If llxe party to be bound be of ago, a third person is seidom made party 
 to the indenture, and if so, the form should be altered accordingly. 
 
THE student's GUIDE. 333 
 
 value thereof And further that the said E. D. shall and will 
 from time to time and at all times during the said term k en tl s 
 crets or the said A. B. and readily and cheerfullv^ohey a d'e^^^^ I 
 h s lawful and reasonable commands and shall not depart or ab " 
 
 time and at all tmies durnig the said term at his ind fb.,V, 
 
 costs and charges find and provide the said . D ^LlZ'Z 
 
 -anner of necessarv and becomin, apparel And Zsa d E f) 
 h he. , ; , ,,„,,, ^^^^l^ ^^^^^ the s.d E. D 
 
 .aid A B his executors adnnnistrators and assigns that he the said 
 ml t 1 nl '°^ •^"""^' '^'' '^'^ t*^"" «« « faithful clerk 
 
 covenants 
 
 
 •I'll 
 ,* '(I 
 
 
 »<:■; 
 
 C. D. and E. D. to pay to the said E. D. 
 
 h the Haid 
 for the first year of his 
 
324 
 
 THE STUDENT'S GUIDE. 
 
 said clerkship the salary or sum of dollars for the second year the 
 salary or sum of dollars for the third year the salary or sum of 
 dollars for the fourth year the salary or sum of dollars and for the 
 fifth year the salary or sum of dollars which several sums shall be 
 payable on the day of in each year [or if the salary is to be a 
 yearly one from the* thus — for each and every year of his said clerk- 
 ship the salary or sum of dollars to be payable on the day of 
 in each and every year] Provided always and it is hereby 
 expressly understood and agreed that such salary shall cease upon 
 any determination of the said clerkship before the expiration of the 
 said term and that in the case of the absence of the said E. D. for any 
 space of time beyond one month during the said term a propor- 
 tionate abatement shall be made of such salary In Witness 
 Vihereof the parties aforesaid have hereunto set their hands and 
 seals the day and year first above-mentioned. 
 
 Signed, sealed, and" 
 
 delivered in 
 presence of 
 G. H. 
 
 the( 
 
 A. B, (l. s.) 
 C. D. (l. s.) 
 E. D. (l. s.) 
 
 2. A Shorter Form. 
 
 Articles of agreement made and entered into this day of 
 in the year of our Lord 186 , between A. B. of gentle- 
 
 man one of the attorneys of Her Majesty's courts of Queen's Bench 
 and Common Pkas at Toronto and a Solicitor of the Court of 
 Chancery of the one part and C. D. of gentleman and E. D. 
 
 his son of the other part Witness that the said E. D. of his own 
 free will and with the consent and approbation of the said C. D. 
 his father hath put placed and bound himself and doth hereby put 
 place and binu himself clerk to the said A. B. to serve him from 
 the date hereof for the term of five years \or three years, or one 
 year"] fully to be complete and ended And the said C. D. for him- 
 self his executors and administrators hereby covenants with the 
 said A. B. his executors administrators and assigns — that the said 
 E. D. shall and will well and faithfully serve the said A. B. as his 
 cleik in the profession of an attorney at law and solicitor in Chan- 
 cery during the said term And that the said E. U. shall not at any 
 
THE student's guide. 335 
 
 time d unng the said term cancel destroy waste or embezzle any of the 
 books papers writings moneys or other property of the said A. B 
 or any of liis clients which may be deposited in his hands or en- 
 trusted to his care or to the care of the said E. D. And that he 
 will indemnify and save harmless the said A. B. his executors ad- 
 mimstrators and assigns from any loss or damage which he may 
 ustain by reason of any such cancellation destruction waste or em- 
 bezzlement which may occur and that he will reimburse him the 
 amount thereof And that the said E. D. shall and will during the 
 aid term keep the secrets of the said A. B. and readily obey his 
 r asonable commands and shall not depart or absent himself from 
 h said service without the consent of the said A. B. and that he 
 cTe k o. . r^'/'°f '' himself during the said term as a faithful 
 clerk ought to do And the said E. D. covenants with the said 
 
 Lt n ''''T" '*'^'"""«t'''^t«'-« and assigns that he will well and 
 faithfully serve him as his clerk during the said term In considkra- 
 
 the sa^ rf /''^ "" "' '''''^'^' --^y «f Canada by 
 loknn 1 ,' A r^ *' '^'' '"'"^ ^' ^- '^' ^««^'Pt ^h^eof is hereby 
 acknowledged the said A. B. for himself his executors and adminis^ 
 
 tra tor! TT' ^f *'^ "''^ ^^ ^- ^"^ --"*«- -^ adminis- 
 Te wl f f r '"'P* '^' '''^ ^- ^' '' ^^' ^J^^k And that 
 the ad "r T Z *^' ^"'"'^'^Se and practice of the law in 
 
 saTd C D . p n 'T '' '^' '^^^^^^^ ^"^*« ^^^ 'charges of the 
 said C D. and ED. use his best endeavours to procure the said E. 
 D. to be admitted and sworn an attorney and solicitor of the said 
 
 ZZr' \l P""'^'^ *'^ '''' E- »• «^«" have well and 
 
 faithfully served his said intended clerkship [ker. ,...ert a covenant 
 
 for payment of salary, if required] In witness &c., («, in Form 
 
 3. Assignment of Articles. 
 
 hlraJT^'^T- T^' '^' '^'y "f »» the year of our 
 
 Lord one thousand eight hundred and sixty between A. B. of 
 
 tb. ,J:1!:T^ r 5 ^^^ «^^--"«y« &« [«. .„ Form No. 1] of 
 the "said'c'n ^nfiu' /'»^^"""» and E. 1). of son of 
 
 tne said C. D. of the second part-and G. H. of , gentle- 
 
 
 Hit 
 
 m 
 
 «f1 
 
326 
 
 THE student's GUIDE. 
 
 man, one of the attorneys &c., [as above,"] of the third part. 
 Whkreas by articles of clerkship bearing date the day 
 
 of , in the year of our Lord one thousand eight hun- 
 
 dred and sixty , made between the said A. B. of the 'one 
 part and the said C. D. and E. D. of the other part the 
 said E. D. of his own free will and by and with the consent and 
 approbation of the said C. D. did put place and bind himself clerk 
 to the said A. B. tc serve him as such from the day of the date 
 thereof for and during and until the full end and term of Jive years 
 from thence next ensuing and fully to be complete and ended And 
 WHEREAS the said E. D. hath served the said A. B. as his clerk 
 from the day of the date of the said articles of clerkship to the day 
 of the date of these presents being a period of years and 
 months And whereas it has been agreed between the parties to 
 these presents that the said A. B. shall assign to the said G. H. 
 the said articles of clerkship and all benefit and advantage of liim the 
 said A. B. under or by virtue thereof or to be derived therefrom for 
 all the residue now to come and unexpired of the said ternj of Jive 
 years being a period or term of years and months And 
 
 WHEREAS also the said C. D. and E. D. have agreed that he the 
 said E. D. shall put place and bind himself as clerk to the said 
 G. H. for the said unexpired period or term of years and 
 
 morths Now THEREFORE this indenture witnesseth that in 
 consideration of the premises and of the sum of Jive shillings of 
 lawful money of Canada to the said A. ^ in hand paid by the said 
 G. H. at or before the sealing and delivery of these presents the 
 receipt whereof he doth hereby acknowledge and at the request and 
 with the consent of the said C. D, and E. D. testified by their being 
 parties to these presents and executing the same he the said A. B. 
 hath assigned transferred and set over and by these presents doth 
 assign transfer and set over unto the said G. H. ail benefit and ad- 
 vantage interest claim and demand whatsoever of him the said 
 A. B. under and by virtue of or to be derived from the said herein- 
 before in part recited articles of clenkship and the service of him 
 the said E. D. under or by virtue of the same To have and to 
 hold the same and every part thereof unto the said G. H. his 
 executors administrators and assigns And this indenture further 
 witnesseth that the said E. D. of bis own fvpe will and hy ar.d with 
 the consent and approbation of the said C. D. hath put placed and 
 
THE student's GUIDE. 337 
 
 bound himself and by these presents doth put place and hind him- 
 self clerk to the said G. II. to serve him f^om the day of tlie date 
 of these presents for and during the residue of the said term of/?,e 
 years that is to say for the said term of years and months 
 
 tully to be complete and ended And the said C. D. for himself his 
 executors and administrators doth hereby covenant with the said 
 br. M. his executors administrators and assigns in manner following 
 that IS to say &c. ^proceed as in Form No. 1.] In considera° 
 TiON whereof and of the sum of Jive shillings of lawful money of 
 Canada to the said G. H. in hand paid by the said C. D. and E D 
 at or before the sealing and delivery of these presents the receipt 
 whereof he doth hereby acknowledge he the said G. II. for himself 
 his executors and administrators doth hereby covenant with the 
 said CD. bis executors and administrators that he will accept and 
 take him the said E. D. as his clerk and also &c \_proceed as in 
 Form No. 1,] In witness &c. 
 
 4. A Shorter Form. 
 This Indenture made the day of iu the year of our Lord 
 186 between A. B. of gentleman one of the attorneys &c. Us in 
 Form No. 2] of the first part C. D. of gentleman and E. D. his 
 son of the second part and G. H. of gentleman one of the attor- 
 neys &c [as inform No. 2] of the third part Whereas by articles 
 of clerkship bearing date the day of A. D. 186 made between 
 tUe said A. B. of the one part and the said C. D. and E D of the 
 other part the said E. D. of his own free will and with the consent 
 of the said C. D. did put place and bind himself clerk to the said 
 A. B, to serve lum from (he date thereof for the ier-m oi five 
 years. And whereas the said C. D. has served under the said 
 articles of clerkship for a period of years and months. And 
 WHEREAS It has been agreed by and between all the parties hereto 
 that the said articles of clerkship and all the unexpired term and ser- 
 yitude of the said E. D. shall be assigned to the said G. H. and that 
 the said E. D. shall put place and bind liimself :Ierk to the said G 
 U. to serve him for the said unexpired term being a period of 
 years and months. Now this Indenture vnimsmh that in 
 consideration of the premises and of the sum o( five shillings to 
 
 L'i 
 
 t m 
 
 % m 
 
328 
 
 THE student's GUIDE. 
 
 him in hand paid by the said G. II. the receipt whereof is hereby 
 acknowledged he the said A. B. hath assigned transferred and set 
 over and hereby doth assign transfer and set over unto the said G. 
 H. all benefit and advantage of him the said A. B. under or by 
 virtue of the said articles of clerkship and the service of the said 
 E. D. for the said unexpired term thereunder to have and to 
 HOLD the same unto the said G. H. his executors and administra- 
 tors And this indenture further witnesseth that the said E. D. 
 of his own free will and with the consent of the said C. D. doth 
 put place and bind himself clerk to the said G. H to serve him for 
 and during the said unexpired term of yea. s and months, 
 
 fully to be complete and ended And the said C. IJ. for himself 
 his executors and administrators hereby covenants with the said 
 G. H. his executors administrators and assigns that &c. [proceed a» 
 inform No. 2.] In consideration whereof and ot the sum of 
 fve shillings to him in hand paid by the said C D. and E. D. the 
 receipt whereof he doth hereby acknowledge he the said G. H. for 
 himself his executors and administrators covenants with the said C. 
 D. his executors and administrators that he will accept the said E. 
 D. as his clerk And &c. [proceed as in Form No. 2.] In 
 
 ■WITNESS &C. 
 
 The articles of clerkship must be filed within three months next 
 after the date of execution, in the office of one of the clerks of the 
 Crown and Pleas at Toronto, and with them must be filed an affi- 
 davit to be made or procured by the attorney or solicitor that he 
 has been duly admitted, (Form No. 5,) and an affidavit that the con- 
 tract was duly executed by the attorney or solicitor and the person 
 bound to serve him as clerk, (Form No. 6,) which latter affidavit 
 must specify the names of the attorney or solicitor and of the person 
 so bound, and their places of abode respectively, and the day on which 
 the contract was actually executed, (b) The clerk of the Crown 
 and Pleas, upon such filing, is entitled to a fee of 2s. 6d. If such 
 affidavit be not filed within three months from the date of the con- 
 tract, the service of the clerk can be reckoned only from the date 
 of such filing. 
 
 (6) It is usual to file two affidavits ; but they may be included 
 
 in one. 
 
THE student's guide. 
 
 5. Affidavit of Attorney. 
 
 329 
 
 County of Wellington ) I A. B. of the To.n of Guelph in the 
 
 to wit . 5 County of WeWngton, gentleman, make 
 
 oath and say ; 
 
 I. That the hereunto annexed articles of clerkship were \nr 
 
 TiTlf «..W. of elerkskip ..] duly execu^dVm id 
 
 our Lofd sri ""!? "^ ''' '"^y °^ - *he year of 
 
 our Lord 186 , being the day of the date thereof: 
 
 2. That I have been duly admitted an Attorney of Her Maiestv's 
 Courts of Queen's Bench and Common Pleas at Tor Lo aTd a 
 
 o7 rl/ ^ V"^ ?" ""^ •^"'y P"^^*'«'"g «' the said T«,.„ 
 ot Ijruelph, and resident thereat ; 
 
 at!h7'''i '^ **"' 'f *^'^ '^' '""'^ ^' ^' ^«« ^^^ still is residing 
 at the said Town of Cwe/pA. ^ 
 
 Sworn before me at the Town of 6?Me/pA1 
 in the County of TFellinffton, the 
 
 '^^y 0^ 186 . J. K. I A. B. 
 
 A Commissioner in B. R. ^c. for 
 the said County. 
 
 u. 
 
 "I I 
 
 County of 
 to wit 
 
 } 
 
 6. Affidavit of execution. 
 
 I G. H. of the of in the County of 
 gentleman, make oath and say : 
 1. That I was present on the day of AD l«fi 
 
 ScwTlfk'h-^""^"""^^ ^"' ^^^ *^^ hereun;o annexed 
 articles of clerkship [or, assignment of articles of clerkshinl dulv 
 
 CTIVI t' seal^d and delivered by the theri naSl's! 
 
 til. ; .?' ' "-""^ *^"' *^' °«"^ " ^- H-" subscribed as witness 
 thereto is of the proper hand-writing of me this deponent: 
 
 2. That at the time of such execution the said A. B. resided at 
 
 and the said C. D. at 
 
 Sworn, &c. 
 
 G. H. 
 
'330 
 
 THE student's GUIDE. 
 
 An attorney cani.ot have more than four articled clerks at one 
 time, (c) 
 
 Service under Articles, 
 
 An articled clerk must, during the term of his articles, be acta- 
 ally employed in the proper practice or business of an attorney ojr 
 solicitor, by the attorney or solicitor to whom he is bound ; or, 
 with his consent, by his Toronto agent, for a part of the terra not 
 exceeding one year. 
 
 Such service must be an actual and continued service under the 
 control of the attorney or solicitor, and in his business ; R. v. The 
 Scriveners' Company, 3 Q. B. 939 ; Ex parte Hill, 7 T. R. 46t.: ; 
 In re Hume, 19 U. C. Q. B. 373. The clerk mist not, ex- 
 cept in his leisure hours, after he has completed his master's 
 business, be employed in any other office or business ; Re laylor, 
 5 B. & Aid. 538 ; Ex parte Llewellyn, 2 Dovvl. N. S. 701. In 
 England, cases have occurred where the clerk has been prevented 
 by long illness from serving regularly, and has neverthelesp. been 
 admitted ; Ex parte Matthews, 1 B. & Ad. 160 ; Ex parte Hodge, 
 M. 1838, 2 Jur. 989. 
 
 If the service *be insufficient for want of continued service, it 
 is bad altogether, and new articles for the whole term must be 
 entered into ; Ex parte Taylor, 4 B. & C. 341. But qiusre, if 
 our courts would not allow the portions of the time well served ; 
 In re Hume, ubi sup. 
 
 Bankruptcy or Death of Attorney or Solicitor, 
 
 The U. C. Con. St. c. 35, s. 14, provides a remedy in the event of 
 the attorney or solicitor to whom a person is bound as clerk becom- 
 ing bankrupt, or taking the benefit of any act for the relief of insol- 
 vent debtors, or having been imprisoned for debt, remaining in 
 prison for the space of twenty-one days before the expiration of 
 the articles : it enacts that in such case, any of the Superior Courts 
 
 (c) Where there are two attorneys in partnership, each may have the full 
 rnimber of articled clerks, provided none of the clerks be bound to iLeui 
 both,— which may be done ; Ex parte Bayley, 9 B. & 0. 691 ; 4 M. & R, 600, 
 
THE student's guide. 
 
 ks at one 
 
 S$l 
 
 s, be actu- 
 ;torney of 
 aund ; or, 
 ! terra not 
 
 under the 
 R. V. The 
 
 R. 46l: ; 
 
 not, ex- 
 i master's 
 le laylor, 
 
 701. In 
 prevented 
 iless been 
 te Hodge, 
 
 service, it 
 must be 
 queer e, if 
 
 1 served; 
 
 B event of 
 •k becom- 
 f of insol- 
 aining in 
 iration of 
 or Courts 
 
 re the full 
 
 d to liitiiu 
 
 & R. 600, 
 
 o Law or E(,u.ty wherein such attorney or solicitor had been 
 admitted to practise, may, upon tbc applicatiou of the clerk, order 
 the contract of service to be discharf^ed, or assigned to sueh person, 
 upon such terms aiu' in such manner as the court tbinks fit. 
 
 The same Act, s. 15. enacts that if the attorney or solicitor, 
 before the expiration of tbe articles, die, or discontinue practice, 
 or If the contract be cancelled by tbe consent of the parties, or if 
 the clerk be legally discharged by any rule or order of the court 
 wherein such attorney or solicitor has been admitted, the clerk may 
 be bound by another contract in writing to any other practising 
 attorney or solicitor during .the residue of the term of his service • 
 and that service under such subsequent contract shall be deemed 
 sufficient, provided an affida.it of execution thereof be duly made 
 and filed as in ordinary cases, subject to the like regulations as in 
 ordinary cases. 
 
 Attending Term. 
 Articled clerks must, during their tern, of service, attend the 
 sittings of the Court of Queen's Bench or Common Pleas, or one 
 of them, during at least two terms, and must comply with the 
 regulations of the Law Society in that behalf. 
 
 They must attend everyday on which the court sits during term, 
 and are required to enter their names and subscribe a decliration 
 of attendance in the Articled Clerk's Attendance Book of the 
 court, pursuant to the rules of court : such entry is made every 
 day. In case of absence during the term, on account of sickness 
 or other unavoidable impediment, the clerk will be allowed his 
 attendance upon satisfying the clerks of the Crown and Pleas of the 
 courts by certificate of his medical attendant or otherwise to their 
 satisfaction, that such sickness or impediment was the sole cause of 
 his absence ;-a certificate of this under the hands of tiie clerks of 
 the Crown and Pleas must be left with the Secretary of the Law 
 Society at the same time that the clerk leaves his peti'tion and other 
 papers before examination. 
 
 A certificate of such attendance may be obtained from the clerk 
 of the Crown and Fleas of the Court which the articled clerk has 
 attended, at any time after the term. 
 
332 
 
 THK HTUOKNt'm UUIDK. 
 
 I -, 
 
 Kxaminution for Certijicnte of FitnesH. 
 
 At h'ftst fourteen dnys before the first day of the term in wliich 
 he seeks nditiission, the candidate must leave witii the Secretary of 
 the Law Society his contract of service, and assignments thereof, 
 if any, and an affidavit of execution thereof and of due service 
 thereunder, and a certificate of his having attended the sittings of 
 the court or courts during two terms ; and in the case of a person 
 who has tulicn a degree, a certificate of his having tnlcen such 
 degree, or a duly authenticated certified copy of such certificate. 
 
 The candidate must prove by the affidavits of iiimself and of 
 the attonu-y or solicitor to whom he has been bound, or his agent, 
 that he has actually served and been employed by such attorney or 
 solicitor or agent (as to the latter for the term of one year only) 
 during the wiiole time of his service, and in the manner required 
 by law {Forma Noa. 7 and 8) : such affidavits he must deliver to the 
 Law Society upon his application to be examined. 
 
 If the contract of service, affidavit and assignment (if any), can- 
 not be produced, upon application made to the Law Society at least 
 fourteen days before the first day of the term in which the candi- 
 date seeks admission, the Society, on being satisfied of such fact, 
 may in their discretion dispense with the production of them, or 
 any of them ; and the certificate of the Law Society of such dis- 
 pensation will be sufficient in lieu of their production. 
 
 Candidates for admission in classes 3, 4 and 5 must publish in 
 the Canaihi Gazette, at least two montlis previous, their intention 
 to apply for admission to the Court of Chancery, Queen's Bench, 
 or Common Pleas (as the case may be) in the next ensuing term of 
 such court ; and persons other than those who have been called 
 to the Bar of Upper Canada must also, at least fourteen days before 
 the first day of the term, leave with the Secretary of the Law 
 Society,—!, in the case of a Barrister, not being a Barrister of 
 Upper Canada,— a certificate under the seal of the Society or Inn 
 of Court in England, Scotland or Ireland of which he is a member, 
 duly attested under the proper hand of the proper officer thereof, 
 that he has been duly called to the Bar, and was at the date of 
 such certificate on the books of such Society or Inn of Court ; and 
 also an affidavit of the applicant to the satisfaction of the Law 
 ^ociety, that since his adirrissbis zq the Bar, no appliuaiion to any 
 Society or Inn of Court has been made against him to disbar him 
 
THE student's GUIDE. 
 
 99i 
 
 or otherwise to disqualify hin. from further practice for misconduct 
 
 an Attorney or SohcKor.-a certificate under the seal of the proper 
 court or courts, duly attested under the hand of the proper office 
 thereof that he was duly adn.itted and enrolled as s chTtton ey 
 or Soheuor. aud was at the date of such certificate on the llo of 
 Attorneys or Solicitors of such court or courts, .uch cer fi ate 
 must hear dale within three months of the first day f t, ' "m 
 durjng winch the application is made ; and also an affidavit of t" 
 applicant that su.ce his admission no application to any an h ou 
 or courts (as the case may he) has heen made against him o strik 
 h.m off the the roll of such court, or otherwis! to disnua ^ Idn 
 in h,8 capacity of attorney or solicitor (Form No 10) 
 
 Applications for certificates of fitness for admission as Attorney 
 Sohctor must he hy petition in writing, addressed to the Benchers 
 he Law Society m Convocation (Fonn No. 12) : and such pet Uo" 
 vnth the contract o service. &c.. aud the fee, ,.Meh am'ount to 
 ^10 10s..) must be left with the Secretary . .be Society at Osgoode 
 Hall on or before the third Saturday next before the term, in whLh 
 admission ,s sought; and the sub-treasurer's receipt for sucrfees 
 IS a sufficient authority to the Exanuners to examine' the arplL" 
 
 July. 1868 and whose period of service expires in term time, but 
 before the ast Thursday of the term, may in lieu of their article 
 deposit their affidavit, stati. , the date of the articles, thrl wtn 
 he service thereunder will expire, and when the same were fifed 
 (For. No, 1 1) and may be examined notwithstanding the nolcl 
 pletion of service under tL. articles ; but the certificate of fitness" 
 not issued until the expiration of the period of service, nor untTa 
 other requirements of the statute and of the rules of the Solty 
 have been complied with. oociecy 
 
 The candidate upon leaving his petition for certificate of fitness 
 
 aTd of r T^ '^' ^'"'"''^ '' *^^ ^°'^''y' -«-- of him f 
 and of the Attorney or Solicitor to whom he was bound, to he 
 questions contained in the following schedules :- 
 
 Schedule A. 
 Questions to be answered by the clerk himself:- 
 1st. What was your age at the date of your articles ? 
 
5S« 
 
 334 
 
 THE student's GUIDE. 
 
 ii 
 
 2nd, Have you served the whole term of your articles at the 
 office where the attorney or attorneys to whom you were articled or 
 assigned carried on his or their business ? And if not state the 
 reason. 
 
 3rd. Have you, at any time during the term of your articles, 
 been absent without the permission of the Attorney or Attorneys 
 to whom you were articled or assigned ? And if so, state the 
 length and occasion of such absence. 
 
 4th. Have you during the period of your articles, been engaged 
 or concerned in any profession, business, or employment other than 
 your professional employment as clerk to the Attorney or Attorneys 
 to whom you were articled or assigned ? 
 
 5th. Have you, since the expiration of your articles, been en- 
 gaged or concerned, and for how long a time, in any and what 
 profession, trade, business or Employment, other than the profession 
 of Attorney or Solicitor ? 
 
 6th. Have you, during the period of your articles, attended the 
 sittings of the Courts of Queen's Bench and Common Pleas at 
 Toronto, or either of them, during the two terms required by the 
 Statute in that behalf? And if so, in the course of such attendance, 
 any casual absence from sickness or other unavoidable impediment 
 occurred, state the occasions and the cause thereof. 
 
 Schedule B. 
 
 Questions to be answered by the Attorney or Solicitor or his 
 agent with whom the clerk may have served any part of the time 
 under his articles, with the certificate of such Attorney, Solicitor, 
 or Agent :— 
 
 1st. Has A. B. served the whole term of his articles at the office 
 where you carry on your business ? And if not, state the reason. 
 
 2nd. Has the said A. B. at any time during the term of his 
 articles, been absent without your permission ? And it so, state 
 the length and occasion of such absence. 
 
 3rd. Has the said A. B., during the period of his articles, been 
 engaged or concerned in any profession, business or employment 
 other than his professional employment as your articled clerk ? 
 
 4th. Has the said A. B., during the whole term of his clerk- 
 ship, with the exceptions above-mentioned, been faith f'ullv and 
 
THE student's GUIDE. 
 
 cles at the 
 articled or 
 t state the 
 
 ur articles, 
 
 Attorneys 
 
 state the 
 
 in engaged 
 other than 
 Attorneys 
 
 , been en- 
 
 and what 
 
 profession 
 
 ended the 
 Pleas at 
 •ed by the 
 ttendance, 
 ipediment 
 
 836 
 
 tor or his 
 
 ■ the time 
 
 Solicitor, 
 
 the office 
 
 le reason. 
 
 rm of his 
 
 so, state 
 
 cles, been 
 ployment 
 erk? 
 
 ills clerk- 
 ullv and 
 
 XLT''^'"' " ^'"^ P"'^^^^^°^^ ^"-- «^ - Attorney 
 5th. Has the said A. B., since the expiration of his arficlr^ 
 been engaged or concerned, and for how long a time, in a'u „mi 
 what profession, trade, business, or employm^ent oth th n h 
 professionof an Attorney or Solicitor? ^er tna.i the 
 
 f.ifhtll'^"'^ ^ t ^T^^ "''''^^y *^"* '^' '^'^ A. B. has duly and 
 faithfully served ^jnder his articles of clerkship (or assign Jnt"' 
 the ase may be) bearing date, &c., for the term tLrein :xpress;d 
 and that he . a fit and proper person to be admitted as an/t 0^'/ 
 If a candidate cannot procure the answers to the questions con 
 tamed m schedule B, or the certificate of service, and he should ^ 
 the time of leaving his papers w^th the Secretary of the Sodetv 
 prove to his satisfaction that it is out of his power I pr cure het 
 and the Secretary will then state the circumstances spec aX n hi; 
 
 the Benchers will dispense with the production of them as thev 
 may think fit and reasonable. • ' ^ 
 
 The examinations are partly written and partly oral. The writ 
 ten examination is in the following books and subjects :-Birk. 
 stone s Commentaries, vol. I. ; Smith's Mercantile Law ; Will aras 
 
 n?tr PlTr' «7f Equity Jurisprudence; the StltuTet: 
 and the Pleadings and Practice of the Courts 
 
 We?n'es7arof ^^"1" *'''"• ^'"^ '' ""'^^''^^ H^"' ^ '^^ ^^st 
 Wednesday of the vacation previous to the term in which t^e neti 
 
 XkA M^the"^^ ^^*^'^ ''''-'''''' — ncingin; 
 
 Clock A. M. The answers to the questions must be delivered to 
 the Exammer by 3 o'clock P. M. of the same day. 
 
 rhe oral examination takes place on the first day of term • 
 but 1 is not entered upon until the examination of alf cand daTe: 
 for call to the Bar on the order for that day is first disposed of 
 
 Upon passing his examination the candidate receives a certificate 
 under the seal of the Society, of his due service under artic and 
 of his fitness and capacity, and of his having complied with the 
 requirements of the Act relating to Attorneys at lZ, U C Co' 
 St c. 3.5) and that he is in all respects duly qualified to be admh' 
 
 . 1 ■' f ""■■ ""P"™' C"""' of Law or iiquity, annexed 
 .0 the oer„flc.te of the origin.1 c„„,r,« „f service .„'d ijigZZ' 
 
336 
 
 THE STUDENT'S GUIDE. 
 
 thereof and affidavits of due service thereunder, and other certifi- ' 
 cates required, such judge endorses his fiat of admission upon the 
 certificate of the Law Society ; and thereupon any of the Superior 
 Courts of Law or Equity may cause the candidate to be admitted 
 and enrolled as an Attorney or Solicitor, having previously admin- 
 istered to him the oath of allegiance and an oath in the words fol- 
 lowing : " I, A. B., do swear (or solemnly affirm, as the case may 
 be) that I will truly and honestly demean myself in the practice of 
 an Atturney (or Solicitor, as the case may be) according to the best 
 of my knowlege and ability. So help me God." 
 
 The Clerk of the Court whence fiat issues is entitled to the fol- 
 lowing fees : for fiat and admission and oath, and on signing the roll, 
 %1, and for certificate, %2, The Clerk of the Court, on admis- 
 sion upon certificate of admission of any other court, is entitled to 
 a fee for signing the roll and certificate of admission of %2. 
 
 7. Affidavit of Service. 
 
 County of \ 
 
 to vrit : I I, E. D., of , gentleman, make oatn 
 
 and sy : 
 
 1 . That under and by virtue of articles of clerkship hereunto 
 annexed, bearing date the day of , A. D. 186 , made 
 between A. B., of , gentleman, one of the attorneys of Her 
 Majesty's Courts of Queen's Bench and Common Pleas at Toronto, 
 and a Solicitor of the Court of Chancery for Upper Canada, of the 
 one part, and C. D., of , gentleman, and this deponent of the 
 other part, I was employed by and actually served in the office of 
 the said A. B., at , being the place where the said A. B. 
 practised in his said business and profession of an Attorney and 
 Solicitor, in the proper practice and business of him, the said A. 
 B., as such Attorney and Solicitor from the day of the date of the 
 said articles of clerkship, inclusive, until the day of , in 
 the year of our Lord one thousand eight hundred and sixty , 
 being a period of years and months ; 
 
 2. That during the whole of the said period I well and faithfully 
 served^the said A. B. as his clerk in the manner required by law ; 
 
 3. That by Indenture hereunto annexed, hearing date the 
 
 day of 
 
 A. D. 186 , the said articles of clerkship were 
 
ther certifi- ' 
 )n upon the 
 he Superior 
 >e admitted 
 usly admin- 
 e words fol- 
 he case may 
 ! practice of 
 ; to the best 
 
 I to the fol- 
 ing the roll, 
 , on admis- 
 B entitled to 
 »2. 
 
 make oatn 
 
 ip hereunto 
 86 , made 
 neys of Her 
 
 at Toronto, 
 inada, of the 
 onent of the 
 the office of 
 
 said A. B. 
 ttorney and 
 the said A. 
 
 date of the 
 f , in 
 
 id sixty f 
 
 id faithfully 
 red by law ; 
 &te the 
 rkship were 
 
 THE student's GUIDE. 337 
 
 duly assigned to G. H.. of . gentleman, one of the attorneys 
 
 at rZ P""'^. " 'l^^onris of Queen's Bench and Common PleL 
 Canada ^ ' ""^ *^' ^°"''* °^ ^^""'^'■^ ^^' ^PP^r 
 
 bvt?r?"n'' '"*^ '^y/irtueof such assignment I was employed 
 by and actually servea in the office of the said G. H at 
 being the place where the said G. H. practised in his s^id busines; 
 and profession of an Attorney and Solicitor, in the proper practice 
 and business of the s^d G. H. as such Attorney and'sS tm 
 the day of the date thereof, inclusive, until the day of 
 in the year of our Lord one thousand eight hundred and sixty ' 
 being a period of years and months; ^ ' 
 
 5. That during the whole of the aid period I well and faithfully 
 served the said G. H. as hi. in the manner required by law ; 
 
 6. That I have served m .i! «r.der the said articles of clerkship 
 and assignment thereof, a term of /Ive years ; ^ 
 
 [7. That on the day of , in the year of our Lord one 
 
 thousand eight hundred and , I actually took and had co„. 
 
 ferred upon me by the University of . the degree of 1 
 
 H. That the answers made by me to the several questions set 
 out m schedule A hereunto annexed are respectively true. 
 
 Sworn, &c. 
 
 E. D. 
 
 1 
 
 8. Affidavit of Attorney. 
 
 County of 
 
 and say': "''^ ^ I> A. B.. of , gentleman, make oath 
 
 1. That at the date of the hereunto annexed articles of clerkship 
 [or as^gnment of articles of clerkshipl I was and still am a du y 
 ^mitted and practising Attorney of Her Majesty's Courts of 
 
 the Court of Chancery for Upper Canada ; 
 
 2. That the office where I then carried on and still carry on my 
 business and profession is at • ^ ^ 
 
 8. That E. D. named in the said articles of clerkship [or assian- 
 ment] has actually served and been emnlove.l h. „,. i? Z~Zl 
 practice and business of an attorney and solfcito'r from'thT '' day 
 
 W 
 
 ;« m 
 
9S8 
 
 THE STCDKKt's OOIDE. 
 
 of in the year of .ur Lord one thousand eight hundred and 
 
 , being the date of the aaid articles of clerkship [or amign- 
 mmf] until the day of in the year of our Lord one 
 
 'huusand eight hundred and sixty , being a period of 
 
 years and months : 
 
 4. That during the whole of the said period the said E, D. well 
 and faithfully served me as my clerk in the manner required by 
 law; 
 
 5. That the answers by me made to the several questions set out 
 in Schedule B. hereunto annexed are respectively true. 
 
 Sworn, &c. 
 
 A. B. 
 
 County of 
 to wit 
 
 9. Affidavit of applicant in class 3. 
 
 , I IE. D. of , esquire, make oath and 
 
 I say : 
 
 1 . That 1 was on the day of in the year of our 
 Lord one thousand eight hundred and duly called to the 
 bar of Her Majesty's Court of Queen's Bench at Westminister 
 [as the case may be] ; and that my name was at the date of the 
 hereunto annexed certificate upon the books of ISociety or 
 Inn of Court] as a member thereof: 
 
 2. That since my said admission to the Bar of the said Court, 
 no application has been made to the said ISociety or Inn of 
 Court] or to any Society or Inn of Court against me to disbar me 
 or otherwise to disqualify me for misconduct in such my capacity 
 of Barrister of the said Court. 
 
 Sworn, &c. 
 
 E. I). 
 
 County cf 
 to wit 
 
 10. Affidavit of Applicant in classes 4 and 5. 
 
 , gentleman," make oath 
 
 ,1 I E. D. of 
 
 1 and say : 
 
 1 . That I was on the day of in the year of our Lord 
 
 one thousand eight hundred and duly admitted and enrolloH 
 
 an attorney of Her Majesty', Court of Queen's Bench at West- 
 
undred and 
 [or aaiffn- 
 ' Lord one 
 id of 
 
 E. D. well 
 equired by 
 
 ions set out 
 
 THE STUDJBNT's guide. 
 
 339 
 
 minister [as the case may be] ; and that my name was on the 
 day of last on the Roll of Attorneys of the said Court : 
 
 2. That since my said admission and enrolment as aforesaid, no 
 application to the said Court has been made against me to strike 
 me off the Roll of ti.e said Court, or otherwise to disqualify me in 
 my capacity as such attorney. 
 
 Sworn, &c. j, j. 
 
 A. B. 
 
 ie oath and 
 
 !ar of our 
 led to the 
 esttti'nister 
 late of the 
 Society or 
 
 aid Court.. 
 
 / or Inn of 
 
 disbar me 
 
 ly capacity 
 
 E. D. 
 
 nake oath 
 
 four Lord 
 
 d enrolled 
 
 at West- 
 
 11. Affidavit of person articled hef ore \st July, 1 858. 
 
 ' } „.J 5'_^' °^ ' ?^"'lPman. "lake oath 
 
 County of 
 to wit 
 
 I E. D. of 
 
 and say : 
 
 1. That I was on the day of in the year of our 
 
 Lord one thousand eight hundred and fifty by articles of 
 
 clerkship bearing date that day, duly bound to A. B. to serve him 
 as his clerk for the term of five years ; which articles of clerkship 
 were duly filed in the office of the Clerk of the Crowa and Pleas 
 of the Court of Queen's Bench at Osgoode Hall on the day 
 
 of following ; 
 
 2. That the said term of five years will expire in term 
 
 next and before the last Thursday of the said term, namely on the 
 day of next. 
 
 Sworn, &c. 
 
 E. D. 
 
 12. Petition for Certificate. 
 
 To the Benchers of the Law Society of Upper Canada, in Con- 
 vocation : 
 
 gentleman, 
 
 The petition of E. D. [names in full] of 
 most respectfully sheweth. 
 
 That your petitioner is of the full age of twenty-one years ; 
 
 That he has received a professional education, which he trusts 
 sufficiently qualifies him to commence the practice of the profes- 
 sion of an Attorney-at-law and Solinitor in Chancer-' ■ 
 
 [That before the date of the articles of clerkship hereinafter 
 
 \t 
 
 m 
 
 
S40 
 
 THE student's GUIDE. 
 
 mentioned, he had taken and had actually conferred upon him br 
 the University of , the degree of ;] 
 
 That he has served a continued term of five years, under articles 
 of clerkship to the several persons hereinafter named ; 
 
 That he received hia professional education for the respective 
 terms hereinafter mentioned in the offices and under the superin- 
 tendence respectively of the several persond hereinafter named, 
 that is to say :— for the term of years and months in 
 
 the office, and under the superintendence of A. B. of , gen- 
 
 tle -lan, one of the attorneys of Her Majesty's Courts of Queen's 
 Bench and Common Pleas at Toronto, and a Solicitor in the Court 
 of Chancery for Upper Canada ; and for the term of years 
 
 and months in the office and under the superintendence of 
 
 6. H. of , gentleman, one of the attorneys of Her Majesty's 
 
 said Courts of Queen's Bench and Common Pleas and a solicitor of 
 the said Court of Chancery ; 
 
 That he has, during the term of his said service, in accordance 
 with the provisions of the Statute in that behalf, attended during 
 two terms the sittings in banc of the court of Queen's Bench at 
 Toronto, that is to say, during the terms of and in the 
 
 year of our Lord 186 ; 
 
 And that he is desirous of being admitted an attorney and solici- 
 tor of the said courts respectively. 
 
 Your petitioner therefore most respectfully prays that, his qual:- 
 fications being first examined and found sufficient according to the 
 Rules of your honourable Society and the standing orders of Coa- 
 vocation in that behalf, he may receive a certificate of fitness 
 pursuant to the Statute in that behalf, and be admitted an attorney 
 of Her Majesty's said courts of Queen's Bench and Common Pleas 
 at Toronto, and a solicitor of the Court of Chancery for Upper 
 Canada : 
 
 And your petitioner will ever pray. 
 Witness: ) 
 J. K. I E. D. 
 
 Hilary Term 25 Victoria. 
 
>n him by 
 er articles 
 
 THE STUOKNT's OUIOB. 
 
 S41 
 
 respeclive 
 3 superin- 
 er named, 
 nonths in 
 , gen- 
 f Queen's 
 the Court 
 years 
 ndence of 
 Majesty's 
 olicitor of 
 
 ccordance 
 
 :'d during 
 
 Bench at 
 
 in the 
 
 nd solici- 
 
 his qualf- 
 ig to the 
 of Coa- 
 af fitness 
 attorney 
 ion Pleas 
 )r Upper 
 
 r. 
 
 E. D. 
 ria. 
 
 PART III. 
 
 THE t.AW SCHOOL. 
 
 By a Rule of Convocation passed 13th June, 1861, a Law School 
 was established by the Law Society (a), having its seat at Osgoode 
 Hall, and deagnated the " Law School of Osgoode Hall." From 
 that order we quote at length : 
 
 " By the Benchers, &c., it is ordered— 
 
 "That there be established a School of Law, to have its seat at 
 Osgoode Hall, and to be designat-d «The Law School of Osgoode 
 Hall ; ° 
 
 "That the tuition of the pupils attending such Law School be 
 by means of lectures, readings and meetings, and otherwise as may 
 be trom time to time prescribed by Rules and Regulations for the 
 conduct of the said school to be framed by a Standing Committee 
 of the Society on Legal Education ; 
 
 "That the tuition of the pupils of the said school be conducted 
 by four Readers, to be designated respectively the Reader on 
 Common Law. the Reader in Equity, the Reader on Commercial 
 Law, and the Reader on the Law of Real Property ; 
 
 " That the said Readers shall be selected from the members of the 
 Society of the Degree of Barrister at Law ; 
 
 " That immediately upon this rule going into effect, and hereaf- 
 ter on the first Saturday in Michaelmas Term in each year, there 
 shall be appointed a Standing Committee of Convocation, to con- 
 
 nrSn^T '"''''"''"Vl '^' ^^^ S«'^°°» •« cbiefly due, we understand, to the 
 present Treasu^r of the Law Society, the Hon. John HiUyard Ca^^eron, 
 Q. C whose endeavours to raise the standing of the Society and to increase 
 te usefulness cannot be the subject of too much praise. If we may take 
 t ;t n'"""'""" '"' scholarships (which took place in Michaelmas Term 
 wm h. !!•"' •; """'°° *° -'"'^S^ "^y^ ^^^ ^^~y ^--i/ B.ay that the L.w School 
 will be emmently successful. A report of that examination is contained ia 
 the Law Journal of December, 18G1. 
 
 f 
 
342 
 
 THE student's GUIDE. 
 
 sist of five members and the Treasurer for the time being, and to 
 be styled the Committee on Legal Education ; which committee 
 shall be charged with the superintendence of the said Law School, 
 and of all examinations of the Society in law, except examinations 
 in open Convocation ; 
 
 " That the existing rules of this society, as to the keeping of 
 terms and compulsory attendance on lectures during Term by Stu- 
 dents at Law (b), do remain in force, with this addition, that there 
 be two lectures on each day during Term, instead of one as here- 
 tofore ; the hours of such lectures, and the division of the lectures 
 in Term amoi t the four Readers to be determined by rules from 
 time to time i ^e made by the Committee on Legal Education ; 
 but the lectures during Term to be nevertheless considered as de- 
 livered in the Law School, and as forming part of t" e course of 
 instruction in law afforded therein ; 
 
 " That, in addition to the lectures in Term, there be established 
 courses of lectures to be delivered during the Educational Terms 
 of the Law School ; of which Educational Terms there shall be 
 three in each year, to commence respectively on the first Monday 
 after Hilary, Trinity and Michaelmas Terms, and to continue du- 
 ring six consecutive weeks; during each of which Educational 
 Terms each Reader shall deliver a course of lectures upon a sub- 
 ject of legal science, to be selected by the Reader and approved of 
 by the Committee on Legal Education ; 
 
 "That, in addition to lectures, t^e Readers, during such Educa- 
 tional Terms, shall hold readings, shall preside at meetings, and 
 shall perform such other duties as may be prescribed by the rules 
 and regulations to be framed by the Committee on Education ; 
 
 " That attendance on the lectures in the Law School during the 
 Educational Term shall be voluntary ; 
 
 " That tickets of admission to the Law School during each Edu- 
 cational Term shall be issued by the Secretary to Students at a 
 charge of S'l for each ticket ; 
 
 " That all written examinations in law shall be conducted in the 
 Law School, in the presence of at least two of the Readers and one 
 Bencher who is a member of the Committee on Legal Education ; 
 
 (b) See ante page 314. 
 
THK STUOKNT's GUIDE. 
 
 343 
 
 "That there shall be tour Scholarships awarded annually in the 
 said Law School to students standing on the books of the Society, 
 of the respective annual values of ^30, ^'40, £50 and ^'60, and 
 open for competition as follows— ^630 scholarships to students un- 
 der one year, A'40 scholarships to students under two years and 
 over one year, ^60 scholarships to students under three years and 
 over two years, and ^'60 scholarships to students under four years 
 and over three years ; any degree entitling to call in three years to 
 be considered as equivalent to two years on the books. Each 
 scholarsliip to be tenable for one year only ; but the holder of the 
 **30,^*40 and .€.50 scholarships to be eligible to election to a high- 
 er scholarship in the succeeding year ; 
 
 "That the annual allowance to such scholars shall be paid to 
 them out of the general funds of the Society, quarterly, on the first 
 Monday after each Term ; 
 
 "That the examination for scholarships be conducted by the 
 same persons, and in the same manner as other examinations in 
 law, and in such books and on such subjects as the Committee on 
 Legal Education may determine ; 
 
 "That the successful candidates for such scholarships be deter- 
 mined by Convocation, and the scholarships be awarded in a formal 
 manner by the Treasurer in open Convocation." 
 
 The books prescribed for the examinations next Michaelmas 
 Term are : (c) 
 
 First year— Stephen's Blackstone, vol. I ; Stephen on Pleading ; 
 Williams on Personal Property ; and Story's Equity Jurisprudence, 
 from the beginning to § 440. 
 
 Second i/ear—mnmns on Real Property; Best on Evidence; 
 Smith on Contracts ; Story's Equity Jurisprudence, 2 vols. 
 
 Third ycfflr— Real Property, Statutes relating to Upper Canada; 
 Stephen's Blackstone, Book 5 ; Byles on Bills ; Hayne's Outlines 
 of Equity ; and Coote on Mortgages. 
 
 Fourth year— Burton on Real Property ; Russell on Crimes, and 
 Common Law Pleadings and Practice ; Smith's Mercantile Law ; 
 Dart on Vendors and Purchasers ; and Mitford on Pleading and on 
 Equity Pleading and Practice. 
 
 I 
 
 (c) At the last examination the books prescribed were difltereni and we 
 understand that the list will be changed every year. 
 
344 
 
 THK student's GUIDE. 
 
 In each year the examinotiona may compri«e questiona on the 
 Canadian Statutes, affecting the j)re8crihed subject*, where the text 
 is varied by such Statutes. 
 
 sOS), 
 
INDEX. 
 
 Abandoniknt, «ee Inauranee, 
 Abatemrnt 
 
 plea in 
 
 four dap nllonred to plend in ....... 
 
 for DOD-join.ler of defendant, plea in . 
 
 in equity, how remedied 
 
 in equity, before decree, how remedied 
 Absoonoino Debtob: 
 
 wiihin what time creditors to attach . 
 
 rA»m 
 
 . 294 
 . 260 
 . 284 
 . 284 
 . 201 
 298 
 
 269 
 
 eflfecjt of ju.igment against defendant as. who is not such 272 
 
 ' allow 
 appearauco being entered 
 
 a -o o»>>iau ucieiiunni; as, wn 
 
 ABSKNT Dkki£ndant, when plaintiff allowed to 
 
 proceed against without 
 
 Abstract op Titlk \\\ '"*'" 
 
 how verified ^^^ 
 
 requisites of perfect ^*^ 
 
 Acokptilatio '^* 
 
 Acceptance: ^^^ 
 
 conditional 
 
 qualified \ *' 
 
 nipra protest ' *" 
 
 by what law construed '. !* 
 
 cross, a good consideration .' * Z? 
 
 verbal 
 
 sufficient to satisfy the Statute of Frauds', what ii ! .' ^^' 
 
 AOOKFTOR : ' 
 
 .45, 
 
 47 
 
 and indorser, diflTerence between 
 
 liability of, governed by lex loci eont'ractu». '.'.'.'.'.'.'.'. ,3. 
 
 for honour may sue whom 
 
 AcoEssoRv : ^^ 
 
 nnd principal in the second degree, distinction betireen .... ,, . 
 
 in what cases there cat! bo none ^L. 
 
 wife when ' 
 
 AcoiDEHT .'.''."!.'!!.'.'!.'!.*;.■ ^'^' ^'* 
 
 illustratlnn, of doctrine of 'rVlief on tbe'grJund ofV.V. ^^*' IrJ 
 
 and mistake distinguished 
 
 Aooommooation : 
 
 bill, dr.i»er of eutilied to notice 
 
 when a good defence 1° 
 
 68 
 
 I 
 
 76 
 
 ill 
 
 68 
 64 
 
 1!* 
 
 ■ hi 
 
 M 
 
346 
 
 INOKX. 
 
 M' 
 
 Accomaiot, erldenr** of 'tJJ 
 
 Accord: 
 
 without Biitisfaotlon a htiil plea j.-. 
 
 itati»f«otiou without, may be pioadeii ......!..!! aT I 
 
 Account : 
 
 when bill to Ijfs . .. 
 
 bill to and action of. distlnotiou bol ween !!!.!!!!.. 808 
 
 whon taken with annual rests .'...".'!.."." 168 
 
 stated, whoii opened in equity .'.'..'.'.*.*.. ]B5 
 
 uiatters of investigated liy master without «peci«l reference ! 286 
 
 -^"'^ i.y.no 
 
 !""'" 320 
 
 »« ptTKonam ^2^ 
 
 ex eottlractu -„^ 
 
 , rt , • • 5S36V 
 
 ex malefino „_,. 
 
 . '' 220 
 
 Action : 
 
 right of suspeuded ^^ ^^ 5^ 
 
 separate trials where several causes of joined ' 273 
 
 A0T8 OF Parliament, rules for interpreting .'..•*..*.!..!! 18 
 
 Addiotio ^^. 
 
 ►•....» ,^, ^ 2il 
 
 Adjcbicatio 
 
 AoMINlSTaATION : 
 
 "f »88et8 jg^^ ^^^ ^^^ 
 
 by Court of Ohanoery, proceedings to obtain .290' 807 
 
 eflfect of foreign '22s 
 
 Administbatoe, see Executor. 
 Admission, see Confession. 
 
 when evidence « - . 
 
 of contents of writing, production dispensed with by 236 
 
 by witness, when evidence against him in subsequent proceedings .239. 244 
 Adiiissibiuty, see Evidence. 
 Admit, notice to : 
 
 omission to give „„. 
 
 effect of refusal to admit upon receiving 276 
 
 .fiQUITAB skquittr leqem .17 7 208 
 
 Affidavit, when to be annexed to bill in equity , . ' 199 
 
 Affbeightmbnt, contracts of 46 60 68 
 
 Age, presumption as regards '. 16* 168 
 
 AecNT : 
 
 general and paiticular <« 
 
 who may be .,.......*.*.... 28 
 
 when a partner /« -, 
 
 when not entitled to remuneration kq 
 
 sale by irt his own name 50 60 
 
 right of principal to adopt contract of '.."...' 87 
 
S84 
 
 .... a7i 
 
 .... 271 
 
 .... 199 
 .... 208 
 .... 168 
 .... 166 
 . ... 286 
 .... 820 
 . ... 220 
 .... 220 
 
 220 
 
 . ... 220 
 
 49, 68 
 ... 278 
 ... 18 
 ... 221 
 ... 218 
 
 ... 68 
 
 ... 28 
 
 .49, 61 
 
 ... 69 
 
 .62, 69 
 
 ... 87 
 
 Aftmn—Vontiuutd : 
 
 rJKbt of prinolpal to a<l.>pt act of '^" 
 
 prinoipnl liable for negligenoe of ....'.*!.'.' 
 
 roniinciati..n hy uridur ciTil law ...., '^ 
 
 AaaciifKNT, MM Coutraot. '*' 
 
 Alikn: 
 
 righu of in rcHi property , „ 
 
 power of to make will ^ ' '"*• '** 
 
 may be a««ut '////^ ' '*^ 
 
 Ambnation of lands: *" ^' 
 
 persons not posaewing right of 
 
 restrictions on ""' *^* 
 
 • lOQ 
 
 connected with ownership • . . ■ lai 
 
 unooiineotod with ownership .....*.'.'.* '^ 
 
 statutory changes in the mode of. ? ?„ 
 
 Alimony, jurisdiction .,f Court of Ohwoery to dwre^' .■".'.*.' «, 
 
 AnBiODrrY : -"' 
 
 rules of construction of 
 
 latent may be explained by' parol' evid'ence*. ". '.'.'.■.*■' 87* VdV -'ll 
 
 patent cannot b« explained by parol evidence Jo!, 
 
 Ambiqoocb Plkadiko, how construed ... . 
 
 A«Nn, ^ithin what time after answer' a;;ordeV may' be'obtain^d a-^of '^'^^ 
 
 Anbwib : ■ 2** 
 
 requisites of 
 
 Bilence to as to allegation'i'n 'bill, 'no' admi'sai'o'n'.' .'.■..'.'.'.■ ^°°' gJJ 
 
 APP^t °* "^ a'l'nissions made hy as regards a cn.<lefendant .....'.'.■.■ .' ." [ goo 
 
 notice of 
 
 . . aljl] 
 
 in onmmal cases, leave to be obtained to 2I6 
 
 from County Court, bond when to be perfected upon" .'.'. 276 
 
 Appointmknt, see Power. ^ '^^ 
 
 AppaopaiATiow of puymenta 
 
 AqOIUA LHX *' *•* 
 
 how affected by Ux OorntUa ..........".*. f.J® 
 
 ABBrrRATioN : ^^^ 
 
 compulsory reference to, when made o«o 
 
 submission to when made rule of Court . oia 
 
 Akbitkatob : *'° 
 
 how third appointed when two cannot agree . . 266 
 
 attendance of witnesges before how enforced oh' 
 
 Aerbst; - ^'® 
 
 recent changes in law of 
 
 writ of, when prnnted \\\ ^^ 
 
 of judgment, costs on , , • 
 
 Akson *®* 
 
 17« 
 
348 
 
 INDEX. 
 
 Ma 
 
 
 PABB 
 821 
 
 381 , 
 
 Artiolbd Clebks „ 
 
 to attend Terms 
 
 AETiotEs OF Clerkship s 
 
 forms of ■ 
 
 forms of assignment of 
 
 service under 
 
 Assets, see Administration. 
 
 division of 
 
 administration of 
 
 marshalling of ""' ._„ 
 
 AssiGVEB, foreign, of chose in action, may sue 226 
 
 Absionmbnt ; 
 
 of equitable property 2jq 
 
 in trust for creditors, when revocable jgg jqs 
 
 who to be parties to bill to carry into exeou- 
 
 298, 294 
 
 822 
 
 826 
 
 180 
 
 ....184, 206 
 164, 179, 208 
 
 tion , 
 
 AssDBANCE, see Insurance. 
 Attachment, see Absconding debtor. 
 
 committal by in Chancery --^ 
 
 Attainted person may be agent oo 
 
 Attoenky : ' 
 
 not bound to produce papers of his client '. . 240 
 
 exceptions to the rule as to production of papers by .' .' . .' .* .' * ." .* ," .* .' .' .' ,* 247 
 cannot bind his partner by negotiable instrument 68 
 
 Hen of 
 
 60 
 
 .62. 
 
 remedy of articled clerk upon bankruptcy or death of 330 
 
 AcOTiONEEE, sale by under Statute of Frauds '..'.'.52 69 
 
 how far agent of parties in such case !'.*.'.'.'.!! 
 
 Adthoritt, pleadirgs must shew *.*.*.'.*.'.'.'.'.*.'.' 
 
 AuiaEirois acquit, plea of '...'.'..'. 
 
 bad if prior indictment bud .\*. ',\\' ' jh- 
 
 AnxiLiAuy equity ,, ,^ '"' 
 
 ArowEY and Cognizance, distinction between '. ' o«k 
 
 Awaed: '■■ ^°° 
 
 60 
 250 
 168 
 
 how enforced where order of reference is made a Rule of Court .... 279 
 
 where submissi--^ is made a Rule of Court 280 
 
 where verdict taken subject to arbitration 268, 280 
 
 made upon a compulsory reference, how enforceable before time for 
 
 moving ngaiust 075 
 
 when time for making enlarged, duration of enlargement 273 
 
 what objections may be made under plea of nul tiel award .... '. \ '. '. 270 
 jurisdiction of equity in case of gio 
 
 Bailee without reward, liability of 
 
 BaiiJiKKT and trust, distinction faelween 
 
 28 
 200 
 
FAOB 
 
 821 
 
 381 . 
 
 822 
 
 S2S 
 
 ISO 
 
 ...184, 206 
 14, 179, 209 
 
 192 
 
 226 
 
 210 
 
 ..189, 208 
 exeou- 
 ..293, 294 
 
 804 
 
 28 
 
 ..... 240 
 
 24"? 
 
 68 
 
 60 
 
 830 
 
 ..62, 69 
 ...62, 60 
 
 260 
 
 168 
 
 176 
 
 .205, 207 
 266 
 
 .... 279 
 
 280 
 
 .263, 280 
 e for 
 276 
 
 • • • • ^4 
 
 .... 270 
 .... 210 
 
 « • • • ^8 
 .... 200 
 
 INDEX. 34g 
 
 Bank stock contract for sale of, not ,.ithin the Statute of Frauds ^^t^ 
 
 Bankkb, liability of to pay cheques . . ^^ 
 
 Bab: • '74 
 
 plea in 
 
 examination of candidates for call to *th*e* .' "'^'^ 
 
 Bargain and Sale '^^'^ 
 
 requisites to validity of ".'.*..*.*.*.*.' ^^* 
 
 requires a consideration .' ^^ 
 
 enrolment of unnecessary in Upper Canada V.V. ^^' of 
 
 use cannot be limited in ^ 
 
 cannot contain power of appointment'.'.".'.' '. ^^^' !!? 
 
 Barkatbt 135 
 
 Barristee, who may be ^^ 
 
 Bastard legitimatized by marriage by law of 'sc'oVland '.'.'.; if, 
 
 English law in sucii case. . , '^^ 
 
 Begin, right to ''"' 222 
 
 BiOAiiy, what proof of necessa'r'y ^^"^ 
 
 Bull : 235 
 
 in equity.. , 
 
 " different ki'nds'of '.".'. *.'.'.". '.'.*. ^^^' ^^^ 
 
 '• wi'thin"wt °/;'''^'^«'^ j'/oe;;;:! or'de;;'.v.v.v.'.';;2'9V, III 
 
 within what t,me after answer an order as of course to 
 
 amend may be obtained 
 
 " when demurrible unless affidavit of plaintiff annexed' .'.'." ' 190 
 
 dismissal of on death of plaintiff before decree [ 292 
 
 for want of prosecution „„. 
 
 does not operate as a bar to future suit. . '. oao 
 
 at hearing ^^'^ 
 
 „ , ° , , 2g2 
 
 ^^ by plaintiff after cause set down for hearing. .... 287 294 
 
 when unnecessary to commence proceedings . . ' \m 
 
 " cross, when proper _^ "^ 
 
 when unnecessary 
 
 of exchange, see Negotiable Instrument. 
 
 definition of 
 
 foreign 
 
 inland .....!.........'.'.'.' ^^ 
 
 requisites of [[''[ ^ 
 
 may be accepted after day for payment .' .' .... . .' ." .* .,,' 66 
 
 who is principal debtor on '.!!!!!!*'" 2 
 
 when Statute of Limitations commences to run ogaVnlt. 72 
 
 interest on foreign „„ 
 
 of lading " 
 
 "•ogottabi. .■.■.';;.■;.■;.■;.■ °''' *■ '^ 
 
 I 
 
360 
 
 INDBX. 
 
 Bill — Continued: „.„„ 
 
 of l"^>*^ 185 
 
 of sale, requisites of 262 
 
 conflicting decisions regarding 262 
 
 BoTTOMuv, money advanced on not recoverable if ship be lost 51 
 
 Brokkh : 
 
 sale by under Statute of I'raiidi 49 
 
 nnd factor, distinction between 5g 
 
 BUROLAET .. jijO 
 
 what is considered nigbt as regards 173 
 
 Cancellation : 
 
 when decreed jg5 ojq 
 
 why decreed 210 
 
 of void instrument, when decreed 178 190 
 
 of forged instrument , jgg 
 
 lease by deed cannot be surrendered by 128 
 
 Capitis diminutio 220 
 
 Oaerieb, common 44 
 
 liability of 30, 53, 57 
 
 is an insurer 44 gg 
 
 to whom liable on loss of goods 45 
 
 goods placed with at risk of 80 
 
 and warehouseman, liabilities of distinguished , . , so 
 
 Causes of Action, when permitted to be joined , 262 
 
 Caveat emptor, rule applicable to specific performance 209 
 
 Cbutificatks of Fitness, examination for , . 882 
 
 Cessio in Jure 213 
 
 Cestui que trust : 
 
 purchase from by trustee, effect of 146, 198, 21 1 
 
 reason why voidable 211 
 
 requisites of confirmation of ^ I43 
 
 from what time Stat. Limitations tommences to run against, as to 
 
 setting aside sale by trustee in breach of trust 291 
 
 Cestuib que trust, when to be made parties to a bill in equity 80'7 
 
 Cballenqes : 
 
 how many a prisoner is entitled to 269 
 
 right of Crown as to 269 
 
 Chancery, Court of : 
 
 by what Statute erected 291 
 
 statutory jurisdiction of 300 
 
 proceedings in suit in 8O2 
 
 Charitable Purposes, conveyance for 92 122 
 
 Ohabterpae[tt QO 68 
 
 Chattel : 
 
 interests in real estate 108 
 
 and freehold, distinction between 127 
 
 mortgage, see Bill of Sale, Mortgage. 
 
INOSX. 
 
 36! 
 
 FAOB 
 
 185 
 
 262 
 
 262 
 
 ■ 51 
 
 49 
 
 56 
 
 .... 170 
 
 ns 
 
 ..185, 210 
 
 210 
 
 ..178, 190 
 
 198 
 
 128 
 
 220 
 
 44 
 
 iO, 53, 67 
 ...44, 53 
 
 46 
 
 ..... 80 
 ..... 80 
 
 262 
 
 209 
 
 882 
 
 213 
 
 , 193, 211 
 
 211 
 
 143 
 
 as to 
 
 291 
 
 807 
 
 259 
 
 269 
 
 291 
 
 800 
 
 802 
 
 ..92, 122 
 ..60, 68 
 
 108 
 
 .... 127 
 
 TAGB 
 
 80 
 
 44, 57, 71 
 162 
 
 HG, 198, 211 
 .178, 186 
 
 Chattcis : 
 
 Bpeeific delivery of 
 
 real, devolution of among exe'outora * 180. 186 
 
 Cheque: 134 
 
 md bill of exchange, diatinction between . 
 
 effect of delay to present '^* 
 
 of all of joint depositors necessary'. ^^ 
 
 wli„ liable upon alteration or forgery of 
 
 Children, devise to, when words of limitation 
 
 Chose in action ; 
 
 assignee of should notify debtor. 
 
 when ussignee of can sue in equity ..'.". ^^^' '^" 
 
 foreign assignee of, may sue *^* 
 
 Client : 226 
 
 purchase from by Solicitor, effect of 
 
 burden of sustaining is upon Solicitor ,'. 
 
 mortgage given by for costs, how far valid i s7 tin 
 
 COLLECTOK, reooipt of moneys by, how proved . . '''' J^ 
 
 Colony : '^ 230 
 
 (lovemnient of 
 
 how laws of affected by conque'st . . ". ^^ 
 
 CoMHENTAEiEs. subjccts treated of in 1st vol.'of* Bl'a^kstone"'; H 
 
 Commission, see Witness. '"^-Ksoone s 26 
 
 COMMODATVM AMD MUTUUM 
 
 Common recovery, proceedings on ' " * ^'"^ 
 
 how affected by lis niota. . . ^'*'^ 
 
 Competency of witnesses, see Witness ^^^ 
 
 rule as to 
 
 difference between" English and Canadian bw .'.^ Vei^a'rd; f!^ 
 
 Compulsory rk.erknc, see Arbitration, Award " ''" 
 
 Concealment of defects 
 
 Concurrent Jurisdiotiqm of' Equity ^^^ 
 
 Condition : 200 
 
 precedent and subsequent, diatinction between 
 
 breach of relieved in equity 
 
 Confession of accused, when admi's;i'b'i;'e'v'id'e;;e: ' .' ! .' Z 
 
 tooNizANCK and avowry, distinction between 
 
 Consideration : 
 
 what is sufficient . . 
 
 when necessary . 
 
 to biiisand notes.';;;';;:;;;;";;; 29,88.42,62 
 
 barg,-\in and sale ....... .'. ^^' ^^ 
 
 covenant to stand seised'' ^^ 
 
 38 
 
 162 
 
 248 
 
 266 
 
 41 
 
352 
 
 INDEX. 
 
 mil 
 
 ? -t, 
 
 O0N8IDEBATION — Continued : 
 
 wliat illegftl , hh 
 
 partly lognl and partly illegal, eflf-t of ,'. .'4*0^ 59 
 
 of original bill affects renewal ho 
 
 of guarantee niust be expres'eii 50 
 
 OoNSPiBACY, several persons may be indicted for, although the act be law- 
 ful for thi'Di to do individually jijij 
 
 OoNSP'ttATOB, declaration of when admissible in evidence against oo-coa- 
 
 *'I''''i''o'« r 246 
 
 O0N801.1DATKD Statutks, which to prevail where provisions of different 
 
 from repealed stututea 075 
 
 OoNSTRUOriVE CoNVEUSION , ca 
 
 „ lt)8 
 
 CONSTBUOTIVE TbUST .gg 
 
 Contract : 
 
 nature of iit law and in equity 004 
 
 kinds of no 
 
 division of under the civil law 217 
 
 specialty and simple, distinction between £9 
 
 simple, when to be in writing gQ .q 
 
 may be collected from distinct writings ' 01 
 
 partly legal and partly illegal, effect of. ...,'..[ 40 
 
 illegal, money p: id on cannot be recovered back 53 
 
 simple, liability of corporations on 32 
 
 how governed by lex loci contractus .29 222 226 
 
 aolutimiia 29 222 
 
 reisita 29, 223 
 
 OOKTBIBUTION ^ „-. 
 
 when enforced g^a 
 
 to extinguish incumbrances 211 
 
 by sureties under the civil law , 216 
 
 CoNVEYANCK : 
 
 different kinds of ].» 
 
 innocent , „,- 
 
 by a man to himself jq2 170 
 
 in fee reserving life estate . , ' jq^ 
 
 when fraudulent by Stats. 18 Eli«. c. 5, and 27 Eli«. 0. 4 ...... 210 
 
 by whom to be prepared on sale of lands 14Q 
 
 how pleaded ' * „,- 
 
 Conveying Lands : 
 
 statutory changes in mode of I ^g 
 
 provincial statutes relating to joo 
 
 Co-FAROKNEB ' * „« 
 
 conveyance by one an 
 
 Copt of copy insufficient evidence .246 
 
 Cornelia lkx ojo 
 
 OOBONKK, duties of . . . aa 
 

 PAOH 
 
 
 11 
 
 ..40. 69 
 
 • • • 
 
 18 
 
 .... 
 
 60 
 
 law- 
 
 
 
 177 
 
 )-coa 
 
 
 .... 
 
 245 
 
 erent 
 
 .... 
 
 276 
 
 .... 
 
 168 
 
 .... 
 
 198 
 
 • a • « 
 
 204 
 
 t • • ■ 
 
 28 
 
 • • • • 
 
 217 
 
 • • ■ • 
 
 29 
 
 ..80 
 
 40 
 
 • • V 
 
 81 
 
 f • • • 
 
 40 
 
 
 83 
 
 • • « 4 
 
 82 
 
 222, 
 
 226 
 
 .29, 
 
 222 
 
 ..29, 
 
 223 
 
 • • . . 
 
 206 
 
 • I • • 
 
 206 
 
 ■ * • • 
 
 211 
 
 .... 
 
 216 
 
 « • • t 
 
 118 
 
 • • • • 
 
 126 
 
 102, 
 
 122 
 
 ■ • ■ • 
 
 104 
 
 • . . • 
 
 210 
 
 • « • • 
 
 140 
 
 • • * 
 
 262 
 
 .... 
 
 118 
 
 . « . . 
 
 129 
 
 . • . . 
 
 89 
 
 > • a . 
 
 90 
 
 . • . . 
 
 246 
 
 . . . t 
 
 219 
 
 . . . . 
 
 ts 
 
 '™^' 953 
 
 OOEPORATION p^Ojj 
 
 how created 26 
 
 how dissolved ' 27 
 
 power of to sell or purchase! 27 
 
 how served with process in ChaneVrJ ^^^ 
 
 habiiity of ou contracts not under seal ^98 
 
 ^ Jable to be sued in n.su.psit upon nes^ui^^r^;,^-- ;;;^^; {^ 
 
 what.Wedh.severalactions„^inst par.es to negoti;b,e inatr. 
 
 when allowed iu dower. . , 266 
 
 T^hen recoverable in acthnVof 's'lander ^66 
 
 how tjixed where cause brousbt ir ^ «„", V,.' .' ^70 
 
 i^diction of an inferior „ " ' "' "''''' " ^'■"''" "^« J- 
 
 CouNSEL, speeches of at Msi Prius 260 
 
 OouNTY CouBT : 266, 277 
 
 jurisdiction of 
 
 supei'ior court cause may be iried'il, 283 
 
 CooETEsv, estate by 277 
 
 what constitutes title to...!!. '0^ 
 
 Covenant : los 
 
 to stand seised • 
 
 requires a consideration! ! ^^* 
 
 not to sue, when a discbarge . . " ^8 
 
 Covenants : ? 39 
 
 what vendor should give 
 
 mortgagor should give !!!!!!! ^^^> ^*^' ^4* 
 
 trustee for gale should give ^^^ 
 
 running with the laud. . 108 
 
 Creditor: see Assignment. ^"8, 128, 124 
 
 and debtor, rights 08 to appropriation of payments 
 
 when enjoined from proceeding at law " 
 
 presumptions as to age of 
 
 proceedings when restrained by 'equi'ty ^6 
 
 cases, new trial in, at whose instance granted ! ! ! ! ^^^ 
 
 when to be moved for ^^* 
 
 J^«'e to appeal in, to bo obtained ^^^ 
 
 CRos^Jai:^^"''"""^^^'p---'^--«pon;i^;'tV!!!!!:!!:::::^ 
 
 when proper 
 
 OHor»'^ '''''" "^'"""'^ - d«fendaoVwitk*a'uV ! ! '^'^ 
 
 OR086.REMAi.NDEa, sce Remainder. 305 
 
 X 
 
INDEIC. 
 
 Oeown, oases where sucooBsion to has been altered 26 
 
 Curator, to whom appointed , . . 214 
 
 by whom appointed , , . . 214 
 
 Custody, proper 244 
 
 CcBTOM, mivit be reasonable ( ; 
 
 certain 17 
 
 continued , . 17 
 
 Ct paiss, (ioclt i.ue of , 120 
 
 Damages: 
 
 when II niatoiial point in issur ..,....., 254 
 
 when recoverable in dower ....,, 266 
 
 Damnum infeotum, jus Isdioti >n of { i(ecor in caee of 220 
 
 Date, exceptions to preaunnption of 238 
 
 Db donis, statute 99, 102 
 
 Death of plaiiitiflf during cause, proceedings upon , 272 
 
 Debtor and creditor, r'';ht8 as to appropriation of moneys paid 54 
 
 DeCtABATION : 
 
 vying, when evidencii 241 
 
 figflinst interest, when admissible . . . ; 248 
 
 '' " why admissible 248 
 
 nccomiMi Dying acts admissible evidence 245 
 
 of co-cor.jpirator when evidence ... 245 
 
 Dkoree : 
 
 practice as to motion for • 286 
 
 motion for, when made 287, 293 
 
 how obtained, before time for answering has expired 299 
 
 obedience to, how enforced 294, 800 
 
 how registered 297 
 
 enrolment of : 806 
 
 declaratory of rights only 292 
 
 Deed : 
 
 different kinds of S8 
 
 estoppel by 93 
 
 how traversed 253 
 
 how proved when subscribing witness is dead 281 
 
 " when one of two subscribing witnesses is dead, and tlie 
 
 other living 231 
 
 proves itself, when ^ I 
 
 Defeots, vendor bound to disclose. .... , . ^ 
 
 Defendant : 
 
 when an admissible witness for co-defendant 288, 25<f 
 
 when not entitled to begin although the issue be upon him 23w 
 
 Del oredebe agent 56 
 
 Dsi>SOATI0,s: 
 
 ■»«Bft»a»sss*si 
 
 t *&•* >«S«' 
 
 221 
 
 I 
 E 
 D 
 D 
 
 Di 
 D; 
 
 Df 
 
 De\ 
 
 DiM) 
 
 Disc 
 Disc 
 
 ■i 
 
PM18 
 
 26 
 
 214 
 
 214 
 
 244 
 
 ! i 
 
 17 
 
 L7 
 
 120 
 
 264 
 
 266 
 
 220 
 
 238 
 
 ... 99, 102 
 
 212 
 
 64 
 
 241 
 
 248 
 
 248 
 
 245 
 
 246 
 
 286 
 
 . . 28'7, 293 
 
 299 
 
 . . 294, 800 
 
 29T 
 
 806 
 
 , 292 
 
 88 
 
 98 
 
 253 
 
 281 
 
 md the 
 , 231 
 
 ! 
 
 . . 288, 26," 
 
 28i 
 
 •••■•• 66 
 
 ^ « » » » • aa I 
 
 I 
 
 3SS 
 
 DEuvEny, what siifEciflnt to satisfir tlm «a^„^ < , t, paob 
 
 DKM.sn ana g,.„„, distinction belwee„ ^ ' "' ^™"'' «4 
 
 UEMuuasri: 12i 
 
 ndini.8 fncts alleged 
 
 present course of objeciioDs'to' pieadinV '^hiu r ""\ 262 
 
 been bad on special . . . ° '^ ^"""^"^y ^°"'d Imve 
 
 oruission of marginal note in... .'.".'.'.' 264 
 
 " II ,. 004^ 
 
 IN Equity : "" "''J^clion to argument [] ^H 
 
 time allowed for 
 
 when proper 289 
 
 statute, when a ground of 295, 304 
 
 Statute of Frauds, when tlken ad;:;;^:^ oi'bv ''* 
 
 Statute of Limitations, when taken Jl. ^ 291 
 
 proceeding., when om-rulcd '"'' "' ''^ -291 
 
 at law and in equity. dilTerenee between ^94 
 
 10 ewdeoce, effect of . . 800 
 
 DknIZKN 07(i 
 
 Dep,»btube 23 
 
 Dkpendbnt stipulations. ...'..'.'.'.'. 252, 276 
 
 Depositions: 1417 
 
 „ -::vtt:::rx:r„;;:T"-°''-- -'» '.'• =« 
 
 D'^POS'WM ' 239, 244 
 
 DssoKNT, rules of ' 221 
 
 " " in Upper Canada . ' 93 
 
 Dbvise, see Will. 94 
 
 e«cutory, what estates may be limited by 
 
 when lands hehl in trust pass under »7' 259 
 
 I" trust, when a legal estate 166 
 
 governed by /ea;/o«r«„Va,.. 164 
 
 ''*"«'"=: 166 
 
 a purchaser .... 
 
 DisooNriNUANOK ;;;;;; 220 
 
 Discovert: 268 
 
 bill of 
 
 practice 08 to obtaining. 198 
 
 Talid objeotioDs to . 295 
 
 ^SXC'"^^^^'^^'^"^: ■":::::::: Z 
 
 248 
 
 ©I 
 
 f 
 
 SI 
 
 ^1 
 
 m 
 
 mi 
 
as6 
 
 INOSX. 
 
 DiBiiiBSAL, Bee Bill in Equity. 
 
 DoMioiL 228 
 
 by wlmt rules detertniDeil 228 
 
 what necespary to acqiiifition of 227 
 
 capacity, how affcc'ed by cbnuge of 227 
 
 Donatio inter w/wo*,- revocation of 216 
 
 mortis causa ^ . . . 192 
 
 " " differs from a gift inter vivos 198 
 
 " " " legacy 198 
 
 Dormant Equities Act 297 
 
 Dower 9S 
 
 when womnn entitled to 98 
 
 IB an estate of freehold 99 
 
 in equitable estates .' loi, 291 
 
 cannot be sold bt'fore set apart ; 99 
 
 diflference between law of England and luw of Canada with respect (o, 119 
 
 what arrears of recoverable 27o 
 
 damages when recoverable in 266 
 
 costs when allowed in action of 266 
 
 Dcplicity, when a fault in the declaration 261 
 
 Duties, relative of persons 26 
 
 Dtinq declarations, when admissible evidence 241 
 
 Easbment 98 
 
 how conferred 108 
 
 how acquired under the civil law 212 
 
 bow lost 108 
 
 Ejectment: 
 
 appearance in when to be entered 267 
 
 notice of defendant's title 278 
 
 effect of defendant not appearing at the trial 268, 271 
 
 equitable defence in 263 
 
 when mesne profits recoverable in 274 
 
 from what date recovery in evidence in action for mesne profits .... 288 
 
 how revived 282 
 
 when brought in County Court 261 
 
 Elect, order to when obtained 292 
 
 Election 162, 208 
 
 widow when bound to make between dower and a legacy 199 
 
 Emblements 187 
 
 Endorsement, see Indorsement, Negotiable Instrument. 
 
 Enuoeser, see Indorser. 
 
 Entireties, tenancy by 108, 187 
 
 Entry, right of barred by licence 117 
 
 Entries made by a deceased person how far evidence 286 
 
.... 228 
 
 .... 228 
 
 .. ..227 
 
 227 
 
 .... 216 
 
 .... 192 
 
 .... 193 
 
 .... 198 
 
 .... 297 
 
 .... 98 
 
 .... 98 
 
 .... 99 
 
 101, 291 
 
 .... 99 
 
 3Ct(o, 119 
 
 .... 27u 
 
 
 .... 266 
 
 .... 261 
 
 .... 26 
 
 .... 241 
 
 .... 98 
 
 .... 108 
 
 212 
 
 .... 108 
 
 .... 267 
 
 .... 278 
 
 268, 271 
 
 .... 263 
 
 .... 274 
 
 .... 288 
 
 .... 282 
 
 .... 261 
 
 292 
 
 
 .... 199 
 
 .... 187 
 
 Bquitablb: 
 
 estate in fee simple 
 
 " (lower in 109 
 
 jointure "' 101, 209 
 
 property, assignment of ^ 
 
 relief, heads of . . . 210 
 
 plea when allowable 208 
 
 EgcTT: " '*■'""' "" " '"^I'-^-i/pieacie;!.".".".;;::;;;;;;;;;;;;; I'l 
 
 jurisdiction, classification of 
 
 concurrent 177 
 
 auxiliary 200 
 
 exclusive . . . .....'. 206, 207 
 
 jurisprudence, origin of. . , ..,.., 208 
 
 differs from legal ^^* 
 
 follows the law 194 
 
 where equal, the law prevails ''''^' ^08 
 
 defence, how set up in 178 
 
 defences peculiar to. 308 
 
 of redemption-(aee Mmgage'e", Mongagor') ''« 
 
 continues open how long . . ^''^^ 
 
 does not escheat ^^9 
 
 " when liable to forfeiture'. ^^' 
 
 sale of under execution. . '^' 
 
 " effect of purchase of ^^^ 
 
 iSSOHEAT : 106, 161 
 
 and forfeiture distinguished 
 
 of what estates arises ' '" 127 
 
 Ebtates : J 20 
 
 one person may have several in the same land 
 
 insmg by implication under will 124 
 
 under will vest, when 161 
 
 Estoppel: 161 
 
 by deed 
 
 'ease by ....'.'.".'..'. '^' »3 • 
 
 by foreign judgment '.'. '20 
 
 effect of not pleading 225, 228 
 
 *'ViDaKOE 244 
 
 general heads of law of... '.',.".'.' 246 
 
 classifecation of ; . . 248 
 
 primary 229 
 
 secondary - - • 229 
 
 when admissible ..'.'.'" ^"^ 
 
 229 
 
358 
 
 INDEX. 
 
 EviDKNOE — Continued. MflS 
 
 secondary, nu degrees of • 244' 
 
 competent . . ■ 246 
 
 gatiBfaotory 240 
 
 general rules governing production of 229 
 
 menning of rule requiring production of beat 229. 248- 
 
 ftdmlFsibility of, n qucBlion for tlie judge 239, 248 
 
 credibility of, a «,u 'stion for tlie jury 248 
 
 excluded on the gmnnils < f policy 23t 
 
 when objocti' 's 'imst bo mndo to 241 
 
 effect of demcrrer to 2(6 
 
 Examining parties pr:. intere»»e mo, practice substituted for 289' 
 
 ExcEPTio • • • • 221 
 
 ExECUTivK, Kce Government. 
 
 Executor, eee xVduiinistruliou. 
 
 promise by must be in writing 
 
 when linblo de bouin propriis 
 
 ennnot pui chase debts of test.itor 
 
 liable in equity for dtbt di.i leslotor 
 
 devolution of chattels real vcsiin;; in 
 
 Low to proceed to have estate administered by the Court of Chancery 290 
 
 Executors take as joint tenants upon a conveyance to Ihcm 211 
 
 ExKCUTonv DiivisE, see Devise. 
 
 ExrKars, evidence of • 247 
 
 SO 
 
 S9 
 
 1*78 
 
 184 
 
 184 
 
 Facto a ; 
 
 and broker, distinction between 6<i 
 
 pledge by how far valid ^2 
 
 FALCiDi.N Law ^IS' 
 
 Fai.se pretences, indictment for uuiainini, goouM by 1 '*'^ 
 
 219 
 
 Familia 
 
 Fee SiMrLic 
 
 propel ties of 
 
 no limilatinn after allowed at common luw . . 
 estate may bo limited after by a shift iiig use. 
 when created wiibont words of limiiation... 
 effect of conveyance of to an infaiit;. 
 
 98, 127 
 
 137 
 
 106 
 
 106 
 
 109, 134, 271 
 131 
 
 how f >, vited ^3' 
 
 equitable estate in • IC'^ 
 
 Felo de bo , ^'0 
 
 Felony : 
 
 what words in a statute create "0 
 
 when' misdemeanor merges in 1"^ 
 
 Feoffment 1^8 
 
 foi morly a torlious coiivevance 126 
 
 infant may make 104 
 
INDEX. 
 
 350 
 
 FAOB 
 
 244 
 
 . 240 
 
 240 
 
 229 
 
 ..229. 248 
 ..239, 248 
 
 248 
 
 237 
 
 241 
 
 276 
 
 289 
 
 221 
 
 80 
 
 89 
 
 178 
 
 184 
 
 184 
 
 innccry 290 
 271 
 
 247 
 
 60 
 
 63 
 
 215 
 
 ...... lt)9 
 
 219 
 
 ...98, 127 
 
 137 
 
 106 
 
 100 
 
 09, 134, 271 
 
 131 
 
 131 
 
 , 109 
 
 , 170 
 
 170 
 
 171 
 
 lis 
 
 126 
 
 , 104 
 
 Pkddal System , . . , PAoa 
 
 Fi. Pa from what time bi.ids p^^p^r'ty' of debtoi'.'. J" 
 
 I- IDE Jugsores. contribution iimong ^"^ 
 
 FouECLoscnB 129 
 
 ami decree for ,a{o. Vo.npiimti^o'advnntag'eVcf ". !" 
 
 when Hale decreed in suit for '** 
 
 enie decreed at instance of subsequent n',cun;irnn"e;r . . ! i .' l^ 
 
 effect of reoo,pt of rents and profits during suit for 21 
 
 u|)ondcf,.uIt.>fpayn.., ofi.stalment. *'* 
 
 parties defendant vlien mortgagor dead 
 
 revival of guit for 
 
 Fobeion: 
 
 laws, wli" recognized 
 
 judgment. ,Teet of ^^* 
 
 FoRKEiTuuE : 225, 228 
 
 nnd escl.oat, Auction between 
 ri'lieved in equit',- 
 FoBGED ins( rumen 
 JnoERy 
 
 not punishable capitally 
 Fonius for use of candidate 
 
 298 
 182 
 280 
 
 ^OHOED instrument, illation of in ;quityV * 
 
 FoaOERV H""'J"- 
 
 :oi 
 
 Fraud 
 
 constructive. 
 
 127 
 
 183, 189 
 
 198 
 
 176 
 
 ■.".■ • 176 
 
 nissi. n ns stndents-at-Iaw 812 
 
 317 
 
 194 
 
 195 
 
 call to the bar. 
 
 gio.md of interference of equity in cases of ,95 
 
 how affected by statute in Upper Canada. 
 
 ,.=r,::E-x^E;^^, 
 
 PuAunuLE.NT conveyances. 
 Freehold : 
 
 03t;ites .... 
 
 195 
 300 
 291 
 210 
 
 and chattel interests distinguished. 
 
 '>8, 130 
 
 FnEioHT 127 
 
 when payable 62 
 
 FuTUEo, estates how made to"comm'encV in "..'.".'.'.'."."■.■.■'.■■■■.■ " ' 
 
 Garkish, course of proceeding to 
 
 Garnishee : 267 
 
 . . . . 6^ 
 131, 136 
 
 how affecte, by reversal of the judgment. ... 
 
 payment by, a discharge 2" 
 
 Genera™' ''"" '''^'^ ""^^^ ''° ^'^^^ subj"ectof .■.■.■.■;.■;.■;::;.■;;;;; y' ' ^" 
 
 avcr.age 
 Bhip . . . 
 
 279 
 
 46 
 40 
 
 4*! 
 
360 
 
 INDET 
 
 llH '. 
 
 OOOM I "•■ 
 
 fftU of oyer the value of £10 84, SB, 48, 55 
 
 need not be in mm 55 
 
 made for a spaoiflo purpose, remedy of vendeo if defective 86 
 
 ■old, plea of never inaebted in action for 200 
 
 OoVKBNMBnT : 
 
 forme of , }g 
 
 eiecutiva , jg 
 
 where reponed under British Constitution 18 
 
 colonial 21 
 
 Obaok : 
 
 days of on billa payable at eight 70 
 
 payable on demand 70 
 
 whore last day falls on holiday, when iustrument payable 60 
 
 Obant J14 
 
 wl)"*' 'itt in 114, 184 
 
 and demise, distinction between 1 Jl 
 
 OoAaANTKB 83, 87, 60, 61 
 
 must ho ill writing 80, 86, 61 
 
 consideration of must he expressed 60, 61 
 
 and promissory note, (listinction between 81 
 
 monuy paid on verbal cannot bo recovered back 44 
 
 GuARorAN : 
 
 appointment by will 20 
 
 powers of testamentiiry 181 
 
 and ward, battery Jiistiflablo in case of 26 
 
 relative duties of 26 
 
 ad litem, how appointed in equity 297 
 
 when necessary 804 
 
 under the civil law 212 
 
 Habeas Corpus Act 20 27 
 
 Half blood, how relatives of inherit 95 271 
 
 HANDwarriNo, comparison of when allowed before the Common Law Pro- 
 cedure Act 289 
 
 Hbauino, how cause brought to 305 807 
 
 Heausay Evidence : 
 
 when admissible 241 
 
 how far admissible in questions of pedigree 286 
 
 " Heie," construction of word 187 
 
 HiBiNO, contract of gj 
 
 HouiniDB : 
 
 various' kinds of jijg 
 
 wlion justifiable 172 
 
 HOTCUI'OT 1 00 
 
 Provincial Statute rel.iting t<> 122 
 
PVOB 
 
 an, 4«, 00 
 
 06 
 
 se 
 
 200 
 
 19 
 
 18 
 
 18 
 
 ai 
 
 70 
 
 70 
 
 66 
 
 lU 
 
 ..114, 184 
 
 121 
 
 87, BO, 61 
 30, 8B, 61 
 ...60, 61 
 
 81 
 
 44 
 
 20 
 
 181 
 
 25 
 
 26 
 
 297 
 
 804 
 
 212 
 
 ...20, 27 
 ...95, 271 
 w Pro- 
 
 289 
 
 ..805, 807 
 
 241 
 
 286 
 
 167 
 
 61 
 
 176 
 
 172 
 
 ..... 122 
 122 
 
 HoMANn see Wife. p^o, 
 
 riglits -f in real ontate of wifp 
 may ,|ispo.,e of wif.^ lonmhol.l ^^ 
 
 "■''tSLlt;.'!,"™""' /""■■-' '" • «'«•" '- «■""» •"•»■ i" '" 
 
 "cieui nti ngnt of Burvivomliip. . 
 
 can couv.y to his wife by ,„ean, of n use '.'.'. !?? 
 
 'Of lon.eat by on wife witl.out truatoo valid . ?• 
 
 ami wile, deviao to 109 
 
 right of wife to pledgo credit of ' ^^^ 
 
 83 
 
 Idiot ; 
 
 power of to purchase 
 
 to nlioii 148 
 
 to miike will 122, 146 
 
 Impbachmk.nt or Wasti. 160 
 
 not tho suhjeot of tomire 
 
 lies in t,'rnnt ,\ 122 
 
 iNcuaiDB.^NCKs, h„w extinguished ^^* 
 
 Ikdbbitatus Count, vendor of roni eJf «»,', '^ " \ - '211 
 
 wla-ro no'conveynl ": ie """' "' "" '°" P"^"''- ^^^ 
 Indentubk 284 
 
 Indeprndknt stipuiatioDs .......,* 88 
 
 IXDOBBEB ; 147 
 
 general rights of 
 
 title of, how affected by "negligence" ^^ 
 
 in full 
 
 in blftiik. . , "'*• ^^ 
 
 restrictive 80, 66 
 
 nam recount 60, 71 
 
 wnrrnnty implied on. . . . . . [ ] ' ^ ' 69 
 
 by ouu of several payees '« 
 
 after death of payee," by whJm't'o'b^ made"." ."." tl 
 
 ot note payable to bearer , '^ 
 
 Indokser, see iVotice of Dishono'ur." ^^ 
 
 and acceptor, distinction between. 
 
 effect of giving time to maker as regards" ." ." .' ." * .""'.'■'■■■ '*'^ 
 
 „. , , ,. '" eubsrquent endorser .....*." J? 
 
 ^^hat dealings with acceptor .ill discharge f 
 
 effect of i,st.u,,entc.mioiji„to the haul of ;;;:::::: :::::;:;;;; n 
 
S62 
 
 INDEX. 
 
 PAOB 
 
 Infant : 
 
 bound by contract for necessaries 84 
 
 cannot draw bill of exchange 42 
 
 cannot give a bond ^ , _ _ 43 
 
 ratification of contract by must be in writiuif 34 
 
 power of to alien ]04_ 122 140 
 
 conveyance by when void I04 143 
 
 cannot mortgage 151 
 
 power of to ninke a will IgQ 
 
 effect of conveyance to I3I 145 
 
 purcliiiser ciinnot brint^ bill for ppecifie perfoinmnco 184 
 
 effect of fraudiiloiitly rcprc'cnlir.jj Iiiniseif to bo of full age 143 
 
 effect of indoigomont of negotiable instnuncut by 79 
 
 may bo agent 23 
 
 partner, position c f gg 
 
 how suit in equity brought by 094 
 
 bill cannot be taken pro confrsM against 293 
 
 when enlillod to a day to shew cause in tiie (Itcrco 2SO 
 
 jurisdicliou of the Court of Chancery over 303 
 
 over real estate of 290, 303 
 
 Injunction 179, 195 
 
 common lijg 
 
 to restrain trejp.isp, when granted iqS 
 
 criminal proceedings when restrained by 192 
 
 Innkekpeu, lien of 33 
 
 Innocent Conveyance, see Conveyance, 
 
 Insamtv ; 
 
 acquittal on the ground of 178 
 
 defence of when raised I73 
 
 Instalmknts, note payable by (j7 
 
 In.stitutks of Jnsliuian, outlines of subjects treated of in 221 
 
 Insukablf. IXf euest 37 
 
 Insukance : 
 
 life assurance diflers from other contracts of 
 
 implied warranties in marine policy 
 
 abandonment 
 
 total lo=8 45 
 
 policy made " interest or no interest " 37 
 
 Insured : 
 
 effect of riiisrcprescntation by 45 
 
 effect of concealment by 45 
 
 when entitled to a • eturn of the premium 
 
 when entitled to abandon 
 
 Insurer : 
 
 risks incurred by on insurance of Hfo o-enorally 
 
 48 
 
 55 
 45 
 48 
 
 60 
 58 
 46 
 
 38 
 
 liable if insured die the day twelve months of the date of tho policy 89 
 
INDEX. 
 
 PAaa 
 
 84 
 
 42 
 
 ..... 48 
 
 84 
 
 . 122, 146 
 .104, 143 
 
 151 
 
 160 
 
 .131, 14G 
 
 184 
 
 143 
 
 79 
 
 28 
 
 83 
 
 294 
 
 293 
 
 2SC 
 
 303 
 
 .290, 303 
 .179, 195 
 
 179 
 
 188 
 
 192 
 
 88 
 
 173 
 
 173 
 
 07 
 
 221 
 
 37 
 
 .... 48 
 
 .... 65 
 
 .... 45 
 
 ..46, 48 
 
 .... 87 
 
 .... 46 
 
 ..45, 60 
 
 .... 68 
 
 .... 46 
 
 363 
 
 InTBEDICT/O PAOB 
 
 Imeresse tkbmini 221 
 
 Interest: 91 
 
 rate of on international contracts, how determined . . 
 
 on foreign bill • 223 
 
 stipulation to diininisL . . .'....'.',.. '^ 
 
 to raise.. "" ^^^' '5' 
 
 • 115 
 
 purch.iser wLen liable to pay 
 
 declaration against, when admiaVible" 
 Inteepleader : 
 
 :i evidence. 
 
 at law 
 
 in equity 
 
 sheriff when entitled (o 
 
 bound to make (inquiries as to cL 
 
 ..264, 
 
 iini. 
 
 '™"'™.°'::"'"":'"""''''"'j»''=-"''j"y-»p™«-«i. 
 
 146 
 
 248 
 
 202 
 187 
 266 
 264 
 
 as re- 
 
 
 iNTERUErxuM, none in demise o/soveVeign ^''^ 
 
 Ikterrogatokies : 
 
 19 
 
 wnen to be served upon nn,^r,=u^ „_..... " 257 
 
 Issue, eflcct of gift over upon default of 
 Issues of law and fact in what 
 
 opposite party 
 
 default of 
 
 order disposed of, 
 
 w ^::^r'' ^""^""^ '° -"-"-''^'-tion betw 
 
 when parttieis 
 
 een 
 
 277 
 168 
 256 
 
 89 
 
 eff>.'Ct of devise or bequest hy . ....'.[',[[[[ ^^ 
 
 Jointure : 
 
 I'eqtusites of legal 
 
 equitable 
 
 T 
 
 Judgment: 
 
 on writ specially endorsed 
 
 non obstante veredicto, when given" 
 
 165 
 
 102 
 HI 
 
 261 
 
 costs on -^3- 258 
 
 respondeat ouster 258 
 
 costs on arrest of ' * 253 
 
 reversal of does not .affect garnishee ^64 
 
 registration of, elFect of 277 
 
 abolished 279 
 
 how far conclusive ,\\ 279 
 
 foreign, how far eonclusivo '. .'. ^43 
 
 debt a good consideration ^^^' ^28 
 
 creditor when entitled to 
 
 debto 
 
 o priority over attaching creditor 
 
 76 
 
 to,^ amdavit to obtain examination of ' ""^""^" ^88 
 
 JoDiciALLv, matters noticed 284 
 
 ?48 
 
 if 
 
364 
 
 INDEX. 
 
 
 FiLOB 
 
 JuROE, effect of withdrawing. , , 2*^9 
 
 Jury, see Challenge. 
 
 different kinds of 284 
 
 effect of discharging 279 
 
 Justices of the Peace : 
 
 how appointed 24 
 
 duties of 24 
 
 EiNO, see Sovereign. 
 
 Lands, see Real Property. 
 
 I^PSE 92^ igi 
 
 Larceny i>j2 
 
 involves a trespass 1^4 
 
 from the person and robberj, distinction between 176 
 
 servant converting master's goods guilty of 174 
 
 Law: 
 
 classification of I9 
 
 municipal 24 
 
 how divided 24 
 
 common, origin of 20 
 
 civil and canon, how classed 20 
 
 introduction of into England 20 
 
 of nations 24 
 
 school of 341 
 
 Lkadino Questions, when allowed 249 
 
 Lease gj 
 
 parts of 131 
 
 covenants in 124, 181 
 
 by estoppel 120 
 
 by deed cannot bo surrendered by cancellation 128 
 
 mortgagor cannot make HO 
 
 tenants in tail may make 128 
 
 and release 118 
 
 mortgagor cannot convey by 109 
 
 Leasehold, sec Chattel Interests.* 
 
 how created 117 
 
 statutory requireiiients respecting HI 
 
 Statute of Uses does not apply to 91 
 
 liabilities of mortgagee of 187 
 
 Legacy : 
 
 arrears of interest on recoverable 290 
 
 when satisfaction of debt due from testator 183 
 
 Legitimacy, by what law governed 226 
 
 Lessee of mortgagor, position of 154, 166, 167 
 
FAOB 
 
 279 
 
 , 284 
 , 279 
 
 24 
 24 
 
 ...92, 161 
 
 172 
 
 174 
 
 175 
 
 174 
 
 19 
 
 24 
 
 24 
 
 20 
 
 20 
 
 20 
 
 24 
 
 341 
 
 249 
 
 91 
 
 131 
 
 ..124, 131 
 
 120 
 
 128 
 
 110 
 
 128 
 
 118 
 
 109 
 
 117 
 
 117 
 
 91 
 
 187 
 
 290 
 
 183 
 
 226 
 
 1, 166, 167 
 
 S66 
 
 Letters : 
 
 publication of when restrained ^''°^ 
 
 patent of crown lands, Jurisdiction of 'th^CourVof Ch;:* " ' ' ! " V " " * " ^»» 
 cancellation of . ' °' Chancerj to decretj 
 
 ^=^- . 292 
 
 loci contractus 
 
 fori ooT 
 
 . , ** I 
 
 loo nolutionis 2\" 
 
 License once given for bVeaeh'of co^Jnant'barJ IIX^ "r • • 227 
 
 LiEv, see Stoppage in Transitu. ^^^ "^ '""''y 117 
 
 arises how 
 
 general and particular, 62 
 
 not barred by Statute of Limi'tations «« 
 
 not destroyed by set off . . " " ' - • • • . 68 
 
 Jben determined by accepting bil'u; nU; ! '^ 
 
 attorney s ^9 
 
 innkeeper's attaches on whiit 50, 62 
 
 vendor's . . oo 
 
 origin of " 186, 193, 209 
 
 extends only to immovables 209 
 
 attaches against whom • 210 
 
 what acts of vendor wilVdesVroy 213 
 
 effect of receipt for consideration moneV ^'® 
 
 destroyed by delivery to ai?ent of ...a c 212 
 
 Like estate for, (see Pur Autre Vie) *"" "'"'"'«« 6i 
 
 how forfeited 98 
 
 ie a freehold '_ U6, 131 
 
 timber unlawfully cut'by 'tenlnt for Ve«te 'in'rLnl '^ ^ »» 
 
 presumption of '° remmnder man ,03 
 
 by the law of Scotland .'.','.".'] 282 
 
 by the civil law 282 
 
 Limitation: 232 
 
 regarding creation of executory interests. . . . 
 
 oj actions, governed by lex fori .... 117 
 
 of suits in equity ' 226 
 
 Statute of 304 
 
 mota, meaning of . . 
 
 privileged ownmun'ications how affe^iid by" ''^^ 
 
 pendens wcu uy ^ ^^^ 
 
 Livery, lands lie in ' *.' 287 
 
 Locus ocNTEAOTus, how determined".!!.' ^^* 
 
 Loss, total, see Insurance. •' 40 
 
366 
 
 INDEX. 
 
 '■ .( 
 
 Is'? 
 
 li 
 
 h -' ^ 
 
 If 
 
 PAoa 
 
 LCNATIO : 
 
 power of tu alien 122, 146 
 
 cnnnot mortgnge 161 
 
 power to make will 160 
 
 purclmse by voidnblu 146 
 
 guui'dinnsliip of 21 
 
 < 'ourt (if Chancery mnv dochue, without commission ... 293 
 
 jui i.^diction of over real estate of 290 
 
 Mala in sk i.nJ tnaln prohihila, distinction between 23 
 
 Maucg;, prfisuniption of 176 
 
 Mancipatio 213 
 
 Mandatory, renunciation by 217 
 
 Mandatum 218 
 
 MANSLAUonxEB 172, 178, 176 
 
 and murilci', distinction between 176 
 
 Maruiaor: 
 
 n civil contract ^ 26 
 
 conditions in restraint of 164 
 
 agreement in consideration of must be in writing 80 
 
 no part performance of a contract 145 
 
 of woman plaintiff or defendant, effect of 263 
 
 foreign how far valid 226 
 
 Married Woman, see Dower, Husband. 
 
 rights of with respect to real estate 112 
 
 purchase by, voidable 146 
 
 power to alien 90, 146 
 
 . cannot mortgage 151 
 
 power to make will 158, 160 
 
 real property settled to use of, how rendered inalienable 102 
 
 settlement made by, when set aside 185 
 
 equity of to a settlement, nature of 180 
 
 when enforced 189 
 
 effect of gift by her to her husband 194 
 
 note made payable to 67 
 
 who should endorse 72 
 
 who should sue upon 72 
 
 may be agent 28 
 
 how far liable criminally. , HI, 174 
 
 when an accessory 172, 174 
 
 how far admissible as witness for her husband -. 236 
 
 how bill in equity taken pro confttso against , 800 
 
 Mabtkb : 
 
 and servant, relative duties of 26 
 
 right of aciion for beating servant = -' 28 
 
 assault by, in defence of servant, justifiable » < .24, !J6 
 
PAOB 
 
 ..12'2, 146 
 
 161 
 
 , 160 
 
 146 
 
 21 
 
 ... 298 
 290 
 
 23 
 
 176 
 
 , 213 
 
 217 
 
 218 
 
 2, 178, 176 
 176 
 
 25 
 
 164 
 
 30 
 
 146 
 
 . ... 263 
 225 
 
 112 
 
 146 
 
 ...90, 146 
 
 161 
 
 ..168, 160 
 
 102 
 
 185 
 
 180 
 
 189 
 
 194 
 
 67 
 
 'TO 
 
 ■ ••••* I M 
 
 72 
 
 28 
 
 ..171, 174 
 ..172, 174 
 ...... 236 
 
 800 
 
 :M, 
 
 26 
 28 
 
 ^6 
 
 IKDBX. . gg,y 
 
 ^MTBR—ConliniKfd. 
 
 m-y bring „c(iou (or .eductiou of ecrvnnt wh, „ «■*<"> 
 
 M.us: ::,':' ° ^^--"^ ^-'«"^ ^y --uT : :' ^ao 
 
 "•AKSIIALLINO, (SCO Assets) 82 
 
 of sccmiiics lag 
 
 "•""OFK ■ • • jgg 
 
 liow prfcv<'n<o(l " 106, 124, lag 
 
 Pn.vinciftI Statuto reluti'nyto 132 
 
 Mi.NO«s.roIntion.,of,m,|orthocivinaw 
 
 MlSDKMKANon, whcD merged iu felony 212 
 
 2;^--or,rope.,i„eo„tL;f;;ei-;«:-K:::: ]ii 
 
 '<^^:":^^:r^t:^:::T^^y'^''^^<. » 
 
 clmngeiisto 260 
 
 v,.„ nmeiKJnicnt at trial, in oaiV ),<■ ^60 
 
 MiSBKPRESKNTrow : "i^oase of ^^^ 
 
 by vendor, when fraudulent 
 
 bystrnnger •••••143.187.204 
 
 MiSTAKB ,>, 
 
 „, 141 
 
 "•^'aw 194,201,211 
 
 Monk" "^ "''"'^«"'' distinction between' ."."'."""''.' 208 
 
 received erroneously is for use of owner 
 
 'Ilegdly .Icposited recoverable 42 
 
 Mortgage (See Foreclosure). . . 48 
 
 vtvum vadium 107, 143 
 
 morluum vadium ...,[[ • ■ • • ' 150 
 
 how created 15q 
 
 "VntMo .....'.'.'.".*. .*. 148 
 
 .»„ 1 J""^ "'^'"'"'^ ^y Statute- of Frauds* ^ ^^' ' ^^ 
 
 g«l and equitable distinction betwe 'f '^8 
 
 I'ronucal Statutes affecting ' 156 
 
 who incapable to ... . •• 149 
 
 bond, utility of 161 
 
 niortgngorahouldjoini„„;;;,:„,,^^^^^^^^ ,5, 
 
 ^once a ™or,g,,ge. .dwaya a mor. " ^ '""''^""^•' *' '^ 162 
 
 ZX ^T'" ""■^'«"« '"-''Sons io.' >«0 
 
 g'ven for sohcUor's coats, bow fur valid ^49 
 
 provisions as to in Stat. 7 W 4e ^66. 187 
 
 when time tor payment .Jeky.d' .",[] ^29! 
 
 • S07 
 
 ml 
 m 
 
368 
 
 INDEX. 
 
 I' '! 
 
 !» • 
 
 Mortgage — Continued. vkan 
 
 of chattels, requisites of 262 
 
 bow enforced 199 
 
 and pledge, distinction between 34 
 
 Mortoaoee • 
 
 rights of 108 
 
 position of before and after redemption or foreclosure 162 
 
 in possession, liabilities of 162 
 
 priorities of, how ascertained 166 
 
 liiible for rents und profits received by his assignee 166 
 
 wlio to convey upon death of 270 
 
 rights of against lessee of mortgagor 154, 166 
 
 may acquire equity of redemption without merger 106, 161 
 
 of leasehold, liabilities of 181 
 
 renewal by - 166 
 
 out of possession, when Statute of Limitations commences to run 
 
 against 164 
 
 recovery of balance on collateral securities by 162 
 
 what arrears of interest recovAable by 270 
 
 when entitled to njcover 164 
 
 personal remedy for balance after sale under decree 286 
 
 MOETGAGOU: ' 
 
 rights of 108 
 
 position of before and after rederaptiwi or foreclosure 162 
 
 in possesviou, nature of estate of 126 
 
 not liable for rents and profits 166 
 
 cannot convey by lease and release 109 
 
 position of lessee of 164, 1 56, 167 
 
 should join in assignment of mortgage • • • • • ^^^ 
 
 right of survivorship upon death of one of two 167 
 
 from what time Statute of Limitations commences to run against. 154, 288 
 
 limitations of right to redeem 112, 182, 288 
 
 • cannot redeem one only of two mortgogcH 298 
 
 Mortmain, Statutes of 92i 1^^ 
 
 Mo'iioN IN Chancery, wliat notice of to be given 288 
 
 MULT»AR10UI*NES8 ^"" 
 
 Municipal Law, see Law. 
 
 Mdbdeb ^'^ 
 
 and ffiiitislaugbter, distinction between 176 
 
 MUTUCM and commodalum *1 ' 
 
 NATioNti, law of "* 
 
 Negowabie Insthumbnt, see Acceptor, Bill of Exchange, Grace, days of, 
 Indor^er, Notice, Presentment, Promissory Note. 
 
 differs from other simple coutracts *& 
 
 sideration 29, 88, 66 
 
 00 
 
 requires no consuii 
 
 must be lor payment ot money. 
 
PAOB 
 
 262 
 
 199 
 
 34 
 
 108 
 
 162 
 
 162 
 
 156 
 
 166 
 
 270 
 
 154. 166 
 
 106, 161 
 
 187 
 
 165 
 
 !Dces to ruD 
 
 154 
 
 162 
 
 270 
 
 164 
 
 286 
 
 108 
 
 162 
 
 126 
 
 166 
 
 109 
 
 . ,.154, 1S6, 157 
 
 163 
 
 167 
 
 against. 154, 288 
 
 ,,.112,182, 288 
 298 
 
 92, 122 
 
 288 
 
 307 
 
 176 
 
 176 
 
 ill 
 
 24 
 
 ace, days of, 
 
 65 
 
 29, 38, 66 
 
 65 
 
 .66. 
 
 .59, 
 
 369 
 
 80 
 
 66 
 
 79 
 
 79 
 
 66 
 
 65 
 
 INDEX. 
 
 N.OOTUBI.BlN8Tr.,;MKNT-.Co«<,„„,rf 
 
 time Of payment rnu.st bo certain . . paob 
 
 payable on demand if ti,no not specified 
 
 date not essential >^^«.'ueu 
 
 effect of omission of 
 
 upon ^vhnt negotiability o/depends" 
 
 now transferred 
 
 endorsement for part .*.','.*,".' 
 
 includes delivery 60 
 
 when to be special . 
 
 right of action suspended by 
 
 effect of blank left for name ^f ■;;;;; 39, 
 
 payable at a place certain 
 
 transfer of in payment for" goods 60, 
 
 When operates as payment 73 
 
 when a satisfaction of a debt 58 
 
 whtTi ?;'" "'' ""• "' '"'-" '^^^^^ of'F;;;d; ^« 
 
 wnea lien determined by 79 
 
 indorsee of overdue takes'subject to'au'Jquitie; '« 
 
 ^^'ceptions to this rule 70 
 
 valid in hands of an innocent holder" 1i 
 
 agreement to renew, when binding, 
 
 ettect of renewal bill. 67, 72, 
 
 60 
 222 
 49 
 71 
 68 
 
 Xuht:„r^""^""'"-'''»'°v 
 
 original 
 
 .74, 
 
 payment of 
 
 what is evidence of. 
 
 74 
 78 
 79 
 
 78 
 
 ■..68, 274 
 
 72 
 
 ■.... 79 
 
 76 
 
 in 
 
 limitation of actions upon ^ 69 
 
 accommodation, when a „oo"dd;fenoV ^"^ 
 
 plea of tender, whe. sufficient 68 
 
 defence to given for goods sold ' wh \\ 
 
 quality ^ '"^'^ ^^«« ^^^ goods are deficient i, 
 
 pa es^^^. sued in one action, when admissible ^1^^:-^ ^ '^ 
 
 ^trs:::'-^:— ---onof"pa;.c;::::: 
 
 nght of partners to bind arm "bv 
 
 payable to married woman ' 
 
 effect of gift of 
 
 effect of altenttion of. 
 
 conflict of latrs rpz^-Uiii. 
 
 teUofladiug, howfara 
 
 80 
 
 80 
 
 42 
 
 48 
 
 67 
 
 76 
 
 4 I 
 
 77 
 49 
 
^0 
 
 INDBX. 
 
 M 
 
 b '. 
 
 "r 
 
 
 
 
 Never indkbtkd, plea of, iQ action for goods sold or work done 2i0 
 
 New Assignment 261 
 
 when necesanry 261 
 
 clmnge made by Common Law Procedure Act as to 262 
 
 New Trial : 
 
 what to be stated in Rule Nisi for 266 
 
 iu criiiiinul matters, at whose instance granted 266 
 
 when to bo moved for 266 
 
 rule as to costs when granted as contrary to evidence 256 
 
 Nisi Pbius, speeohes of counsel at 266. 267 
 
 Nolle puoskqui : 
 
 effect of entered before judgment 266 
 
 effect of entered after judgment 266 
 
 NoN OKPiT, effect of verdict for defendant on plea of , . 288 
 
 NoN-JoiNnEB : 
 
 of plaintiff 278 
 
 of defendant, plea in abatement for 284 
 
 Not Guilty, plea of in trespass 261 
 
 Notice : 
 
 constructive 144, 184 
 
 actual and constructive, distinction between 202 
 
 of dishonour, form of 48, 64 
 
 requisites of 64 
 
 an actual notification necessary 74 
 
 by whom to be given , 61 
 
 to whom to be given 89 
 
 how transmitted 64 
 
 when transmitted 64, 69 
 
 euuies to benefit of intermediate parties 61 
 
 want of why a discharge 76 
 
 not excused by knowledge of dishonour 74 
 
 promise to pay after instrument due dispenses with. . . 72 
 
 to drawer, when dispensed with 61 
 
 when drawer of accommodation bill entitled to 70 
 
 to produce, see Produce, 
 of trial, ice Trial, 
 
 Novation 216 
 
 Nudum pactum 83 
 
 NuiSASicE restrained in equity 190 
 
 NuL ti£L award, plea of 270 
 
 Obuoatio , 217 
 
 ex contractu 218 
 
 ex quasi contractu 218 
 
 Gnus pfubo&ui girca iigut to bcglu 247 
 
e 2J0 
 
 261 
 
 261 
 
 262 
 
 266 
 
 266 
 
 266 
 
 266 
 
 266. 267 
 
 266 
 
 266 
 
 . . 283 
 
 278 
 
 284 
 
 261 
 
 144, 184 
 
 202 
 
 46, 64 
 
 64 
 
 74 
 
 61 
 
 69 
 
 64 
 
 64, 69 
 
 61 
 
 76 
 
 74 
 
 lea with. . . 72 
 
 61 
 
 1 to 70 
 
 216 
 
 83 
 
 190 
 
 270 
 
 217 
 
 •••«•*•••• aIo 
 
 218 
 
 247 
 
 INDEX. M| 
 
 Ordeb im Chanobrt : p^„ 
 
 obedience to, how eaforced. 
 
 clearly irreg.iJar, cannot be 'treated as void ^^* 
 
 Ownership in lands cannot be absolute " ^®^ 
 
 Oyer, change as to in pleading [[[[ * 24 
 
 Parent; 
 
 and child, relative duties of 
 
 relation of justifies battery ^^ 
 
 and guardian, under civil law. . . ^6 
 
 Parliament; 212 
 
 constituent parts of 
 
 how dissolved , . ' 22 
 
 rules for interpreting acts of *" 
 
 Parol:'' ''^"■' '""'''""" '" °'°"'"^^' ^'"««»'^l'e'^eJ by' " " ' " ' " ! .' .' .' ." .' .' .' 26 
 
 contract fur sale of land void 
 
 when enforceable '^^3 
 
 evidence not excluded by written. .*...'..'. ^^^' ^'^'^ 
 
 when admissible to explain 'writing V.V. "oVo' Iti 
 
 admissible to rebut equitable presumption . ". *. ' f Jf 
 
 admissible in equity to shew that writing sued on does noi 
 contani true terms of agreement. . . .^ . . ,'' ,,, 
 
 P.BX.S to .itst EqlU: '"'^ '''"''' ''"'''-'' ^ '' ^ '^^^■' ^"^ 
 who may be 
 
 changes as to, made by GenVrai Orders ^'^^ 
 
 Partition; 296 
 
 Statutory provisions as to. 
 
 Powerof Oourtof Chancenraeto ^°'' 
 
 Partner: 290, 306 
 
 duties of 
 
 right of to bin ' the firm" " ', ' 82 
 
 sale of goods of firm by . . . . ".* ^^' ^^' ^^' 85, 86 
 
 ''hat acta of bl.id the firm '.'. . .'. ^^ 
 
 firm when liable for tort of. " ^^' ®* 
 
 may bind the firm by release ^'' 
 
 When «1 '" ^"^' '^' ^'"^ ''y '''^^^ '"Htrument V. Vo tl 
 
 When admission of binds the firm *^' ^* 
 
 what acts of bind the firm after diVsdution" f 
 
 powerof tosuehisco-partner ^2 
 
 effect of death of 46 
 
 pMitix,n of personal representaliVes'of deceased ;; ' o " ■"' 
 
 hability of nominal deceased 87, 89 l J9 
 
 ibJ,^.. i:»u:,-. , ■ ". mt 
 
 .. ..,„,,,,., oj eouuuues after dissolution 
 
 retirement of sleeping 68 
 
 J 
 

 Sv 
 
 ^ 
 
 
 r*,'^ 
 
 
 «> 
 
 t- f 
 
 i 
 
 r 
 
 ^''2 XNDEX. 
 
 Pabtnee— Co«</nwc(/. 
 
 retiring, wlien liable for new debts of nuw firm gg 
 
 appropriations of pnymcnts on ft runuing account upon rethetuent 
 
 /f°"« 86 
 
 position of infant »- 
 
 „ "S''"* ^l^"" *.'.'.'.■■■''■.■.*■■.■.■■.■■■■■■ 49, 61 
 
 Faktnebs : 
 
 presumption as to shares of gi. 
 
 rigli(8 of ifiter se on dissohil ion go 
 
 riglits of in pnrtnersliii) property distiuguislied from tli'at of* joint 
 
 tenants an I tenants in cpmraoa gg 
 
 joint teuuuts when ' _- 
 
 PARTNEBSnir 
 
 how created ^_ 
 
 49 
 
 what constitutes ^. 
 
 criterion of .■ ' ' ' oi 
 
 , ^ , 00, 81 
 
 a voluntary contract o . 
 
 when specific perfornin !•.:•(( of r^greement to enter into decreed.' . .' . . . 207 
 
 where no time specifi' .; ..? Juration of, deemed to be at will 85 
 
 property liable to f^- ;.i ;; u-ainst one partner 86 
 
 cannot sue firnj having a c.mmou partner [[[[^ 55 
 
 real estate of considered as personalty 134 
 
 howdissolyed V.V.V Vo.'sS,' sV, 88 
 
 notice of dissolution _ o 
 
 T(hy dissolved inequity !!.*!!!!.!![ 183 
 
 what are sufiicient grounds for a decree of dissolution .....'. 83 
 
 under the civil law „,. 
 
 Payment into Court : 
 
 in what cases not allowed 070 
 
 how far an admission in actions of tort , . , , ] 236 
 
 Payments, appropriation of gV g„ 
 
 Pkculiuh ' ^, 
 
 , , , 031 
 
 Pkous, wounding of ' 
 
 •billing of •................!..".'.*."." 218 
 
 PiNALTv, relieved against in equity ,gg 
 
 Pkbfobmanob having become impossible, no defence at law .' .' . . ..'.'."*" 43 
 
 Pebjdbt . . . . : , ^.^ 
 
 • 170 
 
 subornation of .^_ 
 
 .•••• 170 
 
 what evidence necessary to prove ^16 234 
 
 Pkbpktuities ' 
 
 129 
 
 p '•"l°»S^'"^t 102, in, 129 
 
 Febsonal Kepreskntativks, See Executor : 
 
 wheq Court of Chancery may proceed without ono 
 
 Pbbsonaltt : " 
 
 contract concerning by what law governed 29. 222 928 
 
 succession to governed by lex domicilii '.'.*. . . .' 222* 226 
 
 will of governed by the law of the place where made . .'...'.'.. .". ' 224 
 
IWDEX. 
 
 PAoa 
 
 86 
 
 > retirement 
 
 86 
 
 88 
 
 49, 61 
 
 87 
 
 83 
 
 mt of joint 
 
 88 
 
 88 
 
 84 
 
 19 
 
 SI 
 
 60, 81 
 
 84 
 
 •eed 207 
 
 vill 85 
 
 86 
 
 65 
 
 184 
 
 19, 68, 83, 88 
 
 68 
 
 183 
 
 83 
 
 214 
 
 272 
 
 236 
 
 54, 86 
 
 221 
 
 219 
 
 218 
 
 183 
 
 43 
 
 170 
 
 170 
 
 ... 176, 234 
 
 129 
 
 102, 117, 129 
 
 302 
 
 29, 222, 228 
 ... 222, 226 
 224 
 
 978 
 
 "g- 
 
 Msa 
 
 .... 278 
 . ... 27" 
 287, 2! 
 ... 26-^ 
 
 Plaintiff ; 
 
 ^v!.on ,„.r?on ordered to be joined a, 
 
 pr<iceoiling=i on death of 
 
 order of 
 
 wiiioi, neither , verse noVconfe^s nnd "aVoid *" 
 
 PLEDaill VJ UVUIU 2jg 
 
 and morfgnge, distinetioo bet ^n. 
 
 by 11 fiiotor, how far valUl •* 
 
 loucr'- ""; "' "' ''""^' '■--''"^"tly obtaia;d' .' .' ." .' .' 'I 
 
 I OLicT, see Insurance. ■ • • • • 8 
 
 POWBB 
 
 colluternl '.V. . .V. ' ' ^ • '8 
 
 in gross k 180 
 
 how estates take effeoi "under ^3* 
 
 form of attestation l" 
 
 what may be relen .d by donee ^^^ 
 
 defective execution of, when aided k Vquii; ;°J 
 
 of sale, effect of ^ ' 191 
 
 P«^Toa, ju.i.diction o{\n ci^sei:{'daimumi,:^chm "*' 
 
 PttEHooATivE, Sovereign's 'rectum 220 
 
 how classified , . _ 17 
 
 PaSSKNTMKNT : 17 
 
 when to be made 
 
 when excused 
 
 when necessary at plaeVnamVd '. 
 
 of instrument payable at sight necessary ^°- 
 
 of instrument payable on demand unnecessary , 
 
 in case of death of maker ^ '2 
 
 to guirantor unnecessiiry 89 
 
 Presumptions, see Age, Evidence, '8 
 
 7' 
 
 68 
 
 72 
 
 Pa.,rl"!!^!^^«°^'^-'-'^'^-tion between 
 
 ICE, sale When set aside for inadequacy of 
 
 PaiMARTEvinENOE, see Evidence. ^ 
 
 i'aiNcii.AL, see Agent. 
 
 rights of undisclosed.. 
 
 28S 
 142 
 
 Sr"°'"°''^""'''»^««"^»iV:::::;::;;;::;;;;;:::-- • .;.' 
 
 of estate . 
 
 - , 
 
 of contract 
 
 Pbo CoNFnsso : 
 
 order liow ohtnined 
 
 cannot be obtained a'ga'i^^t ;;'i;f;;* " ] ' 
 
 how obtamed against a married woman 
 
 204 
 
 13S 
 133 
 
 299 
 293 
 800 
 

 ,ir 
 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 ^/ 
 
 k 
 
 
 im 
 
 11.25 
 
 
 «* Uii 12.2 
 ill 
 
 sa 
 u 
 
 ^ 12.0 
 
 
 Hiotographic 
 _Sdences 
 Corporation 
 
 
 33 WEST MAIN STRIET 
 
 WEBSTER, N.Y. U5M 
 
 (716) •73-4503 
 
 '^ 
 
4*». 
 
 
 \ 
 
 ^ 
 
rti 
 
 INDCX. 
 
 ( 
 
 PAOB 
 
 Pro iirmiESSo eno, praotioe substituted for practice of CTatnining partiea. 280 
 
 Tuui>*.Tw, see Will. 
 
 when evuii:n<<e ^^ inn 286 
 
 foreigu, when evidenutj 266 
 
 ' effect of , ^ 228 
 
 Pboddcr, notice to. 
 
 when necessary ^ _ _ 049 
 
 effect of omisaioD to produce under 04^ 
 
 PBOnDOTION : 
 
 of docunientB, order for 291 
 
 affidavit of 804 
 
 Profert, cliange as to in pleading 264 
 
 Promissoby Note, see Negotiable Instrument. 
 
 definition of 04 
 
 at common law. . . .♦ 6q 
 
 f'jrmsof 67, gg 
 
 by what statute nm'lo transferable es 
 
 payable by iustalmeols . , 67 
 
 parties to stond as parties to Bill of Exobange 62 
 
 Pbotkst 64 
 
 when necessary 64 
 
 how filr evidence 278 
 
 PuDLio NuisAKCK, wbeii rostraincd at iustauce of private individual 19o 
 
 Publication passes, when ^ ,,.... 801 
 
 PnrrEB : 
 
 not allowed at law 1 89 
 
 allowed in equity , 189 
 
 PoR AiiTBE viB, estate 98 
 
 descent of on death of tenant loi 
 
 may be devised 1Q4 
 
 PUBOUABE _ gj 
 
 when a trust jg4 197 
 
 , effect of contract to j38 
 
 for valuable consideration, defence how set up in equity 806 
 
 money of lands sold, vendor cannot sue in debt for where no convey- 
 ance is made , 284 
 
 PUBOHASEB : 
 
 when liable to pay interest I45 
 
 when entitled to oompeusalion 147 
 
 Queen, see Sovereign. 
 
 Qui potior est in tempore, potior est in jure ^ . 204 
 
 Quia kmptorks, statute JI9 
 
 timet, bill>< 2Qg 
 
 CauCciiatluB , _ 210 
 
INOEV. 
 
 375 
 
 PAOB 
 
 ling partieii . 289 
 
 122, 285 
 
 265 
 
 228 
 
 240 
 
 242 
 
 297 
 
 .. 804 
 
 254 
 
 64 
 
 66 
 
 67, 68 
 
 66 
 
 .. 67 
 
 62 
 
 64 
 
 64 
 
 278 
 
 dual 19o 
 
 801 
 
 189 
 
 189 
 
 98 
 
 101 
 
 104 
 
 91 
 
 184, 197 
 
 133 
 
 806 
 
 no convey- 
 284 
 
 146 
 
 147 
 
 *. 204 
 
 119 
 
 209 
 
 210 
 
 PAoa 
 
 Rkal Propkbtt, aeo Devise, Will. 
 
 different kinds of estates in 
 
 estate* "ii, how crctted 
 
 personal interests In 
 
 who inciipacitateil to puioJmso or sell 
 
 agreeaient for sale of to be in writing ....".*.....* ' 3() 
 
 when enforced in equity . 144' 232 
 
 parol contracts r.'liiting to, when enforci'able. .'. .V, . . ' 138 
 
 eijuitabie interesttt, nssignnn-ut of [^] j„j, 
 
 disposition of govern.jd by lex loci ret hUw '.....'...' " 20% 
 
 succeesion to governed by lex loci rei sitae .222 2'7 
 
 oontruct concerning governed »•■/« /wi r« j„7a, .".V.V.V. . ' ^23 
 
 rights of aliens as to " * * ' ' ' 
 
 of partnership considered ns personalty V.*. .V " ' igg 
 
 power of Court of Chiucery to reet without conveyance .* . . . .... ] ' ' 289 
 
 Bkceipt for consideration money does not destroy lien . . . 212 
 
 RioEivKu : 
 
 when appointed , 
 
 no 
 
 98 
 108 
 146 
 
 144 
 
 . ^ , , ' 201,802 
 
 course to be taken by if resisted io acquiring possession cf property '>86 
 
 Recitals, when evidence 141 
 
 Reoori), effect of withdrawing 27fl 
 
 Rbuekm, parties defendant In suit to when mortgagee dead. ........ 132 
 
 Redemption, equity of, see Equity of Redemption, Mortgagee. Mortgagor. 
 Refusal to pay does not take case out of Statute of Limitations. ... 42 
 
 Reoisteued ooN?KrANCK, when takes precedence of prior unregistered 123 193 
 
 REOiaraATioN of different iustruiuents, statutory provisions as to ' 20O 
 
 Rbueabino: 
 
 practice as to \ 
 
 of cause upon bill taken pro eonfesito ..*..*.".".* 29S 
 
 Rklaiions of persona 
 
 by what battery justified 
 
 Rblrabe ' 
 
 different kinds of 
 
 Rehaindbu 
 
 vested . 
 
 , 100, 
 
 oootingcnt « 
 
 cross 
 
 and reversion, distinction between 
 
 Tested and contingent, distinction between .'.. 
 
 contingent and executory devise, distinction between. ......... .100 
 
 and shifting use, distinction between ' 
 
 cross, when implied 
 
 Statutoiy enactment in Upper Canada as to destructibility of contin- 
 
 gent ^ 
 
 Rehbdv governed by lex fori ''\ " ' 
 
 26 
 
 26 
 182 
 182 
 
 99 
 128 
 100 
 126 
 
 99 
 100 
 136 
 100 
 163 
 
 106 
 29 
 
S76 
 
 ■NOCX. 
 
 PAOI 
 
 ao6 
 
 lOfi 
 
 104 
 
 ■ 26a, 2S8 
 
 Rtm: 
 
 lu.w affocted by destruction „f revemnn 
 
 >merfen.nce„f equity i,nnatler8.f '^« 
 
 Kent ciiAiiaK; 
 
 •low cruiited . . 
 
 Rkplkvin: 
 
 when jitg i„ Upper Ommda 
 
 prurei'dings in 2«R, 282 
 
 ^vhenwrit,„:.y ii.«ne Viihoui*j,.i;;-; o^;,;; "' 
 
 venue ia .vhe„ local nn.l wl..., tru„.i,o,.y ^76 
 
 HEPi.iCATioN ill Equity : 274 
 
 effect of 
 
 wLet. to be filed ' " ' * 296 
 
 Repkkskntatidn, diietiiue of. . , 296 
 
 RK..um,ov. alnmdble evi.iel.ce'oV marring;;" "* 
 
 JKE» OEaTiR • 6 ■••• 
 
 admissibility of evidenc"..", !,o«r" affecu'd by ' " 
 Rehcnu. refusnl to. though specific perfo. 
 
 RKVKBSroN 
 
 incidents of 
 
 and rerminder. distinction between 
 
 rent, how affected by destruction of 
 
 mance not decreed . 
 
 ■ 806 
 
 ■ 243 
 247 
 247 
 142 
 
 99 
 99 
 99 
 
 110 
 
 188 ' 
 
 'ucorp<,re«!. how acquired under civil law 
 
 of persona, how divided. . . *18 
 
 B-.aMN a,.H^"'.:''!"^ "' '""'" ■"«^'-"- b^'-en:, 
 
 absolute 24 
 
 25 
 
 23 
 
 RoBBERr . . 2ia 
 
 • *'«' 
 
 what a sufHeknt taking . . 176 
 
 and lareeuy from the person.' dUti^Jtion be"t;;;.a "* 
 
 Klle, to what day enlarged 176 
 
 " 268 
 
 Sale : 
 
 contract of qnde, the civil law 
 
 where price fixed by a third paiiy ^" 
 
 made with uli fault., wlien void . . 216 
 
 when decreed in foreclosure suit 86 
 
 SOHOOL OF LitW 271 
 
 Ska woaTHiNKss, warranty of . ! 1 3*1 
 
 " 66 
 
PAOB 
 
 ... 110 
 
 206 
 
 106 
 
 104 
 
 263, 268 
 
 268, 282 
 
 .267 
 
 ... 276 
 
 ... 274 
 
 ... 296 
 
 ... 296 
 
 ■ . . 805 
 
 . .. 248 
 
 . .. 247 
 
 . . 247 
 
 .. 142 
 
 .. 99 
 
 .. 99 
 
 .. 99 
 
 . . 110 
 
 .. 188 ' 
 
 . . 218 
 '. 24 
 
 . 26 
 
 . 2S 
 . 218 
 . 176 
 . 176 
 . 176 
 . 268 
 
 217 
 
 216 
 
 86 
 
 180 
 
 31 
 
 271 
 
 341 
 
 06 
 
 INDEX. ^ 
 
 SsoownART Kvii.ENOK, 806 Evidence. »*•■ 
 
 and second hand evidence, dislinotion between 
 
 Skductio.n, whoa .miHter of fomalo seivaat may sue foV 
 
 Sbbvant, see Master. •»«' may sue for ggg 
 
 menial 
 
 Sbbvitddks, division of ....'''.'.' ' *2 
 
 •low acquired ^'^' 214, 220 
 
 Setoff: 213, 214 
 
 lien not destroyed by 
 
 equitable ] ' 48 
 
 SKTTLIillKNT : 207 
 
 voluntary on wife and children, how far valid. . ' 
 
 wife 8 equity to, when enforced **• 
 
 by husband on wife without trustee, vliid ' "* 
 
 by married woman, when set aside . . **' 
 
 Sdelle'ys task, rule in '86 
 
 Sheriff, eco Interpleader. ^' 
 
 finiFTiNo Use, see Use. 
 
 SioNATUBB, What sufficient 
 
 SiMPLK CoNTKACT, see Contract. " 
 
 Slanokb, costs when recoverable in action of 
 
 BociKTT. origin of 270 
 
 Solicitor, see Attorney, Clieiil. '* 
 
 SOVEBEIGN : 
 
 descent of Crown u))on demise of 
 
 can do no wrong *• 
 
 Special Endorskmbnt : ** 
 
 when allowed 
 
 effect of ." * 260 
 
 effect of omitting ^^^ 
 
 Specialtt. see Conrtact. , 266 
 
 Spboifio Pbrfobiianob ' 
 
 when decreed .' " " 1 79, 197 
 
 defences in suit for...... ^'''' ^^^' '8* 
 
 of contract for sale of realty' revival oV '.".".'." ' "* 
 
 where signed by vendor only.' ??* 
 
 of parol contract for sale of realty **' 
 
 of contract for sale of lands in a fo^igri •c;'„;;y :::;;;; J'*' !!! 
 
 of contract for sa'^i of estate tail..... 184,197 
 
 of agreement to enter into partnership .* ^°J 
 
 infant purchaser cnnnat bring bill <"jr . . . 
 
 mnxiiu caveat emptor applicable to '** 
 
 Sprinoino Usb, see Use, ^^'^ 
 
 Statutes : 
 
 classification of 
 
 «t 
 
S78 
 
 IVOKX. 
 
 BTAnTKB—Cotitltmed. '*•■ 
 
 iuterpretiition of . _ 
 
 conitrucUon of reinodial 26 
 
 " ngainst tlie form of the gtatnte, Ac," phriwe of in indictment . .... 169 
 
 Stipulations, dcpemloiit nmi inrlfpendent 141; 
 
 Stoppaor in TiiANsiTu, right of ..'.".."",. 63 
 
 arises wlii-n 
 
 when di'termiiiod g'g" .« 
 
 does not revest goodi * ' ,. 
 
 defeated by endorsement of tlie bill of lading 64 
 
 defeated upon goocls coming to bands of vendrto'g ngenl for custody 39, 64 
 
 not dcfeiitod by dflivcry to vendee's ngent for carriage 39! 64 
 
 and lion, dislinclioa between ' gj 
 
 Story's Equity Jurisprudence, subjecU treated of in Ist vol. if 20» 
 
 Students AT- Law : 
 
 examination ol candidates for admission m 811 
 
 to attend l.otinos o.^ 
 
 Submission, see ArhitratioD. 
 
 SUBRdflATION . . - 
 
 8UB»TIT()TI0X J- . 
 
 SuocKssiON, see Personalty, Real Property. 
 
 SuFFKttANCie, tenatiey nt gg jq- 
 
 SuMiioNs, see Special Endorsement. 
 
 from what office to issue 262 
 
 Sunday, contract made on void * * j,q 
 
 (rood if not completed on 
 
 SORETT : "" 
 
 "«hts of jj 
 
 right of to collateral securities ig^ 202 
 
 right to compel debtor to pay ' j gj 
 
 cannot cliarge debtor with a greater amount than he actually pays. . . 156 
 
 when discharged in equity .« igiy 
 
 what relief equity affords to 207 
 
 when relief in equity more complete than at law 201 
 
 effect of givini? time to debtor 34 
 
 SuRBTYSHiP. iucid.nU of !.!!!.!. 196 
 
 SuRPBisR, when a ground of equity jurisdiction goO 
 
 SuBRKNDKR, See Years. Term of 
 
 by act of law .« 
 
 ♦' SuavivoR," when construed " other.". . . .' HI 
 
 SUBVIVORSHIt : 
 
 presumption of where father and son perish in the same 
 w'«'<^k,Ac 238 
 
 Taor, what aiortgageu of peraooolty may , igg 
 
*k99 
 
 18 
 
 26 
 
 lictnieat 169 
 
 147 
 
 63 
 
 68 
 
 89, 68 
 
 64 
 
 64 
 
 or custody 39, 64 
 
 89, 64 
 
 62 
 
 if 209 
 
 811 
 
 814 
 
 196 
 
 196 
 
 98, 106 
 
 26a 
 
 80 
 
 80 
 
 28 
 
 187, 202 
 
 191 
 
 lally pays. . . 156 
 
 197 
 
 207 
 
 201 
 
 84 
 
 196 
 
 200 
 
 48 
 
 167 
 
 in the game 
 288 
 
 18S 
 
 INDEX. 
 
 379 
 
 PAQB 
 
 196 
 
 Taokixo 
 
 Iiow nffectcd liy Provincial Stntuto .' igg 
 
 applirable io cases of mortgage of personalty 197 
 
 Tail, Estatc 98 
 
 ▼aril skindsof 12^ 
 
 general ,20 
 
 8pec'»l 120, 126 
 
 iooidents of 1 30 
 
 how forfeited ^^_ jjl 
 
 special ariscji, h!)w jo^ 
 
 establisbed by statute De Donii 10a 
 
 how barred l"l8^ ,28 
 
 Provincial Statute as to barring \\f, 
 
 agreement to bar when enforced io6 
 
 tenant in 
 
 may make leoscs J2g 
 
 may acquire fee simple 97 
 
 may bar issue without barring remainder loi 
 
 agreement by to bar entail, no bar 104 
 
 TlNANOT : 
 
 at sufferance 
 at will 
 
 .98, 106 
 
 98 
 
 passes by wonl of mouth gg 
 
 in common and joint tenancy, distinction between 89 
 
 TlNANT : 
 
 remedy against ovorholding 261 
 
 omitling to notify landlord of ejectment, penalty incurred by. ... ... 278 
 
 '" — ' ' • • ... 191 
 
 .. 271 
 
 in coramou, waste by when restrained 
 
 upon conveyance to two or more persons they tal 
 
 Tin DKB : 
 
 requisites of a good ,- 
 
 plea of when insufficient 
 
 Tkhdrk, incorporeal hereditament not the subject of 
 
 TSKUBBS : 
 
 various kinds of 
 
 what abolished 
 
 Tbbm or Yeabs, see Years, Term of. 
 
 TtSTAMKSTABY dispositions under the civil law 
 
 Testimony, when bill to perpetuate lies .* 
 
 TlHBBB : 
 
 unlawfully out by tenant in tail vesta in remainder man 109 
 
 sale of growing, within the Statute of Frauds . so 
 
 vrnon Aaarnt^A 
 
 76 
 121 
 
 114 
 101 
 
 218 
 191 
 
 =Sr~-c-e f-1 the contract. 
 how made essenoe of the contract . . . . 
 
 .187, 211 
 .... 188 
 
'H 
 
 i: 
 
 880 
 
 INDEX. 
 
 TiuB, Bce Abstrnot. 
 
 wliy sixty yoavB required . ***" 
 
 puicnoaer entitled to good 1 U 
 
 " ''•^'^sctive, vendee wl.ju relieved nf.Pr n 1« 
 
 proceeding. .,po„ refereuce t! „ ste ! a.to '""" "« 
 
 pleading must ghow... «'«' a^ to ^^^^ 
 
 TntZ; 'Z '"''"' '"^^^o-'-y to prove . . . "• *<> 
 
 AunAsuRB inovR 17(j 
 
 belongs to the Queen 81 
 
 jH«r..s. injunetion when grantVd lo 'restrain.' " ." '^' 
 
 '■ i81» 
 
 ''ow many days notice of necesaary. 
 
 rltt.nt.flr how eompelled to proceed to "» 
 
 of several causes of action joined in one'sui't ^^ 
 
 ^^^p-rofjudgoatNieiPri^„3to:^:i;,-::::::::;;;;;;;^ 
 
 implied and express, distinction between 
 
 «nfl use, distinction between 209 
 
 executed and executory, distinction" between *'* 
 
 constructive ^ _ ^ oeiween j^^ 
 
 how evidenced 198 
 
 provisions of the Statule'of Frauds'tts* !o VV." V'""c ^04 
 
 and bailment, distinction between.. '" 
 
 ^"S'-ke: 200 
 
 purchase by from .«„„-y,,,„„,^„i^,„y^^^ 
 
 money ; _ ^ '° '''^ application of the purchase 
 
 purchaser wiien 286 
 
 '^t'STKES: 184,197 
 
 take as joint teiiants.... 
 
 of religious institutions, p^werVo" morto^e " ^^^' ^''^ 
 
 TwBtAOE under the civil law. """"gflge ,49 
 
 Undkrlease ... * *'* 
 
 •JaB Ai 
 
 8pfin?ing ; ,. . . . 106, lo7 
 
 '^f'^S '.'.['.'.'.]'.'. 100 
 
 and trust, distinction between *00 
 
 sponging and shiftiug, distiuotion betweVu """■' ^ ^S 
 
114 
 
 142 
 
 148 
 
 148 
 
 899 
 
 281 
 
 84, 40 
 
 176 
 
 21 
 
 21 
 
 189 
 
 26e 
 
 264 
 
 278 
 
 267 
 
 209 
 
 118 
 
 186 
 
 198 
 
 204 
 
 186 
 
 188 
 
 •••.184, 197 
 
 212 
 
 165 
 
 200 
 
 211 
 
 14$ 
 
 )urchase 
 
 286 
 
 ...184, 197 
 
 ■..123, 271 
 
 149 
 
 .. .212 
 
 91 
 
 ..106, 107 
 
 100 
 
 100 
 
 ' ila 
 
 100 
 
 WDBX. 3gj 
 
 •hifting nn,l ren.ain.ler, distinction between 
 
 requisilea for creation of 'W> 
 
 when results ' 181 
 
 cannot be upon a use ^0* 
 
 cannot bo limited in b«rg.iin" iina'saVo'. " 
 
 does not apply to lennehold '°' 
 
 UsoraooT .. 91 
 
 liow cicntcd .\ 218, 215 
 
 how deterniined 216 
 
 whftt Hiibject to 216 
 
 and use, distiuciion Ixitwetn ^*''' 
 
 Vadium : 
 
 vivum 
 
 morluiiiii 160 
 
 Vkndbe, 8«e Vendor. 160 
 
 rights of on contract for sale of lanri 
 
 Jo possession during di8cussi„n as to title canuo't be" suP.Vf ", J ^^'' 
 
 occupation if sale go off for defect in ft e ' "" ""' , 
 
 Vkndob see Lien. Stoppage in Transitu. ''^ 
 
 rights of on contract for sale of land 
 
 how far bound to disclose defects "^^ 
 
 remedy of where goods frauduIently'^bK.'ined";:::; 't] 
 
 remedy of nga.nst vendee refusing to accent ^^ 
 
 neglecting l„ deliver goods, remedy ngains! 'f 
 
 Voir diqk 164 
 
 Voluntary : 242 
 
 conveyance, wlien void . 
 
 covena^.p„y„,„,,rm«ney;in'wi,U;n..;-p„i^ 
 
 settlement of real properly defensVbie.' ." '^' 
 
 of personal property inrlefeasible. l^Jt 
 
 void if settler be in debt '"* 
 
 Wa« >«* 
 
 Waiveb or title, how charged '* 24 
 
 Wabds and Liveri^g ;!»«*«•-• .? '=^2? 
 
 WA.«Hon8« receipt*; statutory provisions m to ^^^ 
 
 280 
 
irp 
 
 Ml 
 
 IWOSX. 
 
 Wabbrocmbmar : paoi 
 
 rMpontibilitie* of 
 
 and carrier, dittiiictiun between. . *** 
 
 Wabbawtt : to 
 
 on ial« of realty, effect of 
 
 implied nil sale of goudx "* 
 
 what amuuiits to 86,88, 6t 
 
 of unuscortHJned goodii .'. 87, 41, 47 
 
 made after »ulo, not binding ** 
 
 implied on ..ndorHimcnt of negotiable instrument J? 
 
 implied ii. nmrino |H)licy '' 
 
 que.tio.. of when detennined t^ h. }o^i ^^iraCu, i^ii y^i^ L" '/;; "^ 
 
 Wa9tb : 828 
 
 iinpenchmenl of 
 
 by tenant in comnio:i wlieu restrained '^' 
 
 W,D0«. ,h . ,,. J ^,^.,,^ ^^^^^^ ^^^^^ --^ -■_ m 
 
 Win, .ce Husband, Married Woman. "* 
 
 Will (see Devise) 
 
 requisiteaof *M. 
 
 nuncupative ^^'^ 
 
 formal parts of "'^ 
 
 attestation of \\ •'^8 
 
 who incapacitated to make ....*.*.. '*'' ''*' *'^ 
 
 what may bo de vined or bequeathed **^ 
 
 how revoked ' W 
 
 republication of [[[ ^•O 
 
 speaks from what time '''® 
 
 when estates under vest. "' '"*' *** 
 
 estates arising by implication under ^** 
 
 when after acquired lauds pas- under "* 
 
 property^cannot be given by for superstitious us;' or '^luiri table" pur". "^ 
 
 bequesttoA.;i;bgifti„VaVe"of'dVa;h:;ff;;;;v.:^ IJ? 
 
 eflTect of gift over iu default of issue 
 
 effect of gift to a witness * _ ' *** 
 
 appointment of guardian by ^**' 
 
 Trovincial Statutes respecting *^ 
 
 ambiguity in construction of. . .......'.,. ^** 
 
 rules of coustructioo of *'* 
 
 of realty and personally, diitiii'ction' between 1*1 
 
 governed by /«/o«r« .,<«.. . 'j^* 
 
 when governed by lex domicilii ....'.'.'.'.'.*." ,!! 
 
 of personalty governed by lex domicilii ... ,11 
 
 of realty how oroved on trimi *•' 
 
 * 286, iM 
 
 H 
 
rAd* 
 
 80 
 
 10 
 
 Hi 
 
 86, M, ge 
 
 • .87, 41, 47 
 
 D6 
 
 08 
 
 7« 
 
 84 
 
 hen by Ux 
 
 228 
 
 188 
 
 191 
 
 19» 
 
 1S8. 
 
 117 
 
 108 
 
 IBS 
 
 .117, 164, 271 
 
 160 
 
 166 
 
 160 
 
 168 
 
 97, 169, 166 
 
 161 
 
 161 
 
 809 
 
 ble pur- 
 
 160 
 
 167 
 
 168 
 
 169 
 
 20 
 
 166 
 
 161 
 
 \r 
 
 182 
 
 166 
 
 226 
 
 166 
 
 ...280. jiM 
 
 IWDBX. 3JJ 
 
 juriidiction of the Court of Chancery with r..pe€t to 'tSf 
 
 under the civil !aw . •"• 
 
 Win.MH: 818.210 
 
 rule ns to oumpetcticy of 
 
 who are inoonipetent *** 
 
 what amount of y'-\^^^''n,\:^^{^^c^^i\;,';^^^,;^,;,;^^;-- ' I!! 
 
 in terc!<t«(i person limy b»' ' ''' 
 
 how far oppoHJtc party oonipctent ... ,' ' ' '*'* 
 
 defcn.Innt when n.l,ni..-i Mo u. for co-lorcndant'. '.'.!'. ^I'' T 
 
 adnu..il.ility of. „ ,,,„.,iion for the judije .... .,.,„ Zl 
 
 crcdibihty of, a (ju.'stioii for the jury *, ' 
 
 not bound to criniinutu himsolf ." ",' ^^* 
 
 not bound to «hew how his answer would erimVnVte 'him !!J 
 
 swearing upon thu voir dirt ....'..'.*. f*" 
 
 how u party inay impeach bis own.'!.' ''** 
 
 ..«teu.ent of collateral fact by. on oroo. cxa't„i'n'aVio'n.*;;nc'l'u;i';e ■.■;: 234 
 «. m.«,.on by when evidence against hi.„ in .ubnequent proceed „. 239 
 
 when necesnary to call gubscribing weeding. . 239 
 
 deed how proved after death of iubscribin'g.*." .'.'.'.'.'.'.'" **.'. \[[ f^ 
 
 wheu one living and one dead go. 
 
 Cftsea where one not sufficient iVft 
 
 may prove will, when .., ' '''•"" 
 
 gift to in a will, effect of, .'.."... .'. ^^'^ 
 
 WrrNEssEs; * 159 
 
 attendance of before arbitrator, how enforced. ... „,- 
 
 commission to examine, when issued .*.'*.'.'.'.'," 261 
 
 WamNO: how returned '''^''''!J'''^'''^^J. 2^ 
 
 what contracts to be in 
 
 parol evidence of. when adraissible* ** 
 
 Wbittev evidence does not exclude parol 
 
 WoBK done, plea of never Indebted in action'fo'r' !! !!'.'.".!!!'.!; !'.!". i*. i] jJJ 
 
 YJlTr^r?"' "^ ""^ ^''''"'''^ ^•''""' ^ be in writing ' sO 88 
 
 If XAB8, Term of (see Lease, Leasehold) ' 
 
 how created '^ 
 
 what created by word of mouth! !!!!!!!! "' 
 
 how surrendered *^ 
 
 how made to cease !!! ''* 
 
 mortage of !•!!!!!!!!!!!!!!!!! *' 
 
 - — , ..n, ir{;icsculatlTS 
 
 of wife, husband may dispose of *' 
 
 186