UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 THE STUDENT'S GUIDE 
 
 WILLIAMS ON PERSONAL PROPERTY. 
 
 A COMPLETE SERIES 
 
 QUESTIONS AND ANSWERS THEREON. 
 
 H. WAKEHAM PURKIS, Esq., 
 
 AUTHOR OF " THE STUDENT'S GUIDE TO WILLIAMS ON REAL PROPERTY," " THE 
 student's GUIDE TO SMITH ON CONTRACTS." 
 
 PHILADELPHIA : 
 T. & J. W. JOHNSON & CO., 
 
 LAW BOOKSELLERS AND PUBLISHEUS, 
 
 No. 535 CHESTNUT STREET. 
 
 1882.
 
 T 
 
 ?lx 

 
 
 ^ 
 
 1> 
 
 TABLE OF CONTENTS. 
 
 INTRODUCTORY CHAPTER. 
 
 PAGE 
 
 Op the Subjects and Nature of Personal Propertv, . 1 
 PART I. 
 
 OF CHOSES IN POSSESSION. 
 
 Chap. I. — Of Chattels which descend to the Heir, . . 4 
 
 II. — Of Trover, Bailment and Lien, .... 8 
 
 III. — Of the Alienation of Choses in Possession, . 11 
 
 IV.— Of Ships, 18 
 
 PART II. 
 
 OF CHOSES IN ACTION. 
 
 Chap. I. — Of Actions ex delicto, 22 
 
 II.— Of Contracts, 25 
 
 III.— Of Debts, 36 
 
 IV.— Of Bankruptcy of Traders, . . . .46 
 
 V. — Of Bankruptcy of Non-traders, . . . .58 
 
 VI.— Of Insurance, 60 
 
 VII.— Of Arbitration, 64 
 
 PART III. 
 OF incorporeal personal property. 
 
 Chap. I. — Of Personal Annuities, Stocks and Shares, . . 69 
 
 II.— Of Patents and Copyrights, 78
 
 IV CONTENTS. 
 
 PART IV. 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 PAGE 
 
 CiiAP. I. — Of Settlements of Personal Property, . . .84 
 II — Of Joint Ownership and Joint Liability, . . 93 
 
 III.— Of a Will, 97 
 
 IV.— Of Intestacy, . . ' 106 
 
 v.— Of the Mutual Rights of Husband and Wife, . 110 
 
 PART V. 
 Of Title, . . . 119
 
 ANSWERS TO QUESTIONS 
 
 ON 
 
 Williams' Law of Personal Property. 
 
 INTRODUCTORY CHAPTER. 
 
 OF THE SUBJECTS AND NATURE OF PERSONAL PROPERTY. 
 
 Q. Into what two great branches is the English law 
 of property divided, and how was it anciently divided ? 
 
 A. Into the law of real property and the law of per- 
 sonal property. The feudal rules which respected the 
 holding; and culture of land were the elements of the 
 common law of real property ; the rules relating to the 
 disposition of goods were the origin of the law of per- 
 sonal property, which was, however, subject to the civil 
 law in case of transmission by will or intestacy. The 
 division of property into real and personal is compar- 
 atively of modern date. In ancient times property was 
 divided into lands, tenements and hereditaments on the 
 one hand, and goods and chattels on the other. 
 
 Q. Into how many classes were actions divided ? 
 Name them, and specify the nature of each. 
 
 A. Into real, personal and mixed. Real actions 
 were brought for the recovery of lands ; personal 
 
 p. P7-0p. 1
 
 Z INTRODUCTORY CHAPTER. 
 
 actions were brought in respect of goods; and mixed 
 actions were for real and personal mixed together. 
 
 Q. In what two personal actions could the identical 
 goods be recovered ? 
 
 A. In actions of detinue and in replevin. 
 
 Q. What is a chose in action, and was it assignable 
 at law ? 
 
 A. It is a right of action, or the liberty of proceed- 
 ing in the courts of law to recover pecuniary damages 
 for the infliction of a wrong or the non-performance of 
 a contract, or to procure the payment of money due. 
 Choses in action, with few exceptions, could not for- 
 merly be transferred. 
 
 Q. What alteration has been made by the Judicature 
 Act, 1873, as to the assignment of debts or other legal 
 choses in action ? 
 
 A. It is provided that any absolute assignment by 
 writing, under the hand of the assignor (not purporting 
 to be by way of charge only), of any debt or other legal 
 chose in action, of which express notice in writing shall 
 have been given to the person from whom the assignor 
 would have been entitled to receive or claim such debt 
 or chose in action, shall be effectual at law (subject to 
 all equities which would have been entitled to priority 
 over the right of the assignee if this Act had not been 
 passed) to pass the legal right to such debt or chose in 
 action from the date of such notice, and all legal and 
 other remedies for the same, and the power to give a 
 good discharge for the same without the concurrence of 
 the assignor. 
 
 Q. What were equitable choses in action ?
 
 INTRODUCTORY CHAPTER. 3 
 
 A. Rights which, prior to the Supreme Court of 
 Judicature Acts, 1873 and 1875, were enforceable only 
 by suit in equity ; as, for instance, a pecuniary legacy, 
 for which, if the executor withheld payment, the legatee 
 could maintain no action at law, but must resort to 
 equity. This kind of chose in action might have been 
 assigned directly from one person to another, and the 
 assignee might sue in equity in his own name. 
 
 Q. How does personal property differ from real ? 
 
 A. Personal property is distinguished from real by 
 being unaffected by the feudal rules of tenure, by being 
 alienable by methods altogether different, by passing in 
 the first instance to the executors when bequeathed by 
 will, and by devolving, in case of intestacy, not upon 
 the heir, but on an administrator (appointed formerly 
 by the Ecclesiastical Court, afterwards by the Court of 
 Probate, and now by the Probate, Divorce and Admi- 
 ralty Division of the High Court of Justice), by whom 
 it is distributed amongst the next of kin of the deceased. 
 Personal property also differs essentially from real in 
 that it is the subject of absolute ownership, whereas 
 there is no such thing as an absolute ownership in real 
 property ; the utmost that can be enjoyed in real prop- 
 erty is an estate for life, or an estate tail, or an estate 
 in fee simple.
 
 4 OF CIIOSES IN POSSESSION. 
 
 PART I. 
 
 OF CIIOSES IN POSSESSION. 
 CHAPTER I. 
 
 OF CHATTELS WHICH DESCEND TO THE HEIR. 
 
 Q. What are choses in possession, and what choses 
 in possession (or chattels) form exceptions to the gen- 
 eral rule as to their devolution ? 
 
 A. Movable goods, such as plate, furniture, farming 
 stock (both live and dead), locomotive engines, ships, 
 &c., which are essentially the subjects of absolute own- 
 ership and cannot be held by esti.tes. The chattels 
 which form exceptions to the general rule, as to their 
 devolution, consist principally of title deeds, heirlooms, 
 fixtures, chattels vegetable, and animals fierce naturce. 
 
 Q. What are heirlooms, and upon whom do they de- 
 volve on the decease of the owner ? 
 
 A. Heirlooms are such personal chattels as go, by 
 force of a special custom, to the heir and not to the 
 executor or administrator of the last owner, who, if he 
 leaves the land to descend to his heir, cannot by his 
 will bequeath the heirloom. The ancient jewels of the 
 crown are heirlooms ; also coat armor, tombstones, and 
 boxes in which muniments of title are kept. In pop- 
 ular language the term "heirloom" is generally applied 
 to plate, pictures or articles of property which have been 
 assigned by deed of settlement or bequeathed by will, in
 
 CHATTELS WHICH DESCEND TO THE HEIR. 5 
 
 trust and for the use and enjoyment of the person for 
 the time being in possession of the mansion house in 
 which the articles may be placed. 
 
 Q. What are fixtures in the ordinary acceptance of 
 the term, and what is the maxim as to them ? 
 
 A. Fixtures are such movable articles or chattels 
 personal as are fixed to the ground or soil, either 
 directly or indirectly, by being attached to a house or 
 other building, the motto being " quicquid plantatur 
 solo, solo cedit." A conveyance or a mortgage of a 
 house or other building will comprise all ordinary fix- 
 tures, such as stoves, grates, shelves, locks, &c., and 
 also fixtures erected for the purposes of trade, unless an 
 intention to the contrary is expressed or may be gath- 
 ered from the context. So, on the decease of a tenant 
 in fee simple, the devisee of a house, or the heir at law 
 in case of intestacy, will be entitled generally to the 
 fixtures set up on it. 
 
 Q. What are agricultural fixtures, and in what respect 
 was the old rule relaxed in favor of the tenant by stat. 
 14 & 15 Vict. c. 25, s. 3, also by the Agricultural Hold- 
 ings Act, 1875 ? 
 
 A. The old rule that agricultural fixtures, though set 
 up by the tenant, became, by being fixed to the soil, the 
 property of the landlord, was relaxed in favor of the 
 tenant by stat. 14 & 15 Vict, c, 25, s. 3, which provides 
 that fixtures put up with the consent iJi writing of the 
 landlord shall be removable by the tenant on his giving 
 the landlord or his agent one month's previous notice 
 in writing of his intention so to do, subject to the land- 
 lord's right to purchase the same by valuation in the 
 
 1*
 
 6 OF CIIOSES IN POSSESSIOX. 
 
 manner provided bj that Act. A further relaxation 
 of the old rule has been made by the Agricultural Hold- 
 ings (England) Act, 1875 (38 & 39 Vict. c. 92), in favor 
 of the tenant; but the application of the Act may be 
 totally or partially excluded by agreement between the 
 landlord and tenant, and it does not apply to holdings 
 that are not agricultural or pastoral, or of less extent 
 than two acres. A further relaxation of the old rule 
 has also been made in favor of the executors of a tenant 
 for life, who appear to be allowed to remove fixtures set 
 up by their testator for the purposes of trade or of or- 
 nament or domestic convenience. 
 
 Q. What are emblements, and to whom do they 
 descend ? 
 
 A. Such vegetable products as are the annual results 
 of agricultural labor are called emhlements, and the right 
 to reap them belongs to the executor or administrator 
 of a deceased owner in fee, in exclusion of the heir (but 
 not of a devisee of the land). Crops of corn and grain 
 of all kinds, flax, hemp, and everything yielding an 
 annual profit produced by labor, belong to the executor 
 or administrator as against the heir ; whilst timber, fruit, 
 trees, grass and clover, which do not repay within the 
 year the labor by which they are produced, belong to 
 the heir as part of the land. The right to emblements 
 also belongs to the executor or administrator of a tenant 
 for life, and to a tenant at will if dismissed from his 
 tenancy before harvest. 
 
 Q. What trees are considered as timber ? 
 
 A. Oak, ash and elm in all places, and in some par- 
 ticular parts of the country, by local custom, where
 
 CHATTELS WHTCII DESCEND TO THE HEIR. 7 
 
 other trees are generally used for building, tliey are for 
 that reason considered as timber. 
 
 Q. What are animals /grce naturce? 
 
 A. Animals /(grce naturce, or wild animals, including 
 game, are exceptions from the rules •nhicli relate to 
 other movables, as until they are caught there is no 
 property in them. If, therefore, the owner of land in 
 fee simple dies, the game on his land, or the fish in any 
 pond or river upon his land, will not belong to his exec- 
 utor or administrator. But a property in wild animals 
 may be obtained by reclaiming or catching them, or by 
 reason of their being unable to get away; as deer in a 
 park, rabbits in a hutch, &c., which will belong to the 
 executor or administrator and not the heir. 
 
 Q. Who has the right to kill and take game ? 
 
 A. The occupier of land for the time being has the 
 sole right of -killing and taking the game upon the land, 
 unless such right be reserved to the landlord or any 
 other person. Where the landlord has reserved to him- 
 self the right of killing game he may authorize any 
 person who has a license to kill game to enter upon the 
 land for the purpose of pursuing and killing game 
 thereon. And the lord of any manor has the right to 
 pursue and kill the game upon the waste or commons 
 within the manor, and to authorize any other person or 
 persons who shall hold a license to kill game to enter 
 upon such wastes or commons for the same purpose. 
 
 Q. In whom does the property in dead game vest ? 
 
 A. Under the provisions of the Game Act (1 & 2 
 Will. 4, c. 32) the property in game killed on any land 
 by strangers vests in the person having the right to 
 kill and take game upon the land.
 
 OF CHOSES IN POSSESSION. 
 
 CHAPTER 11. 
 
 OF TROVER, BAILMENT, AND LIEN. 
 
 Q. Define an action of trover and conversion, and for 
 what it is usually brought, and "when can it be main- 
 tained. 
 
 A. The "word trover is from the French trouver, to 
 find ; and the word conversion is added, from the con- 
 version of the goods to the use of the defendant, being 
 the gist of the action thus brought against him. That 
 defendant should have found the article lost is not his 
 fault, but his conversion of it to his own use is a tres- 
 pass, and renders him liable to an action for trover and 
 conversion, which action is now constantly brought to 
 recover damages for withholding the possession of goods 
 wrongfully diverted by defendant to his own use, with- 
 out regard to the means, whether by finding or other- 
 wise, by which defendant may have become possessed. 
 Several alterations in the mode of procedure have been 
 effected by the Judicature Act, 1875 ; and this action 
 can be maintained only when the plaintiff has been in 
 possession of the goods, or has such a property in them 
 as draws to it the right to the possession. 
 
 Q. Define bailment, and give some instances, and state 
 in whom the property in the goods delivered remains. 
 
 A. Bailment is a delivery of goods in trust on a con- 
 tract expressed or implied that the trusts shall be duly 
 executed and the goods redelivered as soon as the trust 
 or use for which they were bailed shall have elapsed or
 
 OF TROVER, BAILMENT, AND LIEN. U 
 
 be performed; as, for instance, if lent to a friend, or 
 left in the custody of a -warehouseman or wharfinger, or 
 entrusted to a carrier or to an agent or factor to sell. 
 The term bailment is derived from the French word 
 hailler, to deliver. The person who delivers the goods 
 is called the bailor, the person to whom the goods are 
 delivered the bailee. In all cases o'f bailment the sim- 
 ple rule still holds that the property in goods can 
 belong to one party only, and when any goods are 
 bailed the property still remains in the bailor. 
 
 Q. In the case of a simple bailment who may main- 
 tain an action for trover ? and what is the difference in 
 this respect if the bailment is not of the simple kind ? 
 
 A. A bailee may maintain this action, because the 
 action depends only on the right to the possession Avhich 
 the bailee has by virtue of the bailment made to him ; 
 and the bailor may also maintain the action, because 
 his property in the goods draws with it the right of pos- 
 session, and the bailment is not of such a kind as to 
 vest this right in the bailee solely. If, however, the 
 bailment should not be of the simple kind, but should 
 confer on the bailee the right to exclude the bailor from 
 the possession, here, though the property in the goods 
 still remains in the bailor, the bailee alone can maintain 
 an action of trover against any person who may have 
 taken the goods and converted them to his own use. 
 Thus the pawnee, or hirer of goods, can alone maintain 
 an action of trover so long as the pawning or hiring 
 continues. 
 
 Q. Define a lien. What are the two kinds ? and 
 give instances.
 
 10 OF CHOSES IN POSSESSION. 
 
 A. A lien is the right of a person in the possession 
 of goods to retain them until a debt due to him has 
 been satisfied. A lien is either liarticular or general. 
 A particular lien is a right to retain the particular 
 goods in respect of which the debt arises. A general 
 lien is a right to retain goods in respect of a general 
 balance of an account. The former kind is favored in 
 law ; but the latter, having a tendency to prefer one 
 creditor above another, is taken strictly. A particular 
 lien is given by the common law over goods which a 
 person is compelled to receive ; thus carriers and inn- 
 keepers have a lien on goods in their care. A partic- 
 ular lien is also given by law to every person who by 
 his labor or skill has improved or altered an article 
 entrusted to his care. A general lien, when it does not 
 arise by express contract or from a contract implied by 
 the course of dealing between the parties, accrues by 
 custom of some trade or profession, and it may be local 
 also. It obtains in many trades, such as wharfingers, 
 dyers, calico printers, factors, bankers, and perhaps, 
 also, common carriers. Solicitors also have a lien on 
 all the deeds and documents of their clients in their 
 possession for their professional charges generally. 
 
 Q. What is the effect of 23 & 24 Vict. c. 127, s. 28, 
 as to solicitors' charges ? 
 
 A. When a solicitor is employed to prosecute or de- 
 fend any suit, matter, or proceeding, in any court of 
 justice, the court or judge before whom it has been 
 heard or is depending may declare such solicitor entitled 
 to a charge upon the property recovered or preserved, 
 which will operate as a charge upon such property for
 
 ALIENATION OF CIIOSES IN POSSESSION. 11 
 
 the taxed costs, charges, and expenses of or in refer- 
 ence to such suit, matter, or proceeding. 
 
 Q. IIow is a lien lost ? 
 
 A. A lien of whatever kind is merely a right to re- 
 tain the possession of the goods, but the property in the 
 goods still remains with the owner ; and if the person 
 having the lien should give up possession of his goods 
 his lien will be lost, and the owner's property in them 
 will draw to it the right of possession, and enable him to 
 maintain an action of trover. And if the person hav- 
 ing the lien should take a security for his debt, payable 
 at a distant day, his lien would on that account be lost, 
 as it would be unreasonable that he should detain the 
 goods till such future time of payment. 
 
 CHAPTER III. 
 
 OF THE ALIENATION OF CHOSES IN POSSESSION. 
 
 Q. How may the property in goods to be hereafter 
 acquired be effectually passed ? 
 
 A. By an assignment thereof in equity, coupled with 
 a license to seize them. 
 
 Q. By what modes are personal chattels alienable ? 
 
 A. Personal chattels are still alienable by mere gift 
 and delivery, though they may be disposed of by deed ; 
 and they are also assignable by sale in a manner totally 
 different from the conveyance requisite on the transfer 
 of real estate.
 
 12 OF ClIOSES IN POSSESSION. 
 
 Q. In what respect docs a contract for the sale of 
 chattels personal differ from a contract for the sale of 
 real property ? 
 
 A. In the case of a contract for the sale of chattels 
 personal, such a contract immediately transfers the legal 
 property in the goods sold from the vendor to the ven- 
 dee. In order to do this it is of course necessary that 
 the transaction have within itself all the legal requisites 
 for a sale. 
 
 Q. What are the requisites for the sale of goods under 
 the value of lOZ. ? 
 
 A. There can be no sale without a tender or part pay- 
 ment of the money, or a tender or part delivery of the 
 goods, unless the contract is to be completed at a future 
 time. 
 
 Q. When does the property in the goods pass to the 
 purchaser ? 
 
 A. If the sale is valid the property will pass at once 
 from the vendor to the vendee, but if any act remains to 
 be done on the part of the seller previously to the deliv- 
 ery of the goods, the property does not pass to the ven- 
 dee until such act is done. Thus, if goods, the weight 
 of which is unknown, are sold by weight, or if a given 
 weight or measure is sold out of a larger quantity, the 
 property will not pass to the vendee until the price shall 
 have been ascertained by weighing the goods in the one 
 case, or the goods sold shall have been separated by 
 weight or measure in the other. 
 
 Q. What are the requisites for the sale of goods of the 
 value of 101. or upwards ? 
 
 A. By the Statute of Frauds (sect. 17), " no such con-
 
 ALIENATION OF CIIOSES IN POSSESSION. 13 
 
 tract for the sale of any goods, wares or merchandises 
 will be good, except the buyer 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 
 some note or memorandum in "writing of the said bargain 
 is signed by the parties to be charged by such contract 
 or their agents thereunto lawfully authorized." 
 
 Q. What is an actual acceptance and actual receipt 
 within the statute ? 
 
 A. There must be an actual transfer of the article sold, 
 or some part thereof, by the seller, and an actual taking 
 possession of it by the buyer. So, if any part of the 
 goods be delivered to an agent of the vendee, or to a 
 carrier named by him, this is a sufficient receipt by the 
 vendee himself; if the goods are in the possession of a 
 warehouseman or wharfinger, the receipt of a delivery 
 order is sufficient when the bailee agrees to hold the 
 goods on the purchaser's account. 
 
 Q. What is the law as to vendor's hen, with regard to 
 constructive possession ? 
 
 A. Formerly, so long as vendor retains actual or con- 
 structive possession of the goods, he had a lien upon them 
 for so much of the purchase-money as might remain un- 
 paid; but now the law has been altered with regard to 
 constructive possession, and the lien of the vendor is 
 liable to be defeated by the endorsement, or delivery by 
 the vendee, of any document of title to the goods, to a 
 person who takes the same bond fide and for valuable con- 
 sideration. 
 
 Q. What is stoppage in transitu, and when may a 
 vendor or consignor exercise this right ? 
 
 p. I'rop. 2
 
 14 OF CIIOSES IN POSSESSION. 
 
 A. The right of stoppage in transitu occurs when 
 goods are consigned wholly or partly on credit from one 
 person to another, and the consignee becomes bankrupt 
 or insolvent before the goods arrive. In this event the 
 consignor has a right to direct the captain of the ship, 
 or other carrier, to deliver the goods to himself or his 
 agent instead of to the consignee, who has thus become 
 unable to pay for them (notice to the holder of the goods 
 is sufficient). 
 
 Q. In what case does the property in goods pass from 
 one person to another without any actual sale ? 
 
 A. In an action of trover, the defendant, when he has 
 paid the amount of the damage, is entitled to retain the 
 goods in respect of which the action is brought, and the 
 property in them vests in him accordingly. 
 
 Q. What persons are prohibited from the alienation 
 of personal chattels, and what is the effect of the Natu- 
 ralization Act, 1870, as regards aliens ? 
 
 A. Until recently, an alien or foreigner was under 
 great restrictions as to the acquirement of real estate ; 
 but Avith respect to both real estate and personal chat- 
 tels he now stands on the same footing as a natural-born 
 subject, by the Naturalization Act, 1870 (33 Vict. c. 19) ; 
 and a title to real and personal property of every de- 
 scription may be derived through, from or in succes- 
 sion to him. 
 
 Q. In what case does property become forfeited to the 
 crown, and what alteration has been made in the law of 
 forfeiture by the stat. 38 & 34 Vict. c. 23 ? 
 
 A. Where a person is outlawed, or put out of the pro- 
 tection of the law, his property becomes forfeited to the
 
 ALIENATION OF CIIOSES IN POSSESSION. 15 
 
 crown. Formerly all personal property which accrued 
 to a felon during his transportation was forfeited to the 
 crown, but a mere contingent interest was not forfeited 
 if it did not vest until the expiration of the period of 
 banishment. But the recent Act (33 & 34 Vict. c. 23, 
 passed 4th July, 1870) enacts that, after its passing, no 
 confession, verdict, inquest, conviction or judgment of 
 or for any treason or felony or felo de se, shall cause any 
 attainder or corruption of blood, or any forfeiture or 
 escheat : provided that nothing in the Act shall affect 
 the law of forfeiture consequent upon outlawry. 
 
 Q. In what case is the alienation of personal chattels 
 void ? 
 
 A. By Stat. 13 Eliz. c. 5, the gift of any lands, tene- 
 ments, hereditaments, goods and chattels, made, for the 
 purpose of delaying, hindering or defrauding creditors, 
 is rendered void, as against them, unless made upon 
 good, which here means valuable, consideration, and bond 
 fide to any person not having at the time of such gift 
 notice of such fraud. 
 
 Q. In the case of a mortgage of goods, with whom 
 does the right of possession of property vest, where there 
 is a proviso for quiet enjoyment until default ? 
 
 A. The right of possession vests in the mortgagor 
 until default, but the property in the goods passes at 
 law by the deed to the mortgagee, who cannot maintain 
 an action of trover for the goods against a stranger until 
 default has been made. In the case of a pledge the prop- 
 erty remains with the pledgor, and the right to posses- 
 sion with the pledgee. 
 
 Q. What are the principal requisites in a bill of sale
 
 16 OF CriOSES IN POSSESSION. 
 
 under the Bills of Sale Acts, 17 & 18 Vict. c. 36 and 38 
 & 39 Vict. c. 96? 
 
 A. Under the former Act, every bill of sale, whereby 
 the grantee has power to take possession of any effects 
 therein comprised, must be registered in the oflSce of the 
 Court of Queen's Bench within twenty-one days, by 
 filing the same or a copy thereof in that office ; other- 
 wise such bill of sale is rendered void, so far as regards 
 any of the goods in the apparent possession of tlie grantor, 
 as against the creditors of the grantor, in case of his bank- 
 ruptcy, and as against the assignees under any assign- 
 ment for the benefit of his creditors, and as against all 
 sheriff's officers and other persons seizing the effects in 
 execution of any process of law or equity issued against 
 the goods of the grantor. It was also enacted by the 
 29 & 30 Vict. c. 96 that a bill of sale must be duly 
 stamped before it can be registered, and that such regis- 
 tration must be renewed every five years. (a) 
 
 (a) The recent Act (41 & 42 Vict. c. 31), which comes into oper- 
 ation on the 1st January, 1879, applies to all bills of sale of "per- 
 sonal chattels" made on or after that date. Fixtures and growing 
 crops are to be comprised in the term "personal chattels" (when 
 separately assigned or charged), but not chattel interests in real 
 estate, nor fixtures (except trade machinery), when assigned to- 
 gether with a freehold or leasehold interest in any land or building ; 
 and personal chattels shall be deemed to be in the " apparent pos- 
 session " of the assignor so long as they remain on the premises 
 occupied or used by him, notwithstanding formal possession by any 
 other person. Trade machinery is to be deemed " personal chat- 
 tels," but the term " trade machinery" is not to include fixed motive- 
 power, as steam-engines, water-wheels, &c. ; nor fixed power ma- 
 chinery, as shafts, wheels, drums, &c. ; nor pipes for steam, gas and 
 water.
 
 ALIENATION OF CHOSES IN POSSESSION. 17 
 
 Q. What is a ^vrit of fi. fa., and when does it bind the 
 goods ? 
 
 A. When a creditor takes proceedings against his 
 debtor a sale of the debtor's goods and chattels may be 
 procured by a "writ of fi. fa. issued in execution of the 
 judgment of the court. This writ directs the sheriff to 
 cause the debt to be realized out of the goods and chat- 
 tels of the debtor, and a sale of the goods is made by the 
 sheriff accordingly. By stat. 19 & 20 Vict. c. 97, s. 1, 
 it is provided that no writ of execution shall prejudice 
 the title to goods acquired by any person bond fide and 
 for a valuable consideration, before the actual seizure 
 thereof by virtue of such writ ; provided such person had 
 not, at the time when he acquired such title, notice that 
 a writ had been delivered to the officer and remained 
 unexecuted. 
 
 Q. What is a writ of elegit, and what goods are ex- 
 empted from execution under this writ ? 
 
 A. By the writ of elegit the goods of the debtor are 
 delivered to his creditor at an appraised value, together 
 with possession of his lands ; but the wearing apparel 
 and bedding of any judgment debtor or his family, and 
 
 This Act also provides that the execution of every bill of sale 
 must be attested by a solicitor, and the attestation must state that 
 before execution the effect thereof was explained to the grantor by 
 such solicitor. It must now be registered within seven clear days 
 after the making or giving thereof. In case two or more bills of 
 sale are given comprising any of the same chattels they will take 
 effect according to priority of registration. A transfer of a regis- 
 tered bill of sale need not be registered. Chattels comprised in a 
 bill of sale, duly registered, shall not be within the order and dis- 
 position clause of the Bankruptcy Act, 1869.
 
 18 OF CIIOSES IN POSSESSION. 
 
 the tools and implements of his trade (not exceeding 
 in the whole the value of 5L), are not liable to seizure 
 under any execution or order. 
 
 Q. What property of a bankrupt now comes within 
 the order and disposition clause ? 
 
 A. By the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), 
 the property of a bankrupt divisible among his creditors 
 comprises all goods and chattels being at the commence- 
 ment of the bankruptcy in the possession, order, or dis- 
 position of the bankrupt, being a trader, by the consent 
 and permission of the true owner, or of which goods 
 and chattels the bankrupt is reputed owner, or of which 
 he has taken upon himself the sale or disposition as 
 owner ; provided that things in action, other than debts 
 due to him in the course of his trade or business, shall 
 not be deemed goods and chattels within the meaning 
 of that clause. Registration of a bill of sale now takes 
 the property comprised in it out of the order and dis- 
 position clause. (5) 
 
 CHAPTER IV. 
 
 OF SHIPS. 
 
 Q. Into how many shares is the property in every 
 British ship divided ? 
 
 A. Into sixty-four shares ; and subject to the pro- 
 visions of the Act with respect to joint owners, or 
 
 {b) See note {a), mite, pp. 16, 17.
 
 OF SHIPS. • 19 
 
 owners by transmission, not more than thirty-two indi- 
 viduals shall be entitled to be registered at the same 
 time as owners of any one ship ; but this rule is not to 
 aflfect the beneficial title of any number of persons, or 
 any company represented by or claiming under any 
 registered owner or joint owner. 
 
 Q. What is a certificate of registry, and for what 
 purpose is it used ? 
 
 A. Upon the completion of the registry of any ship 
 the registrar gives a certificate of registry in the forms 
 prescribed by the Act. This certificate is to be used 
 only for the navigation of the ship, and is kept in the 
 custody of the master, and is not subject to detention 
 by reason of any lien, charge, or interest, which any 
 owner, mortgagee, or other person, may claim in the 
 ship described in such certificate. 
 
 Q. How are ships or shares in ships transferred ? 
 
 A. By bill of sale, which must contain such a de- 
 scription of the ship as is contained in the surveyor's 
 certificate, or as may be sufficient to identify the ship 
 to the satisfaction to the registrar, and must be in the 
 form given in the schedule of the Act, or as near 
 thereto as circumstances permit, and executed by the 
 transferor, and attested by one or more witnesses. 
 And no individual can be registered as transferee of a 
 ship, or any share therein, until he has made a declar- 
 ation in the form prescribed by the Act, the bill of sale 
 and declaration to be produced to the registrar of the 
 port at which the ship is registered, who enters the name 
 of transferee on the registry, and endorses on the bill of 
 sale the fact of such entry, with the date and hour thereof.
 
 20 . OP CIIOSES IN POSSESSION. 
 
 Q. What are the principal provisions of the Merchant 
 Shipping Act as to the mortgage of ships ? 
 
 A. All mortgages of any ship, or any shares therein, 
 are to be in a form prescribed by the Act, or as near 
 thereto as circumstances permit ; and on the production 
 thereof to the registrar of the port where the ship is 
 registered he records the same in the registry. Mort- 
 gagees to take priority according to the date of registra- 
 tion. The mortgage when discharged must be produced 
 to the registrar, with receipt for the mortgage money 
 endorsed thereon, duly signed and attested, who will 
 enter such discharge in the register book. All instru- 
 ments used in carrying into eifect that part of the Act 
 which relates to British ships, their ownership and reg- 
 istry, are exempt from stamp duty. 
 
 Q. What courts of law now have jurisdiction to decide 
 all matters and causes relating to shipping ? 
 
 A. The jurisdiction of the High Court of Admiralty 
 has now been transferred to the High Court of Justice, 
 and a division of the court has been established for 
 probate, divorce, and admiralty, and some county courts 
 now possess admiralty jurisdiction. 
 
 Q. What is a charter-party ? 
 
 A. When a vessel is hired for a certain term or a 
 given voyage the instrument by which such hiring is 
 effected is called a charter-party. 
 
 Q. What is a bill of lading ? 
 
 A. Where a merchant ship is open to the conveyance 
 of goods generally it is called a general ship, and the 
 receipt for the goods given by the master is called the 
 hill of lading ; which, when endorsed by the consignee
 
 OF SHIPS. 21 
 
 with his name, becomes a negotiable instrument, the 
 delivery of which passes the property in the goods. 
 
 Q. What is freight ? and what are the rights of a 
 mortgagee with regard to it ? 
 
 A. The money payable for the hire of a ship or for 
 the carriage of goods in it is the freight, which is as- 
 signable in the same manner as any other ordinary 
 chose in action. But in case of the mortgage of a ship 
 the mortgagee whose mortgage is first registered obtains, 
 by taking actual or constructive possession, a legal 
 right to the freight, with all the advantages which 
 equity gives to a legal owner in the event of a conflict 
 of claims.
 
 22 OF CIIOSES IN ACTION. 
 
 PART II. 
 
 OF CIIOSES IN ACTION. 
 CHAPTER I. 
 
 OF ACTIONS EX DELICTO. 
 
 Q. What alterations have been made by the Judica- 
 ture Acts, 1873 and 1875, in the jurisdiction and divis- 
 ion of the several courts ? 
 
 A. The Supreme Court of Judicature Acts, 1873 
 (36 & 37 Vict. c. 66) and 1875 (38 & 39 Vict. c. 77, 
 amended by 40 Vict. c. 9), have now merged the Courts 
 of Common Law, and of Chancery, Admiralty, Pro- 
 bate, and Divorce, into one court, called the Supreme 
 Court of Judicature, which consists of two prominent 
 divisions, one of which, under the name of Her Majes- 
 ty's High Court of Justice, exercises original jurisdic- 
 tion ; and the other, under the name of Her Majesty's 
 Court of Appeal, exercises appellate jurisdiction. 
 
 Q. What exclusive power has each division ? 
 
 A. The High Court of Justice is again divided into 
 five divisions, namely, the Chancery Division, the 
 Queen's Bench Division, the Common Pleas Division, 
 the Exchequer Division, and the Probate, Divorce and 
 Admiralty Division ; to each of which are assigned all 
 causes and matters which would have been in the exclu- 
 sive jurisdiction of each court if the Act had not
 
 OF ACTIONS EX DELICTO. 23 
 
 passed. The Chancery Division has also assigned to it 
 all causes and matters for any of the following pur- 
 poses : the administration of the estates of deceased 
 ^persons ; the dissolution of partnerships or the taking 
 of partnership or other accounts ; the redemption or 
 foreclosure of mortgages ; the raising of portions or 
 other charges on land ; the sale and distribution of the 
 proceeds of property, subject to any lien or charge; 
 the execution of trusts, charitable or private ; the 
 rectification or setting aside or cancellation of deeds or 
 other written instruments ; the specific performance of 
 contracts between vendors and purchasers of real es- 
 tates, including contracts for leases ; the partition or 
 sale of real estates ; and the wardship of infants and 
 the care of infants' estates. But, subject to these pro- 
 visions and to any rules of court, and to the power to 
 transfer causes from one division to another, any plain- 
 tiff may assign his cause to such one of the divisions of 
 the High Court as he may think fit. 
 
 Q. Into what two great classes are personal actions 
 divided ? 
 
 A. Actions are divided by the law of England into 
 two great classes : actions ex delicto^ and actions ex con- 
 tractu. The former arise in respect of wrongs com- 
 mitted, called in law French a tort ; the latter in respect 
 of contracts made for the performance of some action, 
 which thus becomes a duty^ or for the payment of some 
 money, which thus becomes a debt. 
 
 Q. What is the ancient maxim which applies in case 
 of the death of either party to an action ex delicto f and 
 state exceptions made by recent statutes.
 
 24 OF CHOSES IN ACTION. 
 
 A. The ancient maxim was ^^ actio personalis moritur 
 cum persond" it being formerly lield that if either party 
 died, the right of action was at an end. In this rule, 
 actions ex delicto only were included. By subsequent 
 statutes this rule has been considerably relaxed ; and 
 recently, by 3 & 4 Will. 4, c. 42, the executors or ad- 
 ministrators may bring an action within a year of the 
 death for any injury to the real estate of the deceased 
 committed within six months before his death ; and by 
 stats. 9 & 10 Vict. c. 93, and 27 & 28 Vict. c. 95, com- 
 pensation is recoverable by the legal personal represent- 
 atives of a person whose death has been caused by the 
 wrongful act of another if such action is brought within 
 a year of the death and is for the benefit of wife, hus- 
 band, parent or child of the deceased. 
 
 Q. State, generally, the law as to the liability of the 
 representatives of a deceased incumbent in estimating 
 the amount of dilapidations. 
 
 A. The incumbent is bound to maintain the parson- 
 age, farm buildings and chancel in good and substantial 
 repair ; but he is not bound to supply or maintain any- 
 thing in the nature of ornament. And no damages can 
 be recovered on account of neglect to cultivate the glebe 
 lands in a husbandlike manner. Where any part of the 
 premises were in the occupation of a tenant Avho was 
 liable to repair, the executors of the incumbent were ex- 
 empt from liability by the ancient canon law. And the 
 Ecclesiastical Dilapidations Act, 1871 (34 & 35 Vict. c. 
 43, s. 58), accordingly exempts from its provisions build- 
 ings (if any) belonging to a benefice, which shall be com- 
 prised in any lease for years or lives for the time being
 
 OF CONTRACTS. 25 
 
 subsisting, except so far as the lessee shall not, by virtue 
 of such lease, be liable to insure, rebuild or repair such 
 buildings. The new incumbent was formerly bound to 
 expend within two years the money recovered by him 
 for dilapidations in the necessary repairs of the premises. 
 But he is now bound forthwith to pay the money recov- 
 ered to the governors of Queen Anne's Bounty, who 
 expend it on the works according to the certificate of the 
 Surveyor of Dilapidations. 
 
 Q. What alteration as to payment of dilapidations is 
 made by the Ecclesiastical Dilapidations Act, 1871? 
 
 A. It is now provided by 34 & 35 Vict. c. 43, s. 36, 
 that the cost of the repairs shall be a debt due from the 
 late incumbent, his executors or administrators, to the 
 new incumbent, and shall be recoverable as such at law 
 or in equity ; formerly they were only payable after all 
 other debts had been paid. 
 
 CHAPTER II. 
 
 OF CONTRACTS. 
 
 Q. In case of an action for damages, by whom are 
 such damages ascertained ? 
 
 A. The Common Law Procedure Act, 1852 (15 & 16 
 Vict. c. 76, s. 94), provides that in actions in which it 
 shall appear to the court or a judge that the amount of 
 damages sought to be recovered by the plaintiff is sub- 
 stantially a matter for calculation, the court or a judge 
 
 p. Prop. 3
 
 26 OF CHOSES IN ACTION. 
 
 may direct that the amount for which final judgment is 
 to be signed shall be ascertained by one of the masters 
 of the court. 
 
 Q. What are liquidated damages ? State the diflfer- 
 ence between them and unliquidated damages. 
 
 A. Liquidated damages occur in the case of a contract 
 where parties agree between themselves that in the event 
 of a breach by either party a given sum shall be recov- 
 ered from him by the other as stipulated or liquidated 
 damages, and in this case the whole of the sum thus 
 agreed on may be recovered from the defaulter on a 
 breach of the contract. But where a sum of money is 
 stipulated to be recovered as liquidated damages in case 
 of the breach of an agreement to do several acts, and 
 such sum will, in case of breaches of the agreement, be in 
 some instances too large, and in others too small, as com- 
 pensation for the injury occasioned, such stipulated sum 
 will not be allowed to be recovered in case of any breach, 
 but damages only, proportioned to the actual injury 
 caused by such breach, unless the parties have contracted, 
 in clear and express terms, that for the breach of each 
 and every stipulation contained in the agreement a sum 
 certain is to be paid, when the parties will be held to 
 their contract. 
 
 Q. Define a contract. 
 
 A. A contract, as defined by Blackstone, is "an agree- 
 ment upon consideration to do or not to do a particular 
 thing." This agreement may be either express or im- 
 plied ; for the law always implies a promise to do that 
 which a person is legally liable to perform, and the ac- 
 tion of assumpsit on promises is constantly maintained
 
 OF CONTRACTS. 27 
 
 for damages for the breacli of sucli an implied contract. 
 Thus, the person who takes the goods of a tradesman is 
 liable in assumpsit for their market value; for, as he 
 took the goods, the law will imply for him a promise to 
 pay for them. 
 
 Q. How is every action now commenced in the High 
 Court of Justice ? 
 
 A. By writ of summons, on which is endorsed a short 
 statement of the claim made according to forms given in 
 the Appendix (A), Parts I. and II., to the Supreme 
 Court of Judicature Act, 1875. 
 
 Q. What is the difference between simple contracts 
 and special contracts ? 
 
 A. Express contracts are either by parol or word of 
 mouth, which are called simple contracts, or by deed 
 under seal, which are called special contracts ; although 
 simple contracts may, and often must, at the present 
 day, be evidenced by writing. 
 
 Q. Into what two classes are considerations divided ? 
 Define them. 
 
 A. Into good and valuable. A good consideration is 
 that of blood, or the natural love and affection which a 
 person has for his children or any of his relatives. A 
 valuable consideration is either pecuniary or the gift 
 or conveyance of anything valuable ; or it may be in 
 consideration of marriage, or the compromise of a bond 
 fide claim, &c. ; but a good consideration is not good for 
 very much in law, and is not good as against creditors 
 within the statute 13 Eliz. c. 5 ; it is not good to sup- 
 port a contract ; and a gift for such consideration is 
 regarded as simply voluntary.
 
 28 OF CHOSES IN ACTION. 
 
 Q. Wliat consideration is necessary to support a valid 
 contract ? 
 
 A. A valuable consideration is in all cases necessary 
 to form a valid contract. It has been thought that an 
 express promise, founded on a moral obligation, is suflS- 
 cient for this purpose. This, however, appears to be a 
 mistake. An express promise can give no original right 
 of action if the obligation on which it is founded could 
 never have been itself enforced. But in some cases a 
 valuable consideration, which might have formed a con- 
 tract by means of an implied promise had its operation 
 not been suspended by some positive rule of law, may 
 be revived and made available by a subsequent express 
 promise. 
 
 Q. How may a debt barred by the Statute of Limita- 
 tions be revived ? 
 
 A. A simple contract debt, Avhich would otherwise 
 have been barred by the Statute or Limitations from hav- 
 ing been incurred upwards of six years, may be revived 
 by a subsequent promise to pay, or even by an uncon- 
 ditional acknowledgment of the debt. 
 
 Q. Can a contract by an infant be confirmed after his 
 coming of age ? 
 
 A. Formerly it might by writing signed by him under 
 Lord Tenterden's Act, 9 Geo. 4, c. 14 ; but the law as 
 to the contracts of infants has been amended by the 
 Infants Relief Act, 1874 (37 & 38 Vict. c. 62, s. 1), 
 Avhich provides that all contracts, whether by specialty 
 or simple contract, henceforth entered into by infants 
 for the repayment of money lent or to be lent, or for 
 goods supplied or to be supplied (other than contracts 
 for necessaries), and all accounts stated Avith infants,
 
 OF CONTRACTS. 29 
 
 shall be absolutely void. But this enactment is not to 
 invalidate any contract into ■which an infant may, by 
 any existing or future statutes, or by the rules of com- 
 mon law or equity, enter, except such as are now by 
 law voidable. The Act also provides (sect. 2) that no 
 action shall be brought to charge any person upon any 
 promise made after full age to pay any debt contracted 
 during infancy, or upon any ratification made after full 
 age, of any promise or contract made during infancy, 
 whether there shall or shall not be any new considera- 
 tion for such promise or ratification after full age. 
 
 Q. What is the effect of the 4th section of the Stat- 
 ute of Frauds ? 
 
 A. No action can be brought whereby to charge any 
 executor or administrator upon any special promise to 
 answer damages out of his own estate ; 
 
 Or whereby to charge the defendant upon any 
 
 special promise to answer for the debt, default or 
 
 miscarriage of another person ; 
 Or to charge any person upon any agreement made 
 
 upon consideration of marriage ; 
 Or upon any contract or sale of lands, tenements or 
 
 hereditaments, or any interest in or concerning 
 
 them ; 
 Or upon any agreement that is not to be performed 
 
 within one year from the making thereof; 
 unless the agreement upon which such action shall be 
 brought, or some memorandum or note thereof, shall be 
 in writing, and signed by the party to be charged 
 therewith, or some other person thereunto by him law- 
 fully authorized. 
 
 3*
 
 30 OF CHOSES IN ACTION. 
 
 Q. Cite one or two important cases which have been 
 decided upon the above section. 
 
 A. One of the most important is that of Wain v. 
 Warlters, 5 East, 10 ; 2 Smith's Leading Cases, 147, 
 in which it was held that the statute in requiring the 
 agreement to be in writing required that the consider- 
 ation should be in writing as well as the promise itself. 
 And therefore a promise in writing to pay the debt of 
 a third person, which did not state any consideration, 
 was held to give no cause of action, and parol evidence 
 of a consideration was not allowable. And see Qlancy 
 V. Piggott, 1 Smith's Leading Cases, 136. 
 
 Q. What alteration has been made by the 19 & 20 
 Vict. c. 97, s. 3, as to guarantees ? 
 
 A. That no guarantee shall be invalid to support an 
 action, by reason only that the consideration for such 
 promise does not appear iu writing, or by necessary 
 inference from a written document. See the cases of 
 Holmes V. Mitchell, 7 C. B., N. S. 361 ; Williams v. 
 Lake, 2 Ell. & Ell. 349. 
 
 Q. What is the effect of stat. 9 Geo. 4, c. 14, s. 7, 
 commonly called Lord Tenterden's Act, with regard to 
 the Statute of Limitations ? 
 
 A. By this statute no acknowledgment or promise by 
 words only can take any case of simple contract out of 
 the operation of the Statute of Limitations, unless it be 
 made or contained by or in some writing to be signed 
 by the party chargeable thereby. The statute makes 
 no mention of any signature by an agent ; but by stat. 
 19 & 20 Vict. c. 97, s. 13, the signature of an agent 
 has been rendered sufficient in this case.
 
 OP CONTRACTS. 61 
 
 Q. How does the stat. 19 & 20 Vict. c. 97 affect tlie 
 contracts of co-contractors ? 
 
 A. By this statute payment of any principal or in- 
 terest by a co-contractor or co-debtor will not deprive a 
 debtor of the benefit of the Statute of Limitations. 
 
 Q. Can an action be sustained upon a representation 
 as to the character, conduct or ability of another? 
 
 A. If made with the intent that such person may 
 obtain credit, money or goods upo7i; but the party 
 making it will not be liable unless it is made in writing 
 and is signed by him (9 Geo. 4, c. 14). 
 
 Q. Define a bill of exchange. 
 
 A. A bill of exchange is a written order from one 
 person to another to pay to a third person, or to his 
 order, or to the bearer, a certain sum of money. The 
 person making the order is called the drawer, the per- 
 son on whom it is made the drawee, and the person to 
 whom the money is payable the payee. The bill is some- 
 times made payable to the drawer himself, or to his 
 order, or to him or bearer. If the person on whom the 
 bill is drawn undertakes to pay it he writes on it the 
 word " accepted," with his signature, and is then called 
 the acceptor. (a) A promissory note (or note of hand) 
 is a written promise from one person to pay to another, 
 or to his order, or to bearer, a certain sum of money. 
 The person making the order is called the maker of the 
 note. 
 
 Q. What is the difference between an endorsement in 
 blank and a special endorsement ? 
 
 (a) By 41 Vict. c. 13 (16th April, 1878), if only the signature of the 
 drawee be written on such bill it will be a sufficient acceptance.
 
 32 OF CHOSES IN ACTION. 
 
 A. Bills or notes payable to A. B. or order are 
 transferable bv a written order endorsed thereon by A. 
 
 B. The mere signature by A. B. of his name on the 
 back, followed by the delivery of the bill or note, is, 
 however, sufficient for this purpose. This is called an 
 endorsement in blank, and the bill or note, together 
 with the right to sue upon it, may be transferred by 
 mere delivery. Any holder of a bill may consequently, 
 after such an endorsement, enforce payment to himself. 
 The endorsement may, however, be special, as, " Pay 
 
 C. D. or order, — A. B. ;" and in this case the bill or 
 note, in order to become transferable, must be endorsed 
 by C. D. But if a bill be once endorsed in blank it 
 will always be payable to the bearer by any of the 
 parties thereto, although it may be subsequently spec- 
 ially endorsed. 
 
 Q. What is the effect of the Crossed Cheques Act, 1876 ? 
 
 A. This Act contains some very important provisions 
 as to the effect of crossed cheques, as to the effect of 
 general and special crossing, and for the protection of 
 bankers and drawers. {Vide the Act, 89 & 40 Yict. 
 c. 81.) 
 
 Q. What liability is incurred by accepting a bill or 
 making a promissory note ? 
 
 A. The effect of accepting a bill or making a prom- 
 issory note is to render the acceptor or maker primar- 
 ily liable to pay the same to the person entitled to 
 require payment. 
 
 Q. And what is the liability of the drawer, also of 
 any endorser? 
 
 A. The effect of drawino; a bill is to make the drawer
 
 OF CONTRACTS. 33 
 
 liaLlo to payment if acceptor makes default. The 
 effect of endorsing a bill or note is to make the endorser 
 also liable to payment if the acceptor of the bill or 
 maker of the note should make default. The endorse- 
 ment operates as against the endorser as a new drawing 
 of the bill by him. An endorsement may, however, be 
 made without recourse to the endorser, in which case 
 the endorser avoids all personal liability. The drawer 
 of a bill or the endorser of a bill or note will, however, 
 be discharged from all liability unless the person requii'- 
 ing payment should within a reasonable time give him 
 notice that the bill or note has not been paid, or, as it is 
 termed, has been dishonored, and give him to under- 
 stand, either expressly or by implication, that he looks 
 to him for payment. 
 
 Q. Who may enforce payment of a bill or note ? 
 
 A. A bond fide holder for valuable consideration or 
 any endorser from him may enforce payment, being 
 entitled to rely on the legal presumption of a proper 
 consideration having been given. By the Bills of Ex- 
 change Act, 1871 (84 & 35 Vict. c. 74), bills and notes 
 payable at sight or on presentation are now deemed for 
 all purposes whatsoever to be payable on demand. 
 
 Q. In what important particular do special contracts 
 or contracts by deed differ from mere simple contracts ? 
 
 A. Special contracts or contracts by deed differ from 
 mere simple contracts in the important particular that 
 they of themselves import a consideration, whilst in 
 simple contracts a consideration must be proved. 
 
 Q. Can a contract be avoided on the ground of ille- 
 gality ?
 
 34 OF CHOSES IN ACTION. 
 
 A. The object for wliicli a contract is made may be 
 either lawful or unlawful ; and if unlawful the contract 
 will be void, and the illegality may be pleaded as a de- 
 fence to an action brought upon such contract. 
 
 Q. Supposing some objects of a contract to be good 
 and others unlawful, will this fact necessarily render 
 the whole contract void ? 
 
 A. In such case the unlawful objects will not vitiate 
 the others, provided the good part be separable from, 
 and not dependent upon, that which is bad ; but if 
 there is any eiiactment to the effect that all instruments 
 containing any matter contrary thereto shall be void, of 
 course everything connected wuth any instrument con- 
 taining such matter will be vitiated. 
 
 Q. Is a contract in restraint of trade void ? 
 
 A. Any contract whereby a person is attempted to 
 be restrained from following his usual calling, even for 
 a limited time, is absolutely void. But not so in case 
 of a contract whereby a person is restrained from trad- 
 ing in a particular place, or within a reasonable dis- 
 tance thereof, or from serving a particular class of cus- 
 tomers. The rule that contracts in restraint of trade 
 are void at law has been in some respects relaxed in 
 favor of trades unions by the Trades Unions Act, 1871 
 (amended by 39 & 40 Vict. c. 22 ; and see 38 & 39 
 Vict. c. 86). 
 
 Q. Define maintenance and champerty. 
 
 A. Maintenance, which is the unlawful maintaining 
 of another person's suit, and champerty, which is the 
 maintenance of a suit in consideration of a share in the 
 property to be gained, are both unlawful at common
 
 OF CONTRACTS. 35 
 
 law and by divers ancient statutes. Any contract which 
 commits either of these offences is void. 
 
 Q. State some instances in which contracts may be 
 void in consequence of their contravening some Acts of 
 Parliament. 
 
 A. Such instances are very numerous ; as, for in- 
 stance, in the case of contracts by clergymen holding 
 benefices, made for the purpose of charging such ben- 
 efices with any sum of money, which contracts are void 
 under 13 Eliz. c. 20. All contracts or agreements, 
 whether by parol or writing, by way of gaming or 
 wagering, are void ; also the contracts of infants (ex- 
 cept for necessaries). But the contract of a man too 
 drunk to know what he is about is voidable only, and 
 not void. 
 
 Q. What alteration has been effected by the Attor- 
 neys and Solicitors Act, 1870, with regard to contracts 
 made by attorneys and solicitors with their clients ? 
 
 A. Under this Act (33 & 34 Yict. c. 28) an attorney 
 or solicitor may now make an agreement in writing with 
 his client (which before he was not allowed to do) re- 
 specting the amount and manner of payment for the 
 whole or any part of any past or future services, fees, 
 charges or disbursements in respect of business done or 
 to be done by him. But such agreements are subject 
 to many provisions and conditions contained in the Act, 
 and intended to be for the security of the client. By 
 the Supreme Court of Judicature Act, 1873, all solicit- 
 ors, attorneys and proctors are now called solicitors.
 
 36 OF CIIOSES IN ACTION. 
 
 CHAPTER III. 
 
 OF DEBTS. 
 
 Q. What is a debt of record, and what is a court of' 
 record ? 
 
 A. A debt of record is a debt due by the evidence of 
 a court of record. Every court, by having power given 
 to it to fine and imprison, is thereby made a court of 
 record. 
 
 Q. What courts are now merged in the Supreme 
 Court of Judicature ? 
 
 A. By the Judicature Act, 1873, the following supe- 
 rior courts of record, viz., the Courts of Chancery, 
 Queen's Bench, Common Pleas and Exchequer, and the 
 Court of Probate, Divorce. and Admiralty, The Su- 
 preme Court consists of two permanent divisions, called 
 Her Majesty's High Court of Justice and Her Majesty's 
 Court of Appeal. The High Court of Justice is a su- 
 perior court of record, and it has had transferred to it 
 the jurisdiction of all the above-mentioned courts, and 
 also of the Court of Common Pleas at Lancaster and 
 the Court of Pleas at Durham. The Court of Appeal 
 is also a superior court of record. The appellate juris- 
 diction of the House of Lords is now governed by the 
 Appellate Jurisdiction Act, 1876. 
 
 Q. What are the inferior courts of record ? 
 
 A. The inferior courts of record may be said, gen- 
 erally, to consist of the numerous courts established 
 throughout the country under the Acts for the more
 
 OF DEBTS. 37 
 
 easy recovery of small debts and demands in England, 
 now called the County Courts Acts. 
 
 Q. In the case of debts of record, -what creditor has 
 a claim paramount to all others ? 
 
 A. The crown. 
 
 Q. What alteration has been effected as to the dis- 
 tinction between specialty and simple contract debts by 
 the statutes 32 & 38 'Vict. c. 4t), and 38 & 39 Vict. c. 
 77, s. 10? 
 
 A. By these Acts all specialty debts are reduced to 
 the level of debts by simple contract. 
 
 Q. What is a judgment debt ? 
 
 A. A debt which is due by the judgment of a court 
 of record. And as such a debt is due by the evidence 
 of a court of record, it is, of course, a debt of record. 
 
 Q. What are now the requisites for the due execution 
 and attestation of warrants of attorney and cognovits ? 
 
 A. A warrant of attorney to confess judgment in 
 any personal action, or cognovit actionem, given by any 
 person, will not be of any force unless there is present 
 a solicitor of the Supreme Court on behalf of such 
 person, expressly named by him and attending at his 
 request, to inform him of the nature and effect of such 
 warrant or cognovit, before the same is executed, who 
 must subscribe his name as a witness to the due execu- 
 tion thereof, and declare that he subscribes as such 
 solicitor. Since the Acts for registering writs of ex- 
 ecution warrants of attorney have become almost 
 obsolete. 
 
 Q. What is the provision as to the filing of warrants 
 of attorney, cognovits and judge's orders? 
 
 p. Prop. 4
 
 38 OF CHOSES IN ACTION. 
 
 A. All warrants of attorney with the defeasances 
 thereto, and all cognovits and all judge's orders or 
 copies thereof, must be filed in the Queen's Bench Di- 
 vision of the High Court, within twenty-one days after 
 their execution, otherwise they will be fraudulent and 
 void. 
 
 Q. Do judgment debts carry interest ? 
 
 A. Every judgment debt carries interest at the rate 
 of 41. per cent, per anjium, from the time of entering 
 up such judgment until the same shall be satisfied, and 
 such interest may be levied under a writ of execution 
 on such judgment. 
 
 Q. What alteration has been effected by the Supreme 
 Court of Judicature Act, 1875, as to the preference of 
 judgment debts in administration? 
 
 A. In the administration by the court of the assets 
 of any person dying after the commencement of that 
 Act, and whose estate may prove to be insufficient for 
 the payment in full of his debts and liabilities, the 
 same rule shall prevail as to the respective rights of 
 secured and unsecured creditors, and as to debts and 
 liabilities provable, as may be in force under the law 
 of bankruptcy with respect to the estates of persons 
 adjudged bankrupt. 
 
 Q. What is the effect of the Debtors Act, 1869 (32 
 & 33 Vict. c. 62) as to imprisonment for debt ? 
 
 A. It provides that, with the exceptions therein men- 
 tioned, no person shall be arrested or imprisoned for 
 default in payment of a sum of money. These excep- 
 tions are, 
 
 1. Default in payment of a. penalty or sum in the
 
 OF DEBTS. 39 
 
 nature of a penalty other than a penalty in respect of 
 any contract. 
 
 2. Default in payment of any sum recoverable sum- 
 marily before a justice or justices of the peace. 
 
 3. Default by a trustee or person acting in a fiduci- 
 ary capacity, and ordered by a court of equity to pay 
 any sura in his possession or under his control. 
 
 4. Defliult by an attorney or solicitor in payment of 
 costs when ordered to pay costs for misconduct as such, 
 or in payment of a sum of money when ordered to pay 
 the same in his character of an officer of the court 
 making the order. 
 
 5. Default in payment for the benefit of creditors 
 of any portion of a salary or other income in respect 
 of the payment of which any court having jurisdiction 
 in bankruptcy is authorized to make an order. 
 
 6. Default in payment of sums in respect of the 
 payment of which orders are in that Act authorized to 
 be made. 
 
 Q. Describe the two- kinds of specialty debts, and 
 whether they now have any, and what, priority over 
 simple contract debts. 
 
 A. Specialty debts, or debts secured by special con- 
 tract contained in a deed, are of two kinds, debts by 
 specialty in which the heirs of the debtors are bound, 
 and debts by specialty in which the heirs are not 
 bound ; and these formerly took precedence of simple 
 contract debts ; but by 32 & 33 Vict. c. 46, 1869, the 
 priority of specialty debts was abolished. 
 
 Q. In the case of a bond with a penalty can the 
 obligee recover, either at law or in equity, more than 
 the amount of the penalty ?
 
 40 OF CirOSES IN ACTION. 
 
 A. No ; but if there be special circumstances in the 
 creditor's favor, as, if he have a mortgage also for the 
 principal and interest, or if the debtor has been delay- 
 ing him by vexatious proceedings, equity will then aid 
 him to the full extent of his demand. 
 
 Q. State the nature of the alterations effected by the 
 Judicature Act, 1873, on all legal proceedings. 
 
 A. This Act has abolished the control which equity 
 in many cases formerly exercised over proceedings at 
 law. All legal proceedings are now called actions, and 
 are commenced by a writ of summons, followed when 
 necessary by a statement of plaintiff's claim, to be made 
 within six weeks from the time of defendant's entering 
 his appearance. In every action, law and equity are 
 administered concurrently, but where not otherwise 
 altered all the old forms and rules continue in use. 
 
 Q. What are simple contract debts ? 
 
 A. All debts not secured by the evidence of a court 
 of record, or by deed or specialty. As above shown, 
 they are now payable, pari passu, with debts secured by 
 specialty. 
 
 Q. On what debts is interest payable ? 
 
 A. By Stat. 3 & 4 Will. 4, c. 42, interest is recover- 
 able on all debts payable by virtue of any written instru- 
 ment, at a certain time, from the time when such debts 
 were payable, or if payable otherwise, then from the time 
 when demand of payment shall be made in writing, so as 
 such demand give notice to the debtor that interest will 
 be claimed from the date of such demand until the time 
 of payment. 
 
 Q. What are the functions and liabilities of sureties ?
 
 OF DEBTS. 41 
 
 A. A surety is one who makes liimsclf liable, to- 
 gether with the principal debtor, for tlie payment of a 
 debt. If he pays the debt he becomes the creditor of 
 the principal debtor for the amount. Every surety who 
 pays a debt is now entitled, by stat. 19 & 20 Vict. c. 97, 
 to have assigned to him every judgment, specialty or 
 other security which shall be held by the creditor in re- 
 spect of such debt ; and, in case of co-sureties, any one 
 surety paying the debt is entitled to contribution from 
 his co-sureties in equal shares ; or if they should have 
 been sureties to unequal amounts, then in proportion to 
 the respective amounts to which they have made them- 
 selves liable. 
 
 Q. How may a surety be discharged from his lia- 
 bility ? 
 
 A. By the conduct of the creditor. As surety, he 
 has made himself liable only for the payment of a par- 
 ticular debt, at a given time, or under certain circum- 
 stances. If, therefore, the creditor, by any subsequent 
 arrangement with the principal debtor, preclude himself 
 from demanding payment of his debt at the time or under 
 the circumstances originally agreed on, the surety will 
 at once be discharged from all* liability. Thus, if the 
 creditor bind himself to give further time for pay- 
 ment to the principal debtor, or compound Avith him, 
 without expressly reserving his remedy against the 
 surety, the surety will be discharged. 
 
 Q. How were debts formerly assigned at law ? 
 
 A. An authority from the creditor to the assignee to 
 sue the debtor in the creditor's name was given. This 
 was called a power of attorney, and was not required 
 
 4*
 
 42 OF CHOSES IN ACTION. 
 
 to be by deed, but might have been by writing unsealed, 
 or even by parol. 
 
 Q. In the event of bankruptcy since the Act of 1869, 
 how may the trustees of a bankrupt sue and be sued, 
 and how may the debts be recovered ? 
 
 A. The trustee may sue by the official name of " The 
 trustee of the property of A. B., a bankrupt." And 
 any person to whom anything in action belonging to the 
 bankrupt is assigned, in pursuance of that Act, may 
 bring or defend any action or suit relating to such thing 
 in action in his own name. 
 
 Q. State the general rule as to the payment of debts. 
 
 A. In the first place, the payment of a smaller sum 
 is no satisfaction of a larger one, unless there be some 
 consideration for the relinquishment of the residue, such 
 as the payment at an earlier time than the whole is due, 
 or the concurrence of some or all of the other creditors 
 of the debtor in accepting a composition. But it seems 
 that the acceptance of a negotiable security for a small 
 amount may be a good satisfaction for a larger debt, and 
 the payment of a small sum may be a good satisfaction 
 for an unliquidated demand for large pecuniary dam- 
 ages on account of the uncertainty of such a claim. 
 
 Q. What is the rule as to the appropriation of pay- 
 ments ? 
 
 A. When a less sum is paid to the creditor than the 
 whole amount of his demands it is competent to the 
 debtor to make the payment in satisfaction of any de- 
 mand he may please ; but if made generally the cred- 
 itor may elect at the time of payment, or within a 
 reasonable time after, to appropriate the money to
 
 OF DEBTS. 43 
 
 "whichever demand he may please. And if no election 
 be made on either side the law will, in ordinary cases 
 of current accounts, presume that the first item on the 
 debit side is discharged or reduced by the first payment 
 entered on the credit side, and so on in the order of 
 time. Interest, when any due, being payable in the 
 first place, then principal j^ro tanto. 
 
 Q. How are compositions with creditors now effected ? 
 
 A. Under the 125th and 126th sections of the Bank- 
 ruptcy Act, 1869. 
 
 Q. What is the effect of the regulations as to liqui- 
 dation by arrangement made by the Bankruptcy Act, 
 1869? 
 
 A. The debtor presents a petition to the proper 
 court, with affidavits annexed, according to the forms 
 in the Schedule to the Rules (Nos. 106 and 107), and 
 a general meeting of his creditors is summoned by the 
 registrar on a day within one calendar month from the 
 presentation of the petition, when they may by special 
 resolution declare that the affairs of the debtor are to 
 be liquidated by arrangement and not in bankruptcy, 
 and may at that or some subsequent meeting, held not 
 more than a week off, appoint a trustee with or without 
 a committee of inspection. This special resolution, 
 together with the statement of the assets and debts of 
 a debtor, and the name of the trustee appointed and 
 of the members (if any) of the committee of inspection, 
 is presented to the registrar and registered by him ; and 
 the liquidation is deemed to commence from the date of 
 the appointment of the trustee. All such property of 
 the debtor as would, if he were made bankrupt, be di-
 
 44 OF CIIOSES IN ACTION. 
 
 visible amongst his creditors is vested in the trustee, 
 and all deeds and proceedings, &c., as would be void in 
 case of bankruptcy are void as against the trustee, 
 who has the same power as the trustee in bankruptcy, 
 and the property is distributable in like manner. The 
 close of the liquidation may be fixed ; the discharge of 
 the debtor and the release of the trustee may be 
 granted by a special resolution of the creditors in gen- 
 eral meeting, and the accounts may be audited, in pur- 
 suance of such resolution, at such time and in such 
 manner and upon such terms and conditions as the cred- 
 itors think fit. The trustee reports to the registrar the 
 discharge of the debtor, and a certificate of such dis- 
 charge given by the registrar has the same effect as an 
 order of discharge under the Act. 
 
 Q. What is the difference between liquidation by ar- 
 rangement and composition ? 
 
 A. Liquidation is thus explained by the present 
 chief judge in bankruptcy : " Liquidation may be said, 
 in general terms, to be an equivalent for bankruptcy, 
 giving the creditors the same rights which they have in 
 bankruptcy. But composition is a totally different 
 thing. All that the law requires from a debtor propos- 
 ing to compound with liis creditors is that he should 
 state fully what his means are of paying his debts, 
 having first stated truly what is the amount of those 
 debts. And if the creditors agree to accept his com- 
 position he becomes a free man, entitled to all the 
 rights of ownership and disposition over every part of 
 his property. The creditors relinquish the rights which 
 the law would give them if they proceed to bankruptcy
 
 OF DEBTS. 45 
 
 or liquidation by arrangement, and tbey are content 
 that tlie debtor should thenceforth deal with his prop- 
 erty in any way he thinks fit." 
 
 Q. What provision is made by the Bankruptcy Act, 
 1869 (sect. 126), for a debtor effecting a composition 
 with his creditors ? 
 
 A. " The creditors of a debtor unable to pay his 
 debts mo,y, without any proceedings in bankruptcy, by 
 an extraordinary resolution, resolve that a composition 
 shall be accepted in satisfaction of the debts due to 
 them from the debtor." 
 
 Q. What is an extraordinary resolution ? 
 
 A. An extraordinary resolution is one passed by a 
 majority in number and three-fourths in value of the 
 creditors at a general meeting, summoned as required 
 by Rules 254 and 259, and confirmed by a majority in 
 number and value of the creditors assembled at a subse- 
 quent general meeting (of which notice has been given as 
 required by Rule 282) held not less than seven days nor 
 more than fourteen days from the first meeting. 
 
 Q. How are proceedings for liquidation and composi- 
 tion commenced, and what advantage has a secured cred- 
 itor over ordinary creditors ? 
 
 A. They are commenced by petition, with an aflSdavit 
 thereto annexed according to prescribed forms. The 
 petition must be addressed to the court to which a bank- 
 ruptcy petition against the debtor could be presented. 
 A secured creditor, unless he shall have realized his 
 security, shall, previously to being allowed to prove or 
 vote, state in his proof the particulars of his security 
 and the value at which he assesses to same ; and he shall
 
 46 OF CIIOSES IN ACTION. 
 
 be deemed to be a creditor only in respect of the bal- 
 ance due to him after deducting such assessed value of 
 the security. 
 
 Q. Where will the terms of composition appear ? 
 
 A. The extraordinary resolution may provide that 
 the terms be embodied in a deed containing covenants 
 for securing the composition and releasing the debtor, 
 as may be specified in the resolution. (Rule 281.) 
 
 Q. What is the effect of a failure of a debtor to com- 
 ply with the provisions of a composition ? 
 
 A. The creditors will no longer be restrained from 
 proceeding to enforce the full payment of their debts. 
 
 CHAPTER IV. 
 
 OF BANKRUPTCY OF TRADERS. 
 
 Q. Who are traders ? 
 
 A. The 4th section of the Act enacts, by reference 
 to the schedule to the Act, that all alum makers, apoth- 
 ecaries, auctioneers, bankers, bleachers, brokers, brick- 
 makers, builders, calenderers, carpenters, carriers, cat- 
 tle or sheep salesmen, coach proprietors, cowkeepers, 
 dyers, fullers, keepers of inns, taverns, hotels, coffee- 
 houses, lime-burners, livery stable-keepers, market gar- 
 deners, millers, packers, printers, sharebrokers, ship- 
 owners, shipwrights, stock brokers, stock jobbers, vic- 
 tuallers, warehousemen, wharfingers, persons using the
 
 OF BANKRUPTCY OF TRADERS. 47 
 
 trade or profession of a scrivener, receiving other men's 
 money or estates into their trusts or custody, persons 
 insuring ships or their freight or other matters against 
 perils of the sea, persons using the trade or merchandise, 
 by way of bargaining, exchange, bartering, commission, 
 consignment or otherwise, in gross or by retail ; and per- 
 sons who, either for themselves or as agents or factors 
 for others, seek their living by buying and selling or by 
 buying and letting for hire, or by the workmanship or 
 the conversion of goods or commodities, are traders. 
 
 Q. Who are not traders ? 
 
 A. The schedule provides that " a farmer, grazier, 
 common laborer, or workman for hire, shall not, nor 
 shall a member of any partnership, association or com- 
 pany which cannot be. adjudged bankrupt under the 
 Act, be deemed as such a trader for any purposes of this 
 Act." 
 
 Q. Name the acts of bankruptcy. 
 
 A. 1. That the debtor has in England or elsewhere 
 made a conveyance or assignment of his property to a 
 trustee or trustees for the benefit of his creditors gen- 
 erally. 
 
 2. That the debtor has in England or elsewhere made 
 a fraudulent conveyance, gift, delivery or transfer of his 
 property or any part thereof. 
 
 3. That the debtor has, with intent to defeat or delay 
 his creditors, done any of the following things, namely, 
 departed out of England, or being out of England re- 
 mained out of England, or being a trader departed from 
 his dwelling-house or otherwise absented himself, or be- 
 gun to keep house, or suffered himself to be outlawed.
 
 48 OF CIIOSES IN ACTION. 
 
 4. Tliat the debtor has filed in the prescribed manner 
 in the court a declaration admitting his inability to pay 
 his debts. 
 
 5. That the execution issued against the debtor on 
 any legal process for the purpose of obtaining payment 
 of not less than fifty pounds has in the case of a trader 
 been levied by seizure and sale of his goods. 
 
 6. That the creditor presenting the petition has served 
 in the prescribed manner on the debtor a debtor's sum- 
 mons requiring the debtor to pay a sum due, of an 
 amount of not less than fifty pounds ; and the debtor, 
 being a trader, has for the space of seven days, or not 
 being a trader, has for the space of three weeks succeed- 
 ing the service of such summons, neglected to pay such 
 sum or to secure or compound for the same. 
 
 Q. What is a fraudulent conveyance ? 
 
 A. A fraudulent conveyance sometimes resolves itself 
 into the question of the debtor's intention in making the 
 conveyance, and sometimes is concluded from the nature 
 of the conveyance itself. A bond fide intent to carry 
 on his business and to procure advances for that pur- 
 pose will sustain a mortgage of the whole or nearly all 
 of the debtor's property. 
 
 Q. When can a debtor be arrested under the Ab- 
 sconding Debtors Act, 1870 ? 
 
 A. The Absconding Debtors Act, 1870, empowers 
 the Court of Bankruptcy to arrest any debtor who has 
 been served with a debtor's summons, if there be prob- 
 able reason for believing that he is about to go abroad 
 with a view of avoiding payment of the debt, or of avoid- 
 ing service of a petition of bankruptcy, or of avoiding
 
 OF BANKRUPTCY OF TRADERS. 49 
 
 appearing to such petition, or of avoiding examination 
 in respect of his affairs, or otherwise avoiding, delaying 
 or embarrassing proceedings in bankruptcy. 
 
 Q. State the requisites to support a petition for ad- 
 judication in bankruptcy. 
 
 A. The requisites are, a sufficient petitioning credit- 
 or's debt or debts, which must amount to not less than 
 501. ; and the trading must be proved where necessary ; 
 and an act of bankruptcy within six calendar months. 
 (Sect. 8.) 
 
 Q. Must the adjudication be advertised? and how? 
 
 A. Yes ; the adjudication must be published in the 
 London Gazette, and be advertised locally in such man- 
 ner (if any) as may be described, and the date of such 
 order shall be the date of the adjudication for the pur- 
 poses of the Act, and the production of a copy of the 
 Gazette, containing such order as aforesaid, shall be 
 conclusive evidence. 
 
 Q. In whom does the bankrupt's property now vest 
 upon adjudication ? 
 
 A. In the registrar, who acts as trustee until one is 
 appointed, when it vests in the latter. 
 
 Q. State the chief matters to be resolved upon at the 
 first meeting of creditors. 
 
 A. 1. To appoint a trustee. 
 
 2. To declare if any, and what, security is to be given, 
 and to whom, by the person so appointed. 
 
 3. To appoint a committee of inspection if desired, 
 not exceeding five in number,to superintend the admin- 
 istration of the bankrupt's property. 
 
 4. The creditors 7nai/ also give directions as to the 
 
 p. P)op. 5
 
 50 OF CHOSES IN ACTION. 
 
 manner in ■wliich the property is to be administered by 
 the trustee. 
 
 Q. "What property does not vest in the trustee ? 
 
 A. 1. Property held in trust for any other person. 
 
 2. The tools of his trade and necessary wearing ap- 
 parel and bedding of himself, wife and children to the 
 extent of 201. (Sect. 15.) 
 
 Q. What property may the trustee disclaim ? 
 
 A. The trustee may disclaim land of any tenure bur- 
 dened with onerous covenants, or unmarketable shares 
 in companies, or unprofitable contracts, or any other 
 property that is unsalable or not readily salable by rea- 
 son of its binding the possessor thereof to the perform- 
 ance of any onerous act or to the payment of any sum 
 of money. 
 
 Q. What property vests in the trustee ? 
 
 A. All property which belonged to or vested in the 
 bankrupt at the commencement of the bankruptcy, or 
 which is acquired by or devolves on him during its con- 
 tinuance ; all powers which the bankrupt might exercise 
 for his own benefit except the nomination to a vacant 
 ecclesiastical benefice; and the goods and chattels at 
 the commencement of the bankruptcy in the possession, 
 order or disposition of the bankrupt, being a trader, with 
 the consent and permission of the true owner, of Avhich 
 the bankrupt is reputed owner, or has undertaken the 
 sale or disposition as owner ; but things in action, other 
 than debts due in course of trade or business, are excepted. 
 
 Q. What power has the trustee ? 
 
 A. By sect. 25, subject to the provisions of the Act, 
 the trustee has power to do the following things : —
 
 OF BANKRUPTCY OF TRADERS. 51 
 
 1. To receive and decide upon proofs of debts, and for 
 sucli purposes to administer oaths. 
 
 2. To carry on the business of the bankrupt, as far 
 as may be necessary for the beneficial winding up of the 
 same. 
 
 3. To bring or defend any action, suit or other legal 
 proceeding relating to the property of the bankrupt. 
 
 4. To deal with any property to which the bankrupt 
 is beneficially entitled as tenant in tail, in the same man- 
 ner as the bankrupt might have dealt with the same. 
 (Sects. 5Q to 73 of 3 & 4 Will. 4, c. 74, to extend and 
 apply to proceedings under this Act.) 
 
 5. To exercise any powers, the capacity to exercise 
 which is vested in him under this Act, and to exercise 
 all powers of attorney, deeds and other instruments expe- 
 dient or necessary. 
 
 6. To sell all the property of the bankrupt (includ- 
 ing the goodwill of the business, if any, and the book debts 
 due or growing due to the bankrupt), by public auction 
 (see Rule 119) or private contract, with power, if he 
 thinks fit, to transfer the whole to any person or com- 
 pany, or to sell the same in parcels. 
 
 7. To give receipts, which shall effectually discharge 
 the person paying. 
 
 8. To prove rank, claim and draw a dividend in the 
 matter of the bankruptcy or sequestration of any debtor 
 of the bankrupt ; and to appoint the bankrupt himself 
 to superintend the management of the property or of any 
 part thereof, or to carry on his trade for the benefit of 
 the creditors. (Sects. 25, 26.)
 
 52 OF CHOSES IN ACTION. 
 
 Q. And what are his powers with the sanction of the 
 committee of inspection ? 
 
 A. 1. He may mortgage or pledge any part of the 
 property of the bankrupt for the purpose of raising 
 money for the payment of his debts. 
 
 2. Refer any dispute to arbitration, compromise all 
 debts, claims and liabilities whatever upon such terms as 
 may be agreed upon. 
 
 3. Compromise with creditors in respect of any debts 
 provable under the bankruptcy. 
 
 4. Compromise any claim arising out of or incidental 
 to the property of the bankrupt. 
 
 5. Divide in its existing form amongst the creditors, 
 according to its estimated value, any property which 
 cannot advantageously be realized by sale. 
 
 The sanction given for the purposes of this section 
 may be a general permission to do all or any of the 
 above-mentioned things, or a permission to do all or any 
 of them in any specified case or cases. (Sect. 27.) 
 
 Q. When traders' goods are seized in execution by the 
 sheriff, who is entitled to the proceeds? 
 
 A. Execution levied by seizure and sale of the goods 
 of any trader debtor for the recovery of a debt exceeding 
 501. is now an act of bankruptcy, and the sherifi' or offi- 
 cer of the County Court shall retain the proceeds of such 
 sale in his hands for fourteen days, and on notice of 
 petition presented, shall hold the proceeds, after deduct- 
 ing the expenses in trust for the trustee ; but if no such 
 notice be served, or the trader is not adjudged bankrupt 
 on such petition, or any other of which he may have
 
 OF BANKraJPTCY OF TRADERS. T^S 
 
 notice, lie may pay over proceeds to execution creditor. 
 (Sect. 87.) 
 
 Q. Wliat description of debts are now provable in 
 bankruptcy ? 
 
 A. All debts and liabilities, present or future, certain 
 or contingent, to which the bankrupt is subject at the 
 date of the order of adjudication, or to which he may 
 become subject during the continuance of the bank- 
 ruptcy, by reason of any obligation incurred previously 
 to the date of the order of adjudication. (Sect. 31.) 
 
 Q. "What is included under the head of liability ? 
 
 A. Any compensation for work or labor done, any 
 obligation or possibility thereof to pay money or money's 
 worth on the breach of any express or implied covenant, 
 contract, agreement or undertaking, whether capable of 
 accruing or not, before the close of the bankruptcy, and 
 whether such payment be fixed or unliquidated in amount, 
 or dependent on contingencies, or can be valued by fixed 
 rules or only by a jury, or as a matter of opinion. 
 (Sect. 31.) 
 
 Q. What is the extent of a landlord's remedy against 
 the estate of a bankrupt for rent, or a proportionate part 
 of rent ? 
 
 A. A distress for rent levied after the commencement 
 of the bankruptcy is available for only one year's rent 
 accrued prior to the date of the order of adjudication, 
 but the landlord may prove for an overplus of rent due. 
 (Sect. 34.) If the adjudication is made between two 
 days of payment of rent, the person entitled may prove 
 for a proportionate part to the date of adjudication. 
 (Sect. 35.) 
 
 5*
 
 54 OF CHOSES IN ACTION. 
 
 Q. Can any, and what, allowance be made to the bank- 
 rupt for maintenance or services ? 
 
 A. The trustee, with the consent of the creditors, tes- 
 tified hj a resolution passed in general meeting, may 
 from time to time make such allowance as may be ap- 
 proved by the creditors out of the property for the sup- 
 port of the bankrupt and his family, or in consideration 
 of his services if he is engaged in winding up his estate. 
 (Sect. 38.) 
 
 Q. In what cases will a set-off be allowed in bank- 
 ruptcy ? 
 
 A. Where there have been mutual credits, debts or 
 dealings between the bankrupt and any other person 
 claiming to prove under the bankruptcy an account shall 
 be taken of what is due in respect thereof, and the bal- 
 ance only shall be claimed or paid, provided that the 
 person claiming the benefit of such set-off had not when 
 such credit was given notice of any act of bankruptcy 
 by such bankrupt committed and available against him 
 for adjudication. (Sect. 39.) 
 
 Q. What is the effect of the provision in sect. 40 of 
 the Act as to secured creditors ? 
 
 A. He can, on giving up his security, prove for the 
 whole debt, or he may prove for the balance after real- 
 izing his security or giving credit for the value of it 
 (sect. 40) ; in the latter case he gives notice to the trus- 
 tee, who, or any creditor, may call upon him to realize 
 if dissatisfied with the value put upon it. (Rule 136.) 
 
 Q. What are the present provisions under the Act of 
 1869 as regards the protection of certain transactions 
 entered into with bankrupts ?
 
 OF BANKllUPTCY OF TKADEllS. 55 
 
 A. The following are protected : — 1. Any disposition 
 or contract with respect to the disposition of property by 
 conveyance, transfer, charge, delivery, payment or other- 
 wise, made in good faith and for value. 
 
 2. Any execution or attachment against land executed 
 by seizure ; or, 
 
 3. Against the goods if executed by seizure and sale. 
 (Sect. 95.) 
 
 Q. In what cases, and Avithin what time, may volun- 
 tary settlements be avoided under the Bankruptcy Act, 
 1869? 
 
 A. Any settlement of property made by a trader, not 
 being for value, or of the Avife's property, will, if the 
 settlor becomes bankrupt within two years after the date 
 of such settlement, be void as against the trustee of the 
 bankrupt appointed under the Act, and will, if the set- 
 tlor becomes bankrupt at any subsequent time within 
 ten years after the date of such settlement, unless the 
 parties claiming under such settlement can prove that 
 the settlor was at the time of making the settlement able 
 to pay all his debts without the aid of the property com- 
 prised in such settlement, be void against such trustee. 
 
 Q. Are conveyances or transfers of property voidable 
 on account of fraudulent preference, and in what cases ? 
 
 A. Such conveyances are void if the maker become 
 bankrupt wuthin three months of the date thereof, as 
 against the trustee of the bankrupt appointed under this 
 Act ; but this does not affect the rights of a purchaser, 
 payee or incumbrancer, in good faith and for valuable 
 consideration. 
 
 Q. What rent may the landlord of a bankrupt dis-
 
 56 OF ClIOSES IN ACTION. 
 
 train for, and what other claims also take a priority 
 under the Bankruptcy Acts ? 
 
 A. The landlord may distrain for his rent not ex- 
 ceeding one year's rent accrued prior to the day of the 
 filing of the petition for adjudication. The court may 
 order to be paid in full : four months' "wages or salary 
 of a clerk or servant, not exceeding 501. ; and the wages 
 of any laborer or workman, not exceeding two months. 
 Priority is also given to parochial and other rates and 
 all assessed taxes, land tax and property or income tax, 
 assessed on the debtor up to the 5ih of April next before 
 the order of adjudication, and not exceeding one year's 
 assessment. 
 
 Q. What are the present provisions under the Bank- 
 ruptcy Act, 1869, with respect to the orde?- of dis- 
 charge ? 
 
 A. When a bankruptcy is closed or at any time during 
 its continuance, with the assent of the creditors, testified 
 by a special resolution, the bankrupt may apply for an 
 order of discharge ; but such discharge shall not be 
 granted unless it is proved to the court that one of the 
 following conditions has been fulfilled, that is to say, 
 either that a dividend of not less than ten shillings in 
 the pound has been paid out of his property, or might 
 have been paid except through the negligence or fraud 
 of the trustee, or that a special resolution of his cred- 
 itors has been passed to the efi'ect that his bankruptcy 
 or his fuilure to pay ten shillings in the pound has, in 
 their opinion, arisen from circumstances for which the 
 bankrupt cannot justly be held responsible, and they 
 desire that an order of discharge should be granted him,
 
 OF BANKRUPTCY OF TRADERS. 57 
 
 but the court may suspend or witliliold the same if a 
 bankrupt has made default in giving up to his creditors 
 any property, or a prosecution has been commenced 
 against him under the Fraudulent Debtors Act, 1869. 
 
 Q. What is the effect of such order ? 
 
 A. It does not release the bankrupt from any debt 
 or liability incurred by means of any fraud or breach 
 of trust, nor from any debt or liability whereof he has 
 obtained forbearance by any fraud; but it releases the 
 bankrupt from all other debts provable under bank- 
 ruptcy Avith the exception of — 
 
 1. Debts due to the crown ; 
 
 2. Debts with which the bankrupt stands charged at 
 the suit of the crown or under the revenue laws, or on 
 a bail bond to appear thereto. 
 
 Q. And what are the provisions of that Act Avith 
 regard to the status of an undischarged bankrupt ? 
 
 A. 1. No portion of a debt provable under the bank- 
 ruptcy can be enforced against his property for three 
 years from the close of the bankruptcy ; and during 
 that time, if he makes up the dividend to his creditors 
 ten shillings in the pound, he may apply for his order 
 of discharo;e. 
 
 2. At the expiration of three years, if he has not 
 obtained an order of discharge, any balance remaining 
 unpaid in respect of any debt proved in such bank- 
 ruptcy (but without interest in the meantime) shall be 
 deemed to be a subsisting debt in the nature of a judg- 
 ment debt, which, subject to the rights of any persons 
 who have become creditors of the debtor since the close 
 of his bankruptcy, may be enforced against any prop-
 
 &» OF CIIOSES IN ACTION. 
 
 crty of the debtor with the sanction of tlie court wliicli 
 adjudicated such debtor a bankrupt, or of the court 
 liaving jurisdiction in bankruptcy in the place where 
 the property is situated, but to the extent only, and at 
 the time and manner, directed by such court, and after 
 giving such notice and doing such acts as may be pre- 
 scribed in that behalf. 
 
 Q. What is the effect of the Act of 1869 as respects 
 persons having privilege of Parliament ? 
 
 A. They may now be dealt with under the Act of 
 1869 in like manner as if they had not such privilege ; 
 and if a member of the House of Commons is adjudged 
 bankrupt he is to remain for one year from the date of 
 the order of adjudication incapable of sitting and voting 
 in the House unless within that time either the order is 
 annulled or the creditors who prove the debts under the 
 bankruptcy are fully paid and satisfied. 
 
 CHAPTER V. 
 
 OF BANKRUPTCY OF NON-TRADERS. ' 
 
 Q. What alteration was made by the Bankruptcy 
 Act, 1861, with respect to the insolvency of persons 
 not in trade ? 
 
 A. By the Bankruptcy Act, 1861, all persons, 
 whether traders or not, became subject to the bank- 
 ruptcy law ; but no person was to be adjudged a bank-
 
 OF BANKRUPTCY OF NON-TRADERS. 59 
 
 rupt except in respect of some one of tlic acts of 
 bankruptcy described in the Act as applicable to non- 
 traders. 
 
 Q. What is the law as to the sequestration of a cler- 
 gyman's benefice ? 
 
 A. Where a bankrupt is a beneficed clergyman, the 
 trustee may apply for a sequestration of the profits of 
 the benefice, and the certificate of the appointment of 
 the trustee will be sufficient authority for the granting 
 of sequestration without any writ or other proceeding. 
 
 Q. Also when a bankrupt is an officer in the army 
 or navy ? 
 
 A. Where a bankrupt is or has been an officer of the 
 army or navy, in the civil service of the crown, or is in 
 the enjoyment of any pension or compensation granted 
 by the treasury, the trustee during the bankruptcy, and 
 the registrar after the close of the bankruptcy, may 
 receive for distribution amongst the creditors so much 
 of the bankrupt's pay, half-pay, salary, emolument or 
 pension as the court, upon the application of the trustee, 
 thinks just and reasonable, to be paid in such manner 
 and at such times as the court, with the consent in 
 writing of the chief officer of the department under 
 which the pay, half-pay, salary, emolument, pension or 
 compensation is enjoyed, directs. 
 
 Q. Where a bankrupt is in receipt of a salary, can 
 the court make an order for appropriation ? 
 
 A. The court, upon the application of the trustee, 
 shall from time to time make such order as it thinks 
 just for the payment of such salary or income, or of 
 any part thereof, to the trustee during the bankruptcy,
 
 60 OF CIIOSES IN ACTION. 
 
 and to the registrar, if necessary, after tlie close of the 
 bankruptcy, to be applied by him in such manner as the 
 court may direct. 
 
 CHAPTER VI. 
 
 OF INSURANCE. 
 
 Q. What is a policy of insurance, and what are the 
 most usual kinds of insurance ? 
 
 A. It is an instrument by which a contract to insure 
 is entered into ; and a contract to insure is a contract 
 either to indemnify against a loss which may arise on 
 the happening of some event, or to pay, on the happen- 
 ing of some event, a sum of money to the person insured. 
 The most usual kinds of insurance are, insurance of 
 lives, insurance against loss or damage by fire, and 
 insurance of ships and their cargoes. 
 
 Q. What is the effect of an insurance where the 
 insurer has no interest in the person whose life is 
 insured ? 
 
 A. It is enacted by 14 Geo. 3, c. 48, that no insur- 
 ance shall be made on the life of any person, or on any 
 other event whatsoever, wherein the person for whose 
 use and benefit or on whose account such policy shall 
 be made shall have no interest, or by way of gaming or 
 wagering ; and that every such assurance shall be null 
 and void. 
 
 Q. May a person insure his own life ? and in what 
 case will such an insurance become void ?
 
 OF INSURANCE. 61 
 
 A. Any person may insure his own life, but if he 
 should afterwards commit suicide, or die by sentence of 
 the law (or in a duel), the insurance will be void in the 
 hands of his executors. But in the above cases, sup- 
 posing the policy to have been previously assigned, it 
 will not be void as against an assignee. 
 
 Q. Has a creditor an insurable interest in the life of 
 his debtor, and to what extent? 
 
 A. He has, to the extent of his debt ; and by recent 
 decisions the doctrine that a life insurance was a con- 
 tract for indemnity only has been overruled ; so that, if 
 the person insuring has an insurable interest at the time 
 of effecting the policy, the subsequent loss of such inter- 
 est will not render the policy void. (a) 
 
 Q. Has a trustee such an interest as is sufficient to 
 support a life insurance ? 
 
 A. An interest as trustee is sufficient to support a 
 life insurance. But a father has not such an interest 
 in the life of his child as to warrant an insurance of it 
 for his own benefit. (5) 
 
 Q. In case a life policy is assigned, is notice of such 
 assignment required to be given to the insurance com- 
 pany ? and if no such notice be given, what will be the 
 consequence ? 
 
 A. Since the passing of the Act 30 & 31 Vict. c. 
 144, no assignment of a policy of life assurance will 
 
 (a) Dalby v. Lidia and London Life Assurance Co., C. B. 365 ; 
 S. C. 18 Jiir. 1024 ; Law v. London Lidisputahle Life Policy Co., 1 
 Kay & John. 223. 
 
 [b) Halford v. Kymer, 10 Barn. & Cress. 724; Worthington v. 
 Ciirlis, C. A. L. R., 1 Ch. D. 419. 
 
 r. Prop. (3
 
 62 OF CIIOSES IN yVCTION. 
 
 confer on the assignee therein named, his executors, 
 administrators or assigns, any right to sue on such 
 policy until a written notice of such assignment be 
 given to the assurance company at their principal place 
 of business. 
 
 Q. What are the provisions of the Married Women's 
 Property Act, 1870, with respect to policies of life 
 assurance ? 
 
 A. A married woman may effect a policy of assurance 
 upon her own life or the life of her husband for her sep- 
 arate use ; and if so expressed on the face of the policy, 
 all benefit therefrom shall enure accordingly, and the 
 contract be as valid as if made with an unmarried 
 woman. 
 
 Q. Is it necessary that a person Avho effects a fire 
 insurance shall have an interest in the property insured ? 
 and to what extent can he insure ? 
 
 A. The person who effects such insurance must have 
 an interest in the property insured, and he cannot re- 
 cover beyond the extent of his interest ; neither can he 
 assign his policy without the consent of the insurers. 
 When the building is within the limits of the Metropol- 
 itan Building Acts, any person interested may procure 
 the insurance money in case of fire, to be laid out in 
 repairs or rebuilding. 
 
 Q. Under the Metropolitan Building Acts, what is 
 the effect of a covenant to insure against fire ? 
 
 A. A covenant to insure any building within such 
 limits is tantamount to a covenant to repair to the 
 extent of such insurance, and if entered into by a lessee 
 in his lease will run with the land, so as to be binding
 
 OF INSURANCE. 63 
 
 on tlic assignee of tlio lease ; and it has been recently 
 decided that the law is the same even if the building be 
 situate beyond the above-mentioned limits. («) 
 
 Q. AVhat is the effect of the statute 22 & 23 Vict. c. 
 35, s. 7, as to relief against the forfeiture for breach of 
 a covenant to insure against fire ? 
 
 A. This enactment empowers a court of equity to 
 relieve against a forfeiture for breach of a covenant to 
 insure against fire when no loss or damage by fire has 
 happened, and the breach has, in the opinion of the 
 court, been committed through accident or mistake, or 
 otherwise, without fraud or gross negligence, and there 
 is an insurance on foot at the time of the application to 
 the court in conformity with the covenant to insure; 
 but the same person can only be relieved once, and not 
 then if a former breach has been waived. 
 
 Q. What is the effect of the statute 31 & 32 Vict. c. 
 86, s. 1, as regards an assignee of a marine policy ? 
 
 A. AVherever a policy of insurance on any ship, or 
 any goods in any ship, or in any freight, has been 
 assigned so as to pass the beneficial interest in such 
 policy to any person entitled to the property thereby 
 insured, the assignee of such policy shall be entitled to 
 sue thereon in his own name. 
 
 Q. What is bottomry ? 
 
 A. Bottomry is an agreement by which a vessel is 
 hypothecated or pledged by the owner for the payment, 
 in the event of her voyage terminating successfully, of 
 money advanced to him for the necessary use of the 
 
 (a) 4 Jur., N. S., Pt. 2, p. 132 ; Simpson v. Scottish Union, ^-c, 
 V.-C. W. 11 W. R. 459, and other cases.
 
 64 OF CIIOSES IN ACTION. 
 
 vessel, together with interest, which interest, in consid- 
 eration of the risk incurred, is generally far beyond 51. 
 per cent. 
 
 Q. What is respondentia ? 
 
 A. Respondentia is a somewhat similar contract with 
 respect to the cargo, except that the borrower only is 
 responsible in the event of the safe termination of the 
 voyage, the lender having no lien on the goods. 
 
 CHAPTER VII. 
 
 OF ARBITRATION. 
 
 Q. What jurisdiction has the High Court of Justice 
 over matters agreed to be referred to arbitration ? 
 
 A. As the High Court of Justice has full jurisdiction 
 on all questions arising out of agreements of any kind, 
 it follows that it retains a jurisdiction over matters 
 which the parties themselves have agreed should be 
 referred to arbitration. Notwithstanding, therefore, an 
 agreement to refer disputes to arbitration, either party 
 may bring the matter into court. But in such a case, 
 on application, the court may stay proceedings on being 
 satisfied that no just cause exists why it should not be 
 referred to arbitration, and that the defendant was and 
 is ready to concur in all acts necessary to carry out such 
 reference. 
 
 Q. What is the provision in the Common Law Pro- 
 cedure Act, 1854, as to ordinary matters of account to 
 be referred to arbitration ?
 
 OF ARBlTilATION. 65 
 
 A. By this Act tho court has power, upon the appli- 
 cation of either party, to order any matter in dispute 
 "which consists wholly or in part of matters of mere 
 account to be referred to arbitration upon such terms 
 as to costs and otherwise as the court may think 
 reasonable. 
 
 Q. What are official referees under the Supreme 
 Court of Judicature Act, 1873, and what is a special 
 referee ? 
 
 A. This Act provides for the appointment of perma- 
 nent officers called official referees ; and in any cause 
 or matter (other than a criminal proceeding by the 
 crown) the court or a judge has power, with the con- 
 sent of all parties interested who are under no disabil- 
 ity, and also without such consent in any matter requir- 
 ing a prolonged examination of documents or accounts, 
 or any scientific or local investigation which cannot con- 
 veniently be made before a jury or conducted by the 
 court through its ordinary officers, to order any ques- 
 tion or issue of fact or any question of account arising 
 thereon to be tried either before an official referee or 
 before a special referee to be agreed upon between the 
 parties. The report of such referee, unless set aside by 
 the court, is equivalent to the verdict of a jury. 
 
 Q. What are the sittings of the courts ? 
 
 A. The sittings of the Court of Appeal and the sit- 
 tings in London and Middlesex of the High Court of 
 Justice are four in every year, viz., the Michaelmas 
 sittings, the Hilary sittings, the Easter sittings and the 
 Trinity sittings. 
 
 Q, What is the provision of the Common Law Pro-
 
 6Q OF ClIOSES IN ACTION. 
 
 cedure Act, 1854, as to making a submission to arbitra- 
 tion a rule of court ? 
 
 A. That every agreement or submission to arbitration 
 by consent, whether by deed or in writing, may be made 
 a rule of any of the superior courts of law or equity, 
 unless the contrary is stipulated therein ; but a parol 
 submission cannot be made a rule of court, even although 
 made pursuant to an agreement to refer contained in a deed. 
 
 Q. What power is given by that Act to a judge to 
 appoint an arbitrator in case the parties do not concur 
 in so doing ? 
 
 A. Where reference is authorized to bo made to a 
 single arbitrator, and all parties do not, after differences 
 have arisen, concur in appointment of an arbitrator, or 
 if an arbitrator, dies or refuses or becomes incapable 
 to act, and the terms of the document authorizing the 
 reference do not show that it was intended that such va- 
 cancy should not be supplied, and the parties do not con- 
 cur in appointing a fresh one, then any party may serve 
 the remaining parties with a written notice to appoint 
 an arbitrator, and if within seven clear days after such 
 notice no arbitrator is appointed, a judge of any of the 
 superior courts of law or equity at Westminster, upon 
 summons to be issued by the party who has given such 
 notice, may appoint an arbitrator, who will have the 
 same power to act and make his award as if he had been 
 appointed by consent of all parties. 
 
 Q. Within what time must an arbitrator make his 
 award ? 
 
 A. Where no time is limited, the award must be 
 made within a reasonable time; but if a time is limited.
 
 OF AllBITllATIOX. G7 
 
 the award must be made within sucli time, unless tlic 
 time for making it is enlarged. Under a compulsory 
 order of reference, unless specified to the contrary, it 
 must be made within three months after entering upon 
 the reference. 
 
 Q. Is the attendance of the parties necessary in arbi- 
 tration proceedings ? and describe shortly the mode of 
 procedure. 
 
 A. The arbitrators are bound to require the attend- 
 ance of the parties, for which purpose notice of the 
 meetings should be given them. In taking evidence, 
 arbitrators may proceed in any way they please if the 
 parties have due notice of their proceedings and do not 
 object before the award is made. But each must use 
 his own judgment, and in order to obviate any objection 
 they ought to proceed in the admission of evidence ac- 
 cording to the ordinary rules of law. 
 
 Q. In what cases may an arbitrator state a special 
 case for the opinion of the court ? 
 
 A. On any compulsory reference under the Common 
 Law Procedure Act, 1854, or upon any reference by 
 consent where the submission is or may be made* a rule 
 of any of the superior courts at Westminster, the arbi- 
 trator may if he thinks proper, and if it is not provided 
 to the contrary, state his award as to the whole or any 
 part thereof in the form of a special case for the opinion 
 of the court; and when an action is referred, judgment, 
 if so ordered, may be entered according to the opinion 
 of the court. 
 
 Q. Within what time must an application be made to 
 set aside any compulsory award?
 
 68 OF CHOSES IN ACTION. 
 
 A. Within the first seven days of the term next fol- 
 lowing the publication of the award to the parties, 
 whether made in vacation or term. 
 
 Q. How is an umpire appointed, and what is his 
 authority ? 
 
 A. The Common Law Procedure Act, 1854, provides 
 that when the reference is to two arbitrators, and the 
 terms of the document authorizing it do not show that 
 it was intended that there should not be an umpire, or 
 provide otherwise for the appointment of an umpire, the 
 two arbitrators may appoint an umpire any time within 
 the period during which they have power to make an 
 award ; and on failure of their so doing, a judge, on 
 summons to be taken out as mentioned in the Act (sect. 
 12), may appoint an umpire. The authority of an um- 
 pire to make an award commences from the time of the 
 disagreement of the arbitrators ; he ought to hear the 
 whole evidence over again, unless the parties should be 
 satisfied with his deciding on the statement of the arbi- 
 trators. And the whole matter in difference must be 
 submitted to his decision, and not only some particular 
 pointy on which the arbitrators differ. 
 
 Q. Does an award for payment of money create a 
 debt for which an action may be brought, and would it 
 be sufficient to support a petition for adjudication in 
 bankruptcy ? 
 
 A. It docs ; but when the award is made a rule of 
 court its performance may be enforced by attachment, 
 and, if necessary, the court will decree a specific per- 
 formance.
 
 PEBSONAL ANNUITIES, STOCKS AND SHARES. G9 
 
 PART III. 
 
 OF INCORPOREAL PERSONAL PROPERTY. 
 CHAPTER I. 
 
 OF PERSONAL ANNUITIES, STOCKS AND SHARES. 
 
 Q. What description of property is stock in the 
 funds ? 
 
 A. Bj various statutes it has been provided that it 
 shall be personal estate, and not descendible to the heir. 
 
 Q. How is the transfer of stock in the public funds 
 effected ? 
 
 A. By the signature of the books at the Bank of 
 England, in the manner prescribed by Act of Parlia- 
 ment ; and this may be done either in person or by 
 attorney thereunto lawfully authorized by writing under 
 hand and seal, attested by two or more credible wit- 
 nesses. 
 
 Q. And how when the stock is standing in the name 
 of a trustee ? 
 
 A. In such case the beneficial owner may transfer 
 his equitable interest in any manner he pleases without 
 any power of attorney ; and the transferee, on giving 
 notice of the transfer to the trustee, will be entitled to 
 a legal transfer of the stock into his own name in the 
 books at the bank. 
 
 Q. Does a contract for the sale of stock come within 
 the 17th section of the Statute of Frauds ?
 
 70 OF INCORPOREAL PERSONAL PROPERTY. 
 
 A. No ; stock is not goods, wares or merchandise 
 ■within that section, so that it does not require a writ- 
 ten memorandum for a contract for its sale if the value 
 exceeds lOZ., and the buyer does not accept and receive 
 any part, nor give something in earnest to bind the bar- 
 gain, or in part payment. 
 
 Q. What is the nature and effect of a distringas ? 
 
 A. When a person has an interest in stock standing 
 in the name of another, he is enabled to restrain the 
 transfer of such stock, or, as it is said, to put a stop 
 iq)07i it, by means of a writ of distringas, to be served 
 upon the Bank of England, and which is obtained from 
 the Chancery Division of the High Court. 
 
 Q. Has any, and what, alteration been made in the 
 law as to stock being charged with judgment debts ? 
 
 A. Stock, being a kind of chose in action, could not 
 formerly have been sold under du fieri facias, issued in 
 execution of a judgment against the owner. The Su- 
 preme Court of Judicature Act, 1875, now provides that 
 an order charging stock or shares may be made by any 
 divisional court or by any judge, and the proceedings 
 for obtaining such order shall be such as are directed, 
 and the effect shall be such as is provided, by the several 
 Acts relating thereto. 
 
 Q. What is a corporation sole, and what is a cor- 
 poration aggregate ? 
 
 A. A corporation sole is composed of only one per- 
 son, such as a bishop, a parson, or the chamberlain of 
 London. A corporation aggregate is composed of many 
 persons acting on all solemn occasions by the medium 
 of their common seal. They are created either by char-
 
 PERSONAL ANNUITIES, STOCKS AND SHARES. 71 
 
 tcr, conferred by the queen's letters patent, or by Act 
 of Parliament. 
 
 Q. What description of property are New River 
 shares ? 
 
 A. Like some of the older companies' shares they are 
 real estate in the nature of incorporeal hereditaments. 
 
 Q. What Acts govern the constitution of public com- 
 panies ? 
 
 A. The Companies Clauses Consolidation Act, 1845 
 (8 & 9 Vict. c. IG), the Companies Clauses Act, 1863 
 (26 & 27 Vict. c. 118), and the Companies Clauses Act, 
 1869 (32 & 33 Vict. c. 48). 
 
 Q. What is the Act which now regulates the man- 
 agement and winding up of all joint stock companies? 
 
 A. The Companies Act, 1862 (25 & 26 Vict. c. 89, 
 amended by 30 & 31 Vict. c. 131 and 40 & 41 Vict. c. 
 26), which has repealed and consolidated all the former 
 Acts relating to joint stock companies. 
 
 Q. State the effect of the Companies Acts, 1862 and 
 1867. 
 
 A. Under these Acts seven or more persons asso- 
 ciated for any lawful purpose may, by subscribing their 
 names to a memorandum of association, and otherwise 
 complying with the requisitions of the Acts in respect 
 of registration, form an incorporated company, with or 
 without liability. 
 
 Q. How far may the liability of the members of a 
 company formed under the Companies Act, 1862, be 
 limited ? 
 
 A. It may, according to the memorandum of asso- 
 ciation, be limited either to the amount (if any) unpaid
 
 72 OF INCORPOREAL PERSONAL PROPERTY. 
 
 on the shares respectively held by them, or to such 
 amount as the members may respectively undertake, by 
 the memorandum of association, to contribute to the 
 assets of the company in the event of its being wound 
 up. In the former case it is said to be limited " by 
 shares" and in the latter "by guarantee." 
 
 Q. What are the requisites of a memorandum of 
 association of a company limited by shares ? 
 
 A. Such memorandum must contain the following 
 things : 
 
 1. The name of the company, with the addition of 
 the word "limited." 
 
 2. The part of the United Kingdom where the regis- 
 tered office of the company is proposed to be situate. 
 
 3. The objects for which the company is to be estab- 
 lished. 
 
 4. A declaration that the liability of the members is 
 limited. 
 
 5. The amount of capital with which the company 
 proposes to be registered, divided into shares of a cer- 
 tain fixed amount, subject to the following regulations : 
 
 (1) That no subscriber shall take less than one share ; 
 
 (2) That each subscriber of the memorandum of asso- 
 ciation shall write opposite to his name the number of 
 shares he takes. 
 
 Q. And what in the case of a company limited by 
 guarantee? 
 
 A. The memorandum of association must contain the 
 first three of the above-named requisites, and (4) a dec- 
 laration that each member undertakes to contribute to 
 the assets of the company in the event of the same
 
 PERSONAL ANNUITIES, STOCKS AND SHAKES. 73 
 
 being -wound up during the time that he is a member, 
 or within one year afterwards ; for the payment of the 
 debts and liabilities of the company contracted before 
 the time at which he ceases to be a member, and of the 
 costs, charges and expenses of winding up the company ; 
 and for the adjustment of the rights of the contributories 
 amongst themselves, such amount as may tj^ required, 
 not exceeding a specified amount. 
 
 Q. And what in the case of an unlimited company ? 
 
 A. The memorandum of association must contain 
 only the following things : — 
 
 1. The name of the company. 
 
 2. The part of the United Kingdom in which the 
 registered oflSce of the company is proposed to be situate. 
 
 3. The objects for which the company is to be estab- 
 lished. 
 
 Q. Are articles of association necessary both in the 
 case of a company limited by shares and a company 
 limited by guarantee or unlimited ? 
 
 A. The memorandum of association may in case of a 
 company limited by shares, and must in the case of a 
 company limited by guarantee or unlimited, be accom- 
 panied when registered by articles of association, signed 
 by the subscribers to the memorandum of association, 
 and prescribing such regulations for the company as 
 the subscribers shall deeba expedient. 
 
 Q. When the memorandum and articles (if necessary) 
 are complete, what further is necessary ? 
 
 A. The memorandum and articles (if any) are to be 
 registered by the registrar of joint stock companies, and 
 thereupon the company is incorporated with power to 
 
 p. Prop.
 
 74 OF INCOlirOllEAL PERSONAL PROPEETY. 
 
 hold lands ; and a certificate of the incorporation of any 
 company given by the registrar shall be conclusive evi- 
 dence that all the requisitions of the Act in respect of 
 registration, have been complied with. Every company 
 is bound by the Act to have a registered office, and 
 every limited company must have its name painted or 
 affixed on the outside of the office or place of business 
 of the company. 
 
 Q. When is a resolution passed by a company under 
 the Act deemed to be a special resolution ? 
 
 A. A resolution passed by a company under the Act 
 is deemed special whenever a resolution has been passed 
 by a majority of not less than three-fourths of the mem- 
 bers of the company for the time being entitled to vote, 
 present in person or by proxy at any general meeting 
 of which notice specifying the intention to propose such 
 resolution has been duly given, and such resolution has 
 been confirmed by a majority of such members present 
 in person or by proxy at a subsequent general meeting 
 of which notice has been duly given, and held at an 
 interval of not less than fourteen days nor more than 
 one month from the date of the first meeting. 
 
 Q. In what manner are contracts on behalf of a com- 
 pany made ? 
 
 A. 1. Any contract Avhich if made between private 
 persons would be by law required to be in writing, and, 
 if made according to English law, to be under seal, may 
 be made on behalf of the company in writing under the 
 common seal of the company, and such contract may 
 be in the same manner varied or discharged. 
 
 2. Any contract which if made between private per-
 
 PERSONAL ANNUITIES, STOCKS AND SHAKES. 75 
 
 sons would be by law required to be in writing, and 
 signed by the parties charged therewith, may be made 
 on behalf of the company in writing, signed by any 
 person acting under the express or implied authority of 
 the company, and such contract may in the same man- 
 ner be varied or discharged. 
 
 3. Any contract which if made between private per- 
 sons would by law be valid, although by parol and not 
 in writing, may be made by parol on behalf of the com- 
 pany by any person acting under the express or implied 
 authority of the company, and such contract may in the 
 same way be varied or discharged. 
 
 Q. What provisions are made for the winding up of 
 joint stock companies under the Joint Stock Companies 
 Arrangement Act, 1870 ? 
 
 A. Pi'ovision is by previous statutes made for the 
 winding up of joint stock companies, either by the 
 court or voluntarily ; and if voluntarily, the Avinding up 
 may, by the order of the court, be subject to its super- 
 vision. And the Joint Stock Companies Arrangement 
 Act, 1870 (33 & 34 Vict. c. 104), authorizes any com- 
 promise or arrangement to be made with the sanction 
 of the court between a company in the course of being 
 wound up and its creditors or any class of its creditors. 
 
 Q. Who are contributories under the Act, and how 
 is their liability regulated ? 
 
 A. All persons liable to contribute to the assets of a 
 company under the Act, in the event of its being wound 
 up, are called contributories. The liability of contrib- 
 utories is regulated by the rules set out in sect. 38 of 
 the Act.
 
 76 OF INCORPOREAL PERSONAL PROPERTY. 
 
 Q. What are the provisions of the Supreme Court of 
 Judicature Act, 1875, as to the rules of bankruptcy 
 being observed in the winding up of any company 
 under the Companies x\cLs of 1862 and 1867 ? 
 
 A. The Act of 1875 provides that in the winding up 
 of any company under the Companies Acts, 1862 and 
 1867, whose assets may prove insufficient for payment 
 of its debts and liabilities and the costs of winding up, 
 the same rules shall prevail and be observed as to the 
 respective rights of secured and unsecured creditors, 
 and as to debts and liabilities provable, and as to the 
 valuation of annuities and future and contingent liabil- 
 ities, as may be in force for the time being under the 
 law of bankruptcy with respect to the estates of persons 
 adjudged bankrupt. 
 
 Q. Are shares in joint stock companies goods, ivares 
 or 7nerchandise within the 17th section of the Statute 
 of Frauds ? 
 
 A. They are not ; so that they do not require a writ- 
 ten memorandum for a contract for their sale when the 
 value exceeds 10?,, and the buyer does not accept and 
 receive any part, nor give something in earnest to bind 
 the bargain or in part payment. 
 
 Q. State the principal provisions of the Friendly So- 
 cieties Act, 1875. 
 
 A. This Act provides for the appointment of chief 
 and assistant registrars of friendly societies, with a cen- 
 tral office. Each friendly society is required to be reg- 
 istered ; and no society assuring to any member a cer- 
 tain annuity shall be entitled to registry unless the 
 tables of contributions for such assurance, properly cer-
 
 PERSONAL ANNUITIES, STOCKS AND SHARES. 77 
 
 tified by the actuary, be sent to the registrar with tlic 
 application for registry. Every registered society must 
 have a registered office and must appoint one or more 
 trustees. 
 
 Q. In the case of a mortgage under this Act, what 
 is the effect of a receipt under the hand of the trustees 
 for the mortgage money ? 
 
 A. Such a receipt, countersigned by the secretary, in 
 the form contained in the third schedule to the Act, or 
 specified by the rules of the society (such receipt being 
 endorsed upon or annexed to such mortgage or other 
 assurance), vacates the same and vests the property 
 therein comprised in the person etititled to the equity 
 of redemption of the same, without reconveyance or 
 resurrender. 
 
 Q. What are the principal Acts now in force which 
 regulate the formation and operation of industrial and 
 provident societies ? 
 
 A. They are all now consolidated into one Act, called 
 the Industrial and Provident Societies Act, 1876 (39 & 
 40 Vict. c. 45). 
 
 Q. What is the eifect of the Building Societies Act, 
 1874? 
 
 A. By this Act (37 & 38 Vict. c. 42, amended by 38 
 Vict. c. 9 and 40 & 41 Vict. c. 63) the laws relating to 
 building societies have been consolidated and amended.
 
 78 OF INCORPOREAL PERSONAL PROPERTY. 
 
 CHAPTER II. 
 
 OF PATENTS AND COPYRiaHTS, 
 
 Q. What is a patent, and by whom are letters patent 
 granted, and for what term ? 
 
 A. A patent is the name usually given to a grant 
 from the crown, by letters patent, of the exclusive priv- 
 ilege of making, using, exercising and vending some 
 new invention. The granting of such letters patent is 
 an ancient prerogative of the crown, a prerogative which 
 remains unaifected by* the Patent Law Amendment Act, 
 1852 (15 & 16 Vict. c. 83, s. 16) ; they may be granted 
 for fourteen years or under. 
 
 Q. What are the principal alterations made by the 
 Patent Law Amendment Act, 1852 ? 
 
 A. 1. The full term of fourteen years is usually 
 granted ; but it is now provided that all letters patent 
 granted under the provisions of the above Act shall be 
 made subject to the condition that the same shall be 
 void at the expiration of three and seven years respect- 
 ively from the date thereof, unless certain stamp duties 
 be paid as mentioned in the Act. 
 
 2. The patent must be for " the working or making 
 of new manufactures within this realm, which others, at 
 the time of making such letters patent and grants, shall 
 not use." 
 
 3. A patent must be granted " to the true and first 
 inventor and inventors." If the original inventor 
 should sell his secret to some other person, such person
 
 OF PATENTS AND COPYRIGHTS. 79 
 
 cannot obtain letters patent for the invention in his own 
 name ; but the original inventor must obtain the letters 
 patent and assign them to the other. Letters patent 
 will be held to be void unless a complete specification 
 be filed along with them, which must particularly de- 
 scribe and ascertain the nature of the invention and in 
 what manner the same is to be performed. Letters 
 patent must be registered in the manner prescribed in 
 the Act. 
 
 Q. Can the patentee or assignee disclaim any part of 
 the title of the invention or of the specification ? 
 
 A. He may enter a disclaimer of any part either of 
 the title of the invention or of the specification, stating 
 the reason of such disclaimer, or enter a memorandum 
 of any alteration in the title or specification, not being 
 such disclaimer or such alteration as shall extend the 
 exclusive right granted by the patent. Under these 
 provisions letters patent originally void may in many 
 cases be rendered valid, the disclaimer being read as 
 part of the original title or specification. 
 
 Q. What is a license to use a patent ? 
 
 A. In letters patent is usually a clause forbidding all 
 persons from using the invention without the consent, 
 license or agreement of the inventor, his executors, ad- 
 ministrators or assigns, in writing, under hand and seal, 
 first obtained. The granting of licenses to use a patent 
 is one of the most profitable ways of turning it to ac- 
 count. All licenses are now required to be registered 
 in the registry required to be kept by the Act of 1852. 
 
 Q. May letters patent be assigned ? and what is the 
 effect of such assignment ?
 
 80 OF INCORPOREAL PERSONAL PROPERTY. 
 
 A. They are freely assignable from one person to 
 another, and the assignee by such assignment is placed 
 in the same position as his assignor. Such assignments 
 are now required to be registered under the Act of 1852. 
 
 Q. What is copyright, and what statute now regulates 
 the law of copyright, and for how long does it continue ? 
 
 A. Copyright is the exclusive right of multiplying 
 copies of an original work or composition. The law of 
 copyright is now regulated by the stat. 5 & 6 Vict. c. 
 45. By this Act the copyright of every book (which 
 term includes, for the purposes of the Act, every pam- 
 phlet, sheet of letterpress, sheet of music, map, chart or 
 plan) published after the passing of the Act, in the life- 
 time of the author, endures for his natural life, and for 
 seven years from his death, or for forty-two years, 
 whichever is the longer. 
 
 Q. How long does the copyright last in articles pub- 
 lished in encyclopedias and reviews, &c. ? 
 
 A. After the term of twenty-eight years from the 
 first publication of anysuch article the right of publish- 
 ing the same in a separate form shall revert to the author 
 for the remainder of the term given by the Act ; and 
 during such twenty-eight years the proprietor may not 
 publish any such article separately without previously 
 obtaining the consent of the author or his assigns. 
 
 Q. What copyright is there in prints, engravings, 
 maps and charts ? 
 
 A. For the term of twenty-eight years, to commence 
 from the day of the first publishing thereof; which day, 
 together with the proprietor's name, is to be truly en- 
 graved on each plate and printed on every print.
 
 OP PATENTS AND COPYRIGHTS. 81 
 
 Q. What in original sculptures, models, copies and 
 casts ? 
 
 A. Fourteen years from tlieir first putting forth or 
 publishing the same, with a further term of fourteen 
 years to the original maker if he shall be then living, 
 provided that in every case the proprietor cause his 
 name, with the date, to be put on every such sculpture, 
 model, copy or cast before the same shall be put forth 
 or published. 
 
 Q. What in paintings, drawings and lithographs ? 
 
 A. For the term of the author's natural life (he being 
 a British subject or resident within the dominions of the 
 crown), and seven years after his death ; and a register 
 of proprietors of copyright in paintings, drawings and 
 lithographs is established at Stationers' Hall, subject to 
 similar regulations to that established for the registry 
 of copyright in books. 
 
 Q. What are the statutes which regulate the law of 
 international copyright ? and what may the queen direct 
 by Order in Council ? 
 
 A. Stat. 7 & 8 Vict. c. 12, 25 & 26 Vict. c. 68, 15 
 & 16 Vict. c. 12, s. 6, and 38 Vict. c. 12. Her majesty 
 is empowered, by Order in Council, to direct that the 
 authors of dramatic pieces and musical compositions 
 which shall, after a future time to be specified on such 
 order, be first publicly performed in any foreign country 
 to be named in such order, shall have the sole liberty of 
 representing or performing in any part of the British 
 dominions such dramatic pieces or musical compositions 
 during such period as shall be defined in such order, not 
 exceeding the period allowed in this country. 
 
 7*
 
 82 OF INCORPOREAL PERSONAL PROPERTY. 
 
 Q. What copyright is granted for designs for articles 
 of manufacture ? 
 
 A. By statutes of the present reign a copyright has 
 been granted to designs for articles of manufacture for 
 the term of three years, one year or nine calendar 
 months, according to the nature of the manufacture ; 
 and in pursuance of these Acts a registrar of designs 
 for articles of manufacture has been appointed, by 
 whom all designs to be protected by the Acts are 
 required to be registered ; and provision is also made 
 for the transfer of the copyright in such designs by any 
 writing purporting to be a transfer and signed by the 
 proprietor, and also for the registration of transfers in 
 a prescribed form. 
 
 Q. What are trade marks ? 
 
 A. The marks often used by manufacturers to des- 
 ignate goods made by them resemble copyright as a 
 subject of property, and the court will restrain a third 
 person from passing off his own goods as those made by 
 another, by the use of that other person's trade mark. 
 By 25 & 26 Vict. c. 88, forging trade marks is made a 
 misdemeanor, and there is now an implied warranty 
 that all goods sold with a trade mark upon them are' 
 genuine. By the Trade Marks Registration Act, 1875 
 (38 & 39 Vict. c. 91, amended by 39 & 40 Vict. c. 33 
 and 40 and 41 Vict. c. 37), a register of trade marks is 
 established. Trade marks must consist of one or more 
 of the following essential particulars : — A name of an 
 individual or firm printed, impressed or woven in some 
 particular and distinctive manner ; or a written signa- 
 ture or copy of a written signature of an individual or
 
 OF PATENTS AND COPYRIGHTS. 83 
 
 firm ; or a distinctive device, mark, heading, label or 
 ticket ; and there may be added to any one or more of 
 the said particulars any letters, words or figures or 
 combination of any letters, words or figures. 
 
 Q. Define the term "goodwill." 
 
 A. The goodwill of a trade or business is often of 
 very great value. It comprises every advantage which 
 has been acquired by carrying on the business, whether 
 connected with the premises in which the business has 
 been carried on or with the name of the firm by whom 
 it has been conducted.
 
 84 OF PERSONAL ESTATE GENERALLY. 
 
 PART IV. 
 
 OF PERSONAL ESTATE GENERALLY. 
 CHAPTER I. 
 
 OF SETTLEMENTS OP PERSONAL PROPERTY. 
 
 Q, What would be the effect of an assignment of any 
 chattel, real or personal, to A. for his life, with remain- 
 der to another ? 
 
 A. If any chattel, whether real or personal, were 
 assigned to A. for his life, A. at once became entitled 
 in law to the whole. But equity on his death would 
 enforce the remainder over, which could be disposed of 
 meanwhile ; and if the property consisted of movable 
 goods, equity would have compelled A. to furnish and 
 sign an inventory of the goods and an undertaking to 
 take proper care of them. 
 
 Q. What was the difference in case of a bequest by 
 will of a term for life ? 
 
 A. In a bequest by will of a term of years, the inten- 
 tion of the testator was carried into effect by the appli- 
 cation of a doctrine similar to that of executory devises 
 of real estates. The whole term of years was consid- 
 ered as vesting in the legatee for life, in the same man- 
 ner as under an assignment by deed ; but on his decease 
 the term was held to shift away from him and to vest 
 by way of executory be.quest in the person to be next 
 entitled.
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 85 
 
 Q. What are the principal objects of the Apportion- 
 ment Act, 1870? 
 
 A. It provides that from and after the passing of that 
 Act all rents, annuities, dividends and other periodical 
 payments in the nature of income (whether reserved or 
 made payable under an instrument in writing or other- 
 wise) shall, like interest or money lent, be considered 
 as accruing from day to day, and shall be apportionable 
 in respect of time accordingly. Nothing in the Act 
 contained is to render apportionable any annual sums 
 made payable on policies of assurance of any descrip- 
 tion, or where it is expressly stipulated that no appor- 
 tionment shall take place. 
 
 Q. Can an estate tail be created in personal property, 
 and what would be the effect of a gift of personal prop- 
 erty to A. and the heirs of his body ? 
 
 A. An estate tail cannot be created in personal prop- 
 erty, neither does equity admit of any similar interest. 
 Such gift will simply vest in A. the property given. 
 
 Q. Do the rules as to contingent remainders apply to 
 contingent dispositions of personal property ? 
 
 A. No. As no estates can subsist in personal prop- 
 erty it follows that the rules on which contingent re- 
 mainders in freehold lands depend for their existence 
 have never had any application to contingent dispositions 
 of personal property ; as, if a gift of personal property 
 be made to trustees in trust for A. for his life, and 
 after his decease in trust for such son of A. as shall 
 first attain the age of twenty-one years, it is immaterial 
 whether such son attains that age in the lifetime of his 
 father.
 
 86 OF PERSONAL ESTATE GENEHALLY. 
 
 Q. Does the rule against perpetuities, which confirms 
 executory interests within a life or lives in being and 
 twenty-one years afterwards, apply to personal estate ? 
 A. It applies equally to personal as to real estates. 
 Q. Does the restriction on accumulation imposed by 
 the Thelluson Act apply to personalty ? 
 
 A. The restriction on the accumulation of income ap- 
 plies to personal as well as to real estate. 
 
 Q. Do the same rules which apply to powers over real 
 estate also apply to powers over personal property ? 
 
 A. Yes ; such as the formalities of the power must be 
 complied with : 
 
 The relief afforded against defective executions. 
 Their execution by married women. 
 The execution of wills made under powers. 
 And their being included under a general devise. 
 Q. What was an illusory appointment, and are such 
 appointments valid ? 
 
 A. An illusory appointment was an appointment to 
 any child of a very small share. The appointment of 
 any share, however small, cannot now, as formerly, be 
 set aside on the ground of its being illusory. 
 Q. Are exclusive appointments now void ? 
 A. Formerly they were so if not authorized; this, 
 however, has now been altered by a recent statute (37 
 & 38 Vict. c. 37), which enacts that no appointment 
 thereinafter made under a power to appoint, amongst 
 several objects, shall be invalid at law or in equity on 
 the ground that any object of such power has been alto- 
 gether excluded, unless the instrument creating the 
 power declare the amount, from which no object of the
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 87 
 
 power shall be excluded, or that some one or more object 
 or objects of the power shall not be excluded. 
 
 Q, Does a power to appoint property to children 
 authorize an appointment in favor of any grandchild of 
 the appointor ? 
 
 A. A power to appoint property to children does not 
 authorize any interest in property to be appointed in favor 
 of a grandchild. A power to appoint to children living 
 at death of the father includes a child in ventre sa mere. 
 
 Q. What is meant by the hotchpot clause ? 
 
 A. In default of or subject to any appointment that 
 may be made, the property is usually divisible amongst 
 the objects of the power, and a clause is inserted in 
 order to prevent double portions, to the effect that any 
 object to whom an appointm'ent has been made must first 
 bring such appointed share into hotchpot before sharing 
 in the residue unappointed. 
 
 Q. When is an appointment in favor of the issue of a 
 living child good ? 
 
 A. This can only be done when the power authorizes 
 an appointment to issue, or the child is of age, and is a 
 party to and executes the deed by which the appointment 
 is made. 
 
 Q. Can an appointment be made by a father to his 
 child so that the former may derive a benefit from it ? 
 
 A. No ; that would be a fraud on the power, and 
 would be void. 
 
 Q. Does the law as to perpetuity apply in the exercise 
 of powers of appointment ? 
 
 A. When the power of appointment is a general 
 power, enabling the appointor to make a disposition in
 
 88 OF PERSONAL ESTATE GENERALLY. 
 
 fiivor of any object he may please, the property is evi- 
 dently not tied up so long as such a power exists over 
 it ; and neither the reason nor the rule which forbids a 
 perpetuity has any application till some settlement is 
 made in exercise of such a power, but the rule applies 
 in the case of a special power from the date of its cre- 
 ation, and every limitation that may exceed the period 
 allowed is void. 
 
 Q. If a legacy be given to A., payable at twenty-one, 
 and A. dies under age, does that legacy lapse ? 
 
 A. If a legacy be given to a person to be payable 
 when he attain the age of twenty-one, the legacy is con- 
 sidered to be immediately vested, and will accordingly 
 be payable to the administrator of the legatee in case he 
 should die under age. 
 
 Q. "What new provisions were made by the statute 23 
 & 24 Vict. c. 145, s. 26, as to maintenance ? 
 
 A. It provides that in all cases where it enables 
 trustees, holding property for an infant, either absolutely 
 or contingently on his attaining the age of twenty-one 
 years, or on the occurrence of any event previously to 
 his attaining that age, at their sole discretion to apply 
 for maintenance or education the whole or any part of 
 the income, or accumulation of income, to which such 
 infant may he entitled in respect of such property. This 
 enactment applies only to deeds executed and wills exe- 
 cuted, or confirmed or revived by codicil executed, after 
 the passing of the Act, which took place on the 28th of 
 August, 1860. 
 
 Q. Is a married woman, having separate property, 
 liable for the maintenance of her children ?
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 89 
 
 A. The Married Women's Property Act, 1870, now 
 provides that a married "woman, having separate prop- 
 erty, shall be subject to all such liability for the main- 
 tenance of her children as a widow is now by law subject 
 to for the maintenance of her children, provided that 
 nothing in the Act shall relieve her husband from any 
 liability at present imposed upon him by law to maintain 
 her children. 
 
 Q. What description of securities are usually author- 
 ized in settlements of personal property ? 
 
 A. In settlements of personal property it has long 
 been usual to provide for the investment of the fund 
 settled in the parliamentary stocks or public funds of 
 Great Britain, or at interest upon government or real 
 securities in England or Wjiles, but not in Ireland ; and, 
 at the present day, investments in railway debentures, 
 preference shares, and other securities yielding a larger 
 income are usually authorized. 
 
 Q. What authority has been given to trustees by the 
 statute 22 & 23 Vict. c. 35, as regards investments ? 
 
 A. Unless expressly forbidden, a power to invest in 
 real securities in the United Kingdom, in bank stock 
 of England or Ireland, or in East India stock. 
 
 Q. What powers are given under the Debenture Stock 
 Act, 1871 ? 
 
 A. Trustees who have a power of investing in deben- 
 ture bonds under the Act may invest in debenture stock. 
 
 Q. What is the peculiar effect of a direction to the 
 trustee of a settlement to sell land ? 
 
 A. This trust for sale converts the lands into money 
 in the contemplation of equity ; for it is a rule of equity
 
 90 OF PERSONAL ESTATE GENERALLY. 
 
 that whatever is agreed to be done shall be considered 
 as done already. In the words of Sir Thomas Sewell, 
 "Nothing is better established than this principle, that 
 money directed to be employed in the purchase of land, 
 and land directed to be sold and turned into money, are 
 to be considered that species of property into which they 
 are directed to be converted." 
 
 Q. Can the parties interested elect to take the prop- 
 erty as unconverted ? 
 
 A. Yes, if they are of full age, and, if females, un- 
 married ; and after such election, which may be inferred 
 from acts as well as words, equity will consider the 
 property as unconverted. 
 
 Q. Is a receipt clause now necessary in settlements ? 
 
 A. By 22 & 23 Vict. c. 35, s. 23, it is enacted that 
 the bond fide payment to aifd receipt of any person to 
 whom any purclcase or mortgage money is payable, upon 
 any express or implied trust, effectually discharges the 
 person paying the same from seeing to the application 
 thereof; and the same is declared by 23 & 24 Vict. c. 
 145, with respect to a receipt in writing for any moneys 
 payable to trustees under their trust. 
 
 Q. What is the effect of the statute of 23 & 24 Vict. 
 c. 145 as regards the power to appoint new trustees ? 
 
 A. This Act confers a power to appoint new trustees 
 upon the person appointed by the instrument for such 
 purpose (if ready and willing to act); if notj-upon the 
 surviving or acting trustees or trustee, or the acting 
 executors or administrators of the last surviving or last 
 retiring trustee, in the event of any trustee dying, going 
 to reside beyond the seas, desiring to be discharged,
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 91 
 
 refusing or becoming incapable to act in the execution 
 of the trusts. 
 
 Q. State the principal provisions of the Trustees 
 Act, 1850, and the statute 15 & 16 Vict. c. 55. 
 
 A. The Trustees Act, 1850, empowers the Court of 
 Chancery to appoint a new trustee in all cases where 
 it is inexpedient, difficult or impracticable to do so with- 
 out the assistance of that court, and either in substitu- 
 tion for or in addition to any existing trustee, and 
 whether there be any existing trustee or not. Provis- 
 ion is also made for the appointment of a new trustee 
 in lieu of any trustee who may have been convicted of 
 felony, and for the infancy, lunacy or idiotcy of any 
 trustee or executor, and for his being out of the juris- 
 diction of the court or not being found, and for its 
 being uncertain whether he is living or dead, and for 
 his neglecting or refusing to transfer any stock or to 
 receive the dividends or income thereof, or to sue for 
 or recover any chose in action. In the event of bank- 
 ruptcy of any trustee the Court of Chancery is empow- 
 ered to appoint a new trustee in his place. 
 
 Q. Can a trustee Avho is a solicitor charge for his 
 work done by him in the business of the trust ? 
 
 A. He carniot receive payment for his professional 
 trouble incurred in the business of the trust unless he 
 expressly stipulate before accepting the office that he 
 shall be permitted to do so, or unless his charges be 
 paid by the cestui que trust with full knowledge that 
 they might have been resisted. 
 
 Q. What is the effect of the statute 22 & 23 Vict. c. 
 35 as to the insertion of certain clauses in ordinary set- 
 tlements ?
 
 92 OF PERSONAL ESTATE GENERALLY. 
 
 A. In all ordinary settlements clauses used to be in- 
 serted for the indemnity and reimbursement of trustees, 
 to the effect that they should not be answerable the one 
 for the other of them, or for signing receipts for the 
 sake of conformity or for involuntary loss; and that 
 they might reimburse themselves out of the trust funds 
 all costs and expenses in relation to the trust. The 
 above Act enacts that every deed, will or other instru- 
 ment creating a trust, either expressly or by implica- 
 tion, shall be deemed to contain these clauses. 
 
 Q. What are the provisions of the statute 10 & 11 
 Vict. c. 96 as to the power of trustees with regard to 
 trust funds in their hands, and what jurisdiction have 
 the county courts ? 
 
 A. By this Act all trustees, executors, administrators 
 or other persons having in their hands any moneys be- 
 longing to any trust whatsoever (or the major part of 
 them) may pay the same, with the privity of the pay- 
 master-general, into court. By 30 & 31 Vict. c. 142, 
 where the fund does not exceed in amount or value the 
 sum of five hundred pounds, jurisdiction is now given 
 to the county courts. 
 
 Q. Is marriage a good consideration ? and what con- 
 stitutes a voluntary settlement, and is it void as against 
 creditors ? 
 
 A. Marriage is a valuable consideration. Every set- 
 tlement, therefore, made by parties of full age previously 
 to and in consideration of marriage, or made subse- 
 quently in pursuance of written articles executed be- 
 fore, stands on the footing of a purchase, and has equal 
 validity. A voluntary settlement is one not made for
 
 OF JOINT OWNERSHIP AND JOINT LIABILITY. 93 
 
 valuable consideration, and is liable to be defeated by 
 the creditors of the settlor if he was so much indebted 
 at the time as to bring the settlement withiii tlie pro- 
 vision of the statute of 13 Eliz. c. 5. 
 
 Q. Is a voluntary settlement binding upon the settlor 
 ■when there is no power of revocation ? and what difTer- 
 ence does it make when such settlement is made for the 
 settlor's own benefit ? 
 
 A. Although a voluntary settlement may be defeated 
 by creditors, yet when once completed it is binding 
 on the settlor, who cannot by any means undo it. If 
 the object of the settlor is merely his own benefit or 
 convenience, the settlement will be revocable by him at 
 his pleasure. 
 
 Q. What stamp duty is chargeable on a settlement of 
 stock or of a policy of assurance ? 
 
 A. Five shillings per cent, on the value of the stock 
 or on the sum secured by the policy, if there is a pro- 
 vision for keeping up the policy, otherwise on the value 
 of the policy at the time of settlement. 
 
 CHAPTER 11. 
 
 OF JOINT OWNERSHIP AND JOINT LIABILITY. 
 
 Q. Are the four unities of possession, interest, title 
 and time, which characterize a joint tenancy of real 
 estate, also applicable to a joint ownership of chattels ? 
 
 A. There may be a joint ownership of any kind of
 
 94 OF PERSONAL ESTATE GENERALLY. 
 
 personal property in the same manner as there may bo 
 a joint tenancy of real estate; and the four unities of 
 possession, interest, title and time also apply. 
 
 Q. What is the effect of a release by one of several 
 obligees in the case of a joint bond or covenant? 
 
 A. If a bond or covenant be given or made to two or 
 more jointly, they must all join in suing upon it, and a 
 release by one of them to the obligor is sufficient to bar 
 them all. 
 
 Q. In what case does an exception occur in the right 
 of survivorship between joint owners, and what is the 
 rule with regard to land purchased by them ? 
 
 A. In the case of partners in trade, the share of the 
 deceased in all chattels in possession vests in the executor 
 or administrator. With respect to land purchased for 
 partnership purposes, equity holds the survivor a trustee 
 of the share of the deceased for his executor or admin- 
 istrator. 
 
 Q. Is joint ownership favored in equity, and what is 
 the result in case of a mortgage where the money is ad- 
 vanced by two persons and one of them dies ? 
 
 A. Joint ownership is not favored in equity on account 
 of the right of survivorship which attaches to it. If, 
 therefore, two persons advance money by way of mort- 
 gage or otherwise, and take the security to themselves 
 jointly and one of them die, the survivor will be a trustee 
 in equity for the representatives of the deceased, of the 
 share advanced by him. 
 
 Q. In the case of wills, what is the rule as to words 
 which will be sufficient to give to each of several legatees 
 a tenancy in common ?
 
 OF JOINT OWNERSHIP AND JOINT LIABILITY. 95 
 
 A. The rule is that any words which denote an in- 
 tention to give to each of tlic legatees a distinct interest 
 in the subject of gift will be sufficient to make them 
 tenants in common ; as " equally to be divided between 
 them," or simply "between them," or "in joint and 
 equal proportions," or " equally," or " respectively," or 
 "to be enjoyed alike." 
 
 Q. What unity have owners in common of personal 
 estate ? 
 
 A. Owners in common of personal estate, like tenants 
 in common of lands, have merely a unity of possession. 
 The interest of one may be larger or smaller than that 
 of the other, one having, for instance, one-third, and the 
 other two-thirds, of the property. So the title need not 
 be the same, as one may have been originally a joint 
 tenant Avith a third person, who may have severed the 
 joint tenancy by assigning his moiety to the other. 
 
 Q. What is the best form of a joint and several 
 covenant ? 
 
 A. "And the said A. B., C. D., E. F. and G. H. do 
 hereby for themselves, their heirs, executors and admin- 
 istrators jointly, and any two or three of them do hereby 
 for themselves, their heirs, executors and administrators 
 jointly, and each of them doth hereby for himself re- 
 spectively, and for his respective heirs, executors and 
 administrators, covenant," &c. In all cases of joint 
 and several liability each party is individually liable, 
 and may be sued alone for the whole debt ; or, if the 
 creditor please, he may sue them all jointly. In con- 
 sequence of the joint liability, a release of one of the 
 debtors will discharge them all.
 
 96 OF PERSOXAL ESTATE GENERALLY. 
 
 Q. State some of the principal incidents of a part- 
 nership. 
 
 A. At law the liability of partners is joint only as to 
 debts incurred by the partnership, so that they ought 
 all to be joined as defendants to an action at law for 
 recovering any such debt. But a dormant partner, 
 whose name may or may not be known, may either be 
 joined or not at the pleasure of the creditor, unless the 
 contract be under seal ; in which case, as the deed is 
 itself the contract, and not merely evidence of it, those 
 only can be sued on it who have sealed and delivered it. 
 In equity, in favor of creditors, all partnership debts are 
 considered to be both joint and several. 
 
 Q. What is the rule as to payment of debts on bank- 
 ruptcy of a firm ? 
 
 A. The joint assets of the firm arc, in the first place, 
 liable to the partnership debts ; and the separate estate 
 of each partner is, in the first place, liable to his separate 
 debts, which must be paid in full out of such separate 
 estate before any of it can be applied towards payment 
 of the debts of the partnership. 
 
 Q. In what cases can a person now receive part of the 
 profits of a business without being responsible for the 
 debts ? 
 
 A. By the Partnership Act, 28 & 29 Vict. c. 86, in 
 the following cases : — , 
 
 1. A person may advance money to a person engaged 
 in any undertaking, and receive interest, varying with 
 the profits or a share of profits. 
 
 2. A servant or agent may receive a share of such 
 profits.
 
 OP A WILL. 97 
 
 3. A widow or child of a deceased partner of a trader 
 may receive, by Avay of annuity, a portion of such profits. 
 
 4. And a vendor of the business may receive, by way 
 of annuity or otherwise, a portion of such profits, as a 
 consideration for the goodwill thereof. 
 
 Q. What are the liabilities of partners in relation to 
 each other in the ordinary course of business ? 
 
 A. Each incurs liability from the acts and dealings 
 of the other in the ordinary course of business. 
 
 CHAPTER III. 
 
 OF A WILL. 
 
 Q. Can an infant now make a will ? 
 
 A. No will made by a person under twenty-one is 
 now valid. 
 
 Q. What is the statute which now regulates the 
 making and operation of wills, and what exception is 
 made in favor of soldiers and seamen ? 
 
 A. The Wills Act of 1837 (1 Vict. c. 26) requires it 
 to be in writing, signed at the foot or end thereof by the 
 testator, or by some other person in his presence or by 
 his direction, and such signature must be made or ac- 
 knowledged by the testator in the presence of two or 
 more witnesses present at the same time, who must 
 attest the will in the presence of the testator. Excep- 
 tion is made in favor of soldiers being in actual military 
 
 p. Prop. S
 
 98 OF PERSONAL ESTATE GENERALLY. 
 
 service, that is, on expeditions, and of mariners and 
 seamen, being at sea, who may dispose of their personal 
 estate as they might have done before the making of the 
 Act. The wills of soldiers may accordingly be made by 
 an unattested writing, or by mere nuncupative testament 
 or declaration of their will by word of mouth, made 
 before a sufficient number of witnesses. But the wills 
 of petty officers and seamen require attestation and wit- 
 nessing by Act of Parliament, so far as relates to any 
 wages, pay, prize money or other moneys payable by 
 the Admiralty, and the wills of such persons are also 
 guarded by other requisitions in order to prevent their 
 being imposed upon. 
 
 Q. How may a will be revoked ? 
 
 A. A will may be revoked by marriage of the testator 
 or testatrix (which will of itself form a revocation), or 
 by another will or codicil executed in the manner thereby 
 required, or by some writing declaring an intention to 
 revoke the same, and executed in the manner in which 
 a will is thereby required to be executed, or by burning, 
 tearing or otherwise destroying the same, by the tes- 
 tator, or by some person in his presence and by his 
 direction, with the intention of revoking the same. 
 
 Q. What is now enacted by 24 & 25 Vict. c. 114, 
 with respect to wills of personal estate made by a British 
 subject out of the United Kingdom ? 
 
 A. That such wills (whatever may be the domicil of 
 the testator) shall be held to be well executed if made 
 according to the forms required either (1), by the law 
 of the place where made ; or (2), the law of the place 
 where the person was domiciled when the will was made ;
 
 OF A WILL. 99 
 
 or (3), tbe law then in force in that part of her majesty's 
 dominions where he had his domicil of origin. 
 
 Q. What is the nature of a donatio mortis causd ? 
 
 A. It is a gift made in contemplation of death, to be 
 absolute only in case of tbe death of the giver. Being 
 a gift, it can be made only of chattels, the property in 
 which passes by delivery. It is revocable by the donor 
 during his life, and after his decease it is subject to his 
 debts, and it is also liable to legacy duty. 
 
 Q. Is the appointment of an executor to a will of 
 personalty now essential ? 
 
 A. Formerly it was essential, and now it is usual and 
 proper to do so ; whereas, under a devise of landed 
 property, the lands pass to the devisee, and the inter- 
 vention of an executor is quite unnecessary and inappli- 
 cable, all the personal property vests in the executor on 
 the death, and not even a specific legacy will vest in the 
 legatee until the executor has assented to the bequest. 
 
 Q. Can an infant be appointed executor ? 
 
 A. If an infant be appointed an executor he will not 
 be allowed to exercise his office during his minority ; 
 but durino; this time the administration of the floods of 
 the deceased will be granted to the guardian of the 
 infant or to such person as the Court of Probate may 
 think fit. Such person is called an administrator du- 
 rante minor e cetate. 
 
 Q. Can a married woman be appointed an executrix, 
 and if she is, what is the effect ? 
 
 A. A married woman cannot accept the office of 
 executrix without her husband's consent, and, having 
 accepted it with his consent, she is unable, without his
 
 100 OF PERSONAL ESTATE GENERALLY. 
 
 concurrence, to perform any act of administration wliich 
 may be to his prejudice ; whilst he, on the other hand, 
 may release debts due to the deceased, or make assign- 
 ment of the deceased's personal estate without his wife's 
 concurrence. 
 
 Q. What is an executor de son tort ? 
 
 A. If any person not duly authorized should inter- 
 meddle with the goods of the testator, or do any other 
 act relating to the office of executor, he thereby becomes 
 an executor of his own wrong, or, as it is called in law 
 Trench, an executor de son tort. He is liable for the 
 assets which come to his hands, but he can derive no 
 benefit from his office ; he cannot retain his own debt in 
 preference to others. 
 
 Q. Supposing a regularly-appointed executor to be a 
 creditor of testator, has be a right to retain his own debt 
 in preferment to other debts of the same degree ? 
 
 A. Yes ; he may do so. 
 
 Q. Must a will of personalty be proved, and where? 
 
 A. All wills of personalty must be proved in the Pro- 
 bate, Divorce and Admiralty Division of the High Court. 
 In this division of the court the will itself is deposited, 
 and a copy of the will which is given by the court to 
 the executor on proving, denominated the probate copy, 
 is the only proper evidence of the right of the executor 
 to intermeddle with the personal estate of his testator. 
 Before probate, however, the executor may perform all 
 ordinary acts of administration, such as receiving and 
 giving receipts for debts due to the testator, paying the 
 debts owing by the testator, and selling and assigning 
 any part of the personal estate. But when evidence is
 
 OF A WILL, 101 
 
 required of Lis riglit to intermeddle, tlie probate is the 
 only valid proof; without it, therefore, no action or suit 
 can be maintained, although proceedings may be com- 
 menced before and carried up to the point where the 
 evidence is required. Any Avill may now be proved in 
 the principal registry, without regard to the abode of the 
 testator. But if the testator had at the time of his death 
 a fixed place of abode within any district, his will may 
 be proved in the registry of that district. 
 
 Q. How is a will proved ? 
 
 A. When the attestation is in proper form and the 
 validity of the will is not disputed, it is proved by the 
 simple oath of the executor that he believes the will to 
 be the true last will and testament of the deceased. 
 When the required formalities have not been complied 
 with, an affidavit, in addition to the executor's oath, is 
 required from one of the subscribing witnesses, that the 
 will was executed in compliance with the statute. Pro- 
 bate in either of the above modes is termed probate in 
 common form. But if the validity of the will should be 
 disputed or any dispute should be anticipated by the 
 executor, the will is proved in solemn form per testes. 
 In this case both the witnesses are sworn and examined, 
 and such other evidence taken as the circumstances 
 require, in the presence of the widow and next of kin 
 of the testator, and all others pretending to have any 
 interest, who are cited to be present, to see the proceed- 
 ings. When a will has once been proved in this form it 
 is finally established. 
 
 Q. In respect of what property is probate duty pay- 
 able?
 
 102 OF PERSONAL ESTATE GENERALLY. 
 
 A. In respect of the wliole of the personal and mov- 
 able estate and effects of the deceased in the United 
 Kingdom. The probate duty is in the first place paid 
 on the whole value of the personal estate of the testator 
 without allowing for his debts ; and after the debts are 
 paid, a return of part of the probate duty is made ac- 
 cording to the value to which the estate may be reduced 
 by the payment of the debts. But where leasehold 
 estates are the sole security by way of mortgage for any 
 debts due from the deceased, the amount of such mort- 
 gage debts may be deducted from the value of the said 
 leasehold estate. 
 
 Q. After the probate, what are the powers of exec- 
 utors as to payment of debts, &c. ? 
 
 A. After the will has been proved, it is the duty of 
 the executor to pay the testator's debts out of the per- 
 sonal estate, to which such executor becomes entitled by 
 virtue of his office. 
 
 Q. When is interest payable on a legacy ? 
 
 A. All such general legacies which remain unpaid 
 after a year from testator's death carry interest at the 
 rate of 41. per cent, per annum. But if the legacy be 
 given by a parent, or by a person in loco j^ctrentis, to a 
 legatee under the age of twenty-one years, interest is 
 given from the death of the testator for the maintenance 
 of the legatee, in the absence of any other provision for 
 that purpose. 
 
 Q. What rates of duty are payable on legacies ? 
 
 A. The amount of legacy duty varies according to 
 the degree of relationship which the legatee bore to the 
 deceased. Where the legacy is to a child or lineal de-
 
 OF A AVILL. 103 
 
 scendant, or to tlio father or motlicr of any lineal ances- 
 tor of the deceased, the duty is 11. per cent. If to a 
 brother, sister or their descendants, 3/. per cent. If to 
 a brother or sister of the father or mother or their de- 
 scendants, 51. per cent. If to a brother or sister of a 
 grandfather or grandmother or their descendants, GL 
 per cent. And if to any other person or to any stranger 
 in blood, the duty is 101. per cent. But where any 
 person chargeable with legacy duty shall have been 
 married to any wife or husband of nearer consanguinity 
 than himself or herself to the deceased, the smaller rate 
 of duty only is payable. And the husband or wife of 
 the deceased is exempt from all legacy duty, and so, 
 also, are the royal family. 
 
 Q. State the difference between specific, demonstrative 
 and general legacies. 
 
 A. A specific legacy is a bequest of a specific part of 
 the testator's personal estate ; it has priority in case of 
 deficiency of assets, but it is liable to ademption. 
 
 A demonstrative legacy is a gift by will of a certain 
 sum directed to be paid out of a specific fund ; it is not 
 liable to ademption. 
 
 A general legacy is one payable only out of the gen- 
 eral assets of the testator, and is liable to abatement in 
 case of a deficiency of such assets to pay the testator's 
 debts and other legacies. 
 
 Q. When is a legacy to a creditor a satisfaction of the 
 debt, and when of a portion ? 
 
 A. If the legacy be equal to or greater than the 
 amount of the debt. But if it be less than the debt, or . 
 payable at a different time, or of a different nature from
 
 104 OF PERSONAL ESTATE GENERALLY. 
 
 the debt, or if tlie debt be contracted subsequently to 
 the date of the will, or if the will contain an express 
 direction for payment of debts and legacies, the legacy 
 will not be a satisfaction. When a sum of money is due 
 to a child by way of portion the inclination of the courts 
 is against double portions ; and a legacy to such a child 
 is accordingly regarded as a satisfaction of the portion, 
 either in part or in whole, notwithstanding such legacy 
 may be less than the portion, or payable at a different 
 period. 
 
 Q. What are the chief objects of the Statute of Mort- 
 main ? 
 
 A. By a statute of George the Second, commonly 
 called the Mortmain Act, no hereditaments nor any 
 money stock in the public funds, or other personal 
 estate whatsoever, to be laid out in the purchase of 
 hereditaments, can be conveyed or settled for any char- 
 itable uses (with a few exceptions) otherwise than by 
 deed, with certain formalities mentioned in the Act. 
 And all gifts of hereditaments, or of any estate or in- 
 terest therein, or of any charge or incumbrance affecting 
 or to affect any hereditaments, or of any personal estate 
 to be laid out in the purchase of any hereditaments, or 
 of any estate or interest therein, or of any charge or in- 
 cumbrance affecting or to affect the same, to or in trust 
 for any charitable uses whatsoever, are rendered void if 
 made in any form than by the Act is directed. 
 
 Q. When can illegitimate children take under a will ? 
 
 A. A child primd facie means a legitimate child ; 
 accordingly an illegitimate child can never take under a 
 gift to children unless it be clear upon the terms of the
 
 OF A WILL. 105 
 
 Avill, or according to the state of facts at the making of 
 it, that legitimate children never could have taken it. 
 An illegitimate child may, however, take under any gift 
 in which he is sufficiently identified as the object of the 
 testator's bounty. Thus a bequest to the child of which 
 a woman is now pregnant is good ; and if illegitimate 
 children have acquired the reputation of being the chil- 
 dren of the testator or any other person, and it appear 
 by necessary implication on the face of the will that 
 such persons were intended in a bequest to children, 
 they will be entitled, not on account of their being chil- 
 dren, but on account of their reputation as such. 
 
 Q. From what time does a will take effect ? 
 
 A. A will of personal estate has always been consid- 
 ered as speaking from the death of the testator, and it 
 is now expressly enacted that it shall do so unless a con- 
 trary intention appear in the will, when all lapsed leg- 
 acies fall into the residuary bequest, if any. 
 
 Q. In what cases will a legacy lapse, and if it lapses, 
 what becomes of it? And what distinction is made as 
 regards legacies to children ? 
 
 A. A legacy will lapse by the death of the legatee in 
 the testator's lifetime, although given to the legatee, his 
 executors, administrators and assigns. If any legacy 
 lapse it Avill fall into the residue and belong to the resid- 
 uary legatee. In the case of children who die leaving 
 issue living at testator's death the legacy would not 
 lapse, but shall take effect as if the death of such person 
 had happened immediately after the death of the tes- 
 tator, unless a contrary intention shall appear by the 
 will. 
 
 8*
 
 106 OF PERSONAL ESTATE GENERALLY. 
 
 Q. Supposing there is no residuary legatee, what 
 Ibccomes of the residue ? 
 
 A. Formerly, after payment of the testator's debts 
 and legacies, the residue of the personal estate belonged 
 to the executor for his own benefit ; but now, by 11 
 Geo. 4 and 1 Will. 4, c. 40, it is enacted that when any 
 person shall die having by will or codicil appointed an 
 executor, such executor shall be deemed by the courts 
 of equity to be a trustee for the person or persons (if 
 any) who Avould be entitled to the estate under the Stat- 
 ute of Distributions, in respect of any residue not ex- 
 pressly disposed of, unless it shall appear by the will or 
 any codicil thereto that the person so appointed exec- 
 utor was intended to take such residue beneficially. 
 
 CHAPTER IV. 
 
 OF INTESTACY. 
 
 Q. To whom was the grant of administration usually 
 made? 
 
 A. By 21 Hen. 8, c. 5, administration might be 
 granted to the widow of the deceased or to the next of 
 his kin, or to both, as the ordinary thought good ; but 
 the widow was usually preferred, and a joint grant was 
 so seldom made that the powers of co-administrators 
 appear still a matter of doubt. In granting adminis- 
 tration to the next of kin the courts were guided by the 
 right to the property to be administered. In default
 
 OF INTESTACY. 107 
 
 of the next of kin a creditor might, by custom, admin- 
 ister, on the ground that be could not be paid bis debt 
 until representation were made to the deceased. 
 
 Q. What are the statutes which now regulate the 
 administration of the effects of intestates ? 
 
 A. The Court of Probate Act, 1857 (20 & 21 Vict. 
 c. 77, amended by 21 & 22 Vict. c. 95), abolished the 
 whole of the jurisdiction which the ecclesiastical courts 
 formerly had over the effects of intestates ; and admin- 
 istration of the effects of deceased persons, formerly 
 granted by those courts, is now granted by the Probate, 
 Divorce and Admiralty Division of the High Court of 
 Justice, in the same manner as the probate of wills ; 
 and on death of a person intestate, his personal estate 
 vests in the president of the said division of the High 
 Court. 
 
 Q. What court now has jurisdiction in the case where 
 intestate's whole estate and effects do not exceed in 
 value lOOZ. ? 
 
 A. By recent statutes (36 & 37 Vict. c. 52 and 38 & 
 39 Vict. c. 27) facilities have been given to the widows 
 and children of deceased intestates, and to the children 
 of intestate widows whose whole estate and effects shall 
 not exceed in value 100?., for taking out letters of ad- 
 ministration to their effects, by application to the regis- 
 trar of the county court within the district of which the 
 intestate had his or her fixed place of abode at the time 
 of death. 
 
 Q. What are the rights and poAvers of an administrator? 
 
 A. An administrator, when appointed, has the same 
 right and power over the personal estate of the intestate
 
 108 OP PERSONAL ESTATE GENERALLY. 
 
 as Lis executors would have bad if he had made a will, 
 and this right and power relate buck to the time of intes- 
 tate's decease. He has also the privilege of retaining bis 
 debt in preference to others of the same degree. 
 
 Q. Within what time should distribution be made by 
 an administrator of the assets of an intestate ? 
 
 A. The same period, viz., a year, as is allowed to an 
 executor. 
 
 Q. What is administration cum testamento annexo ? 
 
 A. Where a will has been made, but the executors 
 have renounced, or died before the testator, the court 
 will appoint the person having the greatest interest in 
 the effects, generally the residuary legatee, to administer 
 the same according to the directions of the will. This is 
 called administration cum testamento annexo. 
 
 Q. What is administration " de bonis non "? 
 
 A. The office of administrator is not transmissible like 
 the office of executor. On the decease of an administra- 
 tor before he has distributed all the effects of the intes- 
 tate a new administrator must be appointed ; for the 
 executor or administrator of such administrator has no 
 right to intermeddle. So, if an executor should die in- 
 testate, without having completely distributed the tes- 
 tator's effects, an administrator must be appointed to 
 distribute, according to the will of the testator, such of 
 his effects as were not distributed by the deceased exec- 
 utor. In each of the above cases the administration is 
 called " de bonis non.'' 
 
 Q. After payment of an intestate's debts, how is the 
 application or distribution of his effects now regulated ? 
 
 A. By the Statutes of Distribution (22 & 23 Car. 2, 
 c. 10; 1 Jac. 2, c. 17, s. 7), by which statutes the rights
 
 OF INTESTACY. 109 
 
 of the relations of the deceased appear to have been first 
 definitely ascertained and rendered legally available. 
 
 Q. What share does the widow take when there are 
 children, and what Avhen none ? 
 
 A. In the first case the widow takes one-third and the 
 children two-thirds ; in the latter the widow takes half 
 and the next of kin the other half, children as between 
 themselves having to bring any advances into hotchpot. 
 Q. How far are children of next of kin entitled to 
 take their deceased parent's share ? 
 
 A. Beyond brothers' and sisters' children no right of 
 representation belongs to the children of relatives. 
 
 Q. How are degrees of kindred traced in the distri- 
 bution of an intestate's personal estate ? 
 
 A. No preference is given to males over females, nor 
 to the paternal over the maternal line, nor to the whole 
 over the half blood, as in the case of the descent of real 
 estate, nor do the issue stand in the place of the ances- 
 tor. The degrees of kindred are reckoned according to 
 the civil law, both upwards to the ancestor and down- 
 wards to the issue, each generation counting for a degree. 
 Thus, from father to son, or son to father, is one degree ; 
 from grandfather to grandson, or from grandson to grand- 
 father, is two degrees ; and from brother to brother is 
 also two degrees — namely, one upw^ards to the father, 
 and one downwards to the other son. 
 
 Q. Are there any customs still peculiar to the city of 
 London and province of York as to the mode of distri- 
 bution ? 
 
 A. No ; the statute 19 & 20 Vict. c. 94 altogether 
 abolished all customary modes of administration ivJnch 
 formerly existed in the above places.
 
 110 OP PERSONAL ESTATE GENERALLY. 
 
 CHAPTER V. 
 
 THE MUTUAL RIGHTS OF HUSBAND AND "WIFE. 
 
 Q. Is there any, and Avhat, difference between the laws 
 of real and personal property as regards attempted re- 
 straint on marriage ? 
 
 A. Real estate is governed by the rules of the common 
 law ; but personal estate, when bequeathed by will, has 
 long been subject to the jurisdiction of the ecclesiastical 
 courts. Some restrictions on marriage, which are valid 
 ■when applied to a gift of real estate, are void when at- 
 tempted to be imposed on a gift of personal property. 
 The rules respecting real and personal estate so far 
 agree that a condition annexed to the gift of either, that 
 a person shall not marry at all, is void ; but a gift of 
 either, during manhood, is good. 
 
 Q. What is the effect of a gift, with a condition that 
 it shall be forfeited if the donee marry without the con- 
 sent of certain persons ? 
 
 A. If the gift be of real estate, or of money charged 
 on real estate, it will cease in the event of marriage with- 
 out the required consent. But if it be a bequest of per- 
 sonal property, the condition is regarded as merely in 
 terrorem, and void, unless accompanied by a bequest over 
 to some other person, on the marriage taking place with- 
 out consent. 
 
 Q. What provisions as to settlements by infants upon 
 marriage have been made by 18 & 19 Vict. c. 43 ? and 
 what is required to make such settlement binding ?
 
 MUTUAL RIGHTS OF HUSBAND AND WIFE. Ill 
 
 A. This Act empowers every infant not under twenty 
 if a male, and not under seventeen if a female, to settle 
 his or her property, whether real or personal, upon mar- 
 riage, provided the sanction of the Court of Chancery 
 be obtained. 
 
 Q. What beneficial alterations in the law respecting 
 the property of married women have been made by the 
 Married Women's Property Act, 1870? 
 
 A. Formerly all the personal property of the wife be- 
 came absolutely the husband's on his reducing it into 
 possession, but this Act (33 & 34 Vict. c. 93) provides 
 {vide s. 7) that where any woman married after the pass- 
 ing of the Act shall, during her marriage, become en- 
 titled to any personal property as next of kin, or one of 
 the next of kin of an intestate, such property shall be- 
 long to the woman for her separate use (subject to any 
 settlement affecting the same). 
 
 Q. What are paraphernalia, and in what respect do 
 they differ from the wife's other personal chattels ? 
 
 A. The wife's paraphernalia consist of her apparel 
 and ornaments suitable to her rank and degree ; and gifts 
 made by the husband to his wife of jewels or trinkets, to 
 be worn by her as ornaments, are considered as part of 
 her paraphernalia. These articles, equally with the 
 wife's other personal chattels, may be disposed of by the 
 husband in his lifetime, and (with the exception of the 
 wife's necessary clothing) are also liable to his debts. But 
 paraphernalia differ from the wife's other personal chat- 
 tels in this respect, that the husband, though he may 
 dispose of them in his lifetime, has no power to bequeath 
 them away from his wife by his will.
 
 112 OF PERSONAL ESTATE GENERALLY. 
 
 Q. What are the rights of the husband as regards his 
 wife's choses in action ? 
 
 A. With regard to choses in action, -whether legal or 
 equitable, the same rule applies as to the rights of the 
 husband, viz., that if he can get them into his posses- 
 sion during the coverture he has a right to keep them, 
 otherwise they will belong to his wife. 
 
 Q. What exceptions to the rule were made by the 
 Married Women's Property Act, 1870 ? 
 
 A. The wages and earnings of any married woman, 
 acquired or gained by her after the passing of the Act, 
 in any employment, occupation or trade in which she is 
 engaged, or carries on separately from her husband ; also 
 any money or property so acquired by her through the 
 exercise of any literary, scientific or artistic skill, and all 
 investment of such earnings, &c. ; also any deposit in a 
 savings bank, or any annuity granted by the Commis- 
 sioners for the Reduction of the National Debt, in the 
 name of a married woman or of a woman who may marry 
 after such deposit or grant, shall be deemed to be her 
 separate property, and shall be accounted for and paid 
 to her as if she were an unmarried woman. The Act 
 also contains several other provisions as to money in the 
 funds, shares, or stock in companies, in friendly, or 
 building, or loan societies, &c. 
 
 Q. In what cases may a married woman maintain an 
 action in her own name ? 
 
 A. For the recovery of any wages, earnings, money 
 and property by the Act declared to be her separate 
 property, or of any property belonging to her before 
 marriage, and which the husband shall by writing under
 
 MUTUAL RIGHTS OF HUSBAND AND WIFE. 113 
 
 his hand have agreed with her shall belong to her after 
 marriage as her separate property ; and she shall have 
 in her own name the same remedies, both civil and 
 criminal, against all persons whomsoever for the protec- 
 tion and security thereof as if the same belonged to 
 her as an unmarried woman. 
 
 Q. What are the rights of the husband as regards 
 the legal choses in action belonging to his wife? 
 
 A. Of all these the husband has a right to receive 
 payment, and should payment be refused him he may 
 sue for them in the joint name of himself and his wife ; 
 but bills and notes of the wife payable to order, being 
 transferable by endorsement, may be transferred by the 
 husband alone, or sued for in his own name. All such 
 legal choses in action as accrued to the wife after her 
 marriage may be sued for by the husband, either in the 
 joint names of himself and his wife, or in his own name 
 only ; but if the wife has really no interest, he cannot, 
 of course, make use of her name. 
 
 Q. What is the rule as to the wife's equitable choses 
 in action, and what is the wife's equity to a settlement ? 
 
 A. All kinds of property, including both freehold 
 estates and chattels real, vested in trustees, who were 
 formerly answerable only to the Court of Chancery, are 
 subject to a rule of equity, by which equitable choses 
 in action are mainly distinguishable from such as are 
 merely legal. This rule is, that the court will not as- 
 sist, nor, if the wife should dissent, Avill it allow, the 
 husband to recover or receive any property of his wife 
 recoverable only in the Chancery Division of the High 
 Court, without his settling a due proportion of such
 
 114 OF PERSONAL ESTATE GENERALLY. 
 
 property on his wife and cliiklren. This is termed the 
 wife's equity for a settlement. In fixing the propor- 
 tion to be settled, a prior settlement will always be 
 taken into account. Where there is no previous settle- 
 ment, the proportion usually required to be settled on 
 the wife is one-half, and sometimes the court has gone 
 so far as to require a settlement of the whole fund. 
 
 Q. What is the efi"ect of stat. 20 & 21 Yict. c. 57 as 
 to the disposition of a married woman's reversionary 
 interests ? 
 
 A. Every married woman, with the concurrence of 
 her husband, may by deed dispose of every future or 
 reversionary interest, whether vested or contingent, of 
 such married woman, or her husband in her right, in 
 any personal estate to which she shall be entitled under 
 any instrument (except her marriage settlement) made 
 after the 31s< December, 1857 (unless given to her sep- 
 arate use without power of anticipation) ; also to release 
 or extinguish any power in regard to any such personal 
 estate ; also to release her equity to a settlement. But 
 every such disposition must be separately acknowledged 
 by her in the same manner as required by the Fines 
 and Recoveries Act, 3 & 4 Will. 4, c. 74. 
 
 Q. What are the principal provisions of the stat. 37 
 & 38 Vict. c. 50, cited as the Married Women's Prop- 
 erty Act (1870) Amendment Act, 1874 ? 
 
 A. It repeals so much of the Married Women's 
 Property Act, 1870, as enacts that a husband shall not 
 be liable for the debts of his wife contracted before 
 marriage, so far as respects marriages which shall take 
 place after the passing of the Act ; and provides that
 
 MUTUAL RIGHTS OF HUSBAND AND WIFE. 115 
 
 a husband and wife married after that time may be 
 jointly sued for such debt. When a husband and wife 
 are sued jointly, if it appears that the husband is liable 
 for the debt or damages recovered, or any part thereof, 
 the judgment to the extent of the amount for which the 
 husband is liable shall be a joint judgment against the 
 husband and wife, and as to the residue, if any, of such 
 debt or damages, the judgment shall be a separate judg- 
 ment against the wife. 
 
 Q. To what extent is the husband liable under the 
 last-mentioned statute as to the assets of his wife ? 
 
 A. 1. The value of the personal estate in possession 
 of the wife, which shall have vested in the husband. 
 
 2. The value of the choses in action of the wife 
 which the husband shall have reduced into possession, 
 or which with reasonable diligence he might have re- 
 duced into possession. 
 
 3. The value of the chattels real of the wife, which 
 shall have vested in the husband and wife. 
 
 4. The value of the rents and profits of the real estate 
 of the wife, which the husband received or with reason- 
 able dilio-ence mio-ht have received. 
 
 5. The value of the husband's estate or interest in 
 any property, real or personal, which the wife, in con- 
 templation of the marriage with him, shall have trans- 
 ferred to him or to any other person. 
 
 6. The value of any property, real or personal, which 
 the wife, in contemplation of her marriage with the 
 husband, shall, with his consent, have transferred to any 
 person with the view of defeating or delaying her exist- 
 ing creditors.
 
 116 OF PERSONAL ESTATE GENERALLY. 
 
 Q. When may a married woman dispose of her per- 
 sonal estate by will ? 
 
 A. By the husband givino- her authority to dispose 
 of such estate or any part of it by her will ; and such 
 will will be binding and valid on the husband if he once 
 allow it to be proved. But during the wife's lifetime, 
 and even after her death until probate of the will, this 
 authority may be revoked ; and if the husband should 
 die before the wife, such a will would not be binding on 
 the wife's next of kin. 
 
 Q. What is the efiect of trusts for the Avife's separate 
 use? 
 
 A. When personal estate is so given, the wife has the 
 same powers of ownership as if she were a feme sole ; 
 she may accordingly dispose of such property without 
 her husband's concurrence, either in her lifetinie or by 
 her will. But should she die in his lifetime without 
 having made any disposition, her husband will become 
 entitled to it either in his marital right or as her admin- 
 istrator, according as the property may be in possession 
 or in action. A trust for a woman's se'parate use is 
 properly and technically created by means of the words 
 "separate use." But a direction that her receipt alone 
 shall be a sufficient discharge is sufficient. A gift, 
 however, to a woman for her sole use has now been 
 decided not to create a trust for her separate use, unless 
 aided by the context. 
 
 Q. What is the efiect of a clause against anticipation ? 
 
 A. When property is settled to the separate use of a 
 married woman, this deprives the woman of the power 
 of disposition over it during coverture.
 
 MUTUAL RIOIITS OF HUSBAND AND WIFE. 117 
 
 Q. In the event of a separation between husband and 
 ■wife, who is entitled to the custody of infant children, 
 and what alteration in the law has been recently made 
 in that respect ? 
 
 A. The custody of infant children in such case belongs 
 by law to the father as the natural guardian. It is now 
 provided by stat. 36 Vict. c. 12 (24th April, 1873) that 
 after the passing of that Act it shall be lawful for the 
 Court of Chancery, upon hearing the petition by her 
 next friend of the mother of any infant or infants under 
 sixteen years of age, to order that the petitioner shall 
 have access to such infant or infants, and to order that 
 such infant or infants be delivered to the mother and 
 remain in or under her custody or control, or that they 
 remain therein until such infant shall attain such age, 
 not exceeding sixteen, as the court shall direct ; and 
 further, to order that such custody or control shall be 
 subject to such regulation as regards access by the 
 father or guardian of such infant or infants, and other- 
 wise as the court shall deem proper. 
 
 Q. What protection is now given to a wife deserted 
 by her husband ? 
 
 A. She may apply to a magistrate or to the court, or 
 a judge ordinary thereof, for an order to protect any 
 money or property she may acquire by her own lawful 
 industry, and property which she may become possessed 
 of after such desertion, against her husband or his cred- 
 itors. And, in such case, such earnings and property 
 will belong to herself, as if she were a feme sole. 
 
 Q. In case of a judicial separation, is the wife con- 
 sidered as a feme sole with respect to her property ?
 
 118 OF PERSONAL ESTATE GENERALLY. 
 
 A. From the date of the sentence, and whilst sep- 
 arated, the wife is to be considered as a feme sole with 
 respect to her property, whether held beneficially or as 
 executrix, administratrix or trustee; and also for the 
 purposes of contract ; and wrongs, and injuries, and 
 suing, and being sued in any legal proceeding ; and her 
 property may be disposed of by her in all respects as a 
 feme sole; and, on her decease, the same will, in case 
 she shall die intestate, go as it would have gone if her 
 husband had then been dead.
 
 OF TITLE. 119 
 
 PART V. 
 
 OF TITLE. 
 
 Q. In the case of money and negotiable securities is 
 it necessary for a payer to show any title ? 
 
 A. No title at all is required to be shown by the 
 payer on any bond fide transaction; but if mala fides 
 can be shown on the part of the party receiving it, or 
 such gross negligence as amounts to evidence thereof, 
 the true owner may recover the property, provided its 
 identity can be ascertained. 
 
 Q. What is a market overt ? 
 
 A. With regard to ordinary choses in possession, a 
 valid title to them is usually obtained by a purchase in 
 open market, .or market overt, although no property 
 therein may have been possessed by the vendor. And 
 every shop in the city of London is market overt for 
 goods usually sold therein ; but if goods are stolen, and 
 the thief is prosecuted to conviction, the property in 
 the goods reverts to the original owner, notwithstanding 
 an intermediate sale in market overt. (See 24 & 25 
 Vict. c. 96, s. 100.) 
 
 Q. What is the effect of a power of attorney ? 
 
 A. When one man is appointed the agent of another 
 for any particular purpose by power of attorney, his 
 authority must be strictly pursued, otherwise his prin- 
 cipal will not be bound. By modern Acts of Parliament 
 a more extended authority has, for the convenience of
 
 120 OF TITLE. 
 
 commerce, been conferred on factors and agents. The 
 general effect of these Acts is to render valid sales and 
 pledges made by factors or agents, notwithstanding any 
 notice of the fact of their being merely factors or agents, 
 provided the party dealing with them have no notice that 
 they are acting without authority or maid fide. 
 
 Q. What warranty arises on the sale of goods ? 
 
 A. None, unless expressly given or implied by the 
 custom of trade or the nature of the contract ; as in a 
 contract to furnish goods for a particular purpose, a 
 warranty is implied that they are fit for that purpose. 
 A warranty given subsequent to the sale is void for 
 want of consideration. 
 
 Q. What are the principal provisions of the Statute 
 of Limitations (21 Jac. 1, c. 16) ? 
 
 A. By this statute all actions of trespass, detinue and 
 replevin for goods or cattle must be brought within six 
 years next after the cause of such action. But if the 
 person entitled to any such action be under age, feme 
 covert., or non compos mentis, such person shall be at 
 liberty to bring the same action within six years after 
 the disability is removed. The disabilities of absence 
 beyond seas and imprisonment have been abolished, by 
 a recent statute. 
 
 Q. Within what time are mortgage moneys, judg- 
 ments and legacies now recoverable ? 
 
 A. No action or suit can be brought to recover the 
 
 same but within twenty years next after a present 
 
 right to receive the same shall have accrued to some 
 
 person capable of giving a discharge for or release of 
 
 "the same, unless in the meantime some part of the prin-
 
 OF TITLE. 121 
 
 cipal money or some interest thereon shall have been 
 paid, or some acknowledgment of the right thereto shall 
 have been given in writing, signed by the person by 
 whom the same shall be payable, or his agent, to the 
 person entitled thereto, or his agent ; and in such case 
 such action or suit must be brought within twenty years 
 thereafter. 
 
 Q. How has this period been altered by the Real 
 Property Limitation Act, 1874 ? 
 
 A. This Act, which comes into force on the first day 
 of January, 1879, reduced the above period of twenty 
 years to twelve years, except in the case of the personal 
 estate, or any share of an intestate's personal estate. 
 
 Q. Within what time must arrears of rent or interest 
 charged on real estate, or in respect of any legacy, be 
 recovered ? 
 
 A. Within six years after becoming due, or of an 
 acknowledgment in writing given to the person entitled 
 thereto, or his agent, signed by the party to be charged, 
 or his agent ; but if secured by deed, an action may be 
 brought within twenty years, 
 
 Q. Does the statute continue to run on death of the 
 debtor ? 
 
 A. Yes, and it does not stop until administration be 
 taken out. 
 
 Q. Is any executor or administrator bound to plead 
 the Statute of Limitations to any debt or demand ? 
 
 A. He is not ; but may if he please pay the same, 
 notwithstanding the time limited by the statute may 
 have expired. But if the estate be administered in the 
 Chancery Division of the High Court, any party to the 
 
 J*. Prop. 9
 
 122 OF TITLE. 
 
 suit is competent to take the objection, altliough the 
 executor may not have insisted on it. 
 
 Q. Will any longer period be allowed where the money 
 charged upon land is secured by an express trust ? 
 
 A. Not after 1st January, 1879, by the Real Prop- 
 erty Limitation Act, 1874. 
 
 Q. What becomes of unclaimed dividends on stock, if 
 not claimed for ten years ? 
 
 A. Such stock, together with the unclaimed dividends, 
 is transferred to the account of the Commissioners for 
 the Reduction of the National Debt ; and such dividends, 
 together with all the future dividends on the stock, are 
 invested by the commissioners in the purchase of like 
 stock, so as to accumulate. And the governor, or 
 deputy-governor for the time being, may order the trans- 
 fer of such stock, and the payment of the dividends to 
 any person proving his right to the same. If the gov- 
 ernor or deputy-governor is not satisfied of the legality 
 of the claim, an order for transfer and payment may be 
 obtained from the Chancery Division of the High Court 
 by petition, in a summary way, stating and verifying the 
 claim, 
 
 Q, In case of the assignment of a chose in action, 
 should any notice be given to the transferee ? 
 
 A. When a chose in action, either legal or equitable, 
 is transferred from one person to another, notice of the 
 assignment should be given by the transferee to the person 
 liable to the action at law or suit in equity, the right to 
 bring which is the subject of the transfer. Thus, if a debt 
 be assigned, notice of the assignment should be given to 
 the debtor. Every person about to take an assignment of
 
 or TITLE. 123 
 
 a chose in action should inquire of the person liable to 
 the action or suit whether he has notice of any prior 
 assignment. In order to obtain a good title he must 
 himself give notice to the person or one of the persons 
 liable to the debt or demand assigned to him. "When 
 this has been done his title will be secure, and will pre- 
 vail over that of any unknown prior assignee who may 
 have omitted to give such notice. 
 
 Q. What is a stop order, and what is the effect of it ? 
 
 A. If the property (alluded to in the last answer) con- 
 sist of money or stock standing in the name of the pay- 
 master-general, or of securities in his possession, an 
 order of the court should be obtained, restraining trans- 
 fer or payment without notice to the assignee. This 
 order is called a stop order, and will have the same effect 
 as notice of an assignment given to any private debtor. If 
 it be stock standing in the name of a trustee who is dead 
 with a representative, a distringas to restrain the trans- 
 fer of the stock will confer the same priority as notice 
 to the trustee if living. 
 
 Q. Is an intermediate trustee now necessary on an 
 assignment of personal estate by a person to himself and 
 another ? 
 
 A. No ; the statute 22 & 23 Vict. c. 35, s. 21, pro- 
 vides that any person shall have power to assign personal 
 property, now by law assignable, directly to himself and 
 another person or persons or corporations by the like 
 means as he might assign the same to another. 
 
 Q. What difference is there in the settlement of real 
 and settlement of personal property ? 
 
 A. Lands, unlike stock, may be converted from arable
 
 124 OF TITLE. 
 
 to pasture, may be cut up into roads, canals or railways, 
 may be sold for building purposes, let upon lease, dis- 
 posed of by contingent remainders, shifting uses and 
 executory devises, without the intervention of any trus- 
 tees. Personal property, on the contrary, cannot be 
 settled without the intervention of trustees, in whom a 
 great degree of personal confidence must necessarily be 
 placed ; but when so settled the title to it is sometimes 
 as long and intricate as that to real estate.
 
 UNIVERSITY OF CALIFORNIA LIBRARY 
 
 Los Angeles 
 
 This book is DUE on the last date stamped below. 
 
 JAN 5 1981 
 
 Form L9— Series 444
 
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