•■ MP':
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 ENGLISH 
 
 BAR-STUDENT'S MANUAL.
 
 MANCHESTER : 
 PRINTED BY J. BOBEKTS, CHAPEL STREET, SALFOED.
 
 MANUAL 
 
 FOE 
 
 ENGLISH BAR-STUDENTS. 
 
 THOMAS SPENCE, 
 
 OF TRINITY COLLEGE, DUBLIN, BARRISTER- AT-LAW ; 
 
 Author of " The Stamp Laws of Mercantile Documents." 
 
 LONDON : DUNN & DUNCAN, 9, FLEET STREET. 
 
 SOLD BY 
 
 Meredith & Ray', Manchester; Webb & Hunt, Liverpool; 
 
 Hodges, Smith & Co., Dublin ; 
 
 Bell & Bradfute, Edinburgh ; J. Smith & Son, Gla.sgow ; 
 
 J. HiGGINBOTHAM, MaDRAS. 
 
 Published by Matthew EoBmsoN,57,MosLEY-sT., Manchester. 
 1864.
 
 tee 4-
 
 TO 
 
 SIR EGBERT PORRETT COLLIER, KNT., 
 
 M.P., a.c, 
 
 HEK majesty's SOLICITOR-GENERAL J 
 
 f*l 
 
 ihis mo\[k 
 
 IS INSCRIBED, BY 
 
 HIS SINCERE FRIEND AND FORMER PUPIL, 
 
 ^ THE AUTHOR. 
 
 i 
 
 783138
 
 PREFACE. 
 
 This work contains the IS'ew Rules of the Inns of 
 Court, Lists of Text-Books and Books of Eeference, 
 a classified Digest of the Questions given at the 
 Examinations of the Inns of Couii:, fi'oni the com- 
 mencement in 1853 of the new system of Legal 
 Education at the Inns of Court, to the end of last 
 year (1863); and an Outline of each subject of study. 
 
 The object of the work is two-fold: to furnish an 
 introduction to legal studies, and a test of their 
 progress. Although principally intended, as the title 
 indicates, for those who contemplate becoming mem- 
 bers of the English Bar, it is nevertheless adapted 
 for all law students. To members of the Inns of 
 Court practising at, or under the Bar, the work may 
 also be found useful in dii'ecting the studies of pupils, 
 who, in accordance with the new rules of the Inns 
 of Court (pp. 3 — 13), adopt one of the three alterna- 
 tive requisites for being called to the Bar. Indeed 
 the work was commenced by the writer when a 
 Special Pleader, to test the knowledge of his own 
 pupils. The want of references to many of the pro- 
 positions contained in the Outlines may be a ground 
 of objection, but as these are merely introductory to
 
 VUl PEEFACB. 
 
 the text-books, they would have been of no practical 
 use, and were therefore omitted. The contents of the 
 work must, however, be left to the impartial judgment 
 of its readers. Those who know the difficulties in 
 preparing a work like the present, will be disposed to 
 overlook the imperfections of its execution. The 
 work has no pretensions to originality of thought. 
 In an elementary work Kke the present, however, such 
 an object is not requisite, even if attainable. The 
 Outline of the principles of Equity has been prepared 
 from Mr. Josiah "W. Smith's " Manual of Equity 
 Jurisprudence," by the kind permission of the author, 
 and the publishers, Messrs. Stevens, Sons, & Haynes. 
 The work of Mackeldy being veiy often used as a 
 text-book for Roman Law, the Outline of that subject 
 has been derived from that source. In the Outline of 
 International Law, the wiiter has made ample use of 
 the erudite laboui's of the late Chancellor Kent. The 
 views expressed in the Outline of Jurisprudence will 
 appear strange to the supporters of the principles of 
 the late Mr. Austin, but whatever may be the merits 
 of the views propounded by that distinguished thinker, 
 they are open to gi'eat and serious objections. 
 
 An article on "The Bar as it was; as it is; and 
 AS IT MIGHT BE," was intended to have been inserted 
 in this work ; on further reflection, however, the 
 paper has been omitted, as not exactly suited for a 
 work intended for law students. Everyone, however, 
 who is jealous of the reputation of the English Bar,
 
 PREFACE. IX 
 
 must rejoice at the institution of a preliminary exam- 
 ination for bar-students ; this is a step in the right 
 dii'eetion, and it is a subject of regret, that the new 
 rules do not requii'e a compulsory ex-amination before 
 a call to the Bar. Every student however, who 
 regards his own interest, will pass one of the voluntary 
 examinations. Studies of every kind are interesting 
 in proportion to the object with which they are 
 pursued, and if in the case of legal studies, this be 
 only the hope of professional business in the future, 
 . the interest felt in the studies will be exceedingly 
 slight. Whatever, however, may be the opinions 
 regarding the propriety of a compulsory examination 
 before a call to the Bar, one thing is certain, which is, 
 that an important stimulus would be given to the 
 studies of Bar-students, and the Bar, were inferior 
 judgeships thrown open to competition hy examination. 
 If this principle should ever be introduced into the 
 legal system of this country, new life would be 
 infused into a body, which from the effects of modern 
 legislation, the facility of admission, and other causes, 
 cannot be regarded as- altogether in a satisfactory 
 condition. Many of the rules of etiquette too, are 
 little adapted to the exigencies of the present day, and 
 require revision. Each student will however do well 
 to recollect Pope's line : 
 
 "Act well yoxir part; there all the honour lies." 
 
 By so doing, the student will be enabled to undertake 
 with credit to himself, any business which may be
 
 X PEEFACE. 
 
 entrusted to him, when engaged in the active duties 
 of his calling. He will also have the reflection, that 
 although he cannot command, he may endeavour to 
 merit success. 
 
 In conclusion, the writer has to express his obli- 
 gations to Dr. Commins, of Lincoln's Inn, for several 
 suggestions in the Outline of Jurispnidence. To 
 several other barristers and bar-students, the writer 
 is also indebted, for their suggestions and assistance 
 in various ways. 
 
 THOS. SPENCE. 
 
 9, King^s Bench Walk, Temple. 
 25th Matj, 1864.
 
 TABLE OF CONTENTS. 
 
 PAGES 
 
 Regulations of the Inns of Court 3 — 13 
 
 Constitutional Law and Legal History. 
 
 Outline 17—61 
 
 Text-Books and Books of Reference 62 
 
 Questions 63 — 91 
 
 Common Law. 
 
 Outline 95—137 
 
 Text-Books and Books of Reference 138 
 
 Questions 139—182 
 
 CONTETANCING. 
 
 Outline 185—225 
 
 Text-Books and Books of Reference 226 
 
 Questions 227—272 
 
 Equity. 
 
 Outline 275—290 
 
 Text-Books and Books of Reference 291 
 
 Questions 292—348 
 
 International Law. 
 
 Outline 351-362 
 
 Text-Books and Books of Reference 363 
 
 Questions 364—374 
 
 Jurisprudence. 
 
 Outline 377—381 
 
 Text-Books and Books of Reference 382 
 
 Questions 383 — 388 
 
 Roman and Civil Law. 
 
 Outline 391—402 
 
 Text-Books and Books of Reference 403 
 
 Questions 404—431
 
 KEGULATIONS 
 
 OF 
 
 THE INNS OF COURT,
 
 NEW REGULATIONS OE THE INNS OF COUET. 
 
 Consolidated Regulations of Michaelmas Term, 
 1863, of the several Societies of Lincoln's Inn, the 
 Middle Temple, the Inner Temple, and Gray's Inn, 
 (hereinafter described as the Four Inns of Court), as to 
 the admission of Students, the mode of keeping terms, 
 the calling of students to the Bar and Legal Education. 
 
 Admission of Students. 
 
 1 . — That every person who shall have passed a public 
 examination at any of the universities within the British 
 dominions, shall be entitled to be admitted as a student 
 to any Inn of Court, for the purpose of being called to 
 the Bar, or of practising under the Bar, without passing 
 a preliminary examination; but subject to Rule 7, here- 
 inafter contained. 
 
 2. — That every other person applying to be admitted 
 as a student to any Inn of Court, for the purpose of 
 being called to the Bar, or of practising under the Bar, 
 shall, before such admission, have satisfactorily passed 
 an examination in the following subjects, viz.: — 
 
 (a) The EngKsh and Latin Languages. 
 
 (b) English History. 
 
 3. — That such examination shall be conducted by a 
 joint board, to be appointed by the four Inns of Court. 
 
 4. — That, for constituting such board, each Inn shaU 
 appoint six examiners. 
 
 5. — That the examiners shall attend according to a 
 rota to be fixed by themselves, and that two shall be a 
 quorum. 
 
 6. — That meetings of the examiners of students
 
 applying for admission at any of the four Inns of Court, 
 shall be held at least once in every week, between the 
 20th October and the 10th August in each year. 
 
 7. — That no attorney-at-law, solicitor, writer to the 
 signet, or writer of the Scotch courts, proctor, notary 
 public, clerk in chancery, parliamentary agent, or agent 
 in any court original or appellate, clerk to any justice 
 of the peace, or person acting in any of these capacities, 
 and no clerk of or to any banister, conveyancer, special 
 pleader, equity draftsman, attorney, solicitor, writer to 
 the signet, or writer of the Scotch courts, proctor, no- 
 tary public, parliamentary agent, or agent in any court 
 original or appellate, clerk in chanceiy, clerk of the 
 peace, clerk to any justice of the peace, or of, or to any 
 officer in any court of law or equity, or person acting 
 in the capacity of any such clerk, shall be admitted as 
 a student at any Inn of Court for the piu-pose of being 
 called to the Bar, or of practising under the Bar, until 
 such person shall have entirely and bond fide ceased to 
 act or practise in any of the capacities above-named or 
 described ; and if on the rolls of any court, shall have 
 taken his name oif the rolls thereof. 
 
 8. — That the following fonns shall be adopted by 
 the said societies on applications for admission as mem- 
 bers : — 
 
 I, of aged the son of 
 
 of in the county of f add father^ s 
 
 profession, if any, and the condition in life and occupation, 
 if any, of the applicant), do hereby declare, that I am 
 desirous of being admitted a member of the Honourable 
 Society of for the purpose of keeping terms 
 
 for the Bar, and that I will not, either directly or in- 
 directly, apply for or take out any certificate to practise, 
 directly or indirectly, as a special pleader, or convey- 
 ancer, or draftsman in equity, without the special 
 permission of the Masters of the Bench of the said 
 Society ; and I do hereby further declare that I am not 
 an attorney-at-law, solicitor, writer to the signet, a 
 writer of the Scotch courts, a proctor, a notary public, 
 a clerk in chancery, a parliamentary agent, an agent to
 
 any court original or appellate, a clerk to any justice 
 of the peace, nor do I act directly or indirectly in any 
 such capacity, or in the capacity of clerk of or to any 
 of the persons above described, or as clerk of or to any 
 officer in any court of law or equity. 
 
 Dated this day of 
 
 (Signature). 
 "We, the undersigned, do hereby certify, that we believe 
 the above-named to be a gentleman of 
 
 respectability, and a proper person to be admitted a 
 member of the said society. 
 
 Barristers of 
 
 Approved. Treasurer. 
 
 (or in his absence, by two Benchers). 
 
 9. — That every person applying to be admitted as a 
 student shall pay the sum of one guinea upon applica- 
 tion for the form of admission ; and that the sums so 
 paid shall form part of the common fund hereinafter 
 mentioned, and shall every year be divided among the 
 examiners for admission, in proportion to the number 
 of examinations which during the year they shall re- 
 spectively have attended. 
 
 Keeping Terms. 
 
 10. — That students of the said societies, who shaU at 
 the same time be members of any of the Universities of 
 Oxford, Cambridge, Dublin, London, Durham, the 
 Queen's University in Ireland, St. Andrew's, Aberdeen, 
 Glasgow, or Edinburgh, shall be enabled to keep terms 
 by dining in the halls of their respective societies any 
 thi'ee days in each term. 
 
 11. — That students of the said societies, who shall 
 not at the same time be members of any of the said 
 universities, shall be enabled to keep terms by dining 
 in the halls of their respective societies any six days in 
 each term. 
 
 12. — That no day's attendance in the respective haUs 
 shall be available for the purpose of keeping term,
 
 unless the student attending shall have been present at 
 the grace before dinner, during the whole of dinner, 
 and until the concluding grace shall have been said. 
 
 Calling to the Bar. 
 
 13. — That every student of the said societies shall 
 have attained the age of twenty-one years before being 
 . called to the Bar. 
 
 14. — That every student of the said societies shall 
 have kept twelve terms before being called to the Bar, 
 unless any term or terms shall have been dispensed 
 with ujider the 46th Eule, hereinafter mentioned. 
 
 15. — That no student shall be eligible to be called to 
 the Bar who shall not have attended during one whole 
 year the lectiires and private classes of two of the 
 readers, or have been a pupil during one whole year, 
 or periods equal to one whole year, in the chambers of 
 some barrister, certified special pleader, conveyancer, or 
 draftsman in equity, or two or more of such persons, or 
 have satisfactorily passed a general examination. Pro- 
 vided, that students admitted before the 1st day of 
 Hilary Term, 1864, shall have the option of qualifying 
 themselves to be called to the Bar, either under the 
 Eules of the Inns of Court of BHary Term, 1852, or 
 under these regulations. 
 
 16. — That no student of any of the said societies 
 desirous of being called to the Bar, shall be so called, 
 until the name and description of such student shall 
 have been placed upon the screens hung in the haU, 
 benchers' room, and treasury or steward's office of the 
 society, 14 days in term before such call. 
 
 17. — That the name and description of every such 
 student shall be sent to the other Inns of Court, and 
 shall also be screened for the same space of time in 
 their respective halls, benchers' rooms, and treasiiry or 
 steward's offices. 
 
 18. — That no call to the Bar shall take place except 
 during term ; and that such call shall be made on the 
 same day by the several societies, namely, on the six-
 
 teenth day of each term, unless such day shall happen 
 to be on Sunday, and in such case on the Monday after. 
 
 Certificates to practise under the Bar. 
 
 19. — That no student of any of the said societies shall 
 be allowed to apply for or take out any certificate 
 to practise, either directly or indirectly, as a special 
 pleader, or conveyancer, or draftsman in equity, 
 without the special permission of the masters of the 
 bench of the society of which he is a student, to be 
 given by order of such masters, and that no such 
 permission shall be granted until the student applying 
 shall have kept twelve terms. 
 
 20. — That such permission shall be granted for one 
 year only from the date thereof, but may be renewed 
 annually by order, as aforesaid. 
 
 21. — That no student shall be allowed to obtain any 
 such certificate imless he shall have attended such 
 lectures and classes, or passed such an examination, or 
 been such pupil, as under the rules herein contained 
 would be necessary to entitle him to be called to the 
 Bar. Provided that students admitted before the first 
 day of Hilary Term, 1864, shall have the option of 
 qualifying themselves to obtain such certificates, either 
 under the Hules of the Inns of Court of Hilary Term, 
 1852, or under these regulations. 
 
 22. — That the regulations herein contained as to 
 screening names in the halls, benchers' rooms, and 
 treasury or steward's offices, shall apply to students 
 seeking certificates to practise as special pleaders, 
 conveyancers, or equity draftsmen. 
 
 Council of Legal Education. 
 
 23. — That a standing councU shall be established, 
 to be called "The Council of Legal Education," and 
 to consist of eight benchers, two to be nominated by 
 each of the Inns of Court, and of whom four shall be 
 a quorum. That the members of such council shall 
 remain in office for two years, and that each inn shall
 
 8 
 
 have power to fill up any vacancy that may occur in the 
 number of its nominees during that period. That to 
 this council shall be entrusted the power and duty of 
 superintending the whole subject of the education of 
 the students, and of arranging and settling the details 
 of the several measures which may be deemed necessary 
 to be adopted, and such other matters as herein in that 
 behalf mentioned. 
 
 24. — That the Council of legal education shall have 
 power to grant dispensations to students, who shall 
 have been prevented by any reasonable cause from 
 complying with all the regulations as to the attendance 
 of lectures and classes which shall from time to time 
 be established. 
 
 25. — That all arrangements touching the number of 
 public lectures to be delivered by the readers, and the 
 hours and extent of private classes, shall be left to the 
 council. 
 
 Educational Terms. 
 
 26. — That for the purposes of education, the legal 
 year shall be considered as divided into three terms, 
 one commencing on the 1st November, and ending on 
 the 22nd December ; the second commencing on the 
 11 th of January, and ending on the 30th March ; and 
 the third commencing on the 15th April, and ending 
 on the 31st July; subject to a deduction of the days 
 intervening between the end of Easter and the beginning 
 of Trinity Term. 
 
 Readers. 
 
 27. — That for the purpose of affording to the students 
 the means of obtaining instruction and guidance in 
 their legal studies, five readers shall be appointed, 
 viz. : — 
 
 1. — A reader on jurisprudence and civil and 
 international law, to be named by the Society 
 of the Middle Temple. 
 2. — A reader on the law of real property, to be 
 named by the Society of Gray's Inn.
 
 3. — A reader on the common Law, to be named by 
 
 the Society of the Inner Temple. 
 4. — A reader on equity, to be named by the 
 
 Society of Lincoln's Inn ; and 
 5. — A reader on constitutional law and legal 
 history, to be named by the Council of legal 
 Education. 
 28. — That the readers shall be appointed for a 
 period of three years. 
 
 29. — That the duties of the readers (subject to 
 regulation by the Council of Legal Education) shall 
 consist of the delivery of two courses of lectures in 
 each educational term ; of the formation of classes of 
 students, for the purpose of giving instruction in a 
 more detailed and personal form than can be supplied 
 by general lectures ; and of affording to students, 
 generally, advice and directions for the conduct of their 
 professional studies. 
 
 30. — That a separate course of lectures on inter- 
 national law shall be delivered, and shall for the 
 present be delivered by the reader on jurisprudence 
 and civil and international law. 
 
 31. — That it shall be part of the duty of the reader 
 on the common law, to give instruction in his lectures 
 on the subject of the office and duties of magistrates. 
 
 32. — That the readers on common law and on equity, 
 shall have particular regard to the law of evidence in 
 their lectures and other instruction to the students. 
 
 33. — That (subject to regulation by the Council of 
 Legal Education; one of the course of lectures to be 
 delivered by the reader on common law, the reader on 
 equity, and the reader on real property shall be on 
 the elementary, and the other on the more advanced 
 portion to which his lectures apply. 
 
 Emoluments of Readers. 
 
 34. — That each reader shall receive the fixed sum 
 of four hundred guineas a year. 
 
 35. — That the fees to be paid by students for the 
 privilege of attending private classes, shall be dis-
 
 10 
 
 tributed among the readers at the end of each year, 
 in proportion to the number of students attending their 
 respective private classes. 
 
 Fees payable hj SUidents, 
 
 36. — That each student shall, on admission, pay a 
 sum of five guineas, which shall entitle him to attend 
 the lectures of all the readers. 
 
 37. — That each student shall be privileged to attend 
 all the private classes, on payment of five guineas 
 per annum. 
 
 Examination on Suhjects of Lectures. 
 
 38. — That in the month of July, in each year, there 
 shall be a voluntary examination of the students, upon 
 the subjects of the several courses of lectures, but no 
 student shall be entitled to go in for examination on 
 any of the subjects, unless he shall have obtained a 
 certificate from the readers, that he has duly attended 
 his lectures and classes upon the subject on which he 
 offers himself for examination. Each examination 
 shall be conducted by some barristers or barrister (not 
 being the reader of the class to be examined) to be 
 nominated for that purpose by the council of legal 
 education, and the council of legal education shall 
 have power to allot such remuneration as they shall 
 think fit to such examiners. 
 
 39. — That no student who shall be entitled to a 
 certificate of having attended the advanced course of 
 lectures of the reader on common law, on equitj', or 
 on the law of real property, shall be at liberty to go 
 in for examination upon the subject of the elementary 
 course of lectures on the same head; and that no 
 student shall be admitted for examination on the 
 subject of the elementary course of lectures, on any of 
 the last-mentioned heads, after he shall have kept 
 more than eight terms, or for examination on any 
 of the subjects, after he shall have kept all his terms, 
 unless in either case the Council of Legal Education 
 shall for special reasons think fit to allow the same.
 
 11 
 
 40. — That as an inducement to students to attend 
 and make themselves proficient in the subjects of the 
 lectures, exhibitions of the respective values hereiaafter 
 mentioned, shall be founded, and be conferred on the 
 most distinguished students at the examinations in 
 July. 
 
 41. — That five of such exhibitions shall be given to 
 members of the advanced classes in the common law, 
 in the law of real property, and in equity, and the 
 most proficient among the students in jurisprudence, the 
 civil law, and international law, and in constitutional 
 law and legal history, every year; and be thirty 
 guineas a year, to endure for two years, making ten 
 running at one time. 
 
 42. — That three of such exhibitions shall be given 
 to members of the elementary classes in the common 
 law, in the. law of real property, and in equity, and 
 be twenty guineas a year, to endure for two years, 
 making six running at the same time, but to merge on 
 the acquisition of a superior studentship. 
 
 43. — That all the students attending the lectures of 
 any of the readers shall be at liberty to attend the 
 several oral examinations ; and that all members of the 
 Inns of Court, who shall have obtained written orders 
 of admission from any of the readers, or from any 
 bencher of any of the societies, shall also be at liberty 
 to attend such examinations. 
 
 General Examinations. 
 
 44. — That General Examinations shall be held twice 
 a-year for the examination of all such students as shall 
 be desirous of being examined previously to being called 
 to the Bar, and such examiaations shall be conducted 
 by at least two members of the Council, jointly with 
 the five readers, and certificates of having satisfactorily 
 passed such examination shall be given to such students 
 as shall appear to the examiners to be entitled thereto. 
 
 45. — That such examinations shall be held in or 
 shortly before Michaelmas Term, and in or shortly be- 
 fore Trinity Term.
 
 12 
 
 46. — That as an inducement to students to propose 
 themselves for such examination, studentships and 
 exhibitions shall be founded, of fifty guineas per annum 
 each, and twenty-five guineas per annum each respec- 
 tively, to continue for a period of three years, and one 
 such studentship shall be conferred on the most distin- 
 guished student at each general examination, and one 
 such exhibition shall be conferred on the student who 
 obtains the second position; and further, the examiners 
 shall select and certify the names of three other students 
 who shall have passed the next best examinations, and 
 the Inns of Court to which such students as aforesaid 
 belong, may, if desired, dispense with any terms, not 
 exceeding two, that may remain to be kept by such 
 students previously to their being called to the Bar. 
 Provided, that the examiners shall not be obliged to 
 confer or grant any studentship, exhibition, or certificate, 
 unless they shall be of opinion that the examination of 
 the students has been such as entitles them thereto. 
 
 47. — That at every call to the Bar, those students 
 who have passed a general examination, and either 
 obtained a studentship, an exhibition at such examina- 
 tion, or a certificate of honour, shall take rank in 
 seniority over all other students who shall be called on 
 the same day. 
 
 Common Fund. 
 
 48. — That the four Inns of Court shall form a 
 common fund by annual contributions, the amounts of 
 which shall be mutually agreed on ; and out of which 
 fund shall be drawn the stipends to be assigned to the 
 readers, the remuneration to examiners, and such 
 studentships and exhibitions as shall from time to time 
 be conferred upon students, and such necessary expenses 
 as shaU bo incurred by the Council of Legal Education. 
 
 49. — That the fees of five guineas paid by students 
 on admission shall form part of the common fund.
 
 IS 
 
 Commencement. 
 
 50. — That tliese regulations shall take eiFect as from 
 the first day of Hilary Term, 1864. 
 
 The above regulations were sanctioned and confirmed 
 by orders of the several societies, as undermentioned : — ■ 
 Middle Temple, 18th December, 1863. 
 Gray's Inn, 18th December, 1863. 
 Lincoln's Inn, 22nd December, 1863. 
 Inner Temple, 22nd December, 1863.
 
 CONSTITUTIONAL LAW 
 
 AND 
 
 LEGAL HISTORY.
 
 OUTLINE OF 
 CONSTITUTIOI^AL LAW AND LEGAL HISTORY. 
 
 Until the accession, in 1154, of Henet II. to the 
 throne, we do not discover any of the distinctive 
 features of our Constitutional Law. Trial b^X ^^'J ^ ^ 
 then become fully established, althougli uirtu the reign. 
 oFHemy YI. this metliud of trial was in reality a 
 trial by witnciises. Hy Heury II. however justiciaries 
 were appointed to try criminal cases in the king's 
 name, and instead of trial by battle the Assiza was 
 substituted by Chief Justice Glanville. The Consti- 
 tutions of Clarendon defining the limits between the 
 civil and ecclesiastical jurisdictions, and to prevent 
 the encroachments of the clergy, were enacted in 1 1 64 
 by this monarch, whose memorable dispute on the 
 subject with Thomas A'Beckett is known to every 
 student of history. The reign of this monarch was 
 also remarkable for the endeavours of the monarch to 
 lessen the power of the nobles, and to abolish the 
 distinction between the English and the Norman races. 
 
 EiCHAED I. was the next monarch, and reigned ten 
 years. The time of le^al memory when a prescription 
 is claimed as at common law is reckoned from this king's 
 accession, which was in 1189. In this reign the laws 
 of Oleron relating to maritime affairs were made, when 
 the king was at the island of Oleron. 
 
 In 1199, John succeeded to the crown. During his 
 reign the foundations of English liberty were laid. 
 There was, indeed, a charter of Henry I. in existence, 
 but its provisions were mainly intended to redress 
 several hardships of the feudal system. The infamous 
 character of John, and the events which gave rise to
 
 18 
 
 the grant of Magna Charta by that monarch are too 
 well known to need to he noticed here. By Magna 
 Charta, the worst grievances of every military tenant 
 in England were redressed. The Court of Common 
 Pleas was required to be held in a fixed place, a 
 freeman was to be amerced according to the nature of 
 his crime, and justices of assize were to visit each 
 county four times a year. Commercial relations were 
 also promoted by Magna Charta, clause 41 being: 
 " All merchants shall have safe and secure conduct 
 to go out of, and to come into England, and to stay 
 there, and to pass as well by land as by water, for 
 buying and selling by the ancient and allowed customs 
 without any evil tolls, except in time of war, or when 
 they are of any nation at war with us. And if there 
 be found any such in our land in the beginning of the 
 war, they shall be attached without damage to their 
 bodies or goods until it be known to us or our chief 
 justiciary how our merchants be treated in the nation 
 at war with us ; and if ours be safe there, the others 
 shall be safe in our dominions." 
 
 The essential clauses of Magna Charta are those 
 which secure the personal liberty and property of 
 every subject. They are: 39. No freeman shall he talcen 
 or imprisoned, or disseised, or outlawed, or banished, or 
 any ways destroyed, rior will we pass upon him unless hy 
 the lawful judgment of his peers, or by the law of the 
 land ; and 40. We will sell to no man, we will not deny 
 or delay to any man, either justice or right. To Stephen 
 Langton, Archbishop of Canterbury, England, is mainly 
 indebted for this Charter, that Prelate having been the 
 principal adviser and instigator of the barons who 
 withstood John, and compelled that despot, by force of 
 ai-ms, to accede to what has been truly termed "the 
 bulwark of our constitution." 
 
 John Avas succeeded in 1216 by his son, named 
 Henry III. At the time of his accession, Henry was 
 but ten years of age, and a regency accordingly took 
 place until the monarch became of age in 1223. During 
 the regency, Louis, the son of Philip of France, was
 
 19 
 
 obliged to surrender, and to retire from England. From 
 his marriage with a French princess, Henry acquired a 
 partiality for foreigners, whom he appointed to several 
 high offices in the state. This circumstance gave great 
 offence to the nation, while the large sums required for 
 the long and unsuccessful warfare on the continent 
 caused continual disputes between the monarch and the 
 nobles. The defeat of the English forces in 1242 
 brought matters to a crisis, and the supplies asked for 
 the king were peremptorily refused. In 1253 Henry 
 again met his nobles; but, distrustful of him, they 
 compelled him to swear to observe the charters of the 
 nation. A mortgage by the monarch of the kingdom, 
 to help to pay the expenses incurred in conquering 
 Sicily, was the next circumstance which disgusted the 
 nation, as on the conquest of the island the king was 
 obliged to ask for supplies to liquidate the amount. A 
 committee of barons was then appointed to manage the 
 affairs of the nation, in conjunction with the king. 
 Though at first distinguished for moderation, the barons 
 afterwards became so arbitrary in their proceedings that 
 civil war broke out between the king and them. Prince 
 Edward, the son of Henry, took the field with an army. 
 At the battle of Lewes the royalists were defeated by 
 the Earl of Leicester, and the King and Prince Edward 
 taken prisoners. The earl then took the affairs of the 
 kingdom into his own keeping, and compelled the king 
 to do whatever he bade. Leicester was, however, far 
 from popular. Partly to increase his popularity, as 
 well as from other causes, Leicester in 1265 "directed 
 the sheriffs to elect and return two knights for each 
 county, two citizens for each city, and two burgesses 
 for each borough in the county," thus laying the foun- 
 dation of the English House of Commons. The fortunes 
 of war are, however, proverbially uncertain. Prince 
 Edward subsequently escaped from his confinement, and 
 again took the field with the royal forces. Success 
 crowned the efforts of the royalists at Kenilworth and 
 Evesham, and at the latter place Leicester was killed. 
 Henry was restored to the throne, and his subsequent
 
 20 
 
 career was distinguished by moderation and prudence. 
 Henry III, after reigning 57 years, was succeeded by 
 his son Edward I. 
 
 In the reign of Edward I. numerous laws were 
 passed. Among the most important were the Con- 
 firmation of the Great Charter and the Charter of the 
 Forest; the abolition of the exaction of aids, unless with 
 the consent and to the common profit of the realm; and 
 the institution of conservators of the peace, or justices 
 of the peace, as they are now called. In this reign 
 were also enacted the statutes : De Donis Condition- 
 ALiBTTs, to which cstatcs tail owe their origin, and 
 Quia Emplores, prohibiting the subinfeudation of land. 
 
 Edward II., the son of Edward I. was the next 
 king, and succeeded to the crown in 1307, on the death 
 of his father. His reign was an unfortunate one, from 
 his selection of favourites, and his incapacity as a 
 monarch. His memorable defeat at Bannockburn by 
 the Scotch increased the discontent of his subjects. 
 Discontent ripened into revolt, and the monarch was 
 deposed. Upon his deposition the crown was conferred 
 upon his son, Edward III., and the late monarch was 
 shortly afterwards cruelly murdered, at the instigation 
 of his queen and the Earl of Mortimer. During the 
 reign of Edward 11. the Articuli Cleri, defining the 
 boundaries between the jurisdiction of the temporal and 
 ecclesiastical courts, and the privileges of the clergy, 
 were passed ; and the first instance of a petition by the 
 commons, for the redress of grievances, occurred. 
 
 The first act of Edward III., when he came of age, 
 was to cause the overthrow of jyiortimer and the late 
 queen. The former was brought to trial for the murder 
 of Edward II. and executed. The latter, mother of the 
 monarch, was confined to perpetual seclusion for life. 
 The famous battle of Cressy, in 1346, with Pliilip of 
 France, occurred in this reign. The enactment of the 
 Statute of Treasons, defining what acts committed by 
 a subject constitute treason, and the right to impeach 
 offending ministers, are, however, the occurrences which 
 render this reign memorable in constitutional history.
 
 21 
 
 Edward III. died in 1377, and was succeeded by his 
 grandson, Richard II., son of the Black Prince. 
 
 EiCHAKD II. was an iU-fated monarch. At the 
 beginning of his reign occurred the memorable insur- 
 rection of the peasantry, led by Wat the Tyler. The 
 causes of the revolt are too well known to need to be 
 stated here. At this period, society in England may 
 be divided into the three classes of nobles, burgesses, 
 and peasantry. In this reign the rising power of the 
 commons was shown by their vigorous representations 
 of grievances, and their impeachment of the Earl of 
 Suffolk. For several years after 1389, however, Eichard 
 changed his mode of administration, and governed 
 vigorously and well. The tyrannical conduct of the 
 monarch during the last two years of his reign caused 
 Henry Bolingbroke and the Earls of Northumberland 
 and Westmoreland to take the field against him, while 
 absent in Ireland. On the monarch's return to England 
 he was obliged to succumb to Henry Bolingbroke, and 
 shortly afterwards, in 1399, abdicated the throne. 
 Pdchard's end is doubtful, but he is supposed to have 
 been murdered. 
 
 Richard II. was succeeded by Henry Bolingbroke, 
 who became king with the title of Henky IV. He was 
 the son of John of Gaunt, Duke of Lancaster, third son 
 of Edward III. That monarch had, however, an older 
 son, Lionel, Duke of Clarence, whose grandson, the 
 Earl of March, was the legal heir to the throne. Insur- 
 rections to place the earl on the throne were suppressed, 
 and Henry was left undisturbed in his regal functions 
 during the remainder of his life. In this reign the 
 right of the commons to originate money bills was first 
 conceded. Hemy IV. died in 1413, and was succeeded 
 by his son, Henrj^ V. 
 
 The reign of Henry V. is memorable for his wars 
 with France. At Agincourt, in 1415, the French met 
 with a disastrous defeat. The following year the war 
 was renewed, and continued until 1420, when the 
 treaty of Troyes took place. Henry died in 1422, and 
 was succeeded by his son, Henry VI.
 
 22 
 
 During the reigns of Henry VI., Edward IV., Ed- 
 ward v., and Richard III., the attention of the nation 
 was principally engaged by the long civil wars between 
 the houses of York and Lancaster. In the reign of 
 Henry VI., however, a statute was passed confining the 
 right of election for knights of the shire to owners of 
 free land or tenement to the value of forty shillings by 
 the year at least, above all charges. By the decision 
 of the judges, in the reign of Edward IV., declaring a 
 common recovery a sufficient bar of an estate tail, the 
 evil effects of the statute De Doxis were much 
 diminished. This important decision is known by the 
 name of Taltaktjm's Case. The civil wars at length 
 were terminated, in 1485, by the decisive battle of 
 Bosworth-field, when Henry Tudor, Earl of Richmond, 
 utterly defeated the forces of Richard, who was slain 
 in the battle; while the earl was saluted by cries of 
 " Long Kve Eing Henry." 
 
 Hexey VII. , the first of the House of Tudor, was a 
 descendant of John, Earl of Somerset, an illegitimate 
 son of John of Gaunt, Duke of Lancaster. Henry's 
 title to the throne was therefore quite worthless, in a 
 legal point of view, and he therefore wisely strengthened 
 his position by his marriage with the Princess Elizabeth 
 of York, daughter of King Edward IV. Thus were the 
 contending factions of the Houses of York and Lan- 
 caster reconciled. In this reign occurred two memorable 
 insurrections ; the first on the occasion of the persona- 
 tion of the Earl of Warwick, by Lambert Simnel ; and 
 the second when Perkin Warbeck assumed the name 
 and character of the Duke of York, who, vnth his 
 brother, Edward V., was generally supposed to have 
 been murdered in the Tower. Both insurrections were, 
 however, speedily suppressed, and the nobles and gentry 
 who had taken part in them, attainted. Simnel was 
 considered too ignoble for resentment, while "Warbeck 
 was sent to the Tower. There he entered into corres- 
 pondence vrith the Earl of Warwick, for the purpose of 
 efi'ecting their escape. This unfortunate nobleman was 
 the son of the Duke of Clarence, and being the nearest
 
 23 
 
 male heir of the House of York, had been kept in close 
 confinement by Henry. The correspondence was dis- 
 covered, Warwick and Warbeck were brought to trial 
 for treason, and executed. The remainder of this reign 
 was undisturbed by civil discord. 
 
 In this reign a statute was enacted making allegiance 
 to a monarch de facto a protection to a subject from 
 criminal process, while by another statute a fine levied 
 with proclamations in court was, after five years, made 
 a bar to all claims on land. 
 
 Henry kept his nobles in great subjection. From 
 the numerous attainders, the enforcement of statutes 
 inflicting penalties, and the king's parsimonious habits, 
 Henry became exceedingly wealthy. Henry died in 
 1509, leaving an immense patrimony to his son and 
 successor Henry VIII. 
 
 Heney VIII. was a monarch whose equal for tyranny, 
 rapacity and cruelty, has never occupied the English 
 throne. Henry's famous quarrel with the Pope, its 
 cause and results, the suppression of the monasteries, 
 and the king's assumption of the ecclesiastical supre- 
 macy in this realm are too well known to require 
 notice here. Notwithstanding Henry's illegal exac- 
 tions, and his cruel execution of Anne Boleyn and 
 others, he was popular with his subjects, but only on 
 account of his support of the Reformation. Henry's 
 parliaments were characterised by servility, of which 
 we have a notable instance in the act passed in 1539, 
 giving to the proclamations of the king and council 
 the force of statutes, so that should not he 'prejudicial to 
 any person^s inheritance, offices, liberties, goods, and 
 chattels, or infringe the established laios. However, the 
 words restricting the force of the proclamations might as 
 well have been omitted, for in an age when parliament 
 cowered beneath the frown of a sanguinaiy tyrant, his 
 will was law. In 1539, the Law of The Six Articles 
 was passed, establishing the real presence, communion 
 in one kind, the perpetual obligation of vows of 
 chastity, the utility of private masses, the celibacy 
 of the clergy, and the necessity of auricular confession.
 
 24 
 
 The denial of these articles of faith, subjected the 
 offender to be burned or other punishment. Henry died 
 in 1547, and was succeeded by his son Edward VI. 
 
 Edward VI. was the son of Jane Seymour, the third 
 wife of Henry VIII. As Edward was only nine years 
 of age on his accession to the throne, the king's uncle, 
 the Duke of Somerset was appointed regent. During 
 this reign the statute giving the king's proclamation, 
 the force of law was repealed, and the liberty of the 
 subject promoted by an enactment requiring the 
 evidence of two witnesses confronted with the accused, 
 for a conviction in cases of high treason. Edward's 
 reign is however, chiefly remarkable for the advance- 
 ment of education, and the establishment of the 
 Protestant form of religion. In many towns grammar 
 schools were established, and liberally endowed. On 
 the establishment of Protestantism, the Articles of and 
 the Liturgy of the Church were framed by Cranmer, 
 Archbishop of Canterbuiy, in conjunction with other 
 divines. The Duke of Somerset at length fell a victim 
 to the machinations of his enemies, and having been 
 found guilty on his own confession of intending to 
 murder three noblemen, IS^orthumberland, AVarwick, 
 and Northampton, he was executed. The Duke of 
 Northumberland, one of the governors of the young 
 king, then became the principal administrator of the 
 affairs of the nation. By Northumberland the young 
 king was induced to devise the crown in favour of 
 Lady Jane Grey, who had married that nobleman's 
 son. Lady Jane was the great grand-daughter of Henry 
 VII. being the grandchild of Mary queen of France, 
 by the Duke of Suffolk. The lustre of Edward's 
 reign is unfortunately somewhat dimmed by the con- 
 demnation to the stake of a woman named Joan 
 Boucher and Van Paris, a Dutchman, for their religious 
 opinions. The death of Edward VI. took place on the 
 6th July, 1553, and after a futile attempt on the part 
 of the Duke of Northumberland to place Lady Jane 
 Grey on the throne, Mary, Henry VIII. 's daughter 
 by Catherine of Arragon was declared queen.
 
 25 
 
 On ascending the throne Mart proceeded to restore 
 the Popish religion. Gardiner and other eminent 
 Roman CathoKc personages were released from prison, 
 and restored to power and favour. A statute was shortly 
 afterwards enacted by the parliament re-establish- 
 ing the form of religious services in use at the death 
 of Henry VIII. Much discontent was caused by the 
 proposal of the queen to marry Philip of Spain. A 
 formidable insurrection headed by Sir Thomas Wyatt 
 broke out, but was suppressed, and a large number of 
 his followers executed. Shortly after this rebellion was 
 quelled. Lady Jane Grey was executed. This was the 
 most barbarous act of Mary's reign, for Lady Jane's 
 crime arose more from filial obedience than ambition. 
 In 1554 the parliament gave their assent to the 
 ([ueen's marriage with Philip, on condition that Mary 
 was to be sole monarch during her life, and that her 
 consort should have no claim to the throne after her 
 death, in case of her leaving no issue. The wedding 
 accordingly took place in July of that year. The 
 remainder of Mary's reign was disgraced by numerous 
 religious persecutions of Protestants. Among the 
 eminent personages who perished at the stake, were 
 Cranmer, Ridley, and Latimer. The loss of Calais, 
 which took place at the end of Mary's reign, was 
 deeply felt by the English, and by none more than 
 Mary. This regard for national honour was the only 
 redeeming feature in her character. Unlamented by 
 her subjects, Mary died on the 17th November, 1558, 
 and was succeeded by Elizabeth. 
 
 Elizabeth, the daughter of Anne Boleyn, on her 
 accession to the throne adopted a conciliatory policy. 
 Having however, been educated in the Protestant faith, 
 and hearing that the Papists were hostile to her, 
 Elizabeth, immediately after her coronation proceeded 
 vigorously to re-establish Protestantism. Eor this 
 purpose, the Acts of Supremacy and of Uniformity 
 were enacted. By the former act the queen was 
 declared supreme head of the church, and all ecclesi- 
 astical persons, judges, justices, mayors, and persons 
 
 B
 
 26 
 
 holding offices, were required to take an oafh, acknow- 
 ledging the queen's sole supremacy in aU matters, 
 ecclesiastical and temporal within the realm, and 
 disowning the jurisdiction within the realm of any 
 foreign prince or prelate in such matters. Power was 
 also given to the crown to appoint commissioners to 
 suppress heresy, which was the origin of the High 
 Court of Commission. By the Act of Uniformity the 
 Book of Common Prayer as ordained by Edward VI. 
 with the order of service, administration of sacraments, 
 rites and ceremonies, but with some additions and 
 alterations was declared to be in full force, and its 
 use enjoined on every minister of the church under the 
 penalty of imprisonment and deprivation. By the 
 same act a penalty was imposed on all who absented 
 themselves from church on Sundays and holidays. 
 By another act, first fruits and tenths were annexed 
 to the crown. 
 
 In enforcing the Act of Uniformity, Elizabeth met 
 with considerable opposition from the bishops and other 
 ecclesiastical dignitaries. Their places were therefore 
 vacated and supplied by persons favourable to the 
 Protestant faith. During this reign, the religious parties 
 were three in number — the Episcopalians, the Papists, 
 and the Puritans. To the Puritans Elizabeth was 
 decidedly hostile. At them was levelled the Act of 
 Uniformity. In 1572, however, severe measures were 
 enacted against the Roman Catholics, on the occasion of 
 the publication in London of a bull of Pius V., excom- 
 municating Elizabeth, the 13 Eliz., c. 2 making the 
 publication of any buU from Home, or the absolution 
 and reconciliation of any one to the Romish Church, or 
 the being so reconciled, high treason ; while the impor- 
 tation into the realm of any crosses, pictures, or super- 
 stitious things consecrated by the Pope, or under his 
 authority, rendered the offender liable to a premunire. 
 Several other acts were passed during Elizabeth's reign 
 against the Papists ; but when we consider that, both 
 on the continent and in this country, numerous plots 
 were formed by the Romish party against her life, these
 
 27 
 
 measures may be palliated, although they cannot be 
 excused. 
 
 Elizabeth had exalted notions of her prerogative in 
 church and state. Her arbitrary acts, the proceedings 
 of the High Court of Commission, and the judicial 
 murders perpetrated under the name of trials in this 
 reign, have brought discredit on this monarch. Eliza- 
 beth's vigorous government however, her spirited 
 conduct when the Spanish armada threatened our 
 shores, and her advancement of the national interests, 
 made her popular with the nation. Dm'ing this reign 
 62 borough members were added to the House of 
 Commons, the injurious system of monopolies attacked, 
 and the first poor laws iastituted. Elizabeth, the last 
 of the Tudors, died in 1603, and was succeeded by 
 James YI. of Scotland and I. of England. 
 
 The legal title of James I. to the crown of England 
 was doubtful. In his person, it is true, centered all 
 the claims to the throne by hereditary succession, but as 
 Henry VIII., by virtue of a statute passed in the 35th year 
 of his reign, had made a will, leaving — in case of the 
 death of Edward, Mary, and Elizabeth, without issue — 
 the throne to the issue of his sister Mary, the Duchess 
 of Suffolk, the legal title to the throne was in the 
 House of Suffolk. That statute, however, required the 
 will to be signed with the king's own hand ; and as, 
 according to some opinions, that document has only a 
 stamp affixed, it may be considered inoperative. Mr. 
 Hallam, however, considers the will as duly signed, but 
 this supposition is quite inconsistent with the circum- 
 stance that the House of Suffolk made no effort to 
 estabKsh its claims to the throne. Even if we regard 
 the will as duly executed, its provisions appear to have 
 been superseded by a statute passed on the marriage of 
 Mary with Philip of Spain, declaring " as touching the 
 right of the queen's inheritance in the realm and 
 dominions of England, the children, whether male or 
 female, shall succeed in them, according to the known 
 laws, statutes, and customs of the same." However, 
 whatever may have been the reasons, aU parties, on the
 
 28 
 
 accession of James, appear to have regarded the will of 
 Henry VIII. as inoperative, and to have considered the 
 hereditary claims of James a sufficient title to the throne. 
 James was the great grandson of Margaret, daughter of 
 Henry VII., and wife of James IV., King of Scotland. 
 As Margaret was the eldest daughter of Henry VII., on 
 her issue devolved the right to the throne, when the 
 line of Henry VIII. became extinct by the death of 
 Queen Elizabeth without issue. The hereditary claims 
 of James to the throne were therefore indisputable. 
 Accordingly, immediately after the accession of James, 
 the parliament, by statute 1 Jac. 1, c. 1, did "recognize 
 and acknowledge that immediately upon the dissolution 
 and decease of Elizabeth, late Queen of England, the 
 imperial crown did, by inherent birthright, and lawful 
 and undoubted succession, descend and come to his 
 most excellent majesty, as being lineally, justly, and 
 lawfully next and sole heir of the blood royal of this 
 realm." 
 
 Early in this reign the House of Commons displayed 
 an independent spirit. Thus, in the first parliament of 
 James, in 1604, a remarkable document was put forth 
 by the Commons, called A Eorm of Apology and Satis- 
 faction. It protests against various arbitrary acts of 
 James, and maintains that the privileges and liberties 
 of the Commons are their right and inheritance, no less 
 than their very lands and goods ; that they cannot be 
 withheld or impaired, and that the House of Commons 
 is the sole judge of the returns of the writs for the 
 election of its members, and of their election. Numerous 
 other conflicts took place between James and the Com- 
 mons. In 1621 a document was framed by the par- 
 liament, declaring the right of the Commons to all their 
 privileges, as the birthright and inheritance of the 
 subjects of England ; the right of every member of the 
 House to debate on all public matters, and freedom of 
 speech. 
 
 Among the state trials in this reign was that of 
 Peacham. He was apprehended on a charge of high 
 treason, for writing a sermon strongly censuring the
 
 29 
 
 king. The sermon was not published, and there was no 
 evidence of an intention to publish. Peacham was then 
 racked, in the hope that he would confess ; but not 
 doing so, the judges were consulted, Peacham was put 
 on his trial, found guilty, but not executed. This 
 decision was over-ruled in the next reign by Pine's 
 case, declaring that no words, however wicked or mis- 
 chievous, would of themselves amount to treason within 
 the statute of Edward III. 
 
 Towards the end of this reign, James had one great 
 object in view, and that was to marry the Prince of 
 Wales to the Infanta, daughter of Philip IV., who had 
 been recommended as a desirable match for the heir 
 to the British throne. The project was however 
 defeated by the repugnance of the nation to the match. 
 In James's opinion the royal prerogative was bounded 
 by no limits, but from his pusillanimous disposition, 
 his want of energy, and still more from the spirit of 
 independence of the Commons it was harmless. Pos- 
 sessed of no smaR share of learning, James nevertheless 
 lacked prudence. Prodigal of his resources he enforced 
 the penal acts against the Puritans and Catholics, in 
 order to obtain money for his exchequer. In general, 
 the faults of James were more those of the head than 
 of the heart, but for his execution of Sir Walter 
 Raleigh, under a sentence passed 15 years before, in 
 order to please the Spanish nation, no excuse can be 
 made. 
 
 James died in 1625, and was succeeded by his son 
 Charles I. 
 
 With the accession of Chakles the Piest we enter 
 upon a memorable period of English history. Unlike 
 his father, Charles was polished, courteous and religious, 
 but from his selection of unworthy favourites, his 
 desire to obtain absolute power, and still more his 
 insincerity differences soon arose between the king and 
 his parliaments. His first parliament Charles abruptly 
 dissolved, after he obtained a considerable subsidy to 
 meet the expenses of the war. His second parliament 
 when about to try the Duke of Buckingham, the king's
 
 30 
 
 favourite, on an impeachment, met with a similar fate 
 to its predecessor. The next proceeding of Charles 
 was to obtain money by illegal proceedings, and 
 amongst other modes he adopted was, the demand of a 
 loan from each subject, according to the rate at which 
 he was assessed in the last subsidy, and proportioned to 
 his property. Five knights. Darnel, Corbet, Earl, 
 Heveningham, and Hampden having refused to con- 
 tribute to the loan were committed by a warrant of 
 the Privy Council to the Fleet prison. They then 
 sued out a writ of habeas corpus from the Court of 
 King's Bench, and a return to the writ was made by 
 the warder of the Fleet, stating that the warrant did 
 not express the nature of the charge, but that the 
 parties in custody had been committed by special 
 command of the king. The suflBciency of the return 
 and as a necessary consequence that of the warrant of 
 commitment were then ably argued by Noy, Selden, 
 and Whitelock for the prisoners, while the attorney- 
 general, Eobert Heath appeared for the crown. One of 
 the arguments employed by the attorney-general was 
 from the maxim " the king can do no wrong " that 
 there must have been a suflftcicnt cause of commitment 
 although not set forth in the warrant. "The court 
 to their lasting disgrace," says Lord Brougham, decided 
 both in favour of the sufficiency of the return, and 
 the validity of the wan-ant. The prisoners were 
 accordingly remanded to prison. 
 
 In 1628 Charles after releasing several persons who 
 had been imprisoned for refusal of contributions reluct- 
 antly summoned his first parliament, in order to obtain 
 money to carry on the war. The sudden dissolution of 
 the first two parliaments of Charles only tended to 
 make the Commons in the third parliament more 
 determined than their predecessors to resist the arbitrary 
 proceedings of the king, but instead of trying to 
 conciliate the Commons, Charles at the opening of the 
 session made use of menacing language to them in case 
 they should not vote the necessary supplies. The 
 Commons, however, instead of complying with this
 
 31 
 
 menace, at once proceeded to take into consideration 
 the redress of grievances. These grievances were 
 embodied in a remonstrance called the Petition of 
 Right praying, (1.) that no gift, loan, benevolence, or 
 tax, might be levied without consent of parliament; 
 (2.) that none should be imprisoned, confined, detained, 
 questioned, or molested for refusal to pay any of these 
 contributions ; (3.) that soldiers and marines, should not 
 be quartered on people against their will; and (4.) that 
 no commissions for proceeding by martial law might be 
 granted. The petition having been passed by the 
 Peers, was presented to Charles for his assent, when a 
 notable instance of his duplicity took place, for instead 
 of adopting the usual form of assent to bills, he 
 returned an equivocal answer apparently framed in 
 such a manner as not to interfere (in his opinion) with 
 the royal prerogative. This proceeding excited the 
 resentment of the Commons, and Charles shortly after- 
 wards went down in person to the House and assented 
 to the bill in the usual form. The Commons then 
 granted the king five subsidies together amounting to 
 a considerable sum, but as the Commons showed signs 
 of a determination to proceed to the redress of other 
 grievances Charles prorogued the parliament. During 
 the recess Charles caused a large number of copies of 
 the Petition of liight to be circulated with only his 
 first answer annexed : an act of meanness and of folly 
 in a monarch almost unimaginable. The assassination 
 of the Duke of Buckingham at this period by a man 
 of the name of Felton gave rise to a memorable decision 
 by the judges that torture was illegal. 
 
 On the re-assembling of parliament the Commons 
 again proceeded to take into consideration the redress 
 of grievances. The enforced payment of tonnage and 
 poundage from the merchants was the principal subject 
 which occupied the attention of the Commons. Violent 
 disputes took place between the king and the Commons 
 on the question, and shortly afterwards Charles angrUy 
 dissolved the parliament. 
 
 For twelve years afterwards Charles managed the
 
 32 
 
 affairs of the nation without a parliament, and freed 
 from the control of that assembly, committed as might 
 have been expected, numerous arbitrary acts. Hardly 
 had the late parliament been dissolved before three of 
 the king's leading opponents in the Commons, Elliot, 
 Holies, and Valentine, were prosecuted and fined, 
 notwithstanding their objection that the court had no 
 jurisdiction for things done or said in parliament. 
 Without a parliament Charles was obliged to resort to 
 other methods to obtain money to meet the expenses of 
 the government. Compositions for refusal of knight- 
 hood by the the tenants of the crown in capite, the 
 enforcement of the harsh forest laws, and the revival of 
 the system of monopolies in trade (although declared 
 illegal in the preceding reign) produced considerable 
 sums to the exchequer. A mode of raising money was 
 however revived, which (although obsolete for ages) 
 seemed likely to furnish a perpetual supply for the 
 exigencies of government, and this was the enforcement 
 of ship-money : an ancient assessment on maritime 
 towns in times of danger from invasion, to provide 
 ships. Though at first the assessment was confined to 
 the maritime towns it was afterwards extended to the 
 inland districts. The collectors of the ship-money 
 encountered considerable opposition in these districts 
 and at length, in 1637, John Hampden, a country gentle- 
 man of Buckinghamshire, determined to try the legality 
 of the assessment. Accordingly he refused payment of 
 the sum demanded from him, and proceedings having 
 been instituted against him, the question came on for 
 argument before the Court of Exchequer Chamber. The 
 arguments on behalf of Hampden, based as they were 
 on the Confirmation of the Charters, and other express 
 enactments prohibiting taxation without the consent of 
 parliament, were unanswerable, but the doctrine of 
 the absolute power of the crown prevailed with the 
 majority, consisting of seven of the twelve judges. 
 The five other judges decided in favour of Hampden 
 for various reasons. Judgment was accordingly given 
 for the crown, but so far from increasing the power of
 
 33 
 
 the monarcli it only strengthened the hands of his 
 opponents. The introduction of Romish practices into 
 the service of the church also increased the discontent 
 of Charles's subjects, but his attempt at this period 
 (1637) to compel the introduction of the episcopal 
 liturgy into the churches in Scotland caused an out- 
 break of popular indignation which made the king 
 pause in his career of unbridled power. The following 
 year (1638) the Scots entered into the famous National 
 Covenant, took up arms, and in a great measure made 
 themselves masters of the country. The Scotch forces 
 then advanced to Berwick, and the king having marched 
 with an army to the neighbourhood of that town a 
 pacification took place between Charles and the Scots. 
 "Without resources, however, Charles was obliged to 
 disband his army, while the Scots took care to hold 
 their forces ready for any emergency. After the treaty 
 the Scots were almost more hostile than before, and as 
 the state of matters did not improve, Charles in April 
 1640, reluctantly assembled his fourth parliament. 
 Nearly twelve years had elapsed since the last parlia- 
 ment had assembled, and from this circumstance the 
 advisers of Charles fondly hoped that the Commons 
 would display a less independent spirit than their 
 predecessors in this reign, and vote with alacrity the 
 requisite supplies. Instead however of doing so the 
 Commons at once began to take into consideration the 
 question of grievances. Charles repeatedly urged the 
 Commons to proceed with the vote of supplies, but they 
 resented the interference. Charles shortly afterwards 
 angrily dissolved the parliament before any supplies had 
 been voted. This act of indiscretion on the part of the 
 king greatly increased the general discontent, and as the 
 Scotch forces had crossed the border, and seemed likely 
 to possess themselves of the northern counties, Charles 
 was obliged to adopt instant measures to repel the foe. 
 For this purpose he borrowed large sums from private 
 friends, sold for cash goods purchased on credit, and 
 adopted other expedients for raising money. With the 
 sums thus procured Charles mana'ged to muster a
 
 34 
 
 considerable anny. In an engagement between some of 
 the forces of Charles, and the Scots the latter had the 
 advantage, and as the king saw no prospect of an 
 improvement in the state of matters he consented, 
 though much against his will, to call another parlia- 
 ment which met in November, 1640. This was the 
 fifth parliament which had assembled in this reign, and 
 is known in English history as the Long Parliament. 
 On the opening of parliament the sympathies of the 
 Commons were evidently with the Scots, and Charles 
 wisely, making a virtue of necessity, took care not to 
 come into collision with the parliament. Statutes to 
 abolish tonnage and poundage, ship-money and monopo- 
 lies were passed, the duration of parliaments limited 
 to three years, but the most important legislative 
 enactment was the suppression of the Courts of Star 
 Chamber and of High Commission. 
 
 Against the king's principal adviser the Commons 
 did not fail to manifest their resentment. The Earl of 
 Strafford, formerly Lord Wentworth, having returned 
 from Ireland shortly after the opening of parliament, 
 was committed to the Tower by the Commons. Articles 
 of impeachment were then prepared against Strafford, 
 and the trial took place in March, 1641. Most of the 
 charges against Strafford were those of subverting the 
 constitution, and making the crown absolute, but even 
 if they had been proved, they clearly did not constitute 
 the crime of treason. Some of Strafford's proceedings 
 while in Ireland, and forming the subject of some of 
 the charges, did however in the opinion of the judges, 
 who were consulted by the peers, render him liable 
 to the pains and penalties of treason, but the proof of 
 these proceedings was by no means conclusive. This 
 circumstance did not however prevent the peers from 
 finding Strafford guilty of these treasonable procceed- 
 ings. The Commons however determined to discontinue 
 the impeachment and to proceed by bUl of attainder 
 against Strafford. A biU of attainder accordingly 
 passed both Houses, and on being presented to the 
 king for his signature, caused the monarch the greatest
 
 35 
 
 perplexity and distress, for shortly before Strafford 
 returned from Ireland, Charles had given liim a per- 
 sonal assurance " that not a hair of his head should 
 be touched." In vain the king entreated the peers to 
 find Strafford guilty of a less offence than treason. 
 Charles was at length relieved from his perplexity by a 
 message from Strafford, requesting that his life might be 
 sacrificed, if likely to promote a reconciliation between 
 the king and his subjects. Charles, although now 
 released from his promise of protection to Strafford, 
 again remonstrated with the peers, but intimated that 
 if Strafford's death was absolutely required, he woiild 
 consent to his execution. The result of this disgraceful 
 act on the part of Charles may be easily imagined, and 
 Strafford was shortly afterwards executed. Strafford 
 was possessed of much natural talent, and the defence 
 he made on his trial was one of great eloquence and 
 ability. There was no question however but that 
 Strafford was a most dangerous enemy to the liberties 
 of his country, and his tyrannical acts, although they 
 did not deserve the penalty of death, were such as 
 might justly have been visited by banishment from 
 the realm. 
 
 The servility of Charles to his parliament in acceding 
 to the execution of Strafford paved the way for a still 
 greater infringement of constitutional rights, by the 
 enactment of a statute prohibiting the dissolution of 
 parliament without its own consent. There was how- 
 ever a suspicion prevalent among the Commons, that 
 there was a plot in preparation by the king for their 
 overthrow. On this account they originated the bill, 
 and the speedy assent given to it by the king seems to 
 confirm this suspicion, or possibly his acquiescence 
 may have been intended to allay the distrust of the 
 Commons. 
 
 The deplorable massacre of Protestant settlers in 
 Ireland, for a time, caused suspicion to attach to Charles, 
 but at the commencement of the following year (1642), 
 Charles had regained his popularity from having wisely 
 selected as his ministers three of the leading members
 
 36 
 
 of the liberal party. Scarcely however had the parlia- 
 ment re-assembled at the beginning of this year, before 
 Charles again became as unpopular as ever by his 
 attempt to seize in the House of Commons five of its 
 members, named Pym, Hollis, Hampden, Haselrig, 
 and Strode, on a charge of high treason. The parti- 
 culars of this attempt are too well known to need to 
 be mentioned here, but there can be no doubt that 
 this infringement of the privileges of the Commons 
 was the precursor of the civil war. Shortly after this 
 attempt the royal assent was given to an act to prevent 
 the bishops and archbishops from sitting in the House 
 of Lords. The refusal however of the king to consent 
 to a bill of the Commons to place the militia under 
 the command of lieutenants of their own choice, to be 
 appointed by the king, was however the ostensible 
 cause of the outbreak of civil war, and the parliament 
 at once took measures to place the kingdom in a state 
 of defence. The king retired to the north, and hoisted 
 the royal standard at Nottingham, in August, 1642. 
 At first, the royalists had decidedly the advantage over 
 their opponents, but in the campaign of 1644, they 
 were worsted, and sustained a signal defeat at Marston 
 Moor. At Naseby in 1 645, the royalists were thoroughly 
 vanquished, and after several minor conflicts the civil 
 war terminated in favour of the parliament. In deep 
 distress Charles at length surrendered himself to the 
 Scots, and was by them delivered up to the Parlia- 
 mentary Commissioners on the receipt of the arrears 
 of pay due to the Scotch troops. For this act the Scots 
 have had to encoimter severe animadversion, but much 
 may be said on both sides of the question. Charles's 
 subsequent confinement in difi'erent castles, his memor- 
 able trial and illegal condemnation, and his execution 
 on the 30th January, 1649, are known to every student 
 of history. 
 
 The period of the commonwealth does not belong to 
 our subject. 
 
 The restoration of Charles II. to the throne however 
 introduces us to an important era in constitutional
 
 37 
 
 history. The memorable proclamation fi'om Breda, 
 before Charles returned to these shores, had produced 
 a favoxu'able impression. On the 29th of May, 1660, 
 Charles entered London and eveiywhere met with an 
 enthusiastic reception. The convention parliament 
 then proceeded to adopt measm'es to remedy many of 
 the miscliicfs caused by the overthrow of the monarchy. 
 A general amnesty act was passed, but the leaders in 
 the condemnation and execution of Charles I. were 
 excepted from its provisions. Thii'teen persons however 
 only were executed. The abolition of the military 
 tenures was the next measure of importance passed 
 by the parliament, and with it all the hardsliips inci- 
 dent to these tenures disappeared. This act is entitled 
 the 12 Car. II. c. 24, as the reign of Charles is reckoned 
 from the commencement of his legal title to the throne, 
 and not from his actual accession. The restoration of 
 the church lands also took place, but the greatest 
 benefit conferred on the country was the disbanding of 
 the standing army, with the exception of Monk's 
 regiment and two others. The king was provided with a 
 handsome revenue, and after those important measures 
 the convention parKament was dissolved. 
 
 A new parliament was shortly afterwards assembled 
 to give validity to the proceedings of the convention 
 pai'liament, which, from the circumstances of the times, 
 had not been summoned by the king's wiit. The new 
 parliament was even more devoted to the monarch than 
 its predecessor. The execution of Sir HaiTy Vane at 
 the instigation of the Commons was a disgraceful 
 proceeding, as liis acceptance of office during the 
 commonwealth was clearly no gi'ound of condemnation. 
 A course of legislation then ensued, wliich has brought 
 discredit on this reign. The fii'st of these measures 
 was the Coi-poration Act which prohibited all persons 
 from holding any coi'porate office unless they were 
 members of the Chiu'ch of England, and had sworn to 
 the doctrine of passive obedience. The next was the 
 Act of TJnifonnity, which requii'ed all ministers to 
 subscribe an ixnfeigiied assent and consent to eveiy
 
 38 
 
 particular of the book of common prayer under penalty 
 of deprivation, to take an oath of passive obedience, and 
 rendered all those who had not had episcopal ordination 
 incapable of holding any ecclesiastical benefice. This 
 act came into force on St. Bartholomew's day (24th 
 August, 1662), and its effect in depriving the church 
 of a large number of conscientious and talented min- 
 isters is known to every reader of histoiy. The 
 following year (1663) the Triennial Act of the Long 
 Parliament was repealed and a temporary Conventicle 
 Act for thi'ee years passed declaring a conventicle to be 
 any meeting for religious worship, at which five persons 
 more than the members of a household were present, 
 and subjecting every person above sixteen years of age 
 present at a conventicle to imprisonment or fine for the 
 fii'st off'ence, to an increased imprisonment or fine for 
 the second ofi'ence, and to transportation for the third 
 offence, on conviction by a juiy. The following year 
 (1665) the parliament having met at Oxford the Five 
 Mile Act was passed imposing on nonconformist ministers 
 an oath promising passive obedience and non-resistance, 
 and all who refused to take this oath were prohibited 
 from coming within five miles of any corporate town, 
 or of any place where they had formerly ministered ; it 
 prohibited them also from keeping schools or taking 
 boarders. 
 
 In 1667 the sale of Dunkirk to the Dutch, and the 
 treaty of peace with that nation caused the downfal of 
 Clarendon, who retii-ed to France. The ministry of 
 Clarendon was succeeded by that of Clifford, Ai'lington, 
 Buckingham, Ashley, and Lauderdale, which from the 
 initials of their names obtained the name of the Cabal 
 administration. 
 
 In 1670 occxui'ed the famous treaty between Louis 
 XIV. of France and Charles to attack Holland and 
 Spain, and partition the possessions of those countries 
 between them ; and there can be no question that there 
 was an implied agi'eement that Charles was to restore 
 the Roman Catholic religion in England, on the over- 
 thi'ow of Spain. This year is also memorable for
 
 39 
 
 BushcU's case. Bushell was one of the juiymen who 
 had. been fined by the Recorder of London for having 
 acquitted Penn and Mead, who were indicted for an 
 unlawful assembly. Having refused to pay the fine 
 Bushell was committed to prison, but sued out a wiit 
 of habeas corpus, and on a return made to the wiit, the 
 judges held the gi'ound insufficient. This is the last 
 instance of the imposition of a fine on jiu-ymen for their 
 verdict. The former Conventicle Act having expii-ed 
 another one was next passed fining every person above 
 sixteen present at a coventicle five shillings for the fii'st 
 oflPence, and ten shillings for the second; and if too 
 poor to pay the fine, it was to be levied on any other 
 offenders present ! 
 
 In 1673 the famous Test Act was passed requiring 
 eveiy person holding office to take the oaths of alle- 
 giance and supremacy, sign a declaration against 
 transubstantiation, and partake of the sacrament of the 
 Lord's supper according to the usages of the church of 
 England. This act was levelled at the papists, but 
 affected a large number of protestants. In 1677 the 
 marriage of the Piinccss Mary to the Prince of Orange 
 took place. The following year (1678) occurred the 
 popish plot in which a man named Titus Gates was the 
 principal witness. The alaiTn caused by the alleged 
 plot was extraordinaiy. Numbers of persons were 
 an'ested on suspicion and punished. The next important 
 occurence in this reign was the impe achment of the 
 Earl of Danby. He had proffered to XouTs'the king's 
 good offices in procuring such a peace as might be 
 advantageous to France in consideration of Louis paying 
 to Charles the sum of 6,000,000 of livi-es annually, for 
 three years. Danby did not deny having written the 
 letter, which had a postcript in these words, "This 
 letter was wiitten by my order, C.R." The Commons 
 refused to allow the royal command to be any justifica- 
 tion of the minister, and proceeded with their 
 impeachment, but Charles having dctciToined to protect 
 his minister, in January, 1679, clissolved the parliament 
 which had sat since 1661. A new parliament was
 
 40 
 
 summoned, but, like its predecessor, was resolute in its 
 detennination to impeach Danby. On the renewal of 
 the proceedings Danby accordingly at once pleaded the 
 royal pardon in bar, which gave rise to important 
 discussions on the question whether such a document 
 was a defence to an impeachment. Danby was com- 
 mitted to the Tower but was subsequently released. A 
 bill to exclude the Duke of York from the throne was 
 shortly afterwards passed by the Commons, and to 
 quell their refractory spirit Charles first prorogued and 
 then dissolved the parliament. To this parliament we 
 are however indebted for the celebrated Habeas Corpus 
 Act, passed in 1679. By this act, on application in 
 writing, the Lord Chancellor, or any of the twelve 
 judges, is obliged to grant a wiit, by which the gaoler is 
 directed to produce in court the body of the prisoner, 
 and to certify the cause of his detention and imprison- 
 ment ; the practice of sending persons to prisons beyond 
 seas was forbidden under severe penalties ; and it was 
 directed that eveiy prisoner must be indicted the first 
 term after his commitment and brought to trial in the 
 subsequent term. This act was intended to amend a 
 prior act, the 16 Car. I, c. 10, which enacted that any 
 person committed by the king himself, or his privy 
 coimcil, or any members thereof, shoidd have the writ of 
 Habeas Corpus gi'anted to him, upon demand or motion 
 made to the Court of King's Bench or Common Pleas, 
 which should thereupon, within three coiut days after 
 the return of the writ, examine and determine the 
 legaKty of the commitment, and do justice in delivering, 
 bailing, or remanding the prisoner. 
 
 The remainder of this reign is chiefly remarkable for 
 state trials. In 1683, College, a London joiner, 
 distinguished for his zeal against popery, and who had 
 been in Oxford ai-med during the sitting of parliament, 
 was tried. He was indicted for being concerned in a 
 conspiracy, and, although the witnesses were un- 
 worthy of credit, from having given e'vidence against the 
 Catholics, the juiy found him guilty ; and the verdict 
 was received by the inhuman spectators with applause.
 
 41 
 
 Lord Russell was condemned and executed although 
 there was no evidence of treason, wliile the witnesses 
 were clearly shown by him to be utterly unworthy of 
 credit. In Algernon Sidney's case the protection 
 afforded by the statute of Edward III., in the requisition 
 of two witnesses in cases of high treason, was dis- 
 regarded, as only one witness was called to prove the 
 facts alleged to constitute treason. 
 
 Sir Thomas Armstrong's case was also a memorable 
 instance of injustice. "Having been outlawed for 
 treason, he had fled to Holland, but was delivered up by 
 the States, and although an outlawry in cases of treason 
 is equivalent to conviction, the law allows a year for the 
 party to siuTcnder and take his trial. When before the 
 Comi:, AiTQstrong demanded a trial, and although 
 entitled to it, Jeffery treated his claim as unfounded, 
 and he was executed without trial." — Hallam^s Const. 
 History. 
 
 Charles died in 1685, and was succeeded by his 
 brother James II. This monarch ascended the throne 
 under imfavourable auspices. Strenuous but unsuccess- 
 ful attempts in parliament had been made to exclude 
 him from the throne, on account of his predilections for 
 popery. Por a time, however, after his accession to 
 the throne James did not manifest any intention to 
 alter the position of the papists. The rebellion headed 
 by the Duke of Monmouth in the West of England, 
 and the defeat of the insiu-gents were the first memor- 
 able occurrences in this reign. Monmouth was taken 
 and executed. Many of his deluded followers shared the 
 same fate, while still more were transported. The trials 
 of the rebels were disgi'acefully conducted by Jeffreys, 
 who seems on these occasions to have forgotten every 
 principle of justice. These proceedings everywhere 
 excited general indignation which was gi-eatly increased 
 by the attempts of James to exalt the papists into 
 power and favour. The employment of Catholic 
 officers |for the army was the fii'st manifestation of the 
 king's intentions. Several of James's ministers who 
 were Protestants were next dismissed and their places
 
 42 
 
 supplied by Catholics. The parliament was shortly 
 aftei-wards prorogued, and James then endeavoured to 
 establish diplomatic relations with Rome. The pope, 
 Innocent XI., however, premptorily refused to accede 
 to the king's proposal. A declaration of liberty of 
 conscience was next proclaimed, and James's designs 
 now became manifest to all. 
 
 An ecclesiastical commission was next established, 
 with jurisdiction over the Church of England, notwith- 
 standing its illegality according to the Act for the 
 abolition of the Court of High Commission of Charles 
 the First. "With the universities of Oxford and Cam- 
 bridge, James shortly afterwards came into collision, 
 from his attempts to force those bodies to appoint 
 papists to vacant university offices. As at Oxford, 
 the doctrine of passive obedience in subjects was far 
 from unpopular, the king did not experience any 
 difficulty in appointing a Roman CathoKc as dean of 
 Christ Church. At Cambridge however, the authorities 
 made a vigorous resistance to the royal request, to 
 admit a Roman Catholic to a degree, and the vice-chan- 
 cellor having peremptorily refused to do so, was deprived 
 of his office. The university however after this 
 occurrence did not show a more submissive spirit than 
 before, and James and the university came to a com- 
 promise on the subject. The office of president of 
 Magdalene College, Oxford, ha\Tiig become vacant, 
 James next requested the feUows to elect a Roman 
 Catholic he named for the post, but instead of doing 
 so they appointed a gentleman of their own selection 
 to the office. A visitation of the college then took 
 place, and all the feUows with the exception of two 
 were deprived of their offices. These proceedings 
 everywhere excited a feeling of indignation against 
 the king. 
 
 James still persevered in his distasteful policy, and 
 from some of the measures which he adopted in Ireland 
 there can be no doubt that he intended to establish in 
 that country the Roman Catholic religion. James could 
 not but have been sensible of the aversion of the
 
 43 
 
 nation to his projects, but with that infatuation which 
 was characteristic of the Stuarts, he adopted a still 
 more distasteful proceeding, by requiring a second 
 declaration of indulgence to be read in all the churches 
 and chapels throughout the country. At a meeting of 
 the London clergy, a resolution was adopted not to 
 read the declaration. The resolution was then trans- 
 mitted to Lambeth palace to their metropoKtan. A 
 I'leeting of the prelates then took place, and a petition 
 to the king was prepared by the archbishop and six 
 bishops. The document was delivered the same night 
 to the king, but when James learned its purport he 
 was highly displeased. The bishops however were 
 firm in their detennination to support their clergy in 
 their resolution, not to read the declaration of indulg- 
 ence. The day for reading the declaration anived, 
 but so far from complying with the injunction, the 
 clergy almost to a man refused to read the declaration. 
 Shortly afterwards the king and his council deter- 
 mined to take proceedings against the bishops for 
 a seditious libel. The prelates were then taken into 
 custody and committed to the Tower, amid the uni- 
 versal sympathy of the nation. In due course the trial 
 came on, and in June, 1688, the cause was heard 
 before the Court of King's Bench. The trial was 
 ably conducted on the part of the counsel for the 
 defendants, and although considerable difficulty was 
 experienced by the counsel for the crown, in proving 
 the publication of the libel, they ultimately managed 
 to do so, and the cause was then summed up by the 
 judge to the jury. The jury then retired to deliberate 
 and continued out all night. At the re-opening of the 
 court on the following morning, the jury returned and 
 gave a verdict of Not Guilty. The verdict gave satis- 
 faction to every body but the king. James was then 
 encamped with his troops at Hounslow, and on hearing 
 the shouts of the soldiers, enquired what they meant. 
 On learning that they were rejoicing at the acquittal 
 of the bishops, the king utterecl the threat " So much 
 the worse for them !" These proceedings greatly
 
 44 
 
 increased the unpopularity of the king, and as the 
 hirth of the Pi-ince of Wales shortly before the trial 
 had put an end to the prospect of a Protestant successor 
 in the Princess of Mary, who had married William of 
 Orange, all parties concurred in the desirability of 
 taking immediate steps to obtain a change of monarch. 
 For this pui-pose advances were made to William of 
 Orange by several leading personages in the kingdom. 
 That prince however refused to interfere until he had 
 received a written document signed by seven leaders of 
 the piincipal parties in the state. Preparations for an 
 invasion of England were then made on an extensive 
 scale. James at first discredited the report of an 
 invasion, but at length became sensible of the state of 
 affairs, and in the hope of regaining his popularity 
 made several important concessions. ''But, " as has 
 been well observed by Macaulay, " gratitude is not to 
 be expected by lailers who give to fear what they had 
 refused to justice." On the 5th of November, William 
 and his troops landed at Torbay, but for several days 
 the prince did not meet with much support. On the 
 other hand, James had a numerous anny stationed at 
 Salisbury, but instead of at once attacking William's 
 forces he foolishly adopted the advice of a council of 
 war, and retreated towards London. Those who 
 secretly supported William now lost no time in joining 
 his standard. Every day increased the number of 
 William's adherents, and even the Prince George and 
 his wife the Piincess Anne went over to his side. 
 Negotiations were then entered into between the king 
 and William, but as they led to no satisfactory result, 
 James sent the queen and the young prince to France, 
 during the night of the 9th of December, and made 
 arrangements for following them shortly afterwards. 
 At one in the morning of the 11th, James accordingly 
 quietly left Whitehall, and getting into a small boat, 
 threw the great seal into the middle of the river and 
 landed at Vauxhall. He then proceeded to Feversham 
 and went on board a vessel, but having been discovered 
 was brought back to Whitehall. The same night
 
 45 
 
 William sent some troops to occupy "Wliitehall, which 
 James two days afterwards in obedience to a requisition 
 from William quitted for Rochester. The same day 
 William entered London with a large aniiy, and took 
 up his abode at St. James's. From Eochester James 
 was allowed to escape to France. 
 
 A convention parliament was now summoned for the 
 22nd of January, and in the meantime WilKam adopted 
 several conciliatory measm'es. The convention parlia- 
 ment having met, a resolution was on the 28th of 
 January, adopted by the Commons, ** That king James 
 II. having endeavoured to subvert the constitution by 
 breaking the original contract between king and people, 
 and by the advice of Jesuits and other wicked persons 
 haling violated the fundamental laws, and withdrawn 
 himself out of the kingdom, had abdicated the govern- 
 ment, and that the throne is hereby vacant." On the 
 follo"wing day another resolution was adopted by the 
 Commons, "That it hath been found by experience to 
 be inconsistent with the security and welfare of this 
 kingdom to be governed by a popish prince." To the 
 latter resolution the House of Lords gave its unanimous 
 consent, but the former caused animated discussions in a 
 conference of the two Houses. The peers at length 
 adopted the views of the Commons. The next important 
 proceeding was the adoption of an additional resolution 
 settling the crown on the Prince and Princess of Orange 
 during their joint lives, and that of the survivor, but 
 that the regal functions were to be exercised alone by 
 William, diu'ing his life, and after their decease the 
 crown was limited to Mary's issue, and in default of 
 such issue, to the Princess Anne of Denmark and her 
 issue. While thus making a transfer of the crown, the 
 leaders of the nation were not unmindful of its liberties. 
 A statement on this subject was accordingly prepared 
 by the Lords and Commons, and called the Declaration 
 of Rights. The document after reciting the misdeeds 
 of James II., and his abdication of the thi'one, declared 
 the pretended regal power of suspending or of dispens- 
 ing with laws, or the execution of laws without
 
 46 
 
 consent of parliament, the commission for erecting the 
 late coiu't of commissioners for ecclesiastical causes, the 
 levying of money for or to the use of the crown, hy 
 pretence of prerogative, without gi^ant of parliament, to 
 be all illegal ; asserted the right of subjects to petition 
 the king ; protested against the raising or keeping of a 
 standing army within the kingdom, in time of peace 
 without consent of parliament ; enabled subjects who 
 are Protestants to have aims for their defence suitable 
 to their conditions and as allowed by law ; asserted 
 freedom of election and of speech for members of 
 parliament ; prohibited excessive bail or fines, or the 
 infliction of ciTiel and unusual punishments ; declared 
 that jui'ors ought to be didy impanelled and returned, 
 and in trials for high treason ought to be freeholders ; 
 that all gi'ants and promises of fines and forfeitures of 
 particular persons before conviction are illegal ; and 
 that parliaments ought to be held frequently. This 
 declaration was read in the presence of WilHam and 
 Mary, seated on the throne, on the 13th of February, 
 1689. On that day they became and were declared 
 king and queen. 
 
 An act was next passed declaring the convention 
 parliament to have been properly constituted. New 
 forms of oaths of supremacy and allegiance were at 
 the same time prepared, and were required to be taken 
 by all persons holding ecclesiastical, civil, and miHtaiy 
 appointments. On the 11th of April, 1689, WiUiam 
 and Mary were solemnly crowned at Westminster. 
 Shortly afterwards the repeal took place of the penal 
 laws against Protestant dissenters, who belie\T.ng the 
 doctrine of the Trinity, should keep the doors of their 
 assemblies open, take the oaths to government, and 
 subscribe a required declaration. "William would even 
 have relaxed the laws against the papists, but party 
 spirit was too strong for him. The settlement of the 
 revenue and its appropriation to specific piu-poscs then 
 took place. From this period the appropriation of the 
 revenue has been unifonnly practised. Even in the 
 reign of Charles II. this right had been exercised
 
 47 
 
 The next occurrence of importance was the declaration 
 of war against France, greatly to William's satisfaction, 
 whose policy as a monarch from fli'st to last, was to 
 secui'e the liberties of Europe, by preserving the 
 balance of power. 
 
 "William's attention was shortly afterwards called to 
 the affau's of Ireland, for on the 22nd of March, James 
 landed at Kinsale, with a nimiber of troops he had 
 brought with him from France, in a fleet supplied by 
 Louis XIV. The Irish, with few exceptions, supported 
 the cause of James, and as the Lord Lieutenant had 
 also gone over to his side, James was soon siUTOunded 
 by a considerable anny. In the north of Ireland, 
 however, James met with considerable opposition. The 
 inhabitants of Londonderry were among the fii'st to 
 defend their town. On the 20th of April, James 
 laid siege to the town, which was vigorously defended. 
 The siege lasted several months, but all James's efforts 
 were ineffectual. His general, Rosene was equally 
 unsuccessful in his efforts to take the town. Dreadful 
 privations were endured by the besieged, and pressed 
 by hunger they would have been obliged to succumb to 
 the besiegers, had not two ships laden with provisions 
 managed to force a passage up the river to the town. 
 The besiegers in disgust desisted from the attack. In 
 other parts of Ireland however, the Protestants ex- 
 perienced nothing but cruelty and oppression. At 
 length towards the end of the year, a large anny under 
 the command of the Duke of Schomberg was sent 
 over into Ireland by William. Belfast was abandoned 
 by the aiTuy, and Caiiickfergus, after a short siege, 
 capitulated. In other respects however, the prospects 
 of James were far from gloomy. 
 
 The second session of the English parliament was 
 opened on the 19th October, 1689. In this session the 
 Bill of Rights, embodying the Declaration of Bights 
 was passed vdth the important provision, that all 
 persons who shall hold communion with the church of 
 Borne, or shall many a papist, shall be for ever 
 excluded fi'om the crown and government of this realm,
 
 48 
 
 and in all such cases the people of these realms shall 
 be absolved from their allegiance, and the crown shall 
 descend to the next heir. Party spiiit caused several 
 warm debates in parliament, the war in Ireland did 
 not progix'ss as William would have liked, and at the 
 close of the session the king accordingly determined 
 to finish the war in person. Setting out in June, 1660, 
 William landed at Camckfergus. Shortly afterwards 
 the famous battle of the Boyne was fought between 
 the armies of William and James, when the latter 
 sustained a signal defeat. James retired to Dublin, 
 and then to Waterford, where he embarked for France. 
 William shortly afterwards returned to England. After 
 some considerable reverses the royal forces at length 
 reduced Ireland to subjection, at the beginning of 
 1691. 
 
 In 1694 the Triennial . Act was passed, by which, 
 after the expiration of three years, reckoning from the 
 return of the first summons, parliaments were to have 
 no longer continuance. At the close of this year, 
 William had the misfortune to lose his queen, from 
 small-pox. The following year (1695), a great con- 
 stitutional boon was conferred upon the nation by the 
 enactment of the statute relating to high treason, 
 declaring that both of the witnesses required by law 
 in these cases must be to the same overt act, or one to 
 one overt act, and the other to another overt act of the 
 same species of treason, and not of distinct heads or 
 kinds ; and no evidence shall be admitted to prove any 
 overt act not expressly laid in the indictment. The 
 act also enabled the accused to be defended by counsel, 
 and provided that a copy of the indictment and the 
 names of the witnesses should be furnished to the 
 accused. Notwithstanding this invaluable act. Sir 
 John Fenwick was, the next year (1696), attainted of 
 high treason on the evidence of one witness, and 
 executed. The bill of attainder caused warm debates 
 in the house, but was carried by a large majority. 
 This course was adopted in consequence of one of the 
 two witnesses who had given e-sidence before the grand
 
 49 
 
 jury having been induced, by Fenwick's relatives, to 
 abscond before the trial. 
 
 In September, 1697, by the treaty of Ryswick, peace 
 was concluded with France, after the war had lasted 
 nine years, and been conducted with varied fortunes. 
 Faction and party spirit were the principal character- 
 istics of the remainder of William's reign. However, 
 in 1700, the Act of settlement was passed, providing 
 that whoever shall hereafter come to the possession of 
 this crown, shall join in communion with the church 
 of England, as by law established; that in case the 
 crown and imperial dignity of this realm shall hereafter 
 come to any person, not being a native of this kingdom 
 of England, this nation shall not be obliged to engage 
 in any war for the defence of any dominion or territories 
 which do not belong to the crown of England, after 
 the further limitation by this act shall take effect ; that 
 no person bom out of the dominions of England, 
 Scotland, or Ireland, or the dominions thereunto 
 belonging (although he be naturalized or made denizen) 
 except such as are born of English parents, shall be 
 capable to be of the privy council or a member of 
 cither house of parliament, or to enjoy any office or 
 place of trust either civil or military, or to have any 
 grant of lands or tenements, or hereditaments from the 
 crown to himself, or to any other or others in trust for 
 him, and that after such further limitation shall take 
 effect, judges' commissions shall be made quamdiu se 
 lene gesserinf, and their salaries ascertained and estab- 
 lished, but upon the address of both houses of parlia- 
 ment, it may be lawful to remove them. The further 
 limitation of the croAvn contained in this act, was after 
 the death of William and of the Princess Anne of 
 Denmark, and in default of their respective issue to 
 the Princess Sophia, and the heirs of her body being 
 Protestants. The act also contains three clauses, which, 
 by subsequent acts, have been repealed. These were, 
 that no person who shall hereafter come to the possession 
 of this crown shall go out of the dominions of England, 
 Scotland, or Ireland, without consent of parliament; 
 c
 
 50 
 
 that from and after the time such further limitation 
 shall take effect, all matters and things relating to the 
 "well governing of this kingdom, which are properly 
 cognizable in the privy council, by the laws and 
 customs of this realm, shall be transacted there, and 
 aU resolutions taken thereupon, shall be signed by such. 
 of the privy council as shall advise and consent to the 
 same ; and that no person who has an ofiice or place 
 of profit under the king, or receives a pension from 
 the crown, shall be capable of serving as a member of 
 the House of Commons. 
 
 In March, 1702, WiUiam died. He was a great 
 politician, possessed considerable abilities as a soldier, 
 and was extremely tolerant in regard to religious 
 opinions. His manners being however phlegmatic, and 
 his disposition reserved, he was far from popular, but 
 considering the difficulties he had to encounter, both 
 at home and abroad, there can be no question that 
 William was one of the greatest monarchs that ever 
 sat on the British throne. In this reign, commerce 
 made great advances, from the establishment of the 
 Bank of England, and the late East India Company, 
 and our constitutional rights were extended and 
 settled. 
 
 On the death of William, Anne ascended the tlirone. 
 Soon after her accession war was declared against 
 France by the allied powers of England, Germany, and 
 Holland. On land the Duke of Marlborough gained 
 gi-eat renown by his military talents and splendid 
 victories, while on sea the exploits of our naval com- 
 manders were no less distinguished, of which we have 
 a memorable instance in the capture of Gibraltar in 
 1704 by a small force of marines and sailors. 
 
 The attempts to cftect a union between England and 
 Scotland, at the commencement of tliis reign, were 
 unsuccessful, but at length, in 1707, this desirable object 
 was accomplished. Twenty-five articles of union were 
 agreed to by the parliaments of both nations, declaring 
 that the two kingdoms should on and after the 1st of 
 May, 1707, be united into one kingdom by the name of
 
 51 
 
 Great Britain ; that the succession to the monarchy of 
 Great Britain shouhl be the same as was before settled 
 •udth regard to that of England ; that the United 
 Kingdom should be represented by one parliament ; 
 that there should be a communication of all rights and 
 l)ri\ileges between the subjects of both kingdoms except 
 where it was otherwise agreed ; that when England 
 raised £2,000,000 by a land tax, Scotland should 
 raise £48,000 ; that the standards of the coin, of 
 weights, and of measures, should be reduced to those of 
 England, throughout the United Kingdoms ; that the 
 laws relating to trade, customs, and the excise, should 
 be the same in Scotland as in England ; that sixteen 
 peers should be chosen to represent the peerage of 
 Scotland in parliament and forty-five members (since 
 increased) to sit in the House of Commons ; that the 
 sixteen representative peers of Scotland should have all 
 privileges of parliament ; and that all peers of Scotland 
 should be peers of Great Britain, and rank next after 
 those of the same degree at the time of the union, and 
 should have all pri\-ileges of peers except sitting in 
 the House of Lords and voting on the trial of a peer. 
 These are the principal of the articles of the union 
 which were confii-med by the statute 5 Anne, c. 8, 
 which also ratifies two acts there recited for the pre- 
 servation of the two chmx'hes of England and Scotland 
 in the same state that they were in at the time of the 
 union, and the maintenance of the acts of unifoiTaity 
 which establishes oiu- common prayer, and declares that 
 these two recited acts shall for ever be observed as 
 fundamental and essential conditions of the union. 
 
 Another important legislative measure was the 
 enactment of the place bill. By it all persons holding 
 pensions from the crown, diuing pleasure, were made 
 incapable of sitting in the House of Commons, and the 
 same disability was made applicable to any person 
 holding any office under the crown created since 
 October, 1705, (except an officer in the anny or navy 
 accepting a new commission) but any member who 
 should accept any office of profit existing prior to that
 
 52 
 
 date, though thereby vacating his seat, was declared 
 capable of being re-elected. 
 
 In this reign party spirit between whigs and tories 
 ran very high. With the latter the doctrines of the 
 divine right of kings and passive obedience in subjects, 
 were far from unpopular. A clergyman, of the name 
 of Dr. Sacheverel, in 1709, who held these doctrines, 
 while preaching a sei-mon before the Lord Mayor of 
 London, took occasion to attack the principles of the 
 revolution by defending the doctrine of non-resistance, 
 and inveighed against the toleration and dissenters. The 
 sermon was soon afterwards published, when it was 
 brought under the notice of the Commons by whom it 
 was voted a scandalous and malicious libel. Ai'ticles of 
 impeachment, in the name of the Commons, were then 
 exhibited in the House of Lords against Sacheverel for 
 high crimes and misdemeanors. On the trial of the 
 impeachment the case was ably conducted on both sides. 
 The queen was known to support the tories, and every 
 day while the impeachment lasted Sacheverel was 
 attended on the way to his trial by crowds of sympath- 
 isers. However, there coiild be no question but that 
 the language Sacheverel had employed was perfectly 
 unjustifiable, and this view being adopted by a majority 
 of the peers he was condemned to be suspended for 
 three years, and to have his sermon burnt by the 
 common hangman. The trial is remarkable as estab- 
 lishing the principles which had been acted on at the 
 revolution, and for the memorable resolution of the 
 Commons, that in impeachments they should proceed 
 according to the laws of the land and the law and 
 usage of parliament. 
 
 During the progi'ess of the trial several meeting 
 houses were demolished. For their participation in 
 this proceeding, two men named Dammaree and 
 Purchase, were indicted for high treason in levying 
 war in the kingdom with the intention to demolish all 
 meeting houses in general, and found guilty, but were 
 reprieved. The doctrine that a rising of a number of 
 persons with an avowed intention to demolish all
 
 58 
 
 enclosures, meeting houses, or other object of their 
 resentment, as far as the parties are abk-, constitutes 
 high treason, was however upheld by all the judges. 
 Several legal writers have disapproved of this doctrine, 
 and probably it would not be regarded as law at the 
 present day, unless such acts of violence as we have 
 mentioned were accompanied by circumstances of 
 warlike array. Some observations of Sir M. Hale 
 would even lead to the inference that such acts ought 
 to be regarded as riots, and no higher offences. 
 
 In 1710 was passed the 8 Anne, c. 19, which is the 
 first statute relating to literary propertv, and has since 
 been the model of all succeeding copyright acts. In 
 March, 1713, peace was concluded between France and 
 Britain by the famous treaty of Utrecht. In July of 
 the following year Anne died, and with her ended the 
 line of the Stuarts. 
 
 Anne was succeeded by Geoege I., the elector of 
 Hanover, his mother, the Princess Sopliia, having died 
 not long before Anne. The late monarch had been a 
 supporter of the tory party, but, soon after his accession, 
 George, showed that his predilections were with the 
 whigs. Among the first measiuTs of the legislatiu-e 
 was the repeal in the clause in the Act of Settlement 
 restraining the sovereign from going out of the United 
 Kingdom without the consent of parliament. 
 
 In March, 1715, a new parliament assembled, and 
 the predominance of the whig party became at once 
 perceptible. Against the leaders of the tory party the 
 resentment of the wliigs knew no bounds, and the 
 Duke of Ormond and Lord Bolingbrokc, ha^ing fled to 
 France to escape its effects, were attainted. The 
 rebellion in Scotland, shortly afterwards, attracted the 
 attention of the government, and although the pre- 
 tender was well supported, both in Scotland and the 
 north of England, his forces were in a short time 
 thoroughly defeated, and at the beginning of 1715 he 
 returned to France. 
 
 The following year (171G) the Triennial Act was 
 repealed, and the duration of parliament enlarged to
 
 54 
 
 seven years, unless a dissolution should sooner occur. 
 There can be little doubt that at this period the spirit 
 of rebellion was not wholly quelled, notwithstanding 
 the severities with which the rebels had been treated, 
 and as a feeling of dissatisfaction with the ministry 
 had become manifest, the apprehension of danger 
 from a renewal of the rebellion, as well as the 
 fear of being supplanted by others in the admin- 
 istration of the affairs of the nation, together led to 
 the enactment of this measure. The arguments in 
 favour of the bill were that triennial elections served 
 to keep up party divisions ; to raise and foment feuds 
 in private families ; to produce ruinous expenses, and 
 give occasion to the cabals and intrigues of foreign 
 princes; and that the spirit of rebellion was stiU 
 prevalent. Against the bill the main arguments were 
 that frequent parliaments were required by the funda- 
 mental constitution of the kingdom ; that the biU far 
 from preventing the expense of elections would rather 
 increase it ; and that a long parliament would yield a 
 greater temptation, as well as a better opportunity, to 
 a vicious ministry to corrupt the members than they 
 could possibly have when the parliaments were short 
 and frequent. 
 
 The peerage bill of Lord Sunderland, introduced at 
 this pei'iod also requires notice. This measure pro- 
 posed, after the creation of six more peers, to limit 
 the number of that body to its actual state, and to 
 substitute a fixed number of hereditary, instead of 
 elective peers for Scotland. The bill passed the upper 
 House, but was rejected by the Commons. 
 
 Towards the close of this reign, Atterbury, bishop 
 of Rochester, became implicated in a conspiracy for 
 an invasion of this country fiom Spain. A bill of 
 pains and penalties was passed, depriving the prelate 
 of his see, and banishing him from the kingdom for 
 life. In 1727, George died, after a reign of thirteen 
 years. 
 
 George I. was succeeded by his son Geokge II. In 
 1733, Sir Robert Walpole's Excise Scheme was intro-
 
 55 
 
 duced. This bill was the precursor of the present useful 
 system of bonding goods subject to custom duties, but 
 meeting with violent opposition, both in and out of 
 parliament, it was withdrawn by the ministry. 
 
 In 1736, an act was passed to prevent the improvident 
 alienation of lands, for charitable purposes. It is 
 commonly, though improperly called the Mortmain 
 Act. In 1745, Charles Edward Stuart, the son of the 
 old pretender, who had failed in his efforts, in 1715, to 
 gain the British throne, landed in Scotland. For a 
 time, the young pretender met with great success, and 
 advanced as far as Derby, but at the battle of Culloden, 
 in April, 1746, he sustained a signal defeat, and after 
 many hair breadth escapes from his pursuers, managed 
 to embark in a French privateer, lying off the coast, 
 and arrived safely in France. 
 
 In 1756 Admiral Byng was executed for failing to 
 go into action with a French fleet of nearly equal force 
 to his own, when sent to relieve Minorca, which was 
 then menaced and afterwards captured by the French. 
 As his conduct was the effect of an error of judgment 
 rather than of cowardice, his punishment must be 
 regarded as an act of unjustifiable severity. There can 
 be no question however that the severe sentence on 
 Byng was intended to satisfy the resentment of the 
 nation at the loss of Minorca, and which, whether 
 rightly or wrongly, was imputed to the unfortunate 
 admiral. 
 
 On the 25th October, 1760, the king died, after a 
 reign of thirty-three years. 
 
 George II. was succeeded on the throne by his 
 grandson George III. 
 
 Among the first legislative measures, after the 
 accession of George III., was an act providing that the 
 offices of the judges should not be vacated on the 
 demise of the crown. 
 
 In 1763, Wilkes, the member for Aylesbury, pub- 
 lished, in "The North Briton," an offensive libel on the 
 king. The Secretary of State, following an old custom, 
 at once issued a general warrant (without naming any
 
 56 
 
 persons in particular) to apprehend the authors, printers, 
 and publishers of the publication in which the libel 
 had appeared. Under this warrant Wilkes, and 
 numerous other persons, were taken into custody. 
 Actions were shortly afterwards commenced by Wilkes 
 and some others of the persons who had been arrested, 
 when the warrant was decided to be illegal, and heavy 
 damages were recovered against the messengers and 
 other persons concerned in these illegal arrests. 
 
 In 1792, Mr. Fox's Libel Act, the 32 Geo. III., c. 6C, 
 and styled by Macaulay, "the inestimable law which 
 places the liberty of the press under the protection of 
 juries/' was passed. By this statute, after reciting 
 that doubts had arisen whether on the trial of an 
 indictment or information for the making or publishing 
 of a libel, where an issue or issues are joined between 
 the king and the defendant or defendants, on the plea 
 of Not Guilty pleaded, it be competent to the jury 
 impanelled to try the same, to give their verdict upon 
 the whole matter put in issue, it is (by sec. I) declared 
 and enacted that on every such trial, the jury sworn to 
 try the issue may give a general verdict of not guilty 
 upon the whole matter put in issue, upon such indict- 
 ment or information, and shall not be required or 
 directed by the court or judge before whom such 
 indictment or information shall be tried, to find the 
 defendant or defendants guilty, merely on the proof of 
 the publication by such defendant or defendants of the 
 paper charged to be a libel, and of the sense ascribed 
 to the same in such indictment or information. On the 
 1st January 1801, the Union with Ireland commenced. 
 By the Act of Union, the 39 and 40 Geo. III., c. 67, 
 " the kingdoms of Great Britain and Ireland, on that 
 date and for ever after, became one kingdom by the 
 name of the United Kingdom of Great Britain and 
 Ireland; the succession to the imperial crown was 
 continued in the same manner as that to the crown of 
 Great Britain and Ireland stood before limited ; one par- 
 liament, styled the parliament of the United Kingdom of 
 Great Britain and -Ireland, was established; provisiou
 
 57 
 
 was made that the Lords spiritual of Ireland, by rotation 
 of sessions, and twenty-eight Lords temporal of Ireland, 
 elected for life by the peers of Ireland should sit in the 
 House of Lords, and one hundred commoners (increased 
 by a later act to one hundred and five; should be the 
 number to sit in the House of Commons on the part of 
 Ireland ; that a peer of Ireland not elected one of the 
 twenty-eight may sit in the House of Commons, but 
 while so sitting shall not be entitled to privilege of 
 peerage, or to be elected one of the twenty-eight, or to 
 vote at such election ; and that all the lords spiritual 
 and temporal of Ireland (except those temporal peers 
 who may be members of the House of Commons) 
 should have all privilege of sitting in the House of 
 Lords (with its attendant privileges) only excepted; 
 the churches of England and Ireland were united into 
 one Protestant episcopal church, called the United 
 Church of England and Ireland, with the same 
 doctrine, worship, and dicipline ; and the continuance 
 and preservation of the united church as the established 
 church of England and Ireland was declared an essen- 
 tial and fundamental part of the union; and that in 
 like manner the church of Scotland should remain the 
 same as established by the acts of Union of England 
 and Scotland ; the subjects of Great Britain and 
 Ireland were declared entitled to the same privileges 
 ■with regard to trade and navigation, and also in respect 
 of aU treaties with foreign powers ; the future expen- 
 diture of the united kingdom should be defrayed in 
 Buch proportion as parliament should from time to time 
 deem reasonable, according to certain rules prescribed 
 for that purpose in the act ; all the laws and courts of 
 each kingdom should remain the same as ah'eady 
 established, suject to such alterations by the united 
 parliament as circumstances may require, but that all 
 writs of error and appeal which might then have been 
 decided in the House of Lords of either kingdom, 
 should be decided by the House of Lords of the 
 United Kingdom." — Stephen^s Commentaries. 
 
 On the 29th of January, 1820, after a reign of longer
 
 58 
 
 duration than that of any previous monarch of this 
 realm, George III. died. 
 
 George III was succeeded by his son Geoege IV. 
 This reign is chiefly remarkable for the Catholic 
 Emancipation Act, by which Eoman Catholics are 
 admitted upon taking and subscribing an oath pre- 
 scribed by the Act (which comprises among other 
 things, the abjuration of any intention to subvert the 
 church establishment, and an oath never to exercise any 
 privilege to disturb or weaken the Protestant religion 
 or Protestant government) to both Houses of Parliament, 
 to all corporate offices, and to vote at parliamentary 
 elections. They are also qualified upon taking and 
 subscribing the same oath (which is to stand in place 
 of aU other tests whatever) to exercise any franchise or 
 civil right except that of presenting to benefices ; and 
 to hold any office with the exception of the following : 
 the office of guardian, justice, or regent of the United 
 Kingdom ; of lord high chancellor, or commissioner, or 
 keeper of the great seal ; of lord lieutenant, deputy or 
 chief governor of Ireland ; of high commissioner of 
 the general assembly of Scotland ; or any office in the 
 church, or in the ecclesiastical courts, or in the 
 universities, colleges, or public schools. 
 
 George IV. died in June, 1830, and was succeeded 
 by his brother William IV. In 1832, the Reform 
 Act was passed. "In counties, the only franchise then 
 existing was the freehold one in fee, and for life. This 
 was retained, with superadded conditions and limit- 
 ations respecting value, occupation, and possession, for 
 a specified length of time. To the freehold voters, 
 however, were added cojjyholders of all kinds; lease- 
 holders, sub-lessees, and assignees ; and occupying tenants 
 at a yearly rental of £50. In boroughs the ancient 
 household franchise, and other corporation rights of 
 voters, were retained, some for a time, and a few 
 others in perpetuity. But the grand distinguishing 
 feature of the whole scheme was the in trod action of 
 what is called the ten pound franchise ; that is, the 
 occupation of a house and premises of the annual value
 
 59 
 
 of ten pounds, for twelve months, with conditions as to 
 residence and rating, aimed at securing an adequate 
 degree of respectability and responsibility ; while the 
 receipt of parish relief within a year was to disentitle 
 all borough electors to the franchise, for the time 
 being." — TFarren's Ahridgement of Blachstone. 
 
 In 1837 "William died, and was succeeded by 
 Victoria, the daughter of the Duke of Kent, the 
 fourth son of George III. At the commencement of 
 her reign the Wills Act was passed, and by it the 
 power of making a will disposing of the whole of his 
 property, not entailed, was first given to an English 
 subject. Previously to this act a testator had no power 
 of devising contingent, executory, and future interests, 
 and rights of entry, nor (according to some legal 
 authorities) customary freeholds. 
 
 In 1843 was passed Lord Campbell's Act, relating 
 to Libels, containing several provisions for more effec- 
 tually securing the liberty of the press. Sec. 1 enacts, 
 that in any action for defamation, it shall be lawful 
 for the defendant (after notice in writing of his 
 intention so to do, duly given to the plaintiff at the 
 time of filing or delivering the plea in such action) 
 to give in evidence, in mitigation of damages, that he 
 made or offered, an apology to the plaintiff for such 
 defamation, before the commencement of the action, 
 or as soon afterwards as he had an opportunity of doing 
 so, in case the action shall have been commenced, 
 before there was an opportunity of making or offering 
 such apology. 
 
 Sec. 2 enacts, that in an action for libel contained 
 in any public newspaper, or other periodical publica- 
 tion, it shall be competent to the defendant to plead 
 that such libel was inserted in such newspaper without 
 actual malice, and without gross negligence ; and that 
 before the commencement of such action, or at the 
 earliest opportunity afterwards he inserted in such 
 newspaper, or other periodical publication, a full 
 apology for the said libel, or if the newspaper or 
 periodical publication in which the said Ubel appeared
 
 60 
 
 should be ordinarily published at interyals, exceeding 
 one week, had offered to publish the said apology in 
 any newspaper or periodical publication, to be selected 
 by the plaintiff, in such action ; and that every such 
 defendant shall, upon filing such plea, be at liberty to 
 pay into court a sum of money, by way of amends for 
 the injury sustained by the publication of such libel. 
 
 Sec. 6 enacts, that on the trial of any Indictment or 
 Information for a Defamatory Libel, the defendant 
 having pleaded such plea as hereinafter mentioned, 
 the truth of the matters charged may be inquired into, 
 but shall not amount to a defence, unless it was for 
 the public benefit that the said matters charged should 
 be published ; and that to entitle the defendant to give 
 evidence of the truth of such matter charged, as a 
 defence to such indictment or information, it shall be 
 necessary for the defendant, in pleading to the said 
 indictment or information, to allege the truth of the 
 said matters charged, in the manner now required in 
 pleading a justification to an action for defamation, and 
 further, to allege that it was for the public benefit that 
 the said matters charged should be published, and the 
 particular fact or facts by reason whereof it was for 
 the public benefit that the said matters charged should 
 be published, to which plea the prosecutor shall be at 
 liberty to reply, generally denying the whole thereof; 
 and that, if after such plea the defendant shall be 
 convicted on such indictment or information, it shall be 
 competent to the court, in pronouncing sentence, to 
 consider whether the guilt of the defendant is aggra- 
 vated or mitigated by the said plea, and by the evidence 
 given to prove or disprove the same. 
 
 Sec. 7 enacts, that whenever upon the Trial of any 
 Indictment or Information for the Publication of a 
 Libel, under the plea of not guilty, evidence shall 
 have been given, which shall establish a presumptive 
 case of publication against the defendant, by the act 
 of any other person by his authority, it shall be 
 competent to such defendant to prove that such pub- 
 lication was made without his authority, consent, or
 
 61 
 
 knowledge, and that the said publication did not arise 
 from want of due care or caution on his part. 
 
 In 1846, the repeal of the Corn Laws took place, 
 and the era of free trade commenced. In 1861, the 
 Criminal Law Consolidation Acts were passed. Numer- 
 ous obsolete statutes have been repealed, and a revised 
 set of statutes promised. The good work of law 
 reform still proceeds, but much remains to be done 
 ere the system of law or of jirocedure in this country 
 will be attractive to the j iirist for its simplicity.
 
 62 
 
 BOOKS OF REFERENCE ON 
 CONSTITUTIONAL LAW & LEGAL HISTORY. 
 
 Belsham's History. 
 
 Blackstone's Commentaries, by Kerr. 
 
 Brougham's Political Philosophy, Chaps. 26, 27, 28, 
 
 29, vol. 3. 
 Burnett's History of His own Times. 
 Clarendon's History of the Rebellion. 
 Coke upon Littleton, by Butler and Hargreave. The 
 
 notes. 
 Creasy on the Constitution. 
 Fleury's Droit Ecclesiastique, or any other History of 
 
 the Canon Law. 
 Foster on the Crown Law. The Chapter on Treason. 
 Gilbert on Uses, by Lord St. Leonards. The preface. 
 HaUam's History of the Middle Ages. Chap, 10. 
 
 Constitutional History. 
 
 Hume's History, 8th edition, vol. 3. The close of the 
 
 23rd chapter, p. 296, beginning at the passage : 
 
 "Thus far have Ave pursued the History of England." 
 Mably. Droit Public de 1' Europe. 
 Macaulay's History of England. 
 Mackintosh, Sir James. The fragment. 
 May's History of Parliament. 
 Millar on the Constitution. 
 Millar's History. 
 Rapin's History. 
 
 Reeve's History of the EngKsh Law. 
 State Trials. The preface. 
 
 ■ vol. 2. 
 
 Statutes at Large. 
 
 Temple's (Sir W.) Letters and Memoirs. 
 Tindal's Continuation of Rapin's History. 
 Vaughan's Reports, p. 135.
 
 63 
 
 QUESTIONS ON CONSTITUTIONAL LAW AND 
 LEGAL HISTORY. 
 
 Henry II. 
 
 Q. — What was the constitution, of England in the 
 time of Henry II. ? /^ > '^' . ^^' ■ »- - --' • > ^ '-^-l^ **'^a^ 
 
 Q,. — What was the policy and character of Henry II?'*^f*^„ !^ ^ 
 
 Q. — In what did his dispute with Beckett originate? 
 Give an account of its progi'ess. State youi' opinion ., ^ , ^ a/ 
 of the motives of Beckett, and the merits of the contest. '' " "^ 
 
 Q,. — By whom was the ** Assiza" fii'st substituted for 
 trial by Battle ? -: - ^ * 
 
 Q. — Mention the name of any man conspicuous in 
 our history, who refiised qbedience to the Constitutions 
 of Clarendon. -{yh^^'' f^-^-^'^- 
 
 Q,. — What French kings were cotemporarv with 
 Hemy II. .'' -^-Af<«>^ . •• j r---- ■■ - - -^ ^ -^-^tj 
 
 Q. — What was the date and purport of the Consti- _ 
 tutions of Clarendon? ' nA^t' '1 - *j,2-J 
 
 Q. — What were the oiiginal functions of juries, 
 and at what time and how did they become what they ,., 
 nowai'e? Jy.i-c-:>u. , : ,U " ■■■ ■ '■ >-•• '■''-' 
 
 John. 
 
 Q. — Is there any clause in the Great Charter, which 
 shows that commercial relations were increasing 
 among us ? , '-''•■ - - '-■ -.- 
 
 Q. — What limits were fixed to the fines imposed on 
 Freemen LQ the Great Charter. vU.i ^f ' - '- '^ 
 
 Q. — Mention any instances in which this provision 
 was disregarded.
 
 64 
 
 Q. — Can you give any proof that it was necessary 
 for the king to take tlie advice of parliament, from 
 Magna Charta ? 
 
 Q,. — When were justices of Assize fii'st instituted ? 
 
 Q. — Give an account of the events which led to the 
 signing of Magna Charta. 
 
 Q. — What was the most remarkable provision of 
 Magna Charta? 
 
 Q. — What decisive battle was fought on the Continent 
 during the reign of John, and what was its effect on 
 oui' domestic institutions ? 
 
 Q. — Who was pope when Magna Charta was signed? 
 What was his character ? How far did he succeed in 
 his undertakings ? 
 
 Q,. — Who were the members of the Great Council 
 from the Conquest to Magna Cliarta ? 
 
 Q,. — What distinctions as to the gi'cat barons, and 
 the less powerful tenants, holding immediately of the 
 crown, do you find in the Magna Charta ? 
 
 Q,. — How can a freeman be lawfully punished accord- 
 ing to Magna Charta? and what interpretation do 
 you give to the expressions limiting the mode of 
 punishment ? 
 
 Q. — State any instances from our liistory in which 
 this clause has been violated. 
 
 Q,. — If the king order Titius to aiTest Caius, and 
 the arrest cannot be justified, has Caius a right of 
 action against Titius ? 
 
 Q. — When and by whom was the rule on this subject 
 made ? 
 
 Q. — At what period of oiu' history is the right of 
 every person detained in prison to a trial, a clear 
 principle of our constitution ? 
 
 Q. — To whom was England particularly indebted for 
 the Great Charter? 
 
 Q. — What are the essential clauses of the Great 
 Charter ? 
 
 Henry III. 
 U. — "Wliat is Bracton's view of the prerogative ?
 
 65 
 
 Q. — In what state was the municipal law of England 
 in the time of Henry III. ? Name the most remark- 
 able treatises on legal subjects which had then appeared 
 in England. 
 
 Q,. — Have you any reason for supposing that in the 
 reign of Hemy III. the middle classes had acquired 
 any influence ? 
 
 Q,. — State the date you assign to the House of 
 Commons, and youi* reason for fixing upon it. 
 
 Q,. — What were the relations of England to the 
 Continent under Hemy II. and Henry III. ? 
 
 Q. — Give an account of Simon de Montfort, and 
 his proceedings as they affected the Constitution. 
 
 Q. — What was the limit which the charter of Henry 
 III. fixed to the amount of a fine ? 
 
 Q. — What French kings were contemporary with 
 Henry III. ? 
 
 Q,. — Of whom was the House of Lords composed in 
 the reign of Hemy III. ? 
 
 Q. — What was at that time essential to make a lord 
 of parliament? 
 
 Edward I. 
 
 Q. — Give an account of the manner in which land 
 was set fi'ee from the restraint imposed by the Statute 
 De Donis. 
 
 Q. — When did deputies from cities and boroughs 
 finally become an integral part of the legislature ? 
 
 Q. — To what statute do you assign the origin of 
 Estates Tail ? 
 
 Q. — Give an account of the statute Quia Emptores. 
 
 Q. — When were the statutes De Donis and Quia 
 Emptores enacted? 
 
 Q. — Wliat were the most important constitutional 
 measui'es in the reign of Edward I. ? 
 
 Edward II. 
 
 Q. — What were the Articuli Cleri ?
 
 66 
 Edwa/rd III. 
 
 Q. — Had any means been taken in the reign of 
 Edward III. to provide for the internal tranquility of 
 the country? 
 
 Q. — What was the name and date of the peace 
 concluded by Edward III. with France, after the 
 battle of Poictiers ? 
 
 Q. — Mention any proofs of the progress of the 
 constitution in the reigns of Edward I. and Edward 
 III. 
 
 Q.. — What is the fii'st instance of parliament giving 
 a conditional assent to the demand of supply ? 
 
 Q,. — What were the acknowledged rights of the 
 House of Commons in the time of Edward III. 
 
 Richa/rd II. 
 
 Q. — Give an account of the changes of government 
 under Richard II. ? 
 ^' Q,. — Into what classes might society in England be 
 divided at the beginning of his reign ? 
 
 Q. — To what causes clo you attribute the insurrection 
 at the beginning of his reign ? 
 
 Q. — Have you any reasons, and if you have state 
 them, for supposing that the importance of the House 
 of Commons increased during his reign ? 
 
 Q,. — What was the condition of the poorer classes 
 at that time ? 
 
 Q. — Had there been any insurrections of the lower 
 classes in France, duiing the reign of Richard III., for 
 repressing the encroachments and rapacity of ecclesi- 
 astics, and how had they been evaded ? 
 
 Q, — How was the right to sit in the House of Lords 
 conferred during the reigns of the Plantagenets ? 
 
 Q. — Of whom did the king's ordinary council consist 
 dming the Plantagenet dynasty, and what was the 
 business of it ? 
 
 Q. — Name any instances of impeachment in the 
 reign of Richard 11. ?
 
 67 
 
 Q. — How were peers created at this period of our 
 history ? 
 
 Q. — "WTiat events important to our constitutional 
 histoiy, happened during the reign of Richard II. ? 
 
 Q.. — State the instances under the Plantagenet Idngs 
 in which the privik^ge of parliament was asserted ? 
 
 Q,. — What was the general chai'acter of the govern- 
 ment of the Plantagenets ? 
 
 Q,. — Mention excesses of the prerogative during 
 that period ? 
 
 Q. — ^Miat is the right to sit in the House of 
 Commons conferred by a Writ of Summons ? How 
 docs it differ from that confeiTcd by Patent ? 
 
 Q. — Can you quote the testimony of any English 
 writer to the freedom of the English people before the 
 reign of Hemy YII. 
 
 Q, — ANTiat proof can you find in the time of Richard 
 II. of the responsibility of ministers to the nation ? 
 
 Senry IV. 
 
 Q,. — Mention any proof of the progi'ess of our 
 constitution in the reig-n of Heniy IV. 
 
 Q. — What is the earliest authority in favour of the 
 right of the House of Commons to originate money 
 bills ? 
 
 Q. — Give an account of the manner in which secular 
 peerages were created at the accession of Henry IV. 
 
 Q. — State any proofs of the increasing authority of 
 parliament, between the accession of Edward III. and 
 the death of Hemy IV. ? 
 
 Q,. — Wlicn was the separation of knights and 
 burgesses fi'om peers, in our legislature, complete ? 
 
 Henry TI. 
 
 Q. — Mention the fii'st remarkable instance of differ- 
 ence between the crown and parliament after the death 
 of Hemy IV. ? 
 
 Q. — What were the original functions of jiu'ies, and
 
 68 
 
 at what time, and how did they become what they now 
 are ? 
 
 Q. — "What was the opinion of Sir John Fortescue as 
 to the Enf^lish constitution ? 
 
 Q. — What causes can you assign why the freedom of 
 the English was greater than that of other people ? 
 
 a.— What was the effect of the 8 Hen. VI., c. 7 ? 
 
 Mward IV. 
 
 Q. — Give an account of the manner in which land 
 was set free from the restraint imposed by the statute 
 De Donis ? 
 
 Q. — When was the decision in Taltanim's case 
 pronounced, what was its effect, and what statute 
 tending to the same subject, passed in the reign of 
 Hemy VII. ? 
 
 Henry VII. 
 
 Q. — How was Henry VII. connected with the House 
 of Lancaster? 
 
 Q. — What character does Lord Bacon give of his 
 legislation ? 
 
 Q. — What act was passed affecting land duiing this 
 reign ? 
 
 Q. — Had any act similar in its tendency been passed 
 before, and when ? 
 
 Q. — Had any attempt been made by persons, not 
 members of the legislatm^e, to accomplish the piu'pose 
 of those acts ? Give an account of it, of the reign 
 when it happened, and the manner in which it was 
 earned on. 
 
 Q. — Give an account of the Earl of Warwick in 
 the time of Hemy VII., his relation to the crown, and 
 his fate. 
 
 Q. — \\lio was the mother of Cardinal Pole, and what 
 became of her ? 
 
 Q. — State any circumstance fi-om which you would 
 infer the influence of the Eoman and Canon Law in the 
 legislation at the time of the accession of Henry VII.
 
 69 
 
 Q. — Give an account of the Statute of Fines in the 
 reign of Heniy YII. 
 
 Q. — Trace the progi'ess of the constitution from John 
 to Heniy VII. 
 
 Q. — AYhat were the admitted rights of Englishmen 
 on the accession of the Tudor dynasty to the thi'one ? 
 
 Q. — A\Tiat remarkable statute for the security of the 
 subject was passed in the reign of Henry VII. ? 
 
 Q. — On what occasion was that statute quoted and 
 set aside ? 
 
 Henry VIII. 
 
 Q. — After the childi-en of the queen of Henry VII., 
 who was the nearest heii- of the House of York in the 
 reign of Hemy VIII. ? 
 
 Q. — Give an account of the attempted change in the 
 mode of holding and enjoying landed property dui'ing 
 the reign of Hemy VIII. 
 
 Q. — What was the effect of this attempt ? How far 
 did it succeed ? Wliy was it thought desirable ? Can 
 you recollect Lord Bacon's opinion or expressions on 
 this subject? 
 
 Q. — How far did Hemy VIII. carry on the Eefonn- 
 ation ? 
 
 Q. — "WTiat was the Law of the Six Articles ? 
 
 Q. — State the insuiTections in the time of Henry 
 VIII. , with their causes and results ; and did the king 
 give way ? 
 
 Q. — Can you mention any nobleman tried for high 
 treason, and acquitted in the time of Hemy VIII. 
 
 Q. — What act of parliament in the time of Hemy 
 YIII. was most hostile to oui* freedom ? 
 
 Q. — Give an accoimt of Bills of Attainder. AATien 
 were they fii-st employed? Xame some remarkable 
 persons in the reign of Hemy VIII. who were destroyed 
 by means of them ? 
 Itti Q- — Give an account of the character of Cranmer. 
 
 Q. — Had any plan been devised for the Refonnation 
 of our Ecclesiastical Law ?
 
 70 
 
 Q,. — Give an account of the Common Law, and state 
 its influence on oiir own. 
 
 Q. — Give an account of the Statute of Uses, the 
 causes which led to it, and the effect on the transfer of 
 property which it prochiced. 
 
 Q,. — State the encroachments on the liberties of the 
 subject in the reign of Hemy VIII. 
 
 Q. — What was the character of the parliaments of 
 Henry YIII., and in what instances did they betray 
 the trust reposed in them? State any instances in 
 which Henry YIII. gave way to the demands of the 
 people. 
 
 Q. — What power to dispose of his property by wiU 
 had an English subject before the statute of Henry 
 YIII. ? 
 
 Q. — By what statute was that right affected after- 
 wards, and in what manner ? 
 
 Q. — For what offence were Sir Thomas More and 
 Cardinal Fisher executed ? What means was used to 
 obtain evidence against Sir Thomas More ? 
 
 Edward VI. 
 
 Q. — State any act in Edward YI. or Mary's time 
 from which you would infer the inference of the Roman 
 and Canon Law on the legislation of those periods. 
 
 Q,. — What were the changes introduced with respect 
 to the law of the Six Articles under Edward YI. ? 
 
 Q,. — Name any sufferers for religious opinions in the 
 time of Edward YI. 
 
 Q. — When were the canons of the English Church 
 settled ? 
 
 Q. — Did the House of Commons recover any portion 
 of its influence in the reigns of Edward YI. and Mary. 
 State the reasons for your opinion. 
 
 Q. — Mention any remarkable attainders in the reign 
 of Edward YL, and give some account of them. 
 
 Q. — What seciuity for the subject accused of treason 
 was provided during the reign of Edward YL, and how 
 was that security made unavailing ?
 
 71 
 
 Q. — Can writing be a proof of an overt act of 
 treason ? 
 
 Q. — Give an account of the doctrine of constnxctive 
 treason, citing such cases wliich occiix to you as 
 illustrating it. 
 
 Mary. 
 
 Q,. — Name any instance of persons acquitted on a 
 charge of high treason diuiug the reigns of the House of 
 Tudor. "What happened to the jiuy in such a case ? 
 
 Elizabeth. 
 
 Q. — Give an account of the genius and constitution 
 of the English Constitution on the accession of Queen 
 Elizabeth. 
 
 Q. — Give an account of the principal religious sects 
 into which England was divided dming the reign of 
 Elizabeth, and of the laws enacted to suppress dissent 
 of any kind from the Established Chiu'ch. 
 
 Q. — Did Elizabeth increase the number of the House 
 of Commons ? 
 
 Q. — How did her policy towards her parliaments 
 differ from that of James and Charles I. 
 
 Q. — Mention any particular instance of the conces- 
 sions of Elizabeth to her parliament. 
 
 Q. — What was the practice of our Coiu'ts of Justice 
 under the reigns of the House of Tudor, with regard to 
 the confronting of the witnesses with the prisoner ? 
 
 Q. — Give an account of the English church under 
 Henry VIII. , Edward VI., Mary, and Elizabeth. 
 
 Q,. — State the purport of the acts of parliament 
 during those reigns, which (religious questions set 
 apart) most strongly mark the social progi'ess of 
 England. 
 
 Q. — Could convocation fix the articles of the Church 
 of England, without the assent of parliament ? 
 
 Q,. — In what were the seciuities of the subject 
 defective, during the reign of Elizabeth ? 
 
 Q. — Wlien and how were these defects supplied ?
 
 72 
 
 Q. — "What Instances are there in the reign of 
 Elizabeth, in which the privileges of the House of 
 Commons were asserted ? 
 
 Q. — What were the evils and abuses for which, 
 dm-ing the reign of Elizabeth, the Commons especially 
 sought redress ? 
 
 Q. — A\Tiat was the case of TTdall ? 
 
 Q. — What complaint was made by the judges in 
 Elizabeth's time, with regard to encroachments on the 
 liberty of the subject ? 
 
 Q. — What was the policy pursued by Elizabeth in 
 ecclesiastical matters ? 
 
 Q. — What was the last writ authorizing a Borough 
 to send members to parliament, issued by the will of 
 the crown ? 
 
 Q,. — What explanation did Elizabeth give of the 
 Act of Supremacy ? 
 
 Q. — Mention the names of some of the most remark- 
 able clergymen, (not Roman Catholics) who refused to 
 comply with the ceremonies established in her reign. 
 
 Q. — What were the admitted constitutional rights 
 of the Commons, duiing the reign of Elizabeth ? 
 
 Q. — "VMiat was the first statute by which Eoman 
 Catholic recusants were distinguished from other 
 recusants ? 
 
 Q. — State any proofs of the increasing influence of 
 the Commons diuing the reign of Elizabeth. 
 
 Q. — By what means did Elizabeth connect the church 
 with the state ? 
 
 Q. — What were the guarantees of constitutional 
 freedom in the reign of Elizabeth ? 
 
 Q. — ^S^lat was Cavendish's case? 
 
 Q. — "WTien were witnesses for the prisoner first 
 examined on oath ? 
 
 Q. — Mention any interference with the prerogative 
 by the judges, in the reign of Queen Elizabeth. 
 
 Q. — Give an account of the manner in which the 
 exclusive right to originate money bills, grew up in 
 the House of Commons, and of Lord Bacon's conduct 
 on that question, in the House of Commons.
 
 73 
 
 Q. — What reasons can you give to show Mr. Hume's 
 assertion, that the government of England during the 
 time of the Tudors was as despotic as that of Tui-key, to 
 be incorrect ? 
 
 Q. — Compare the government of the Plantagenets 
 with that of the Tudors. 
 
 Q. — What was the legal authority of the royal 
 proclamation during the reign of Elizabeth ? 
 IK( ^' — "^^ what cause do you ascribe the exorbitant 
 ■ ^ prerogative of the Tudors ? 
 
 James I. 
 
 Q. — What were the attempts made by James to 
 Ics^ money without consent of parliament ? and how 
 were they resisted ? 
 
 Q. — What was the language of the prelates as to the 
 royal authority ? 
 
 Q. — Give an account of the parliaments of 1621 
 and 1624. 
 
 Q. — State the instances in which during the reign 
 of James I., the House of Commons exercised the 
 right of impeachment. 
 
 Q. — Give an account of the changes which had taken 
 place in the social condition of England, dming the 
 time which elapsed from the accession of Henry VIII. 
 and the accession of James I., and describe their 
 effect upon the temper, and importance of the House 
 of Commons. 
 
 Q. — Give an account of the religious parties during 
 the reign of Elizabeth and of James I. 
 
 Q. — In what were the securities of freedom defective 
 on the accession of James I. ? 
 
 Q. — What was the title of James I. to the throne 
 of England ? If hereditary right were exclusively 
 considered, was the title of James I. to the English 
 crown superior to any other ? What were those which 
 could be placed in the balance with it? State the 
 instances in which, since the Conquest, hereditaiy right 
 has been set aside in tbe succession to the English 
 crown.
 
 74 
 
 Q. — What was the great object of the policy of 
 James in the latter part of his reign ? How was it 
 defeated ? 
 
 Q. — What was the conduct of James towards his 
 parliaments ? 
 
 Q. — What was his conduct towards his judges ? 
 Give an account of his conduct on the election of 
 Portescue and Godwin. What was the question that 
 arose on that election ? 
 
 Q. — Give an account of his policy towards the 
 chiu'ch. 
 
 Q. — What were the most remarkable state trials 
 during the reign of James ; how far were they in 
 conformity with existing laws, and what was most 
 remarkable in their management ? 
 
 Q,. — Give an account of the character of James I. 
 
 Q. — What was the bearing of his domestic policy ? 
 
 Q. — What part did he take in the religious divisions 
 of the court ? 
 
 Q. — Were any fresh secimties provided against the 
 Roman Catholics in his reign ? 
 
 Q. — Does it appear that there was any just reason 
 for the fear of the encroachments of the Roman 
 Catholics on our civil and religious liberties ? 
 
 Q. — State any causes that suggest themselves to you 
 why precautions might then have been taken that 
 would not now be necessaiy. 
 
 Q,. — In what respect did James I. attempt to carry 
 his prerogative further than any king had done since 
 1215? 
 
 Q,. — Give an account of Lord Bacon's character 
 considered only as a statesman, a judge, and as a law 
 officer of the crown. 
 
 Q,. — Mention any notorious abuse of the prerogative 
 in the time of James I. 
 
 Q,. — What was the manner of proceeding in our 
 Courts of Criminal Justice ? 
 
 Q,. — Mention the most eminent leaders of the 
 Puritan party during the reign of Elizabeth, and the 
 conduct of jamea with, respect to those parties, and
 
 75 
 
 state how far, and when the Canons of the English 
 Chui'ch were incoi"porated with tho English law dui'ing 
 those reigns. 
 
 Q. — In what instances did James I. interfere with 
 the duties of the judges ? 
 
 Q,. — Give an instance of the intemperance of the 
 House of Commons during the reign of James. 
 
 Q. — What remarkable state paper was di'awn up by 
 the parliament of 1621 ? Give a summary of its 
 contents. Mention the offenders who were punished 
 • by that parliament. 
 
 Q,. — State the advantages which the Commons had 
 gained, and the constitutional principles which they 
 had established in their struggles with James I. at the 
 close of that monarch's reign. 
 
 Q. — Give an account of the negotiations between 
 James I., and the House of Commons, for the abolition 
 of purveyance and wardship. State when this object 
 was accomplished, and on what teims ? 
 
 Q,. — Give an account of the manner in wliich the 
 judicial power of the House of Commons was estab- 
 lished. 
 
 Q. — When was the right of juries to return a 
 general verdict established ? 
 
 Q,. — Give an account of the disputes between James 
 I. and his parliaments. 
 
 Q. — Was any act affecting the right of Roman 
 Catholic peers to sit in the House of Commons passed 
 during the reign of James I., and in what manner did 
 it operate on the rights of such peers ? 
 
 Q. — Did James I. attempt to bias the decisions of 
 courts of justice ? 
 
 Q — What negotiation took place between James I. 
 and his parliament concerning an important branch of 
 the prerogative ; how did it end ; and when was the 
 object of it accomplished ? 
 
 Q. — What was Peacham's case ? When was the 
 doctrine laid down in it over-niled ? 
 
 Q. — Wliat is the act under which the bishops require
 
 76 
 
 subscription to the articles from persons wishing to he 
 ordained ; and how does the practice agi*ee with it ? 
 
 Q. — What is the earliest assertion of the doctrine 
 that the king ought not to take notice of matters 
 pending in parliament? Mention any instance in 
 which the constitutional mle was violated. 
 
 Q,. — "What was the case of Bates in the time of 
 James I.? 
 
 Q. — Mention any instances in which the right of 
 impeachment was exercised by the Commons in the 
 reign of James I. 
 
 Q,. — Mention any instance in the time of James I. in 
 which the law of evidence was set aside by the judge 
 on the trial of a prisoner accused of treason. 
 
 Q. — Compai-e the conduct of the parliament of James 
 I. with that of the parliaments of Elizabeth, and state 
 the causes of any difference you remark between them. 
 
 Q. — How were the chief guarantees of the liberty 
 of the subject, during the reign of Elizabeth, violated 
 during the reign of her successor. 
 
 Q,. — Give an account of Sir Walter Raleigh's condem- 
 nation, and of the causes which led to his execution. 
 
 Q,. — What was the chief violation of justice on the 
 trial of Sir Walter Ealeigh ? 
 
 Q. — Give an account of the parliamentary opposition 
 during the time of James I. 
 
 Q. — Mention any proofs of the increasing conse- 
 quence of parliament. 
 
 Q,. — Point out the misrepresentations of Hume in 
 his account of this period of our history. State what 
 changes took place in our jurisprudence. 
 
 Q. — What was the quarrel between Lord Coke and 
 Lord Chancellor Ellesmere ? 
 
 Q. — Give an account of the third parliament of 
 James I., and for what is it remarkable in the history 
 of English party ? 
 
 Q. — On what footing did the Law of Evidence stand 
 in the reign of James I. ? 
 
 Q,. — What had been done at that time to regulate 
 the discipline and doctriae of the Church of England ?
 
 77 
 
 Q. — What were the difficulties which James I. had 
 to encounter in his government, from what causes did 
 they proceed, and in what forms did they appear ? 
 
 Q,. — How did James endeavour to raise money ? 
 
 Q. — Mention the date and substance of any remark- 
 able document put forth by the House of Commons 
 during the reign of James I. in support of their rights. 
 
 Q. — State what changes took place in our juris- 
 prudence. 
 
 Q,. — At what period had the House of Commons 
 established the right to interfere in the administration 
 of public affairs ? 
 
 Q,. — What rights had the House of Commons suc- 
 ceeded in establishing at the death of James I. ? 
 
 Q. — How was the Law of Evidence in cases of 
 treason changed between the accession of Edward YI., 
 and that of James I. ? 
 
 Q. — Mention any instance of the violation of the law 
 so altered. 
 
 Q,. — In what instance during the reign of James I. 
 did the House of Commons transgress the limits of 
 justice and discretion ? 
 
 Charles I. 
 
 Q. — What was the condition of the Eoman Catholics 
 on the accession of Charles I. ? 
 
 Q,. — Give an account of Puritanism from its begin- 
 ning till the close of the Long Parliament. 
 
 Q. — Trace the progress of parliamentary opposition 
 to prerogative from the close of Elizabeth's reign to the 
 breaking out of the civil war. 
 
 Q. — Give an account of the parliament of 1628. 
 
 Q. — Enumerate the chief violations of the Consti- 
 tution by Charles I., and his advisers, in the interval 
 between 1628, and April 1640. 
 
 Q,. — Mention the most remarkable laws enacted by 
 the Long Parliament as security against further 
 encroachments of the crown. 
 
 Q. — Give an account of the quarrel between Charles
 
 78 
 
 I., and his parliament, as to the Militia. What was 
 
 the view taken by Whitelocke of this question ? 
 
 Q,. — In what respects had Charles, in his conduct 
 towards France, given jiist cause of suspicion to English 
 Protestants, and in what respect had Laud furnished 
 matter for similar apprehensions ? 
 
 Q,. — Give an account of the parliament of 1628, and 
 of the principal measure to which it obtained the 
 assent, with an accoimt of the manner in which that 
 assent was given. 
 
 Q,. — Give an account of the proceedings in Sir John 
 Penwick's case. 
 
 Q. — Give an account of the Courts of Star Chamber 
 and High Commission. 
 
 Q. — Give an accoixnt of the temper of the House of 
 Commons towards the court on the accession of Charles 
 I., and of the causes to which it must be ascribed. 
 
 Q,. — What was the conduct of Bancroft towards the 
 Puritans ? 
 
 Q. — What was the great act of the parliament of 
 1628 ? Give an account of the circumstances by which 
 it was attended. 
 
 Q,. — What act was immediately passed as to 
 Strafford's children after his death? 
 
 Q. — State the relation in which the church stood to 
 the state at the close of Elizabeth's reign ; and describe 
 the conduct of the different ecclesiastical parties, and 
 their leaders during her reign, and those of James I., 
 and Charles I. 
 
 Q. — What were the encroachments of Charles I. on 
 the civil rights of the subject ? 
 
 Q, — What districts of England at the accession of 
 Charles I., were under the control of the Common 
 Law? 
 
 Q. — WTiat was the political conduct of Mr. Hyde, 
 from the time he entered parliament, till the breaking 
 out of the civil war ? 
 
 Q. — Give an account of the character of the Long 
 Parliament of 1641, up to the breaking out of the 
 civil war, of the chief actors in it, the most remark-
 
 79 
 
 able invasion of its privileges, and of the most 
 important events connected with its existence. 
 
 Q. — Give an account of the Petition of Right, the 
 date of it, the circumstances under which it passed, and 
 the events by which it was immediately followed. 
 
 Q. — When did the judges declare torture to be 
 illegal ? 
 
 Q,. — What was the main charge against Strafford ? 
 Give an account of the proceedings in paidiament 
 which led to his execution. State your opinion as to 
 the justice of those proceedings, and the reason on 
 which it depends. 
 
 Q. — How long did Charles I. govern without parKa- 
 ments ? 
 
 Q. — How does Lord Clai-endon describe the two last 
 parliaments of Charles I. ? 
 
 Q,. — What were the features of the English consti- 
 tution that had remained unaltered from the time of 
 Edward I., to that when Charles I. succeeded to the 
 throne ? 
 
 Q,. — When was the Petition of Eight passed? By 
 what evils was it occasioned ? What was the conduct 
 of the king in passing it ? 
 
 Q,. — What was its effect ? How was it observed ? 
 
 Q,. — Name the leaders of the opposition to the 
 government of Charles I. in the year 1640. What 
 particular abuse did Mr. Hyde attack ? 
 
 Q. — Give an account of the public conduct of Charles 
 I. from his accession to the breaking out of the civil 
 war. 
 
 Q. — Describe Hampden's life and character. 
 
 Q,. — Give an account of the conduct of Charles I. 
 towards the parliament which preceded the Long 
 Parliament. 
 
 Q,. — Give an account of the principal measures of 
 the last parliament of Charles I. before the breaking 
 out of the ciWl war. 
 
 Q. — Trace the progress of parliamentary opposition 
 to prerogative from the accession of Elizabeth to the 
 breaking out of the civil war ; stating your opinion as
 
 80 
 
 to tlie effect of religious conviction in upholding, 
 modifying, and directing, that opposition. 
 
 Q,. — Is Blackstone correct in asserting that a com- 
 moner cannot be impeached ? 
 
 Q,. — Give an account of the manner in which the 
 exclusive right to originate Money Bills grew up in 
 the House of Commons. 
 
 Q. — State the causes which connect temporal and 
 ecclesiastical history duiing the reigns of Elizabeth, of 
 James I., and of Charles I. 
 
 •f Q. — AMien did the principle of the appropriation of 
 supplies begin ; and when was it finally established ? 
 
 Q. — Contrast the government of Charles I. with that 
 of Charles II. 
 
 Q. — What was Pine's case ? 
 
 Q,. — What is Lord Clarendon's opinion of the 
 decision of the judges in the case of ship-money, and 
 what effect on the king's interest does he ascribe to it? 
 
 Q,. — Contrast the government of Elizabeth with that 
 of James and Charles I. 
 
 Q. — What reason can you assign for the change of 
 feeling towards Buckingham, and the distrast of the 
 king, exhibited by the fij'st parliament of Charles I. ? 
 
 Q. — ^Tiat was the origin of the Court of High 
 Commission, as it existed in the time of Charles I. ? 
 
 Q. — Wlien was that Court abolished ? 
 
 Charles II. 
 
 Q. — Wliat prerogatives had the crown parted with 
 since the year 1660? 
 
 Q. — What security for freedom had been established 
 since 1660? 
 
 Q. — Trace the struggles between the court and 
 countiy party, dimng the reign of Charles II. 
 
 Q. — Give an account of the three first ministers of 
 Charies II. 
 
 Q. — What was the language of Charles II., as to 
 the Triennial Act ? 
 
 Q. — How were Dissenters treated after the Restora- 
 tion?
 
 81 
 
 Q. — Give an account of the administration of Charles 
 II., after the dissolution of the Oxford Parliament. 
 
 Q,. — Mention any remarkable question which arose 
 as to the law of impeachment in Lord Danby's case, 
 and the manner how, and the occasion when that 
 qiiestion was set at rest. 
 
 Q. — What means did Charles II. take to gain an 
 influence in parliament ? 
 
 Q,. — Give an account of the changes in the constitu- 
 tion dimng the reign of Charles II., and of the state 
 in which it existed at his death. 
 
 Q. — Give an account of the policy of Charles II. 
 
 Q. — Give an account of the Exclusion Bill. 
 
 Q. — Give an account of the most remarkable instances 
 in which the right of impeachment was exercised in 
 the reign of Charles I. and Charles II., and of any 
 constitutional questions which arose fi'om its exercise. 
 
 Q. — What were the causes which led to the disgrace 
 of Lord Clarendon? 
 
 Q. — What was the object of Charles II. in sanctioning 
 harsh laws against Protestant Dissenters ? 
 
 Q. — What was the policy of the Cabal administra- 
 tion, of whom did it consist, and what occasioned it^ 
 downfal ? 
 
 Q. — What were the most remarkable acts of govern- 
 ment dming that administration ? 
 
 Q. — Give an account of the Triple League. 
 
 Q. — In what respect did the attacks made on the 
 constitution during the reign of Charles II. differ from 
 those made upon it in the reign of James I. and 
 Charles I. ? 
 
 Q. — On what gi'ound did the condemnation of Sir 
 Hany Vane, after the restoration of Charles II., 
 proceed ? 
 
 Q,. — What was the Test Act, and what effect did 
 it produce ? 
 
 Q. — What gave rise to the discussion as to the 
 abatement of impeachments, by dissolution in the reign 
 of Charies II. ?
 
 82 
 
 Q. — What was the rule laid down, and how has it 
 "been since observed? 
 
 Q. — What great service did Clarendon and South- 
 ampton render to the liberties of England after the 
 restoration ? 
 
 Q. — What was the law of evidence in cases of 
 treason at the death of Charles II. ? 
 
 Q. — Mention any case in which it had been set aside 
 by the judges. 
 
 Q,. — Give an account of the Corporation Act. 
 
 Q. — What were the most remarkable acts of govern- 
 ment during the Cabal administration ? 
 
 Q. — When were feudal tenui'es finally abolished ? 
 
 Q,. — Trace the progress of party during the reign of 
 Charles II. 
 
 Q. — Give an account of Bushell's case. 
 
 Q. — When was the Habeas Corpus Act passed ? 
 What immediately led to it, and what was its effect ? 
 
 Q,. — What is the opinion of Blackstone, as to the 
 constitution in the reign of Charles II. ? 
 
 Q. — Contrast the dangers to which the constitution 
 was exposed in the reign of Charles II., with those 
 which threatened it in the reign of Charles I. 
 
 Q,. — How many witnesses were required to establish 
 a charge of treason, in the reign of Charles II. ? 
 
 Q. — What was the case of Sir Thomas Armstrong ? 
 
 Q. — Give an account of Lord Russel's trial. 
 
 Q. — Give an account of the trial of College. 
 
 Q. — Give an account of the character of Danby. 
 
 Q. — State the grounds on which the proceedings in 
 Lord Russel's trial may be questioned. 
 
 Q. — Give an account of the Popish plot. State the 
 most remarkable \dctims of it, and the manner in which 
 they were destroyed. 
 
 Q. — What was the cause of the complaint against 
 Chief Justice Kelynge ? 
 I, Q,. — Give an account of the proceedings against Lord 
 ' Bristol. 
 
 Q. — Give an account of the trials of Cornish and 
 Rosewell.
 
 83 
 
 Q. — When were Catholic peers excluded from the 
 House of Lords ? 
 
 Q,. — Give an account of the Rye House Plot, and 
 of the trials of the piincipal persons who suffered for 
 it. 
 
 Q. — Give an account of Algernon Sidney's trial. 
 
 Q,. — ^Tiat was the law of constructive treason in 
 the reign of Charles II. ? 
 
 Q. — Mention any instances in which that law was 
 applied. 
 
 Q. — What laws were enacted against Dissenters in 
 the reign of Charles II. ? 
 
 Q,, — Compare the conduct of the second and fourth 
 parliaments of Charles II. with that of the parliaments 
 in the time of James I. 
 
 Q. — A\lien was the Statute of Wills passed ; and to 
 what cause do you ascribe the necessity for such a 
 measiu"e ? 
 
 Q. — ^Yhat was the state of the press in the time of 
 Charles II. ? 
 
 James II. 
 
 Q. — In what did the attacks on the constitiition, 
 during the reigns of James II. and Chaiies II., differ 
 from those made upon it dming the reigns of James I. 
 and Charles I. ? 
 
 Q. — Mention any causes during the reign of Edward 
 VI. and James II. in which the law of evidence in 
 cases of treason had been disregarded or misrepresented 
 by the judges. 
 
 Q,. — What rights had the House of Commons suc- 
 ceeded in establishing at the close of the reign of 
 James II. ? 
 
 Q. — "WTiat unconstitutional tribunal did James II. 
 establish ? 
 
 Q,. — AMiat effect did the revolution of 1688 produce 
 in the doctrines and language of the executive govern- 
 ment after that period as compai'ed with the principles 
 insisted upon by the Stuarts.
 
 84 
 
 Q. — What were the designs of James II. in 1685, 
 which excited alaiTQ in the House of Commons ? 
 
 Q,. — Wliat was the temper of the parliament of 
 1685. 
 
 Q. — How did James II. manifest his purposes ? 
 
 Q. — Wliat was the conduct of James with regard to 
 toleration ? 
 
 Q,. — Give an account of the trial of Lord Delamere. 
 
 Q. — Give an account of the trial of the Seven 
 Bishops. 
 
 Q,. — Give an account of the causes which led to the 
 Revolution of 1688, and compare the conduct of 
 Hampden and the leaders of the parliamentary party 
 in 1641, with the conduct of those who brought about 
 the revolution of 1688. 
 
 Q," — What was the condition of those who dissented 
 from the Established Chiu'ch at the revolution ? 
 
 Q. — What act was it the purpose of James II. to 
 repeal ? 
 
 Q,. — Give an account of the conduct of Halifax 
 during the reign of Charles II. and of James II. 
 
 Q. — State the concessions made by the crown to the 
 parliament of James II., and the causes which led the 
 king to put an end to the sittings. 
 
 Q,. — Compare the conduct of the statesmen who 
 brought about the revolution of 1688, with those who 
 led tlae opposition to Charles I. 
 
 Q. — Compare the conduct of the parliaments of 
 James II., with that of the parliament of Elizabeth, 
 and state the cause of any difference you remark 
 between them. 
 
 Q,. — What was the claim of the dispensing power, 
 in what cases was it required by the judges, and when 
 was it finally abolished ? 
 
 William III. 
 
 Q. — Wliat was the course followed with regard to 
 supplies by parliament on the accession of WiUiam 
 III.?
 
 85 
 
 Q. — State the date and purport of the Act of 
 Settlement, and of the events that made it necessaiy. 
 
 Q,. — Mention the parliamentary enquiries wliich 
 were set on foot during the reign of William III. 
 
 Q. — Give an account of the progress of religious 
 liherty in England, from the reign of Elizabeth to the 
 Toleration Act. 
 
 Q. — AMien was the distinction of the cabinet from 
 the privy council fully established ? 
 
 Q. — Wliat change took place in the trial of a peer in 
 the reign of William III. ? 
 
 Q,. — T^lien did the Licensing Acts cease to control 
 the press ? 
 
 Q. — On what conditions did William and Maiy 
 accept the crown of England ? 
 
 Q. — Wliat was the great object of William's policy ? 
 
 Q. — What treaties were concluded with France 
 during his reign ? 
 
 Q. — What was the result of Admiral Herbert's 
 engagements with the French fleet ? 
 
 Q. — A\Tiat eflorts did James II. make for the 
 recovery of his crown, and in what way were they 
 defeated ? 
 
 Q. — ^Tiat gi'eat IS^ational establishments were estab- 
 lished during the reign of William III. ? 
 
 Q,. — Name any remarkable petition presented to the 
 House of Commons. 
 
 Q,. — Did anytliing remarkable happen during the 
 reign of William III., to any speakers of the House of 
 Commons ? 
 
 Q. — What was the last offence committed by Louis 
 XIV. against England, before the war of the succession? 
 
 Q. — 'Wliat was the policy of WiUiam III. towards 
 Ireland ? 
 
 Q. — State the character of William III., and cite the 
 events of his life which you think illustrate it. 
 
 Q. — Give an accoimt of the parties, whig and tory, 
 from their beginning to the peace of Utrecht. 
 1l 1^0 Q,. — "Wliat change took place in the constitution of 
 '' parliament, and how was it effected ?
 
 86 
 
 Q. — Give an account of the characters of Halifax 
 and Somors. 
 
 Q,. — What was the character of the House of Com- 
 mons by which Somers, Portland, and Halifax were 
 impeached? To what discussions did that impeach- 
 ment give rise between the two Houses ? 
 
 Q. — "Wlien were counsel first allowed to speak for 
 prisoners accused of High Treason ? 
 
 Q,. — State the chief provisions, and the date of the 
 Act of Settlement. 
 
 Q,. — Give an account of the parliamentary enquiries 
 which took place in the reign of William III. 
 
 Q. — Give an account of the Convention Parliament 
 in 1689. 
 
 Q. — Give an account of the settlement of the 
 Revenue diuing the reign of William III. 
 
 Q. — From what parties did William III. select his 
 ministers ? 
 
 Q,. — ^\Tiat measure, supported by Lord Somers, was 
 proposed concerning Coi-porations, and what became 
 of it? 
 
 Q,. — Give an account of the condition of the press 
 from the restoration of Charles II., when the last 
 licensing Act expired. 
 
 Q. — Give an account of the scheme of Eeligious 
 Toleration of William III., and of the extent to 
 which it was established. 
 
 Q. — Give an account of the change in the Law of 
 Treason, in the reign of William III. 
 
 Q. — Wliat was the date of the treaty of Ryswick, 
 and what events led to the war which followed it ? 
 
 Q,. — Name the most eminent judges employed by 
 WiUiam III. 
 
 Q. — Give an account of the differences between the 
 House of Lords and the House of Commons during 
 the reign of WiUiam III. 
 
 Q. — Give an account of the causes which led to the 
 impeachment of Lord Somers, and of the result of that 
 proceeding. 
 
 Q. — Mention the names of persons expelled from the
 
 87 
 
 House of Commons diiring the reign of "William, and 
 the causes which led to their disgrace. 
 
 Q. — State the pui-port of the Acts of parliament 
 which mark most clearly the social progress of 
 England during the reigns of EUzaheth, of Charles II., 
 and of WilHam III. 
 
 Q. — Give an account of the state of parties on the 
 accession of William III. to the English crown. 
 
 Q. — State the instances in which the royal assent 
 was refused to bills during the reign of William III. 
 
 Q. — Had the privileges of corporations been invaded 
 during the reign of Charles II., and on what occasions ? 
 
 Q. — Had any attempt been made in any fomier 
 reign, and when, to appropriate the revenue to specific 
 purposes ? 
 
 Q,. — Give an account of the consequences which the 
 change adopted at the revohition in the votes of supply 
 has produced in the working of our government. 
 
 Q. — What change took place during the reign of 
 WiUiam, as to the period for which parliaments were 
 to sit? Give a history of the different attempts to 
 bring about the object, and their ultimate result. 
 
 Q. — What measui'es were taken to make the judges 
 independent ? 
 
 Q. — Give an account of the manner in which 
 William III. constructed his first administration. 
 
 Q. — What were the most remarkable acts of the 
 first parliament of William III. ? 
 
 Q. — When did the principle of the appropriation of 
 supplies begin, and when was it fijially established ? 
 
 Q. — Give an accoimt of the schism of the non-jurors, 
 and the conduct of Sancroft. 
 
 Q,. — Dui'ing this reign in what manner were the 
 witnesses for a prisoner accused of felony examined ? 
 What act of parliament passed, bearing on the subject, 
 in the reign of James I. ? What is the opinion of Lord 
 Coke as to the practice which prevailed ? 
 
 Q. — What measures were brought forward affecting 
 the character and constitution of the House of Commons 
 dui'ing the reign of William III. ?
 
 ^M 
 
 Q. — What course did the House of Commons adopt 
 with regard to William's army after the treaty of 
 Ryswick ? 
 
 Q. — What were William's views with regard to 
 those who dissented from the Established Church, and 
 on what footing was the principle of toleration placed 
 during his reign ? 
 
 Q,. — Compare the proceedings of the revolution of 
 1688 with those of the opposition in 1641, vsdth 
 reference to the dangers to be guarded against, and 
 the remedies that were adopted. 
 
 Q. — What improvements were made in our constitu- 
 tion dm'ing the reign of William III. ? 
 
 Q. — Give an account of Simpson's case as given by 
 Lord Coke ; and of the constitutional principles it 
 establishes. 
 
 Q. — Grive an account of the domestic policy of 
 William III. ; and of his attempts to balance the 
 English parties. 
 
 Q. — Were those measures modified, and when ? 
 
 Q. — What were the proceedings of Sir John 
 Pen wick? State your opinion as to the justice of 
 those proceedings, and the reasons on which it rests. 
 
 Q. — What measures were taken for the exclusion of 
 placemen from parliament during the reign of William 
 III.? 
 
 Q. — What parliamentary enquiries were set on foot 
 during the reign of William III. ? 
 
 Q. — Compare the conduct of the statesmen who 
 brought about the revolution of 1688, with the conduct 
 of those who led the opposition to Charles I. 
 
 Q. — What were the limitations of prerogative in the 
 Act of Settlement ? 
 
 Q,. — Give an account of the influence of the crown 
 in the balance of the constitution from the reign of 
 Edward I., to the revolution of 1688. 
 
 Q. — State the causes which led to the revolution of 
 1688. 
 
 Q,. — Give an account of the Religious Toleration
 
 89 
 
 during the reign of William III,, and cf the degree of 
 success wlaich his efforts in that cause obtained. 
 
 Q. — State the law as to the eligibility of placemen, 
 and pensioners, to sit in parliament, as it now exists. 
 
 Q,. — Give an account of the law concerning the 
 prerogative down to the present time. 
 
 Q. — Compare Magna Charta, the Petition of Right, 
 and the Bill of Eights, and show how the outline of a 
 free constitution, traced in the fii'st, was filled up in 
 the second and third enactments. 
 
 Q,. — Trace the progress of the influence of the House 
 of Commons from the accession of James I. to the year 
 1688. 
 
 Q. — Give an account cf the Bill of Rights ; of the 
 provisions it contained, and of the reasons which made 
 it necessary. 
 
 Amie. 
 
 Q. — Give an account of the progi'ess of toleration 
 from the accession of Charles II. to the death of Anne. 
 
 Q,. — Give an account of the Law of Treason and its 
 changes during the same period. 
 
 Q. — Give an account of the changes in the constitu- 
 tion from the abdication of James II., to the accession 
 of Queen Aune. 
 
 Q. — What was the legal condition of the press until 
 the reign of Queen Anne ? 
 
 Q. — Mention some instances in which the right of 
 impeachment has been exercised from the earKest 
 occasion to the reign of Anne. 
 
 Q. — ^Miat measures were taken for excluding place- 
 men from parliament diuing the reign of Queen Anne ? 
 
 Q. — Give an account of the causes which led to the 
 trial of Sacheverel, and of the piinciples it estab- 
 lished. 
 
 Q. — What was the case of Ashby v. White ? 
 
 Q. — Give an account of the policy and chai'acter of 
 Godolphin, and of the causes which led to the downfal 
 of his administration.
 
 "^ 
 
 90 
 
 Q. — Give an account of the constiTictive interpreta- 
 tion of the Law of Treason from the accession of Henry 
 VIII. to the trial of Dammaree and Pm'chase. 
 
 Q. — Trace the growth of the importance of the 
 House of Commons from the accession of Elizabeth 
 to that of Anne. 
 
 Q. — When were witnesses for a prisoner first 
 allowed to be sworn ? 
 
 George I. 
 
 Q. — "When was the Septennial Act passed? on 
 what grounds was it justified ? State such reasons as 
 occur to you in favour of, or against it. 
 
 Q,. — Give an account of the laws affecting the 
 duration of parliament from 1640 to 1720. 
 
 Q. — Mention the instances in which the right of 
 impeachment has been exercised from the earliest 
 period to the reign of George I. 
 
 Q. — What change took place in our constitution 
 during the reign of George I. ? 
 
 Q. — What change took place in the Law of Treason 
 between the trial of Lord Russell, and the accession of 
 George I. ? 
 
 Q,. — Give an account of the difference between whig 
 and tory illustrated from history on the accession of 
 George I. 
 
 Q,. — Give an account of the Peerage Bill introduced 
 by Lord Sunderland, in the reign of George I., of the 
 fate it met with, and the object it had in \iew. 
 
 Q,. — What proceedings were taken against Bishop 
 Atterbury, and on what grounds ? 
 
 Q. — Trace the progress of religious liberty in 
 England from the accession of James I., to the acces- 
 sion of George I. 
 
 George 11. 
 
 Q. — Trace the progress of toleration from the time 
 of Elizabeth to that of Georsre II.
 
 91 
 
 Q. — Give an account of Sir Robert "Walpole's Excise 
 Scheme. 
 
 George III. 
 
 Q. — When did jui'ies obtain the right of giving a 
 general verdict in cases of libel. 
 
 Q. — Give an account of the attempt made to stop the 
 influence acquired over the House of Commons by the 
 crown down to the reign of George III. 
 
 Q,. — Give an account of the Law of Treason from 
 the statute of Edward III., to the close of the reign of 
 George III. 
 
 Q,. — Trace the history of legislation as it appears in 
 the Statute Book, from the reign of Elizabeth to that 
 of George III. 
 
 Q. — Give an account of the liberty of the press as it 
 may be gathered from our State trials, debates in 
 parliament, and Statute Book, from the days of 
 Elizabeth to Mr. Fox's Libel Act. 
 
 Q. — When was the question as to the validity of 
 general warrants finally decided ? 
 
 Victoria. 
 
 Q. — Give an account ef the Law of Libel, taking 
 the word in its widest sense down to the present time. 
 
 Q, — When was the power of making a will disposing 
 of all liis property not entailed fij'st given to the EngKsh 
 subject. 
 
 Q. — Give an account of the Law of Treason, as it 
 affects Peers and Commons, and the changes it has 
 undergone from Edward III. to the present time. 
 
 Q. — What is the effect of a Royal Proclamation ? 
 
 Q. — What is the check provid(>d by the constitution 
 on the improper exercise of the prerogative of the 
 crown? 
 
 Q. — What are the three estates of the realm ? 
 ^' '■ Q. — Give an historical account of the jurisdiction of 
 the House of Lords, and of the resistance to it by tho 
 House of Commons.
 
 COMMON LAW.
 
 95 
 
 OUTLINE or COMMON LAW. 
 
 The muiiicipal law of England is dividecl into the 
 lex non scripta, the unwritten or common law ; and the 
 lex scripta, the written or statute law. The unwritten 
 or common law is by ]VIr. Justice Blackstone, divided 
 into three kinds : I. General customs ; which are the 
 universal rule of the whole kingdom, and fonn the 
 common law in its stricter and more usual signification; 
 II. Particular customs ; which affect only the inhabi- 
 tants of particular districts, and III. Certain particular 
 laivs which by custom are adopted and used by some 
 particular courts of pretty general and extensive sig- 
 nification. 
 
 There are three Superior Courts of Common Law: 
 the Queen's Bench, the Exchequer of Pleas, and the 
 Court of Common Pleas. The inferior Coui'ts of Common 
 Law are the County Courts, the Courts of Record, 
 and other Local Courts with civil jurisdiction. 
 
 The actions brought in the Coui'ts of Common Law 
 are mostly for breach of contract, or for wrongs inde- 
 pendent of contract. . :' c- . 
 
 Of Contracts. 
 
 A contract is an agreement between two or more 
 persons to do or not to do a particular act. Contracts 
 in tliis country are either contracts by matter of 
 record, deeds, or simple contracts. 
 
 Contracts hy matter of record are contracts acknow- 
 ledged in open court before an officer of the court, 
 and recorded in the presence of the party making the
 
 96 
 
 acknowledgement. A record is proved by mere pro- 
 
 dnction of the document. The recognizances entered 
 into by witnesses to enforce their attendance at criminal 
 courts, are the most usual recognizances at the present 
 day. 
 
 Deeds are conti'acts in waitings on parchment or 
 paper, and sealed and delivered as a deed. No con- 
 sideration is requisite for a deed, except in the case 
 of a bargain and sale of lands, a covenant to stand 
 "seised to a use, and a covenant in restraint of tracTe. 
 'A deed may be in any language, but all certificates, 
 patents, charters, bonds, records, judgments, statutes, 
 and recognizances must be written in the English 
 language. A deed is sometimes called a specialty, 
 r.nd is regarded as of a much superior natui'e to a 
 simple contract. Thiis, if a simple contract (which 
 will be afterwards explained) is made and afterwards 
 a contract by deed is executed by the parties for the 
 same object as is contemplated by the simple contract, 
 the latter becomes merged in the deed and cannot be 
 enforced, although the deed may. 
 
 A simple contract is either in writing or verbal, and 
 must in either case be founded on a consideration 
 recognised by law. If made without consideration the 
 contract is called a nudum pactum, or one wliich cannot 
 be enforced by process of law. 
 
 For the validity of all contracts there are two requi- 
 sites. I. The parties must be competent to contract. 
 
 II. The object of the contract must be legal. For the 
 validity of simple contracts in addition to the pre- 
 ceding there ai'e two other requisites, and these are : 
 
 III. The contract must be founded on good legal 
 consideration. IV. The contract miist be mutual. ' 
 
 I. Parties competent to contract are all persons 21 
 /years of age or more, unless they are manied women, 
 , persons of unsound mind, alien enemies, outlaws, or 
 '^^ convicted felons. 
 
 A person under twenty-one years of age is regarded 
 by the law as an infant, and his contract, unless of a 
 beneficial character to himself, or for necessaries for
 
 97 
 
 himself, or his wife, or family, is void. Necessaries are 
 articles supplied to the infant suitable to his station in 
 life, and in general comprise lodgings, meat, diink, 
 apparel, physic, and suitable instniction. An agi'ee- 
 ment by an infant to serve for wages is considered of a 
 beneficial character, unless there are stipulations in it 
 of an inequitable nature. A deed if beneficial to an 
 infant is merely voidahle by him, and until avoided it 
 stands good, but if the contract be prejudicial to the 
 infant, as a bond with a penalty, it is void. 
 
 After full age an infant may ratify his simple contract 
 by any written instrument signed by him. 
 
 A married looman is incapable of binding herself at 
 law by any contract, it being regarded as absolutely 
 void, as her husband and she are in contemplation of 
 law but one person. But after a judicial separation by 
 which the marriage is dissolved, or if the husband has 
 been convicted of felony and transported, she is capable 
 of contracting. 
 
 A lunatic is Kable on an executed contract, where the 
 plaintiff had no notice of insanity and practised no 
 imposition upon him. 
 
 Alien enemies, or subjects of a country with which 
 we are at war, are incapable of making contracts, 
 which are wholly void and cannot even be enforced 
 upon the return of peace. 
 
 Outlaws and persons under sentence for felony are 
 disabled from suing upon contracts made before or 
 during the continuance of the disability. 
 
 II. The object of the contract is legal if it does not 
 contravene the principles of equity, the rules of the 
 common law, or any statute. 
 
 Contracts invalid in equity wiU be adverted to else- 
 where. 
 
 Contracts illegal at common laic are those which are 
 contrary to public policy, tend to promote immorality 
 or crime, or are fraudulent. 
 
 Among contracts contrary to piihlic policy are those 
 in general restraint of trade, or marriage, or which 
 tend to create monopolies. Among contracts ivkich tend 
 to promote immorality or crime are contracts to print or 
 
 £
 
 98 
 
 publish immoral books, indemnities against the publica- 
 tion of" libels, and promises to reward a person for 
 committing an assault or other crime. Fraudulent 
 contracts are those which, but for the deceitful repre- 
 sentation or concealment of a material circumstance 
 relating to the contract by one party, would not have 
 been entered into by the other party to the contract. 
 
 Contracts illegal hy statute are those which are 
 prohibited by statute, or subject the offending party to 
 a statutory penalty, or contravene any statute made to 
 protect one contracting party from the oppression of 
 another. If, however, no infringement of the law was 
 contemplated by the parties, but an incidental violation 
 of the statute occurs collateral to the contract, the 
 validity of the contract is not affected. Among 
 contracts illegal by statute are those of tradesmen, 
 artificers, workmen, labourers, and others of the same 
 class in their ordinary callings on Sundays, contracts 
 which infringe the Truck Act, the Revenue Acts, or 
 the Factory, Bleach, or Print AYorks Acts. 
 
 III. The consideration required for the validity of a 
 simple contract is a benefit to one party or a detriment 
 to the other party to the contract. In other words, a 
 consideration is the legal equivalent or return for an 
 engagement of any kind. Considerations are of four 
 kinds: 1. A present gift from A. for a future similar 
 gift by B. 2. A present act by A. for a future act by 
 B. 3. A present act by A. for a future gift by B. 4. 
 A present gift by A. for a future act by B. Consider- 
 ations are also divided into exccutoiy and executed. 
 
 An executory consideration is one which is to take 
 place. An executed consideration is one which is past. 
 
 A benefit to one party or a detriment to the other 
 party being deemed a valid consideration according to 
 law, love or affection, friendship, a mere moral 
 obligation, a voluntary courtesy, the termination of 
 disputes, the performance of an act which the party is 
 under no legal obligation to perform, or a by-gone 
 transaction is an insufficient consideration for a simple 
 contract. Among sufficient considerations are a trust 
 reposed, work or services to one of the parties to the
 
 99 
 
 contract, or for a third party at his request, by-gone 
 services rendered pursuant to a previous request, or 
 where a request is implied by law (as is the case where 
 a man retains the advantage of the consideration), 
 moral obligations, which but for the intervention of 
 some positive rule of law or statutory enactment would 
 be binding if accompanied by an express promise, 
 forbearance of valid or doubtful legal or equitable 
 rights, and the performance of an act which the party 
 is under a legal obligation to perform. 
 
 IV. A simple contract must be mutual. Thus a 
 written agreement by A. to serve B. for one year must 
 contain an undertaking by B. to employ A. for that 
 time. 
 
 Some contracts are required to be by deed, others in 
 writing, but most contracts may be made verbally. 
 
 Contracts required to be hy deed are executory gifts 
 of personalty, grants of incorporeal rights, irrevocable 
 contracts to hunt, fish, or shoot, with liberty to take 
 the game or fish obtained, contracts with agents 
 empowering them to execute deeds, assignments of 
 patents, transfers of shares in Joint Stock Companies, 
 sales of ships, contracts of apprenticeship to the sea 
 service, and feofi'ments, partitions, exchanges, leases, 
 assignments, and surrenders under 8 and 9 Vic, c. 106. 
 
 In general, too, corporations can only contract by 
 deed under the corporate seal. To this rule there are 
 exceptions ; and these are that corporations may make 
 small contracts of constant occurrence without deed, 
 and that trading corporations are aUowecT to make 
 mercantile contracts in the same manner as any person 
 engaged in commercial pursuits. 
 
 Contracts required to be in writing are, 1. Agree- 
 ments that are not to be performed within one year 
 from the making thereof. 2. Contracts, or sales of 
 lands, tenements, or hereditaments, or any interest in 
 or concerning them. 3. Promises by an executor or 
 administrator to answer damages out of his own estate. 
 4. Promises to answer for the debt, default, or 
 miscarriage of another. 5. Agreements made in 
 consideration of marriage. AH the preceding instru-
 
 100 
 
 ments are required to be in writing by sec. 4 of the 
 Statute of Frauds, 29 Car. II.. c. 3. By sec. 17 of the 
 same statute, contracts for the sale of any goods, wares, 
 or merchandise for the price of £10 and upwards, 
 except the buyer shall accept part of the goods so sold, 
 and actually receive the same, or give something in 
 earnest to bind the bargain, or in part payment, must 
 be in writing, made and signed by the parties to be 
 charged by such contract, or their agents lawfully 
 authorised; and by 9 Geo. IV., c. 14, this enactment 
 is extended to contracts for the sale of goods which 
 have to be made or completed. Fire, Life, and Marine 
 Assurances are required to be in writing or printed. 
 Special contracts with Railway or Canal Companies, 
 for the carriage of goods, acceptances of bills of 
 exchange, agreements to ship by merchant seamen, 
 and acknowledgments to take case out of Statutes of 
 Limitation, out of Prescription Acts, or out of Real 
 Property Limitation Act, are also required to be in 
 writing. In the term "writing" is included printing. 
 
 Although contracts in writing have many obvious 
 advantages over mere verbal contracts, they are not in 
 law regarded as superior. Both contracts are called 
 parol, although this word has in general the same 
 signification as verbal. 
 
 In the construction of contracts the principal rules 
 are, 1 . The whole contract is to be taken into consi- 
 deration. 2. The terms of the contract are in general 
 to be understood in their ordinary sense. 3. Where 
 the contract relates to mercantile or professional matters, 
 evidence of the general usage of the trade or the 
 profession is admissible, unless it would contradict the 
 plain words of the document. 4. Evidence of customs 
 affecting agricultural contracts is admissible, unless 
 excluded by an express provision on the subject-matter 
 of the contract. 5. In the construction of all contracts 
 the surrounding circumstances may be taken into 
 consideration. 6. Parol evidence is admissible to 
 explain a latent ambiguity ; that is, one which is not 
 apparent on the face of the contract. 
 
 Contracts are either implied or express. An implied 
 contract is one which arises from the mere construction
 
 101 
 
 of law. An express contract is one "which ario^ 
 the agreement of the parties. Among implied contract.. 
 are those which enable a person who has paid money 
 under a mistake of fact, or upon a consideration which 
 has failed to recover back the amount, and those which 
 require a surety in proportion to his liability, to 
 reimburse a co-surety who has had to pay the whole 
 amount of the debt of the principal. Express contracts 
 arising, as they do, from the stipulations of the parties, 
 are too numerous to be specified. Among the most 
 important express contracts, those of Bailment, Bills 
 of Exchange, Bills of Lading, Charter Parties, Debt, 
 Guarantees, Landlord and Tenant, Fire and Life 
 Assurance, Marine Insurance, Master and Servant, 
 Principal and Agent, and Sale. 
 
 A hailment is defined by Dr. Story to be " the delivery 
 of a thing in trust for some special object or purpose, 
 and upon an express or implied condition to fulfil 
 that trust." 
 
 Bailments are either for the benefit of: 1 . The bailor, 
 as deposits or mandates. 2. The bailee, as a commodate. 
 3. Both parties, as a pledge and letting to hire. 
 
 The definitions of the different kinds of bailments 
 are thus stated by Sir William Jones. ^'Deposit is 
 a bailment of goods to be kept for the bailor with- 
 out recompcnce. Mandate is a bailment of goods 
 without reward, to be carried from place to place, or 
 to have some act performed about them. Commodate 
 is the bailment of goods to be used by the borrower 
 without paying for it. A pledge is a bailment of goods 
 by a debtor to his creditor, to be kept till the debt be 
 discharged. Letting to hire is 1, a bailment of a thing 
 to be used by the hirer for a compensation in money ; 
 or 2, a letting out of work and labour to be done, or 
 care and attendance to be bestowed by the bailee on 
 the goods bailed, and that for a pecuniary recompence; 
 or 3, of care and pains in carrying the things delivered 
 from one place to another, for a stipulated or impHed 
 reward." 
 
 When a bailment is for the benefit of the bailor, he
 
 102 
 
 will be liable only for gross negligence, wbich is the 
 want of that care which every man of common sense, 
 how inattentive soever, takes of his own property. 
 ""Where the bailment is for the benefit of the bailee 
 he is liable for slight negligence, or the omission of that 
 diligence which very circumspect and thoughtful 
 persons use in securing their own goods and chattels." 
 Where the bailment is for the benefit of both bailor and 
 bailee, the latter is liable for ordinary negligence or 
 " the omission of that care which every man of common 
 prudence takes of his own concerns." 
 
 Among bailments of continual occurrence is that of 
 the carriage of goods. " A common carrier is in the 
 nature of an insurer, and liable for every accident, 
 except by the act of God or the king's enemies." 
 Per Lord Mansfield in Forward v. Pittard. The 1 "W. 
 rV., c. 68, relieves common carriers by land from 
 liability, for the safe carriage of certain specified articles 
 of great value, in small compass in any parcel, when 
 the value of such article or articles shall exceed the 
 sum of ten pounds, unless the value is declared, and 
 an increased carriage paid. Notice of the increased 
 charge must however be posted in the booking office 
 of the carrier. 
 
 A bill of exchange is an unconditional written order 
 from one person to another, to pay a sum of money 
 to the former or a third party. Bills are either inland 
 or foreign. The term inland bill is by the Mercantile 
 Law Amendment Act, 1856 (19 and 20 Vict. c. 97, 
 s. 7), applied to bills drawn in any part of Great 
 Britain and Ireland, the Islands of Man, Guernsey, 
 Jersey, Alderney and Sark, and the islands adjacent to 
 any of them, being part of the dominions of her 
 Majesty, and made payable in or drawn upon any 
 person resident in any part of the said United Kingdom 
 or islands. The term foreign bill is consequently 
 applied to any bill drawn out of the United Kingdom 
 or such islands, although payable therein. For the 
 purposes of the Stamp Acts however, an inland bill is 
 one which is drawn in Great Britain or Ireland and
 
 1 
 
 103 
 
 payable in either, and for the same purposes a foreign 
 bill is one drawn out of Great Britain or Ireland, 
 although payable in either. 
 
 The person who makes the order is called the draiver, 
 the person to whom the order is payable, the payee, 
 and the person to whom it is addressed, the draicee. 
 Bills are assignable if drawn payable to the hearer, to 
 the payee or his order, to the order of the jiayee, to 
 the assigns of the payee or contain similar words of 
 negotiability. Bills payable to bearer arc transferred 
 by mere delivery. Other negotiable bills are transferred 
 by indorsement which is either special or in blank. 
 An indorsement in blank merely consists of the signa- 
 ture of the payee, or other person assigning the bill. 
 A special indorsement contains in addition the name 
 of the person to whom the biU is transferred. The 
 person making the indorsement is called the indorser, 
 and the person in whose favoiix it is made, the 
 indorsee. 
 
 Bills which are drawn otherwise than on demand 
 are usually also presented to the drawee for acceptance, 
 whioh is an intimation signed by him on the bill 
 that he will pay it when due. "Where a bill is 
 payable at sight, or at a specrfied period after sight, 
 acceptance is indispensable, the word sight being the 
 mercantile expression for acceptance. The drawee is 
 entitled to retain a bill presented for acceptance, for 
 twenty-four hours, unless the last post on the day after 
 presentment should close before the twenty-four hours 
 have elapsed. "Where however, the day after pre- 
 sentment for acceptance is a Sunday, Good Friday, 
 Christmas Day, or a day of Public Thanksgiving, or 
 Humiliation, the period is extended to forty-eight 
 hours, but subject to similar curtailment as the period 
 of twenty-four hours. After acceptance the di'awee is 
 called the acceptor. The acceptance of a bill is either 
 general as : Accepted, A. B. or Accepted, payable at 
 C. D. Sf Co.'s, Bankers, London, A. B.; special as : 
 Accepted, payable at three months, when the bill was 
 drawn at two months ; or qualified as : Accepted,
 
 104 
 
 payalh at C. D. Sf Co.'s, JBanJcers, London only, A. B. 
 
 Where acceptance of a bill is refused, the holder of 
 the bill should give immediate notice to the drawer 
 and prior indorsers. Where the bill is a foreign bill it 
 must also be protested. 
 
 Upon receipt of due notice of the non-acceptance of 
 a bill, the drawer and prior indorsers become immedi- 
 ately liable to the holder of the bill. 
 
 In calculating the time when bills payable otherwise 
 than on demand will fall due, an addition of three days 
 called days of grace must be made. Thus a bill dated 
 the 1st of May in any year, and payable at one month 
 after date, is due on the 4th of June. On bills payable 
 on demand no days of grace are allowed. Other bills 
 become payable on the last of the days of grace unless 
 it happens to be a Sunday, Good Friday, Christmas 
 Day, or a Day of Public Fast or Thanksgiving, when 
 the bill is payable on the preceding day. 
 
 To charge the acceptor of a bill, it may be presented 
 at his house or place of business, unless there are 
 words on the bill stating that the bill will be payable 
 at a particular place only. To charge the drawer and 
 prior indorsers, however, the bill, if payable at any 
 particular place as a banking house, must be presented 
 there whether the word only, or any similar word 
 restrictive of the place of payment be contained on the 
 biU or not. Where a bill is presented for payment at 
 the acceptor's place of business, or at a banking house, 
 presentment must be made during the usual business 
 hours. Where a bill is presented at the residence of 
 the acceptor it ought to be presented at an hour when 
 he is likely to be there. Although the acceptor should 
 become bankrupt or insolvent the bill must be presented 
 for payment. Where the acceptor has absconded 
 presentment is excused, but not merely when he has 
 changed his residence. 
 
 On non-payment of di. foreign hill it must be protested 
 for non-payment. An inland bill is generally only 
 noted, but this formality is not essential. On refusal, 
 by the acceptor to pay a bill, the holder, if he wishes to
 
 105 
 
 have recourse against the parties, should give imme- 
 diate notice to each of the prior indorsers and the drawer. 
 This notice is generally required to be given within 
 twenty-four hours, or under the circumstances already 
 mentioned forty eight hours after non-payment, where 
 the bill is an inland one. In the case of a foreign bill, 
 notice by the next mail after non-payment is sufficient. 
 A longer time would however be allowed in any cases 
 where the holder did not know the address of any of 
 the parties. The notice should clearly express that 
 the bill has been presented and refused payment. The 
 party on receiving notice is bound to pay the amount 
 of the bill to the holder. 
 
 Promissory Notes, in regard to negotiability, are in 
 general regulated by the same rules as bills of exchange. 
 In regard to presentment for payment however, the 
 maker of a promissory note is placed in a less favour- 
 able position than the acceptor of a bill of exchange. 
 Thus the case of RumbaU v. Ball, 10 Mod. 38, decided 
 that to charge the maker in an action on a note payable 
 on demand, a demand need not be alleged or proved, 
 for the action itself is a demand ! ! Unless, too, the 
 promissory note is payable at a particular place, no 
 presentment for payment or notice of dishonour is 
 required to charge the acceptor. Indorsers however, 
 of promissory notes are not Hable to the holder, unless 
 due presentment for payment, and notice of dishonour 
 have been given. Bankers only may issue promissory 
 notes for £100 and under, payable to bearer on 
 demand. 
 
 A Cheque is an obligatory order on a banker to pay 
 money. Cheques are usually drawn payable to hearer, 
 but sometimes to order, self, or a specified person. 
 Cheques are rarely, if ever, accepted. By the 23 Vic, 
 c. 15, a stamp duty of one penny is imposed on cheques. 
 The holder of a cheque, who omits to present it for 
 payment within a reasonable time, will have to bear 
 the loss in the case of the failure of the bank. "A 
 person receiving a cheque has tiU the following day to 
 present it, when there is the ordinary means of doing
 
 106 
 
 so." (Tindal C. J. Moule v. Brown, 4 New Ca. 267.) 
 Uut this rule is only applicable where the drawer is 
 prejudiced by the delay. 
 
 Cheques which are intended to be forwarded by post 
 are usually crossed. A crossed cheque is one which has 
 the name of a banker written across it, or has two 
 transverse lines drawn across it, and with, the words 
 " and company," or any abbreviation thereof, with or 
 without the name of a banker. The effect of any of 
 these crossings is to prevent payment except to a 
 banker, or (as the case may be) to the banker specified. 
 Where the crossing is general, any lawful holder may 
 strike out the crossing, and insert the name of a 
 banker.— 21 and 22 Yic, c. 79. 
 
 A bill of lading is a document acknowledging the 
 receipt of goods on board a vessel, and expressing the 
 conditions on which they are to be carried to a specified 
 place and person. The difference between a bill of 
 lading and a charter party is that the latter is a 
 contract for the whole or a particular part of the ship. 
 Where the owners of a vessel profess to carry goods for 
 any person willing to pay the freight, the vessel is 
 called a general ship. 
 
 The contract of debt arises whenever a definite or 
 liquidated sum becomes payable to any person. Debts 
 are either of record, as a judgment; specialty, as a 
 bond ; or simple contract debts, as a loan. The contract 
 of debt may arise in many ways. Thus, if money be 
 deposited with a banker to be drawn out by cheque as 
 required, and on closing the account the banker should 
 refose to pay the customer the balance, it may be 
 recovered as money lent. Where there are co-defend- 
 ants in an action of contract any one of them after 
 judgment recovered againsthimself may sue the other or 
 others for contribution ; but where the action was for 
 a tort any co-defendant paying the whole amoiint of the 
 judgment has no redress against his co-defendants. 
 
 A guarantee being *' a promise to answer for the 
 debt, default, or miscarriage of another," is required, 
 as we have seen, by the 4th section of the Statute of 
 
 J
 
 107 
 
 Frauds, to be in writing. Previously to the 19 and 20 
 Vic, c. 97, s. 3, the consideration for the guarantee 
 was required to appear on the face of the document. 
 Guarantees are limited where their extent and duration 
 are specified, continuing when the liability of the 
 surety is unlimited. Where a guarantee is given to a 
 firm it will only bind the surety so long as no change 
 takes place in the firm, unless otherwise expressed. 
 
 The contract of landlord and tenant is too well known 
 to require a definition. Whenever by the terms of the 
 contract there is an agreement for the use of a specified 
 piece of land, or a particular house or part of a house, 
 the contract, being one relating to lands, tenements, or 
 hereditaments, is required by the Statute of Frauds to 
 be in writing. The tenancy may be for any period 
 fixed by the parties, but is usually yearly for lands and 
 unfurnished houses, monthly for furnished houses, and 
 weekly for lodgings. Where the tenancy is yearly, or 
 in other words, from year to year, notice to quit must 
 be given six calendar months (182 days) before the 
 expiration of any current year. Where however, the 
 tenancy begins and ends at any of the usual quarter 
 days, notice for the half-year or two quarters before 
 the expiration of the current year is sufiicient notice. 
 Where the tenancy is monthly or weekly, notice for 
 a month or week terminating with the current month 
 or week is requisite. In all cases however where 
 premises are taken for any specified period, as one 
 week, one month, one year, no notice is requisite. 
 
 Rent is not strictly due until midnight of the day 
 on which it is made payable. Should the rent not be 
 paid when due, the landlord may on the following day 
 enter upon the premises and take possession of the 
 goods he may find there. This right of the landlord 
 is called a distress. Tools and implements of trade, and 
 beasts of the plough are privileged from distress, while 
 other sufficient distress can be found. Articles in 
 actual use at the time cannot be distrained, and the 
 same privilege is extended to goods which have been 
 sent to a tradesman or artificer in the way of his trade,
 
 108 
 
 for any particular purpose, as cloth sent to a tailor's 
 shop to be made into clothes, corn sent to a mill to be 
 ground or sold. 
 
 The goods when distrained are impounded on the 
 place or in a pound. Notice of the distraint is then 
 given to the tenant, and unless payment of the rent 
 and charges is made within five days, or the goods 
 are replevied, the articles distrained are appraised by 
 two sworn appraisers, and after such appraisement the 
 goods distrained are sold in satisfaction of the rent, 
 and of the charges of distress, appraisement and sale, 
 and the surplus (if any) belongs to the tenant. One 
 of the harshest features of the law of distress is that 
 the goods of an under tenant or lodger, may be 
 distrained for rent due by his landlord to the owner 
 of the premises. A tenant from year to year in the 
 absence of express stipulation, is bound to keep the 
 premises wind and water-tight, but he is not bound 
 to make substantial repairs. 
 
 A contract of life assurance is an engagement by one 
 party in consideration of a series of periodical payments 
 called premiums, to pay a sum of money on the death 
 of another. It differs from a contract against the 
 perils of the sea, or against fire, in not being of the 
 nature of an indemnity, although it resembles those 
 contracts in requiring that the insured should have a 
 pecuniary interest in the subject-matter of the poKcy. 
 
 In Fire Assurance Policies the most important requi- 
 site is the proper description of the subject-matter of 
 insurance, to show the nature of the risk. After the 
 policy has been eff'ected, any alteration in the premises 
 increasing the risk will invalidate the policy. 
 
 Marine policies are either voyage or time poKcies. 
 A voyage policy is one intended to be confined to one 
 or more voyages, while a time policy states the period 
 for which the assurance is to last. Voyage and time 
 policies are also subdivided into valued and open policies. 
 In both time and voyage policies there is an implied 
 warranty, that all the usual shipping documents shall 
 be carried on board the vessel, and that she will
 
 109 
 
 pursue her Toy age without deviation. Where the 
 policy is a voyage policy, there is also an implied 
 warranty that the vessel is seaworthy, and sufficiently 
 manned when she puts to sea. 
 
 Losses or damages to the subject-matter of marine 
 insurance are either partial, general average, or total. 
 Total losses are again divided into two kinds, absolute 
 and constructive. A partial loss arises where only 
 partial damage is done to the subject-matter of insur- 
 ance. In the language of underwriters, a partial loss 
 is called a particular average. Most policies however, 
 contain a clause exempting the insurers from liability 
 for particular average losses, which are below a specified 
 value. A general average loss arises whenever a general 
 contribution or general average, as it is called, has to 
 be made between the owners of the ship, freight, and 
 cargo in proportion to their interests, after there has 
 been any sacrifice of property in the course of the 
 voyage, for the general benefit of all. An absolute 
 total loss occurs where the subject-matter of the 
 assurance is totally destroyed or annihilated, or is placed 
 by the perils insured against in such a position, that it 
 is totally out of the power of the assured or the 
 underwriters, to procure its arrival at the port of 
 destination. A constructive total loss arises where some 
 disaster takes place, which renders the restoration of a 
 ship or cargo improbable, and which entitles the assured 
 to claim as for a total loss, on giving due notice of 
 abandonment, as where goods are so much damaged 
 in the course of the voyage, that they would not be 
 worth the cost of forwarding to their destination. 
 
 Like other contracts, fraixd in regard to any material 
 circumstance will invalidate the contract, and all 
 express or implied warranties by the assured must be 
 observed. 
 
 The contract of master and servant arises where one 
 person engages to serve another for a recompence. 
 The duration of the contract varies, but it is in 
 general for a year. Although the general presumption 
 in regard to such contracts is, that they are yearly,
 
 110 
 
 there is frequently a usage which makes them termin- 
 able on ii short notice. Thus the engagements of 
 domestic servants are terminable at any time by the 
 payment of a calendar month's wages or notice for the 
 same period. With regard to commercial travellers, 
 the usual period of notice is three calendar months. 
 In all other cases the period of notice must expire 
 with the current year of hiring. The length of notice 
 required in these cases is in general regulated by the 
 stipulations of the parties, but where there are none a 
 quarter's notice is sufficient. Where the contract of 
 master and servant is for more than a year, or for a 
 year, to commence at a future day, it is required, as we 
 have seen, to be in writing, by the Statute of Frauds. 
 
 The contract of master and servant besides being 
 terminable by notice, may also be ended without notice, ^' / 
 as by mutual consent, the death of the master, or by /il'lK^ 
 dismissal of the servant. Wilful disobedience of a 
 lawful command, dishonesty, repeated intoxication, 
 and gross immorality in the master's house, are all 
 good causes of dismissal, and in any of these cases 
 the wages which had not become due before the date 
 of dismissal are forfeited. A servant cannot however, 
 be dismissed for iUness. 
 
 A partnership is an agreement between two or more 
 persons to contribute money, property, services, or 
 skill, to a business to be carried on by them for profit, 
 to be divided (if realized) among them as principals in 
 equal or other shares. There may, however, be a 
 partnerships in profits only. Thus, if A. agrees to send 
 goods to B. for sale, who is to divide the profits with 
 A. after deduction of the cost and expense of carriage and 
 storage, they are partners in profits. To constitute a 
 partnership the community of profit must be in net 
 profits, as the participation in gross profits does not 
 make the receiver a partner. 
 
 The partnerships we have described are not only 
 partnerships as between the individuals themselves, 
 but also with regard to third parties. There may 
 however, be a partnership with regard to third parties,
 
 Ill 
 
 although there is none between the individuals them- 
 selves. Thus a person who allows his name to appear 
 to the world as a partner, and a person who as principal 
 takes a part of the profits as such, are as to third parties, 
 partners. Partnerships are either adventure, time, or 
 at will, partnerships. An adventure partnership is 
 constituted for one transaction. A time partnership has 
 the duration of the contract fixed. In a partnership 
 at will no time is specified for the continuance of the 
 contract. 
 
 Partnerships may be formed by verbal or written 
 agreement, or by deed. In some cases a partnership 
 will be implied from the conduct of the parties them- 
 selves. In all partnerships each partner is considered 
 to have equal authority to bind the partnership in the 
 course of the business. In all partnerships each 
 partner has, from the general principles of law, power 
 to buy and sell goods required for the purposes of the 
 partnership, pledge partnership property, and borrow 
 money on the credit of the firm. Partners in all 
 commercial partnerships are also empowered to draw, 
 indorse, or accept bills, but to no other partnership is 
 such a power incident. A guarantee, unless in the case 
 of bankers, or any similar business, is not considered 
 among the usual powers of a partner. 
 
 The rights of partners among themselves are perfect 
 good faith, an interest in the partnership property and 
 profits, and an observance of the terms of the partner- 
 ship. Por breaches of the first or the last of these 
 implied conditions, in every partnership, the usual 
 remedy is by application to the Court of Chancery for 
 an injunction, and for the dissolution of the partnership. 
 In some cases however, the partnership may be 
 dissolved without such application. To a partnership 
 there is always a power incident, by which any of the 
 partners may dissent from any transaction about to be 
 entered into by the other members of the firm ; and in 
 such case, if the dissent be communicated to third 
 parties, the dissenting partners will not be bound. 
 
 Of the partnership property the partners are joint
 
 112 
 
 tenants, but in the case of the deafh of any one of 
 them, his interest passes to his personal representatives. 
 "Where land is part of the partnership property, it will 
 in equity be considered as personal estate, and be 
 distributed accordingly. 
 
 Upon a dissolution of a partnership the powers of the 
 partners, except for settling the affairs of the partner- 
 ship, are at an end. In the settlement of the affairs of 
 a partnership the same good faith between the partners 
 is required as before the dissolution. On the dissolution 
 of a partnership, or the retirement of a partner whose 
 name appears in the firm, notice must be given. Where 
 the partner is a dormant one no notice is requisite. To 
 parties who have had transactions with the firm, notice 
 by circular is requisite. With regard to all other 
 parties notice in the "Gazette," and one of the local 
 papers, is all that is necessary. No notice is needed 
 where the dissolution occurs by operation of law, such 
 as death or bankruptcy. 
 
 The law of Principal and Agent is in many respects 
 analogous to that of master and servant. An agent is 
 one employed to do an act for another. Commercial 
 agents are either brokers or factors. Brokers are agents 
 employed to buy or sell, while factors, besides buying 
 or selling, are entrusted with the property. Agents are 
 usually paid by a per centage on the value of the 
 business transacted. This per centage is called a 
 commission. Sometimes an agent guarantees the 
 solvency of the purchaser of goods sold by him for 
 his principal, in which case his commission is larger in 
 amount, and called a del credere commission. 
 
 Agents are again divided into general and special. 
 A general agent is one employed to transact all matters 
 relating to a particular business, as an estate agent. 
 A special agent is employed for one transaction only. 
 The authority given to an agent will also include 
 everything which is necessarily founded in usage of 
 trade or belonging to that authority. Thus a broker 
 employed to get a bill discounted may, unless otherwise
 
 113 
 
 instructed, indorse it in the name of his principal and 
 bind him by such indorsement. 
 
 No agent is empowered to borrow money unless he 
 is the master of a ship, or the acceptor of a bill of 
 exchange for the honour of the drawer. 
 
 The principal has a right in general to enforce all 
 contracts made by the agent on his own account, and is 
 entitled to an account of all the transactions between 
 him and the agent. The most important right of the 
 agent as against the principal is to his commission. 
 Sub-agents are only accountable in general to their own 
 employers. 
 
 The principal is liable to tliird parties on all acts of 
 the agent which faU within the scope of the employ- 
 ment for which the agent has been engaged, unless the 
 third parties have by their conduct shown that they 
 regarded the agent as the only person liable in the 
 transaction. The liability of a principal to a third 
 party also depends in a great measure on the question 
 whether the agent was a general or special one. If 
 the latter, the principal is not liable where the agent 
 disobeys his instructions. 
 
 Where however, the agent is a general agent the 
 principal is liable for his acts, although the agent may 
 have exceeded his instructions. Even in the case of a 
 special agent the principal will be held liable if the 
 agent is entrusted with the possession of goods and has 
 general powers. 
 
 The Contract of Sale is an agreement to transfer 
 property from one person to another in consideration of 
 a sum of money. Where one commodity is exchanged 
 for another the transaction is called barter. 
 
 Sales are either private sales, auction sales, or sales 
 in market overt. 
 
 Private sales ai'e made by the parties themselves or 
 through their agents. Sales hy auction are sales in 
 public to the highest bidder. Sales in market overt 
 are sales in a legal fair or market. In private or 
 auction sales the seller cannot in general give a better 
 title to the property sold than he has himself. From
 
 114 
 
 tlie publicity, however, attending sales in marTcet overt, 
 the buyer without notice of a want of title may obtain 
 a good title against everybody except the owner of 
 stolen chattels who prosecutes the thief to conviction. 
 The sale must however, have taken place on a fair or 
 market day, within the limits of the fair or market, 
 and not within any private room there. Sales of horses 
 in marhet overt must be according to the requirements 
 of the 2 and 3 Ph. and M., c. 7, and 31 Eliz., c. 12 ; 
 but even if there is a compliance with these statutes 
 the owners of stolen horses may recover them within a 
 limited time, on payment of the price paid by the 
 purchaser. 
 
 Contracts of sale are either implied or expressed. 
 An implied sale is one which arises from the presump- 
 tion of law, as where a person orders goods at a shop 
 without any agreement as to price and retains them, or 
 where the buyer keeps goods when sent, which do not 
 comply with the terms of an express contract of sale. 
 Express contracts of sale are those which arise from 
 the express agreement of the parties. 
 
 "Where a contract of sale is for £10 or upwards it is 
 regulated by the 1 7th section of the Statute of Frauds, 
 which enacts that *'!N"o contract for the sale of any 
 goods, wares, or merchandizes, for the price of £10 or 
 upwards, shall be allowed to be good, except the buyer 
 shall accept part of the goods so sold, and actually 
 receive the same, or give something in earnest to bind 
 the bargain, or in part payment, or that some note or 
 memorandum of the said bargain be made and signed 
 by the parties to be charged by such contract, or their 
 agents thereunto lawfully authorised." Earnest is a 
 part of the price. Acceptance is a delivery of the 
 goods by the seller, with the intention of vesting the 
 right of possession in the buyer, and an actual receipt of 
 by the latter with the intention of taking to the 
 possession as owner. No particular form of note or 
 memorandum is requisite for compliance with the 
 Statute. The names of the contracting parties, and 
 the terms of the contract must appear on the docu-
 
 115 
 
 merits constituting tlie contract of sale, and these 
 documents must refer to each other. It is essential 
 to such a contract that where the price has been agreed 
 upon, it should appear on the face of the document, 
 but if no price is mentioned, the law presumes that the 
 buyer intended to pay a reasonable value. The sig- 
 nature must be that of the party to be charged, or of 
 his agent. An auctioneer is the agent of both parties ; 
 and his signature of the name of the buyer, in the 
 catalogue, is a sufficient compliance with the statute, if 
 the conditions of sale are annexed to or referred to in. 
 the catalogue. 
 
 The contract generally provides for the delivery of 
 the goods, but where it is silent, the delivery must be 
 made within a reasonable time. Delivery must be 
 made at a reasonable houi', but if the buyer resides on 
 the premises, the unreasonableness of the hour of 
 deliveiy will be no defence, if he is able to examine 
 and receive them. 
 
 There is, in general, no implied warranty of title by 
 the seller of goods, the maxim of law being caveat 
 emptor. There is an implied waiTanty as to the quality 
 of goods ; 1. "Where goods are sold by sample. 2. 
 Where goods are ordered, or are sold to be used for a 
 specific purpose. 3. Where the articles sold are 
 provisions. An express warranty is any representation 
 which was intended as a warranty by the seRer, and 
 so considered by the buyer. The warranty to be 
 binding must be given at the time of sale. A warranty 
 will not extend to patent defects at the time of sale. 
 
 The principal duties of the purchasers of goods are 
 to accept the goods sold and to pay the price. Where 
 the subject-matter of sale was destroyed at the time of 
 sale, although that circumstance was unknown to 
 either the seller or buyer, the former would have to 
 bear the loss. Whenever a contract of sale is silent as 
 to the time of payment, payment will be considered as 
 a condition precedent to the delivery of the goods. It 
 is the duty of the buyer of goods to fetch them, unless 
 it is the custom of trade to deliver them.
 
 116 
 
 In general the property in the articles sold will pass 
 to the buyer, unless the terms show that the parties 
 did not intend to pass the property until something is 
 done by the seller before delivery of possession. "Where 
 an article is ordered to be manufactured, the property 
 remains in the seller, unless paid for as the work 
 proceeds. 
 
 OP TORTS. 
 
 Any wrong independent of contract, and forming a 
 ground of compensation to the party injured, is a tort. 
 A wrong to be a tort must be capable of legal redress. 
 Thus, where a person sinks a well in his own land, 
 and in so doing deprives a spring in adjoining premises 
 of its supply of water, the wrong is not a tort, but 
 what is called damnum sine injuria, or a wrong without 
 an injury. 
 
 From liability on contracts there are, as we have 
 seen, various exemptions, but those do not apply to 
 torts. Thus an infant is liable for a tort. For a tort 
 committed by a married woman, both she and her 
 husband are liable to be sued by the party injured. 
 "Where however, the wrongful act is as much a breach 
 of contract as a tort, the liability of an infant or a 
 married woman is only upon the contract, whatever 
 that liability may be. On a similar principle, a married 
 woman or an infant is not liable for any deceit or 
 fraudulent representation whereby a contract is affected. 
 The ratification of a married woman or of an infant, 
 having no gi'eater validity than the act intended to be 
 ratified, they can only be trespassers by themselves, 
 and "not trespassers either by prior command or 
 subsequent assent." Co. Litt. 180 b. note (4) 357 b. 
 
 Torts are either to the person, to the reputation, to 
 property, or to rights. Torts to the person comprise 
 assaults and batteries, conspiracies, false imprisonments, 
 malicious arrests or prosecutions, and negligence. 
 Torts to reputation are libel and slander. Torts to 
 property comprise negligence, fi'aud, infringement of
 
 117 
 
 copyrights and patents, nuisances, conspiracy, wrongful 
 detention of goods, slander of title, obstructions to 
 ways and watercourses, and disturbance of franchises. 
 Torts to rights comprise seduction, and enticing servants 
 from a master. 
 
 An assault is an unlawful attempt otherwise than in 
 jest, to touch or strike a person within reach. A 
 lattery is the actual touching or striking a person, 
 otherwise than in jest. A conspiracy is an agi'eement 
 by two or more persons, to do an illegal act or to effect 
 a legal purpose by unlawful means. A false imprison- 
 ment is the compulsoiy and unlawful deprivation of 
 the personal liberty of any person for a time, be it 
 long or short. A malicious arrest is the aiTest of a 
 person by the procurement of another, actuated by 
 malice and without probable cause. A malicious pro- 
 secution is a prosecution instigated by malice, and 
 without probable cause. Negligence is the omission to 
 exercise that care which is required by law, under any 
 paiiiicular circumstances. To maintain an action for 
 negligence, the damage must not be imputable to mere 
 accident. On the part of the injured person there 
 must also have been no contributory negligence^ which 
 may be defined to be the omission to exercise that 
 ordinary care by which the negligence of the defendant 
 might have been avoided. 
 
 A lihel may be defined to be "a publication without 
 justification, or lawful excuse, calculated to injure the 
 reputation of another, by exposing him to hatred, 
 contempt, or ridicule." Per Parke B. Panniter v. 
 Coupland, 6 M. and "W. 105. Slander comprises any 
 verbal imputation to a person of an indictable off'ence, 
 or of anything which might exclude him from society, 
 any words to the prejudice of a person, if spoken of 
 him in the way of Ms occupation, and any words of 
 disparagement accompanied hy special damage. 
 
 Fraud consists of " any wilful misrepresentation, or 
 any intentional concealment by the one contracting 
 party of circumstances, material to be known to the 
 other, and which ought in good faith to have been
 
 118 ■ 
 
 disclosed or correctly stated." Addison on Contracts. 
 A nuisance is any thing wHch. renders the enjoyment 
 of life and property uncomfortable, other than the 
 reasonable use of a lawful trade, or the mere abridg- 
 ment of pleasui'e in the enjoyment of property. A 
 wrongful detention of goods is any unlawful deprivation 
 of goods from the person entitled to their possession. 
 The property in goods may be general or special. 
 General property is the ownership of goods or a right 
 to their absolute possession. Special property is a 
 right to the temporary possession of goods. Against 
 a wrong-doer however, proof of former possession is 
 sufficient. Thus in a well-known case where a chimney 
 sweeper's boy found a jewel, and took it to a jeweller, 
 who refused to return it, it was held, that though the 
 finder did not acquire an absolute property, yet he had 
 such a property as would enable him to keep it against 
 all but the rightful owner, and consequently that he 
 might maintain trover. Armory v. Delamirie, 1 Stra. 
 505. Slander of title to be actionable, must be attended 
 with special damage. 
 
 Seduction is only ground of an action, where a child 
 has been bom, and the father or other relative of the 
 mother of the child has been deprived of any services, 
 which the mother before her confinement, if resident 
 with such relative, was accustomed to render ! ! 
 
 Enticing of servants from their masters comprises any 
 inducement made by a person to a servant to leave his 
 master's employment before the expiration of the 
 sei-vice, whereby the services of the servant are lost 
 to he master. Some torts are also the subject of 
 criminal proceedings, but this circumstance does not 
 afi'ect the right to compensation. Where the tort is 
 a misdemeanor as an assault, a libel, or a nuisance, an 
 action may be brought, although the defendant may 
 have been or may be also indicted. "Where however, 
 the tort is a felony, as embezzlement, the party injured 
 cannot bring an action for compensation until he has 
 prosecuted the ofi'ending party. 
 
 By the common law upon the death of the party
 
 119 
 
 injured, or of the person by whom a tort was com- 
 mitted, there was no legal redi'css for torts committed 
 dming the life of the deceased. Several exceptions 
 have however been introduced into the rule by statute. 
 These are, that in all cases of trespass to goods, the 
 executors or administrators of the party injured may 
 by the 4 Ed. 3. c. 57, bring an action; that actions 
 by executors or administrators for injuries to the real 
 estate of a person deceased, committed within six 
 calendar months before his death, are by 3 and 4 "W". 4, 
 c. 42, s. 2, maintainable, if brought within one year 
 after the death of the deceased; and that for torts 
 committed by a deceased person within six months 
 before his death, to the real or personal property of 
 another, actions are by the same statute maintainable 
 against executors or administrators, provided such 
 action shall be brought within six calendar months 
 after such executors or administrators shall have taken 
 upon themselves the administration of the estate and 
 effects of such person, and the damage to be recovered 
 in such action, shall be payable in like order of 
 administration, as the simple contract debts of such 
 person. Another important exception has also been 
 intrcluced by Lord Campbell's Act, 9 and 10 Vic. c. 
 93, declaring that whensoever the death of a person 
 shall be caused by any wi'ongful act, neglect, or default, 
 which, if death had not ensued would have entitled 
 the party injured to maintain an action, and recover 
 damages in respect thereof, the person who would 
 have been liable, if death had not ensued, shall be 
 liable to an action for damages, although the death 
 shall have been caused under such circumstances as 
 to amount in law to a felony. 
 
 Redress for a breach of contract or a tort is effected. 
 1. By the mere act of the party injui'ed, 2. By the 
 joint act of all the parties. 3. By the mere operation 
 of law. 4. By action. 
 
 Eedi'ess by the mere act of the party injured comprises, 
 1. Defence of one's self or relations. 2. Eecaption cf 
 goods. 3. Entry on lands and tenements. 4. Abate-
 
 120 
 
 ment of nuisances. 5. Distress for rent, suit, service, 
 amercements, damage, or divers statuable penalties. 
 6. Seizure of heriots. 
 
 Eedress by the joint act of all the parties comprises, 
 1. Accord. 2. Arbitration. 
 
 Redress effected by the mere operation of law is, 1. 
 In the case of retainer ; where a creditor is executor or 
 administrator, and is thereupon allowed to retain his 
 own debt. 2. In the case oi remitter ; where one who 
 has a good title to land comes into possession by a lad 
 one, and is thereupon remitted to his ancient good title, 
 which protects his ill-acquired possession. 
 
 An action is the legal demand in a Common Law 
 Court of one's right. Actions are either real or 
 personal. Real actions are those which claim lands, 
 tenements, or hereditaments, or any of them. The 
 real actions are Dower, Preebench, and Quare Impedit. 
 The subject of a personal action is either a breach of 
 contract or a tort. Formerly on the commencement of 
 any action, the writ must have expressed the form of 
 action, or the particular legal remedy provided for the 
 subject of the action. This requisite was however, 
 removed by the Common Law Procedure Act, 1852, 
 and forms of action, except with relation to the 
 Statutes of Limitation are now practically unimportant. 
 The forms of action on contracts are Debt, Covenant, 
 and Assumpsit. Debt lies whenever a definite sum of 
 money is alleged to be due to the plaintiff, either by 
 simple contract or deed, or statutory penalty. Covenant 
 lies for the recoveiy of damages occasioned by a breach 
 of a covenant or promise under seal. Assumpsit lies 
 for the recoveiy of damages occasioned by the breach of 
 a simple contract or promise, as those acquaiated with 
 Latin will infer from the name. 
 
 The forms of action for torts are Trespass, Trespass 
 on the Case, Detinue, and Replevin. Trespass is the 
 remedy for any injury which is the direct result of a 
 toi-t. Trespasses are either, 1. To the person. 2. To 
 land. 3. To goods. Trespasses to land are also called 
 trespasses quare clausum fregit. Trespasses to goods
 
 121 
 
 are called trespassca de honis asportatis. Trespass on the 
 case is the remedy for any injury which is the indirect 
 result of a tort. The distinction between trespass and \ 
 trespass on the case may be readily illustrated. Thus | 
 if A. throws a stick at B. with such force as to break 
 his arm, the action maintainable is called trespass, 
 because the injury was the direct result of the wrongful 
 act of A. If, on the other hand, Aj had left the stick 
 upon the highway, and B. passing along stumbled over 
 the stick, and fell and broke his aiTn, the action 
 maintainable is called trespass on the case, because the 
 injuiy was the indirect result of the wrongful act of 
 A. One species of trespass on the case is the action of 
 trover, which is an action brought for the conversion of 
 goods. A conversion is the removal of goods for the 
 purpose of taking them away from the owner, or of 
 exercising dominion or control over them for the benefit 
 of the taker or of some other person. In detinue the 
 plaintiff claims and is entitled, if he establish his case, 
 to the specific recovery of goods, chattels, deeds, or 
 wiitings, detained from him by the defendant, with 
 damages for their detention. Replevin is an action 
 brought by the owner to try the validity of a distress, 
 or an unlawful taking of goods, which previously to 
 the action are re-delivered to him on his giving the 
 registrar of the county court of the district in which 
 the distress was taken, secui-ity forthwith to prosecute 
 the action, and to make a return of the goods should 
 the validity of the distress be established. 
 
 OF ACTIONS. 
 
 All actions in the Superior Courts of Common Law, 
 are commenced by writ of summons in a required form, 
 according as the action is one of ejectment or a real 
 or personal action. Personal actions and the action 
 of t^cctment may be brought in any of the Superior 
 Coiu'ts, but actions for dower, free bench, and in 
 quare impedit must be brought in the Coiirt of Common 
 Pleas. Every writ of ejectment is directed to the
 
 122 
 
 persons in possession by name, and to all persons 
 entitled to defend the possession of the property 
 claimed, which is described in the writ with reasonable 
 certainty, and must be in the fonn provided by the 
 Common Law Procedure Act, 1852. Eveiy other writ 
 of summons contains the names of all the defendants 
 in the particular action. On every writ of summons 
 there is an intimation requiring the defendant to cause 
 an appearance to be entered for him within a time, 
 which vaiics according as the wi'it is one of ejectment, 
 or the defendant resides within, or out of the jurisdic- 
 tion of the Superior Coiu'ts. In the fii'st case, the 
 time for appearance is 16 days, in the second 8 days, 
 and in the third, the time for appearance is regulated 
 by the distance from England. On the issue of a writ 
 of summons, a praecipe or memorandum of the nature of 
 the wiit, and of the names of the parties is left. A 
 copy of the wiit is then made. Upon the writ and 
 copy of any writ sei'ved for the payment of any debt, 
 an indorsement of the debt and costs is to be made, 
 with a notice, that proceedings will be stayed on 
 payment witliin four days. Where the writ of sum- 
 mons is in an action of dower, freebench, or quare 
 impedit, an indorsement on the wiit must be made, 
 stating that the plaintiff means to declare in the 
 respective action. 
 
 In all cases where the defendant is a British subject, 
 service of the writ must be made. Sei-vice in general 
 is personal, by delivering a copy of the wiit to the 
 defendant, and producing the original, if required by 
 the defendant. Where a defendant is within the 
 jurisdiction of the Superior Courts, and personal service 
 cannot be cifected, and proof is given to a Court or 
 judge, that reasonable efforts have been made to effect 
 personal sei-^ice, and that the defendant knows of and 
 evades service of the wiit, the Court or a judge may 
 order that the plaintiff be at liberty to proceed as if 
 personal sendee had been effected, subject to such 
 conditions as the Coiu-t or judge may seem fit. ^Tiere 
 the defendant is a British subject residing out of the
 
 123 
 
 jurisdiction it shall be lawful for the Court or judge, 
 upon being satisfied by affida\'it that there is a cause of. 
 action Avliich arose within the jimsdiction, or in 
 respect of the breach of a contract made within the 
 jurisdiction, and that reasonable efforts were made to 
 effect pei'sonal service thereof upon the defendant, and 
 that it came to his knowledge, and cither that the 
 defendant wilfully neglects to appear to such wa'it,^or 
 that he is li^^.ng out of the jurisdiction in order to 
 defeat and delay his creditors, to direct from time to 
 time that the plaintiff shall be at liberty to proceed in 
 the action in such manner, and subject to such con- 
 ditions as to such Court or judge may seem fit, haying 
 regard to the time allowed for the defendant being 
 reasonable, and to the other circumstances of the case. 
 The amount of the debt or damages claimed by the 
 plaintiff in the action must, however, be proved by 
 him, either before a jiuy upon a writ of enquiry, or 
 before one of the masters of the Superior Courts 
 in the manner afterwards provided by the Act, accord- 
 ing to the nature of the case, as such Coui't or judge 
 may direct; and the making such proof shall be a 
 condition precedent to his obtaining judgment. Sec. 
 18, C. L. r. Act, 1852. (1-5 and 16 Vic, cap. 76, sec. 
 18.) ^Tiere the defendant is a foreigner residing out 
 of the jurisdiction of the Superior Courts, instead of 
 service of a copy of the wiit upon him, a notice stating 
 the issue of the wi-it, and that he is required to cause 
 an appearance to be entered for him, must be served 
 upon him. Should personal sei-v4ce not be effected 
 liberty to proceed may be obtained upon the same 
 conditions as it is granted in the case of a British 
 subject residing out of the jurisdiction. 
 
 Service of tlie writ, where the defendant is within 
 the jurisdiction, may take place in any county, and 
 where the defendant is out of the jmisdiction service 
 of the writ, or of the notice of the writ, may be 
 effected in any place except Scotland or Ireland. In 
 all cases where the defendant resides within the 
 jurisdiction of the court an indorsement of liquidated
 
 124 
 
 demands may be made upon the writ, and the special 
 indorsement is to stand for particulars of demand. The 
 person serving the writ of summons is required, within 
 three days at least after such scr'sice, to indorse on the 
 writ the day of the month and week of the seiTice 
 thereof, otherwise the plaintiif shall not be at liberty 
 in case of non-appearance to proceed. 
 
 Appearance is an intimation that the defendant 
 intends to resist the action. The mode of appearance 
 is by delivering a memorandum in a required form to 
 the proper officer of the coui-t, and dated on the day 
 of its delivery. Where a writ has been specially 
 endorsed for a debt or liquidated demand final judgment 
 may be signed on default of appearance. Where in an 
 action of ejectment, there has been no appearance 
 entered within the proper time, or an appearance has 
 been entered for part only, the plaintifi' is at liberty to 
 sign judgment, that the person whose title is asserted 
 in the writ shall recover possession of the land or of 
 the part thereof to which the defence does not apply. 
 (C. L. P. Act, 1852, sec. 177.) The respective judgment 
 is to be in the form provided by the same section. 
 
 After an appearance in any action except ejectment 
 (in which there are no pleadings) the pleadings begin. 
 The system of pleading may be described as a process 
 for developing the points in dispute between the parties 
 by mutual written allegations. This object is effected 
 by requiiing a statement of the plaintiff's case, and then 
 each party cither (1.) to admit as true the preceding 
 allegation of his opponent, but deny that it is in law a 
 ground of action or defence; (2.) to deny such alleg- 
 ation, either wholly or in part; or (3.) to admit such 
 allegation, but show that although it was once ground 
 of action or defence it is no longer so. In the language 
 of pleading the rule may be thus stated : Each party 
 pleading must (1.) demur to, (2.) traverse, or (3.) 
 confess and avoid the preceding pleading of his 
 opponent. In some cases leave to demur to, and to 
 traverse the same pleading will be gi'antcd. The iiiles 
 of pleading treat, (1.) of the facts which need not be
 
 125 
 
 Rtatcd ; (2.) of the facts wliicli must be stated ; (3.) of 
 the manner of stating facts ; (4.) of the construction, 
 of pleadings. 
 
 Facts ivhich need not he stated comprise : 1 . Mere 
 matter of e\'idence of any fact alleged in the pleading. 
 2. Matter of which the coui-t will take judicial notice. 
 8. Matter which is presumed by law or necessarily 
 implied. 4. Facts which woiild come more properly 
 from the other side. 5. All statements which need 
 not be proved, such as those specified in sec. 49 of the 
 Common Law Procedure Act, 1852. 
 
 Facts which must he stated are : 1. The substance of 
 the cause of action or defence. 2. Matter of which the 
 court does not take judicial notice. 3. Statements of 
 time, quantity, and value, where these are material. 
 4. Title or authority. 
 
 The manner of statinq facts should comply with the 
 following nilcs : 1 . The facts should be stated directly 
 and not argumcntatively. 2. The facts should be 
 stated with reasonable certainty. 3. The facts should 
 be stated concisely. 4. The facts should be stated so 
 as not to prejudice, embarrass, or delay the opposite 
 party. 5. The facts should be stated with truth. 
 
 The two principal rules in the construction of 
 pleadings are : 1. Everytliing shall be taken most 
 strongly against the party pleading, pro\ided that the 
 language has a reasonable construction. 2. After 
 verdict tlie constniction of a pleading must be such as 
 to sustain the verdict. 
 
 Pleadings in all actions except replevin arc divided 
 into declarations, pleas, replications, rejoinders, surre- 
 joinders, rebutters, siuTcbutters, and pleadings subse- 
 quent to surrebutters. In the action of replevin the 
 pleadings are, declaration, avowiy, pleas in bar, and so 
 on. At anj' stage of the pleadings after the declaration 
 a demurrer may occiu". 
 
 A declaration is the statement of the plaintiff's claim, 
 and forms the commencement of the pleadings. "Where 
 the appearance is cnt(>red in vacation, the plaintiff 
 should declare before the end of the term next after
 
 126 
 
 appearance is entered. If the appearance is entered 
 in term time, the plaintiff has till the end of the 
 following term to declare. The defendant, however, 
 may at any time, except the long vacation, (10th 
 August to 24th October) expedite the proceedings by 
 the service of a written demand of a declaration within 
 four days, unless fuither time is granted by a judge. 
 Should no fui'ther time be granted the defendant may 
 sign judgment of non. pros., should the plaintiff not 
 declare vrithin the foui' days. The declaration shoidd 
 show all the facts essential to the support of the action, 
 that the plaintiff has perfonned his part, and where 
 the action is on a simple contract the consideration 
 must also be shown. The perfonnance of conditions 
 precedent may be aven-ed generally. Causes of action 
 of whatever kind, provided they be by and against the 
 same parties and in the same rights, may be joined in 
 the same suit, but this shall not extend to replevin or 
 ejectment; and where two or more of the causes of 
 action so joined are local, and arise in different 
 counties, the venue may be laid in either of such 
 counties ; but separate trials may be ordered. In any 
 action brought by a man and his wife for an injuiy done 
 to the wife, in respect to wliich she is necessarily 
 joined as co-plaintiff, it shall be lawful for the husband 
 to add thereto claims in his own right, and sepai'ate 
 actions brought in respect of such claims may be 
 consolidated, if a court or a judge shall think fit. 
 The usual parts of a declaration are : 1 . The title of 
 the Court. 2. The date of the declaration. 3. The 
 venue or place where the action is to be tried. 4. The 
 commencement with the name of the plaintiff, and 
 showing whether he sues by attorney or in person, and 
 containing also the name of the defendant. 5. The 
 body or substance of the cause of action. 6. The 
 necessary averments. 7. The damages claimed. 
 
 The venue which is wiitten in the margin of the 
 declaration varies according as the action is local or 
 transitoiy. An action is local where the cause of action 
 must have happened in a particular place, as where A.
 
 127 
 
 wrongfully cuts down trees on B's. land. An action is 
 transitory where the cause of action might have 
 happened anywhere, as a breach of contract. In local 
 actions the venue must be laid in the county or 
 jurisdiction where the cause of action accrued. In 
 transitory actions the venue may be laid anywhere. 
 Bonds, biUs, and notes, are said to be nullius loci, or 
 with no venue. 
 
 Not only after appearance, in any action except 
 ejectment, but also upon default of appcai'ance where 
 the writ was not or could not be specially indorsed, a 
 declaration is requisite. Upon leave obtained to 
 proceed, as if personal ser\ice had been effected, 
 where the wi'it was not specially indorsed, a declaration 
 is also requisite, ^licre the defendant appears by 
 attorney the declaration is delivered to the attorney, 
 but where he appears in person, it is filed in coiu-t. 
 
 On the back of the declaration a notice to plead is 
 endorsed. Where on the face of the declaration the 
 facts do not show a cause of action, or different 
 causes of action are joined wliich cannot by law be 
 joined, or causes of action in different rights are joined, 
 except those by a husband and wife with claims in 
 light of the husband, the defendant should demur. A 
 demuiTcr confesses all the facts well pleaded. A 
 demiurer is a tender of an issue of law, which must 
 be accepted by the party to whose pleading there is a 
 demunx'r, and is afterAvards argued before the court. 
 
 If, on the other hand, the declaration is not demun-- 
 able the defence will be that of a plea. Pleas are 
 either collateral or conclusive. CoUaieral pleas are 
 those which are not decisive of the right of action. 
 Conclusive pleas are decisive of the right of action. 
 Collateral pleas are divided into: 1. Pleas to the 
 jurisdiction of the court. 2. Pleas in suspension of 
 the action. 3. Pleas in abatement of the suit. A plea 
 to the j'uriftdiction is one which shows that the court 
 has no jiu-isdiction in the matter. A plea in suspension 
 is one which suspends the action for a time. A plea 
 in abatement is one which shows that the action is
 
 J28 
 
 wrongly brought, and so defeats the particular action, 
 unless an amendment can be made. 
 
 Conclusive pleas, called also pleas in bar, are di^'ided 
 into, 1. The general issue. 2. Special pleas. 3. 
 Equitable pleas. The general issue is a general denial 
 that any cause of action ever existed, as in assumpsit : 
 The defendant did not promise as alleged; in trespass, 
 and in trespass on the case : Not Guilty ; in debt upon 
 simple contract, called money counts : The defendant 
 never was indebted as alleged ; in debt on bond and in 
 covenant : That the alleged deed is not his deed. 
 
 Special Fleas are divided into, 1 . Particular traverses. 
 2. Pleas in confession and avoidance. 3. Estoppels. 
 A particular traverse is a plea in denial of any allega- 
 tion in the declaration. The traverse must be of a 
 material allegation. There cannot be a traverse of 
 mere matter of law, but where the matter of law is 
 connected with fact, it may be traversed. A plea 
 cannot traverse what has not been before alleged, or 
 what is not necessarily implied. Pleas in confession and 
 avoidance are those which admit that a right of action 
 once existed, but that in consequence of a subsequent 
 occurrence the right of action no longer exists, as is 
 the case with the plea of payment in an action for 
 goods sold and delivered. An estoppel is a special plea 
 where a man has done some act or executed some deed 
 which precludes him from avening anything to the 
 contrary. Equitable pleas are those which state facts 
 showing that if judgment were obtained the defendant 
 would be entitled to relief by a pei-petual injunction 
 from a Coxirt of equity against such judgment on 
 equitable gi'ounds. The plea must begin with the 
 words, "For defence on equitable grounds," or words 
 to that effect. C. L. P. Act, 1854, sec. 83. 
 
 The requisites of a plea are, 1. That it either 
 singly or together with the other pleas answer the 
 whole cause of action alleged in the declaration. 2. 
 That it be so pleaded as to be capable of trial. Several 
 pleas may be pleaded to the same cause of action, but 
 in some cases leave to plead them is requisite. Colla-
 
 129 
 
 tcral picas and estoppels should have their formal 
 commencements and conclusions. 
 
 Pleas must be pleaded in the following order : 1 . To 
 the jurisdiction. 2. To the disability of the plaintiff. 
 3. To the disability of the defendant. 4. To the 
 declaration. 5. In bar. Should any plea in a later 
 series be pleaded, it is considered a waiver of the pleas 
 in the earlier series. 
 
 A replication contains the plaintiff's answer to the 
 defendant's plea. If the plea is one in denial, as the 
 general issue, or a particular traverse, the plaintiff 
 joins issue. If the plea is not one in denial, the 
 plaintiff joins issue, or admitting part of the plea 
 denies the rest, or he denies any one or more of the 
 allegations of the plea. Any subsequent pleading of 
 the plaintiff or the defendant is either a joinder of 
 issue, an admission of part and denial of the rest of 
 the preceding pleading, or a denial of any one or 
 more of the allegations in the preceding pleading. A 
 rejoinder is the defendant's answer to the plaintiff's 
 replication. A surrejoinder is the answer to the 
 rejoinder. A rebutter answers the surrejoinder, and a 
 surrebutter the rebutter. Pleadings subsequent to 
 surrebutters have no distinctive names, and from the 
 nature of disputes are rarely requii'ed, as generally 
 all the facts which constitute the subject of the claim, 
 defence, or subsequent pleadings, can be alleged in the 
 pleadings long before sui-rebutters are reached, for 
 there cannot be an inexhaustible supply of facts in 
 dispute between the parties ; and therefore, sooner or 
 later a question of fact or of law is developed, which 
 is affirmed on one side, and denied on the other. 
 
 The most important rule to be observed with regard 
 to a replication, and any subsequent pleading is that 
 there be no departure, which may be defined as a 
 desertion of the ground of action, defence, or answer, 
 which the party originally took. Thus, if in an action 
 of debt on an arbitration bond the defendant pleads no 
 award, and the repKcation sets out the award and 

 
 130 
 
 breach, a rejoinder of performance of the award is bad 
 on the ground of departure. 
 
 In the course of the pleadings in any action, there 
 occasionally occurs a new msiejnment, which is a 
 pleading in the nature of a replication, but reiterating 
 the statements of the declaration in a more explicit 
 manner. It is used whenever from the generality of 
 the declaration, the defendant by his plea mistakes the 
 subject of complaint. To any plea or subsequent 
 pleading, the opposite party should demur if the matter 
 alleged does not constitute a ground of defence or 
 answer, or if it causes a departure in i:)leading. 
 
 Previously to the Common Law Procedure Act, 1852, 
 pleadings were also objectionable on the ground of 
 special demurrer or defect of fonn. Since that Act, 
 however, the only demurrer to which pleadings of any 
 kind are subject is a general demurrer, where the plead- 
 ings are objectionable for defect of substance. Substance 
 is a conformity with the essential principles of pleading. 
 Other causes of demurrer to a pica or subsequent plead- 
 ing than the two we have mentioned, may occasionally 
 occur, but in those cases instead of demumng, the 
 more advisable course is to apply to a judge to set aside 
 the plea, or to cause it to be amended. It is a rule 
 that a plea bad in substance in part, is bad altogether. 
 In the action of ejectment, the issue is in the form 
 provided by the Common Law Procedure Act, 1852. 
 In other actions by the system of pleading as we haTe 
 seen, an issue of law or of fact sooner or later is 
 developed between the parties. In either case a copy 
 in a required form of the whole of the pleadings 
 between the parties is next made on paper. If the 
 copy consists of issues of fact, it is called the issue, 
 if of law, the demuiTer-book. When there shall be 
 a demurrer to part only of the declaration, or subse- 
 quent pleadings, those parts only of the declaration, 
 or of the other subsequent pleadings to which such 
 demurrer relates, shall be copied into the demurrer- 
 books. The demurrer is then set down for argument 
 in the special papers, at the request of either party,
 
 131 
 
 four clear days before the day on which the same are 
 to be argued, and notice thereof shall be given forthwith 
 by such party to the opposite party. Four clear days 
 before the day appointed for argument, the plaintiif 
 shall deliver copies of the demurrer-book to the Chief 
 and the Senior Puisne Judge of the court in which the 
 action is brought ; and the defendant shall deliver 
 copies to the other two judges of the court, next in 
 seniority ; and in default thereof by either party, the 
 other party may on the day following deliver such 
 copies as ought to have been so delivered by the party 
 making default; and the party making default shall 
 not be heard until he shall have paid for such copies, 
 or deposited with the Master a sufficient sum to pay 
 for such copies. If the statement of the points has 
 not been exchanged between the parties, such party 
 shall, in addition to the two copies left by him, deliver 
 also his statement of the points to the other two 
 judges, either by marking the same on the margin of the 
 books delivered or on separate papers. The demurrer 
 is then argued, and decided by the majority of the 
 judges of the court, present at the argument. 
 
 Where the issue is one oi fact, it concludes with the 
 words, " Let a jury come," &c. The issue is next 
 copied on parchment, and then delivered to the proper 
 officer of the court to be entered. The issue when thus 
 copied and delivered to the officer of the court, is 
 called the record, and is by him retained until disposed 
 of. Notice of trial is then given. The trial may be 
 either by the record, by certificate, by witnesses, or 
 by jury. The first three modes of trial are of rare 
 occurrence, but the proceedings on such occasions will 
 be found explained in any work on the practice of the 
 Superior Courts of Common Law. Trial by jury is 
 the ordinary mode of trial. The case having been 
 called on, is opened by the plaintiff or his counsel, and 
 the witnesses are examined, cross-examined, and 
 re-examined. At the conclusion of the plaintifi''s case, 
 the defendant intimates whether he intends to call 
 witnesses or not. If the latter, the plaintitt' is entitled
 
 132 
 
 to sum up the evidence, and then the defendant 
 addresses the jury. If the defendant or his counsel 
 intimates his intention to call Avdtnesses, he states the 
 nature of the defence, and then calls the defendant's 
 witnesses who are examined, cross-examined, and re- 
 examined in the same way as the plaintiff's witnesses. 
 The defendant then sums up the evidence adduced on 
 his side, and the plaintiff replies on the whole case. 
 This is the course adopted where the action is defended. 
 Where the action is undefended, the plaintiff has merely 
 to prove the facts which are denied by the pleas. 
 The rules of evidence treat, 1. Of the competency of 
 witnesses. 2. Of written evidence. 3. Of verbal 
 e\T.dence. 4. Of Presumptive evidence. 
 
 Nearly every person who had a personal interest in 
 the subject-matter of an action was formerly excluded 
 as a witness. Since the 14 and 15 Vic, c. 99, and the 
 16 and 17 Yic, c. 83, however, a wiser policy has 
 prevailed and now every person is competent as a 
 witness, except, "First, the parties to any action 
 for breach of promise of maniage; secondly, those 
 persons who in anj' criminal proceeding are charged 
 with the commission of any indictable offence or any 
 offence punishable on summaiy conviction, so far at 
 least as relates to their giving e\-idence on oath either 
 for or against themselves ; thirdly, the husbands and 
 wives of all persons who are defendants in any criminal 
 proceeding; fourthly, the wives of co-respondents in 
 suits for dissolution of marriage, or for damages by 
 reason of adulter^' ; fifthly, in cases of high treason, and 
 misprision of treason, other than such as consist in 
 injuring or attempting to injure the Queen's person, 
 those persons who are not included or properly 
 described in the list of witnesses delivered to the 
 defendant pursuant to statutes ; and lastly, persons 
 insensible to the obligation of an oath." — Taylor on 
 Evidence, 3rd edition, vol. 2, p. 1090. 
 
 Where a person offered as a witness is under fourteen 
 years of age enquiry is usually made as to the degree 
 of understanding which he may possess; and if he
 
 1&3 
 
 appears to the satisfaction of the judge to have suffici- 
 ent natural intelligence, and to have been so instructed 
 as to comprehend the nature and effect of an oath he ia 
 admitted to testify whatever his age may be. "With 
 regard to both written and verbal evidence there is one 
 general rule, that the best evidence of Avhich the nature of 
 the case permits, must be produced. Thus, where a 
 contract has been reduced into writing by the parties, 
 the writing is the best evidence of the contract, and 
 must be produced. The admission of one of the parties 
 is however, primary evidence as against himself, 
 whether it relates to a written contract or not. The 
 proper evidence of all judicial proceedings is the 
 production of the proceedings themselves, or of ex- 
 amined copies of them. The countei'part of a deed is 
 admissible as primary evidence against the party 
 executing it, and those claiming imder him. In order 
 to render the production of a writing necessary it must 
 appear to relate to the matter in question. If verbal 
 evidence of an agreement is given at a trial the party 
 desirous of excluding it may ask the witness in cross- 
 examination whether it was not in writing ; and may 
 enquire as to the contents of the writing to show that 
 verbal evidence is not admissible. Where, however, a 
 document is lost, and proof is given that diligent search 
 has been made in those quarters in which the primary 
 evidence was likely to be procured, or where the written 
 instrument not being a coantcr[)art, is in the possession 
 of the opposite party, secondary evidence of its contents 
 is admissible after previous proof of a notice to produce 
 the original. 
 
 Much of the evidence given on every trial consists of 
 admissions. Admissions consist, in general, of any 
 statements, either written or verbal, made by one of 
 the parties to the suit and proved by the opposite 
 party. The party making the admission is however at 
 liberty to prove that such admissions were mistaken or 
 iintrue, except in cases of estoppel. Admissions are 
 frequently implied from the acts of the parties. 
 Admissions on the record are any statements in a pleading
 
 134 
 
 uot denied by the opposite party. The admissions 
 must not however come under the head of privileged 
 communications, which are prevented by law from being 
 given in evidence. Thus communications between a 
 husband and wife during the marriage, communications 
 to a legal adviser, the channels of communication in the 
 detection of crime, and secrets of state cannot be 
 disclosed. 
 
 Hearsmj, or a repetition of declarations not upon 
 oath; is in general inadmissible as evidence. In 
 questions of pedigree, to prove public rights, when the 
 hearsay is part of the transaction, and to prove the 
 declarations of witnesses at a former trial, this kind of 
 evidence is however admissible. Entries made by 
 deceased persons in the regular discharge of their 
 duties, and the statements of persons sjieaking against 
 their own interest are also admissible as hearsay. 
 
 Verbal evidence is admissible to vary or contradict a 
 writing unless the matter is collateral to the writing. 
 Verbal evidence is admissible to prove a consideration, 
 the date of a deed or mere words of description not 
 operating by way of estoppel. Verbal evidence is 
 admissible to prove fraud, illegality, or error in written 
 instruments. The rules relating to the admissibility of 
 evidence in the construction of contracts have been 
 mentioned. 
 
 Presumptive evidence is either absolute, qualified, or 
 circumstantial. Absolute presumptions are those made 
 by law, but do not admit of evidence to the contrary. 
 Qualified presumptions are those made by law, but 
 which admit of proof to the contrary. Circumstantial 
 presumptions are those drawn by the jury when direct 
 proof of a fact is offered to the jury as probable 
 evidence from which they may infer another fact. 
 
 In regard to all evidence the rviles are : — The 
 evidence shoidd be confined to the issue. The sub- 
 stance of the issue only need be proved. The rule 
 with regard to the burden of proving the issue is 
 generally stated to be that the party who asserts the 
 affirmative is bound to prove it, except where the
 
 135 
 
 presumption is in favour of it. Where the presump- 
 tion of law is in favour of the affirmative, as where the 
 issue involves a charge of culpable omission, it is 
 incumbent on the party making the charge to prove it, 
 although he must prove a negative; for the other 
 party shall be presumed innocent until proved to be 
 guilty. It is, however, a rule that where the 
 affirmative is peculiarly within the knowledge of the 
 party charged, the presumption of law in favour of 
 innocence is not allowed to operate, but the general rule 
 applies, viz : that he who asserts the affirmative is to 
 prove it, and not he who avers the negative. In the 
 progress of the trial an amendment of the record may 
 become necessary. On this subject s. 222 of the 
 Common Law Procedure Act, 1852, and s. 96 of the 
 Common Law Procedure Act, 1854, may be consulted. 
 If the plaintiff at the conclusion of his case either 
 thinks that he has not made out his case, or the judge 
 should give him an intimation to that effect, he gener- 
 ally consents to be nonsuited, that is, to abandon the 
 particular action, although he may afterwards bring a 
 fresh action as if there never had been any suit at all. 
 Without any actual non-suit there may be a point of 
 law reserved for the court, or leave reserved to move 
 for a non-suit or verdict. Bills of exceptions are used 
 when the judge declines to reserve any point. The 
 withdrawal of a juror occurs when neither party feels 
 sufficiently confident of success to induce him to perse- 
 vere. Where the matter in dispute between the parties 
 consists either wholly or in part of matter of account, 
 the judge has power to direct arbitration. Occasionally, 
 however, the jury are discharged from finding any 
 verdict, as is the case when a juryman becomes 
 suddenly ill, or the jury cannot agree upon their 
 verdict. 
 
 The verdict is cither a general verdict, a general 
 verdict subject to the opinion of the court above on a 
 special case, or a special verdict. A general verdict 
 merely states for whom the verdict is found, and the 
 amount of the damages. A general verdict subject
 
 136 
 
 to the opinion of the court above on a special ease, 
 consists of a general verdict of the jury, and their 
 consent to a special case, dictated by the judge and 
 signed by the counsel on each side. A special verdict 
 is one which states all the facts of the case as they 
 find them proved, and adds "that they are ignorant in 
 point of law on which side they ought upon these facts 
 to find the issue ; that if upon the whole matter the 
 court shall be of opinion that the issue is proved for 
 the plaintiff", they find for the plaintiff accordingly, 
 and assess the damages at £ , but if the 
 
 court is of an opposite opinion, then vice versa." The 
 verdict when given is afterwards formally drawn upon 
 the back of the record, and is called a postea. 
 
 The defendant, if upon the trial he obtained leave 
 to do so, may move to enter a non-suit; or the plaintiff, 
 upon leave given at the trial may move to set aside a 
 non-suit and enter a verdict for the plaintiff. A new 
 trial may be moved for on the ground of the mis-direc • 
 tion of the jury by the judge, the admission or refusal 
 of evidence contrary to law, that the verdict was 
 against evidence, mis-conduct of the jury, that the 
 damages are excessive or that the verdict is contrary 
 to the weight of evidence. 
 
 Arrest of judgment may take place for any error 
 appearing on the face of the record, which is not capable 
 of amendment. The plaintiff may also move for 
 judgment non obstante veredicto, when on examination 
 of the record the matter of defence is groundless. A 
 motion for a repleader is made when after issue joined 
 and a verdict thereon, the pleadings are found to have 
 mis-carried. A trial de novo or venire de novo is a 
 motion for a new trial on the ground of an irregularity 
 or error in the practical course of the proceeding. 
 
 To put in force a verdict, a writ of execution is 
 sued out addressed to the sheriff, commanding him 
 according to the nature of the case, either to give the 
 plaintiff possession of the lands or to enforce the 
 delivery of the chattel which was the subject of the 
 action, or to levy for the plaintiff the moneys and costs
 
 137 
 
 recovered by the judgment; or to levy for the defendant 
 his costs : and that either upon the body of the. 
 opposite party, his lands, or goods, or in some cases 
 upon his body, lands, and goods. Where execution is 
 not desirable, a judgment creditor may now also obtain 
 the order of a judge for an attachment of debts due 
 to the judgment debtor. The mode of proceeding to 
 obtain this order, and to put it in force when obtained, 
 is regulated by ss. 61 and 67 of the Common Law 
 Procedure Act, 1854, (17 and 18 Vic. cap. 125.) After 
 final judgment is signed, the unsuccessful party may 
 proceed to bring error, which may be either in law 
 or in fact. Any fact which affects the validity and 
 regularity of the legal proceeding itself, is error in fact. 
 Whenever upon examination of the whole record right 
 appears, on the whole not to have been done, and 
 judgment appears to have been given for one of the 
 parties when it should have been given for the other, 
 this will be error in law. Upon error in law in the 
 proceedings of any one of the three superior courts, 
 the court of appellate jurisdiction, is the Court of 
 Exchequer Chamber, consisting of the judges of the 
 two other superior Common Law Courts. Upon the 
 judgment of the Exchequer Chamber, error may be 
 brought in the House of Lords. 
 
 In the actions of ejectment and replevin, there are 
 other diversities of practice besides those already 
 mentioned. The proceedings in the actions of dower, 
 free bench, and quare impedit, are by section 27 of 
 the Common Law Procedure Act, 1860, (23 and 24 
 Vic, c. 126,) to be as nearly as possible similar to the 
 proceedings in an ordinary action, commenced by writ 
 of summons. The two former actions are exceedingly 
 rare, but the action of quare impedit is by no means 
 unfrequent. The details of the proceedings in any 
 action can only however be thoroiighly learned from 
 any of the standard books of practice on the subject, 
 as only an outline has been attempted to be given 
 here.
 
 138 
 
 LOOKS OF EEFEEENCE ON COMMON LAW 
 
 Archbold's Criminal Pleading, by Welsby. 
 
 Best's Law of Evidence. 
 ^.Broom's Commentaries on the Common Law. 
 ^Bi'oom's Legal Maxims. 3rd edition. 
 
 Byles on Bills of Exchange. 
 
 Chitty on Contracts, by llussell. 
 
 Common Law Procedure Acts, 1852, 1854, and 1860. 
 
 Dearsly's Criminal Process. 
 
 Greaves' s Criminal Law Consolidation Acts. 
 
 Kerr's Action at Law. 3rd edition. 
 
 Paley on Convictions. 
 
 Selwyn's Nisi Prius. 12th edition. 
 (A Smith's Elementary View of an Action at Law. 
 
 H'*" jf Law of Contracts, by Malcolm. 
 
 *^ • of Landlord and Tenant. 
 
 ^^ Leading Cases. 
 
 Compendium of Mercantile Law. 
 
 Stephen's Commentaries. 
 
 Stephen on Pleading. The last edition. 
 
 Story on Agency. 
 
 Bailments. 
 
 •^ Taylor on Evidence. 3rd edition. 
 
 ^Judor's Leading Cases in Mercantile and Maritime 
 ^ Law. 
 ^"Warren's Abridgement of Blackstone's Commentaries. 
 
 Woodfall's Law of Landlord and Tenant.
 
 139 
 
 QUESTIONS ON COMMON LAW. 
 
 Nature of Common Law. 
 
 / Q,. — State the principal sources from which our 
 Common Law, according to Blackstone, has been 
 derived; and explain what is meant by the lex non 
 seripta as opposed to the lex scripta. 
 /, Q. — What is meant by a custom? And what are 
 the qualities specified by Elackstone as essential to its 
 validity ? 
 ^ Q. — Wliy is it that contradictory customs cannot be 
 co-existent in the same place ? Can you mention any 
 customs which have been held unreasonable. 
 
 4> Q. — What is the leading case with i-espect to the 
 admissibility of evidence of a local custom where there 
 is a lease in writing between the parties ? And what 
 was the point decided in the case alluded to ? 
 
 J^ Q. — Explain what is meant by saying that a custom 
 must have been, and must be "continued," "reason- 
 able," and " certain." 
 
 ^ Q. — Enumerate some of the more important legal 
 rules and doctrines which you consider referable to the 
 Customary or unwritten law. 
 
 Nature of Statute Law. 
 
 7 Q. — Mention the leading rules laid down by Mr. 
 Serjeant Stephen as to the interpretation of statutes. 
 f Q. — What object had the legislature in passing the 
 ' Statute of Frauds ? 
 
 Personal Property. 
 
 ^ Q. — Specify various modes whereby a title to per- 
 *^ Honalty may be acquired under our Law.
 
 140 
 
 Q. — "WTiat is meant by the term " Chose in Action' '? 
 Can you mention any choses in action which are 
 assij^able by statute or otherwise ? 
 
 Q. — What do you understand by the phrase that 
 " a chose in action is not assignable at law" ? 
 
 Q,. — On what grounds of policy does our Common 
 Law hold a chose in action not assignable ? 
 
 Q.. — State what is requisite that a gift of personalty 
 may be binding inter vivos. What is a donatio mortis 
 causa ? 
 
 Q. — What rule is laid down by Story for determining 
 the right of property after confusion or wrongful 
 intermixture of goods ? 
 
 Q,. — What point was decided in Miller v. Rose, with 
 respect to the right of property in a bank note which 
 had been stolen ? 
 
 Q. — A. picks up a bank note lying on the floor of a 
 shop, and hands it over to B. (the shopkeeper) in order 
 that its owner may be found. B. having failed in 
 discovering the owner, refuses to restore the note on 
 demand. Is B. justified in so doing? Explain the 
 reason of your answer. Suppose that A. had picked 
 up the note in the street, under what circumstances 
 would he, in at once appropriating it to his own use, 
 be criminally liable ? 
 
 Q. — Specify various acts which when committed by 
 a person who trades within the meaning of the bankrupt 
 laws, are acts of bankruptcy. 
 
 Q. — State shortly what rights of action vested in an 
 individual pass in bankruptcy to his assignees. 
 
 Q. — In what cases may an uncertificated bankrupt 
 sue ? 
 
 Q. — Would a grant of goods which are not in exis- 
 tence, or which do not at the time belong to the grantor 
 operate to pass the property in the goods. State fully 
 the law upon this subject, and cite cases in support of 
 your opinion. 
 
 Q. — Who is an executor de son tort ? And when 
 may his act be good as against the true representatives 
 of the deceased ?
 
 141 
 
 Q. — Jus accrescendi inter mercatores locum non habef. 
 Explain fully the meaning of this rule. Does it 
 apply to the case of a joint tenancy of a chattel ? 
 
 Q,. — What are emblements ? A tenant in fee-simple 
 sows land, and then devises the land by will, but dies 
 before harvest time. Shall the devisee or the executors 
 have the corn ? 
 
 Q,. — Under what authority, in what manner, for 
 what purposes, and for what period of time may 
 letters jiatent be obtained ? 
 
 Q,. — Are letters patent assignable at late ; and, if so 
 assignable, by what means ? Is any additional ceremony 
 necessary ? 
 
 Parties to Contracts. 
 
 Q,. — Can an action at law be maintained by an 
 individual member of a corporation agaiast the body 
 corporate. State fully the reasoning upon which your 
 answer is founded. 
 
 Q. — What is the foundation of the rule that " a 
 corporation must contract by specialty;" and under 
 what cii'cumstances have exceptions to this rule be 
 sanctioned ? Cite cases explanatory of your answer to 
 the latter part of the question. 
 
 Q. — A. fa married woman) living separate from her 
 husband and receiving from him a weekly allowance 
 for her support, saved a certain portion thereof, and 
 invested it in the fimds in her maiden name. Shortly 
 before her death she sold out the stock thus invested, 
 and handed over the proceeds to C. as a gift. Can B. 
 (A's. husband) recover back from C. the money so paid 
 over to him by action at law ? 
 
 Q. — Illustrate the meaning of the phrase that 
 " husband and wife are one person in law." Can you 
 mention cases in which they are not thus considered ? 
 
 Q. — What is the liability of an infant, first, for 
 necessaries ; secondly, on a bill of exchange, accepted by 
 him for necessaries ; thirdly, on a bond with a penalty?
 
 142 
 
 Q. — Is an infant's father in that character liable for 
 his debts ? Under what circumstances may he be so ? 
 
 Q,. — Mention circumstances by which an individual's 
 capacity to contract may be affected. 
 
 Q. — Is a contract with an alien enemy void or 
 merely voidable ? 
 
 Q,. — Can a contract between a British subject and an 
 alien enemy, not having a license to trade with this 
 country, be enforced on the re-establishment of peace ? 
 
 Q. — A. U. (a lunatic) contracts for the purchase of 
 an estate from the defendant, and under the contract 
 pays down a deposit, which afterwards by A. B.'s own 
 default becomes forfeited. Can A. B. recover the 
 amount of his deposit from the defendant, the latter 
 party having acted bona fide, and in ignorance that A. 
 B. was non-compos ? 
 
 Q,. — Persona conjuncta aequi^yarattir interesse proprio. 
 How is the maxim illustrated by Lord Bacon ? And 
 what was the point in reference to it decided in 
 Chappie V. Cooper, 13 M. and W. 252 ? 
 
 Q,. — What was the point decided in Mayor of Ludlow 
 V. Charlton, 6 M. and W. 815 ? 
 
 Q,. — Mention various incidents peculiar to a Corpora- 
 tion at Common Law. 
 
 Contracts. 
 
 Q,. — Explain the meaning of the word " Contract." 
 
 Q. — Into what three classes are contracts divided ? 
 Mention the leading characteristics of each class. 
 
 Q. — Define what is meant by "an agreement that is 
 not to be performed within the space of one year from 
 the making thereof." (29 Car. II., c. 3. s. 4.) 
 
 Q. — To what class of contracts does the 17th section 
 of the Statute of Frauds apply, and what are its 
 provisions ? 
 
 Q. — What is meant by mutuality in a contract? 
 Mention instances of unilateral contracts. 
 
 Q. — To what specific cases does the 4th section of 
 the Statute of Frauds apply ?
 
 143 
 
 Q. — Specify three distinct grounds, on any of which 
 a contract may be avoided as illegal, under the Lex 
 non Scripta. 
 
 Q. — Explain the doctrine of Merger with reference 
 to contracts of record, and by specialty. 
 
 Q. — What is an escrow ? 
 
 Q. — State the peculiarities attending the execution 
 of a deed, and specify the peculiar properties attaching 
 to that instrument. 
 
 Q. — State shortly the facts and explain the decision 
 in Emmens v. Elderton, 4 H. L. Cases, 624. 
 f"^ Q. — What points were resolved in Blake's case, 6 
 Eep. 43, as to the mode of discharging a covenantor 
 from liability on his covenant ? 
 
 Q. — A man covenants to marry a woman in these 
 terms: "I promise to marry B., and that I Avill not 
 marry any person but herself. If I do, I agree to pay 
 her £1000 within three months afterwards " — would 
 an action for breach of this covenant be maintainable ? 
 
 Q,. — What do you understand by the terms " Con- 
 sideration" and "Privity," as used in connexion with 
 contracts, and how do you distinguish between a void 
 and a voidable contract ? 
 
 Q. — A consideration past and executed will support 
 such a promise only as the law would imply. Explain 
 fully the meaning of this proposition, and illustrate it 
 by decided cases. 
 
 Q,. — What is it in your opinion which renders 
 binding a contract or agreement, not expressly made 
 so by the Statute Law ? 
 
 Q. — What is meant by a " moral consideration" for 
 a promise ? What seems to be the result of the cases 
 as to the efficiency of such a consideration ? Can you 
 mention any of the decisions alluded to ? 
 
 Q,. — Explain what is meant by a nudum pactum; 
 what is the rule of law with reference to it, and why 
 has the rule in question been established ? 
 
 Q. — Mention any exceptions which present them- 
 selves to the rule : £x nuclo facto non oritur actio. 
 
 Q.. — ^What effect has the 17th section of the Statute
 
 144 
 
 of Frauds on a contract within, but not in accordance 
 with its provisions ? 
 
 Q. — Distinguish between an executory and an exe- 
 cuted consideration. Under what circumstances will 
 the law, the consideration being executed, imply an 
 antecedent request ? 
 
 Q. — B. and C. jointly owe A. £100; A. agrees to 
 relinquish his claim against B. and C. jointly, and to 
 take in lieu thereof the sole security of B. Is this 
 agreement valid?; or is it void on the ground that 
 there is no consideration moving to A. ? 
 
 Q,. — "What points were decided with reference to 
 section 4, of the above statute in Wain v. Warlters, 
 5 East, 10, and Rydall v. Dmmmond, 11 East, 142 ? 
 
 Q. — What is meant by a "continuing" consideration ? 
 
 Q,. — In an action of contract, judgment is had against 
 A. B. and C, (co-defendants) but execution is levied 
 against A. only; has A. in general any, and what 
 redress as against B. and C. ? 
 
 Q,. — A. bargains and sells a horse to B. at B.'s 
 request; what promise on the part of A. would be 
 imj)lied as arising out of this transaction ? 
 
 Q. — State shortly the rule as to the validity of 
 contracts in restraint of trade. Which is the leading 
 case on this subject ? 
 
 Q. — What rule has been established applicable to 
 the case where an alteration has been made in a bill of 
 exchange or other instrument without authority from 
 the party sought to be charged upon it ? Trace out the 
 law upon this subject, and cite cases in support of your 
 opinion respecting it. 
 
 Q. — Specify the ordinary remedies available (1) on a 
 deed; (2) on a contract of record. 
 
 Q. — Illustrate the rule that "any man may renounce 
 the benefit of a stipulation introduced in his own 
 favour." How is this rule quahfied in reference to 
 express statutory qualifications ? 
 
 Q. — Illustrate the proposition that " Fraud vitiates 
 everything." 
 
 Q,. — Volenti non Jit injuria — put cases illustrating
 
 145 
 
 the rule — 1st, as it applies to contracts; 2ndly as it 
 applies to torts. 
 
 Q,. — Explain what is meant by a "concurrent" 
 consideration. 
 
 Q,. — Distinguish between "moral" and "legal" fraud. 
 Does the former invalidate a contract ? 
 
 Q,. — A. sues for breach of a covenant contained in a 
 composition deed entered into by A. with his creditors, 
 whereby the defendant and others had covenanted to 
 indemnify the plaintiff from all loss in respect of 
 certain acceptances of his, outstanding at the execution 
 of the deed. To this declaration B. (the defendant) 
 pleads that before executing the said indenture, and by 
 way of inducement to execute it, it was agreed 
 between plaintiff and defendant that defendant should 
 receive from the plaintiff a larger per-centage upon 
 debts due to him than the other creditors. Would this, 
 on demurrer, be a good plea ? 
 
 Q. — How has the law as settled in conformity with 
 Wain V. Warlters been altered by 19 and 20 Vic, c. 
 97, s. 3 ? 
 
 Q. — Blackstone states that, " if a buUder promises, 
 and undertakes or assumes to Caius that he will build 
 and cover his house, and fails to do it, Caius lias an 
 action on the case (i. e. of assumpsit) against the 
 builder for this breach of his express promise, and 
 shall recover a pecimiary satisfaction for the injury 
 thus caused." Is this proposition correct ? Explain 
 fully the grounds of your opinion. 
 
 Q. — Illustrate the maxim : Unumquodque ligamen 
 dissolvihir eodem ligamine quo ligatur by reference to 
 the case of a contract under seal which is sought to be 
 discharged, first before ; secondly after breach. 
 
 Q. — It has been said " that the breach of a contract 
 may be a wrong in respect of which the party injured 
 may sue in case, instead of suing upon the contract." 
 Illustrate this proposition. 
 
 Q,. — Give instances of implied contracts, and put 
 cases illustrating the maxim : £xpressum facit cessare 
 taciturn.
 
 146 
 
 Q,. — What were the facts in Collins v. Blantern, and 
 what principle is deducible from that case ? 
 
 Q,. — When is interest recoverable, (1) at common 
 law ; (2) under the statute 3 and 4 W. 4. c. 42 ? 
 
 Q. — Can you mention any cases as to the dirisibility 
 of covenants in restraint of trade ? 
 
 Q. — Specify cases in which money having been paid 
 by B. for A., the law will imply that there was a 
 request from A. to B. to pay the money. 
 
 Q. — Wherein does a " warranty" differ from a 
 "representation" ? 
 
 Q. — In contractis taeite insunt quae sunt moris et 
 consuetudinis ? What is the meaning of this maxim ? 
 
 Q. — A. promises to B. to undertake for him gratui- 
 tously the performance of certain duties : before the 
 time arrives for commencing to perform them, A. 
 withdraws from his engagement, in consequence 
 whereof B. sustains damage. Will A. under these 
 circumstances be liable to B. at law ? 
 
 Q. — "WTiat is meant by an Estoppel of Record, by 
 deed, and in Pais ? 
 
 Q. — What is meant by an " executory", and show 
 how it differs from an executed simple contract. 
 
 Q. — Explain and illustrate by decided cases the 
 elementary proposition that contracting parties must 
 consent ad idem. 
 
 Q. — Specify certain cases in which parties are 
 required at common law to contract by specialty. 
 
 Q,. — Explain the proposition that " a mere voluntary 
 courtesy will not support an assumpsit." 
 
 Q. — When may a contract be void as opposed to 
 public policy ? What were the facts, and what was 
 the decision upon them with reference to this subject, 
 in Mitchel v. Eeyuolds, 1 P. Williams, 181 ? 
 
 Q,. — What was the point decided in Peter v. Compton, 
 with reference to the 4th section of the Statute of 
 Erauds? Upon what grounds other than that taken 
 by the court, may the decision in the above case be 
 supported ?
 
 147 
 
 Q,. — What was the principle in Laj'thoarj) v. Bryant, 
 2 Bing. N". C. 735, with reference to the fourth section 
 of the Statute of Frauds ? 
 
 Q. — Explain fully the following propositions in 
 regard to simple contracts : ( 1 ) In an executory con- 
 tract, a request is implied : (2) there must be mutuality 
 between the contracting parties ; (3) a consideration 
 must move from the promisee to the promiser. 
 
 Q. — For what point, arising under the fourth section 
 of the Statute of Frauds, is Birkmyr v. Darnell, 1 
 Smith's L. C. 224, cited as an authority ? 
 
 Q. — Illustrate the proposition, that a man cannot by 
 his tortious act impose a duty upon another. 
 
 Q,. — Assignatus tditur jure aiictoris — specify various 
 exceptions to this rule. 
 
 Q. — A bond is executed with a condition, perform- 
 ance of which is, at the date of executing the bond, 
 impossible. Has the instrument any obligatoiy force ? 
 If so, to what extent is it binding ? 
 
 Q. — What were the facts in Marriot v. Hampton ? 
 And how was that case decided ? 
 fC/C/ Q. — Distinguish between a judgment in rem, and a 
 judgment inter partes. State shortly on whom a 
 judgment of either species is binding. 
 
 Q. — How long may the doctrine of Merger in certain 
 cases affect the right of action ? 
 
 Q. — A married woman obtains a loan of money 
 under an agreement, that if sued for it, she will not 
 plead her coverture : would such agreement be effect- 
 ual and binding ? Explain the grounds of your 
 answer. 
 
 Q,. — Suppose that a debt has become baiTcd by the 
 Statute of Limitations, and that the debtor afterwards 
 promises to pay the same " when he is able," would 
 such a promise be binding at law, and under what 
 circumstances ? 
 
 Q. — What is the rule ordinarily applicable where a 
 plaintiff seeks to recover money which has been paid 
 to the defendant; (1) under a mistake of law; (2) 
 under a mistake of fact ?
 
 148 
 
 Q. — Explain the nature of a " public " and of a 
 "private" duty; and show that for the breach of a 
 duty of either kind, producing damage, an action will 
 in general be maintainable. 
 
 Q. — "Would an action of covenant lie on a contract 
 under seal in restraint of trade made without consider- 
 ation ? Explain the grounds of your opinion. 
 
 Q. — Nemo plus juris ad alium transferre potest 
 quam ipse habet. Mention certain exceptions to this 
 maxim. 
 
 Construction of Contracts. 
 
 Q. — Does our constitution recognize the maxim 
 cujus est interpretari ejus est condere ? 
 
 Q. — Where a contract entered into abroad is put in 
 suit in one of our courts, with reference to what law 
 must the contract be expounded, and the remedy upon 
 it enforced ? Illustrate by an example the answer to 
 each of these questions. 
 
 Q. — Distinguish between a patent and a latent ambig- 
 uity. What is Lord Bacon's maxim with reference to 
 the latter ? 
 
 Q. — Can a written contract be varied by proof of 
 contemporaneous verbal expressions used by the parties. 
 
 Q. — When would parol evidence be admissible to 
 show that the terms of a written contract between A. 
 and B. had been altered ? 
 
 Q. — Specify states of facts which might be pleaded 
 to an action on a deed, sho-wing it to have been void ah 
 initio. 
 
 Bailments. 
 
 Q. — What is the difference between a pledge or pawn 
 of goods, and a lien ; and in what respects does either 
 of them differ from a mortgage ? 
 
 Q,. — Should the consignor or consignee in general 
 sue the carrier for the loss of goods ? What is the 
 foundation of the rule upon the above subject ?
 
 149 
 
 Q. — Mention shortly in what respects the Carriers' ^ /^^ 
 Act (1 W. IV., c. 68.) has affected the liability of ^^ ^ 
 common carriers. 
 
 Q. — How does Dr. Story define a bailment ? 
 
 Q. — "What degree of care and vigilance is required 
 from a gratuitous bailee, and from a bailee for hire ? 
 In what leading case is the law upon the subject 
 specially considered ? 
 
 Q. — \VTio is to be deemed a common carrier ? ^\Tiat 
 is meant by saying that he is at Common Law an 
 insurer ? 
 
 Q. — Is a common carrier bound to carry goods for 
 any applicant ? Under what circumstances will he be 
 excused from taking charge of them ? 
 
 Q. — Illustrate the maxim : Qui sentit commodum 
 debet sentire et onus. 
 
 Q. — Specify three great classes into which bailments 
 are divisible. 
 
 Q. — How far is an innkeeper responsible for the | 
 safety of goods of a traveller staying at an inn ? } 
 
 Q. — State the facts in Coggs v. Bernard, and the , 
 point decided in that case. 
 
 Q. — A watch is sent to a watchmaker to be repaired, ■ 
 and whilst in his custody is stolen ; under what 
 circumstances may the bailee be exonerated from 
 HabiUty to make good its loss ? 
 
 Q. — "What rule does our Common Law take of the 
 case where a bailee of goods, without breaking bulk, 
 fraudulently converts them to his own use ? And 
 what change has been made in it by a recent statute ? 
 
 Q. — Distinguish between a "general" and a 
 "special" lien. In what cases is a general lien 
 allowed at law ? 
 
 Q. — Define a deposit and a mandate. "What is the • i 
 liability of a mandatory under our common law ? 
 
 Q. — A. is requested by B. to convey a diamond ring 
 for him (gratuitously) from London to York. A. takes 
 charge of the ring and wears it on his finger during 
 the journey. The ring is stolen from A. while thus in
 
 150 
 
 his possession. "Will A. be answerable for it to B. ? 
 Cite cases in support of your opinion. 
 
 Q. — State shortly the degree of liability attaching 
 to a carrier of passengers at Common Law. 
 
 Bills of Exchange. 
 
 Q. — Write down the ordinary form of a bill of 
 exchange. 
 
 Q. — A. is the drawer, B. the acceptor, C. the payee, 
 and D. the indorsee of a bill of exchange, made payable 
 generally and dishonoured at maturity. "With what 
 evidence should D. be prepared in order to sustain an 
 action upon the bill against A., and with what, as 
 against C. ? 
 
 Q. — Suppose that a banker pays a cheque, the 
 signature of which is forged, who is in general to bear 
 the loss, the banker or the customer ? 
 
 Q. — Explain shortly how the position of an accom- 
 modation acceptor of a bill of exchange differs from 
 hat of an acceptor for value. 
 
 Q,. — If the indorsee or holder of a bill of exchange 
 loses it, how may that circumstance affect his right to 
 sue upon the bill ? "What is the reason of the rule 
 laid down upon this subject? 
 
 Q. — ^Mention the rule laid down by Mr. Smith, in 
 regard to proof of consideration in an action on a bill 
 of exchange or promissory note. 
 
 Q,. — A promissory note is made payable to a feme sole, 
 who afterwards marries ; in whose name or names 
 shoiild an action upon the note, if unpaid at maturity, 
 be brought? Is there any difference when the bill 
 falls due before, and when it faUs due after the 
 mamage ? 
 
 Q. — Has the accommodation acceptor of a bill of 
 exchange who has been obliged to take it up, any and 
 what remedy against the drawer ? 
 
 Q. — "When may the liability of the acceptor of a 
 bill of exchange be said to be (1) satisfied j (2) 
 extinguished ; (3) discharged ?
 
 151 
 
 Q. — How is the rule Ex nudo pacto non oritur actio ^/7 
 aiDplicable to a bill of excliarigc or promissory note ? /\ 
 
 Q. — What is the meaning of the term "accommo- 
 dation biU" ? 
 
 Q. — State the law as settled by recent statutes (19 
 and 20 Vic., c. 25, and 21 and 22 Vic., c. 79,) having 
 reference to the crossing of a cheque, and the liability 
 which may attach to a banker who pays a crossed 
 cheque. 
 
 Q. — When and against whom is notice of the dis- 
 honoui' of a bill of exchange unnecessary ? 
 
 Q. — Explain the mode of getting execution of a bill 
 of exchange in a summary way. By what statute is 
 such mode of procedure available ? 
 
 Q. — Write do"WTi the ordinary form of a cheque upon 
 a banker, and point out in what respects it differs from 
 an inland bill of exchange. 
 
 Q. — Distinguish between — (1) an indorsement in 
 blank; (2) a special indorsement; (3) a restrictive 
 indorsement — of a bill of exchange. 
 
 Q,. — Specify various ways in which the indorser of a 
 bill may be discharged from liability upon it. 
 
 Q,. — A. purchases grain of B. in Doncaster market, 
 which is dehvered to him and paid for in notes of a 
 bank of issue at York, which is then in good credit. 
 On the next morning, before the notes have been paid 
 away by B., the bank stops payment. State the 
 considerations which would guide you in determining 
 whether A. or B. should bear the loss resulting from 
 the diminished value of the notes. 
 
 Q. — Within what time must notice of dishonour of a 
 bill of exchange be given ; and to whom ? \ 
 
 jjc Q. — State the law applicable where a bill of 
 exchange is in some respect altered whilst in the 
 hands of an indorsee. 
 
 Q.. — A. is the maker, B. the payee, and C. the 
 holder, bona fide, and for value of a promissory note : 
 in an action by C. against A. on non-payment of the 
 note at its maturity, A. pleads a verbal agreement 
 between himself and B. at the time of making the note,
 
 152 
 
 that it should not be presented for payment unless a 
 condition precedent had been performed by B., and 
 that such condition had not been performed. Would 
 such a plea be good ? State fully the grounds of your 
 opinion. 
 
 Bills of Lading. 
 
 Q. — Explain the meaning of the terms "demurrage," 
 "barratry," "respondentia," "generalship." 
 
 Belt. 
 
 Q,. — State the three propositions laid down in the 
 note to Marriot v. Hampton, (2 Smith's L. Cases) 
 relative respectively to money paid, first, with know- 
 ledge of the facts ; secondly, under a mistake of facts ; 
 thirdly, under compulsion of law. 
 
 Q. — What is the rule as to the right of contribution 
 amongst co-defendants after judgment recovered against 
 them: (1) in an action of contract; (2) inaction of 
 tort ? 
 
 Q. — What was the principal point decided in Sibree 
 V. Tripp, 15 M. and W. 23? 
 
 Q. — Explain the nature of the relation subsisting 
 between a banker and his customer in regard to money 
 deposited by the latter in the hands of the former, and 
 illustrate this subject by reference to Marzetti v. 
 Williams, 1 B. and Ad. 415, and Eolin v. Steward, 14 
 C. B. 595 ? 
 
 Q,. — Put cases showing that a person may sometimes 
 be held liable to repay money disbursed by a stranger 
 without request from him ? 
 
 Gift. 
 
 Q. — A. having in his possession plate belonging to 
 B., B. makes a verbal gift thereof to A., who thereupon 
 uses the plate and deals with it as his own. Afterwards .
 
 153 
 
 B., revoking his gift to A., sues him in detinue for the 
 plate. Would A. have any defence to such action ? 
 
 Q. — ^What kind of promise to answer for the deht, 
 default, or miscarriage of another, is within the fourth 
 section of the statute of frauds, and what was the 
 decision of the Court of Queen's Bench in Eastwood 
 V Kenyon, 11 Ad. and E. 438, in regard to this point? 
 
 Q,. — State fuUy the alterations effected by the 19 and 
 20 Yic, c. 97, s. 3, in the law respecting guarantees. 
 
 Q. — Mention any leading cases decided with reference 
 to guarantees, and the points of law ruled in them. 
 
 The Law of Landlord and Tenant. 
 
 Q. — A. enters as tenant to B. of 100 acres of land, 
 at a fixed rent, it appears however, that B. has pre- 
 viously demised 10 acres of the land in question to 
 C. Can B. distrain upon A. for rent in arrear ? 
 Explain the reason of your answer. 
 
 Q. — At what period during the continuance of the 
 tenancy may a good notice to quit be given in the case, 
 fijrst of a yearly ; secondly of a monthly ; thirdly of a 
 weekly tenancy; there being no special agreement 
 nor usage affecting the rights of the parties. 
 
 Q. — Can a watch left with a watchmaker for repair, 
 a carriage standing at livery, or goods sent to an 
 auction mart for sale, under ordinary circumstances be 
 distrained for rent due from the bailee ? Upon what 
 principle is the law applicable in each of these cases 
 founded ? 
 
 Q. — Are the chattels of a lodger or stranger being 
 upon the premises of a lodging housekeeper distrainable 
 for rent, due from the latter party ? 
 
 Q. — Define what is meant by a distress. If a pro- 
 missory note be given by a tenant to his landlord on 
 account of rent, will the landlord's rights to distrain
 
 154 
 
 be affected thereby. Explain the grounds of your 
 opinion. 
 
 Q. — What repairs is a yearly tenant of a house 
 bound to make in the absence of express stipulation ? 
 
 Q,. — Is a tenant who has covenanted to repair bound 
 to rebuild premises which have been accidentally burnt 
 down ? What is the liability of the tenant for rent 
 during the residue of his term ? 
 
 Q. — State shortly what things are, (1) absolutely; 
 (2) conditionally privileged from being distrained for 
 rent. 
 
 Q,. — Rent being in arrcar, the landlord takes from 
 his tenant a bond as security for it. Is the landlord's 
 right to distrain thereby affected ? State fully the 
 ground of your opinion. 
 
 Q,. — What was the point decided in Wigglesworth v. 
 DalHson, 1 Smith's L. C. 300 ? 
 
 Q. — What right has the occupier and owner of the 
 surface of the land, to support as against the owner of 
 the subjacent mineral strata, there being no local 
 custom to regulate the mode of working ? Cite cases 
 upon the subject. 
 
 Q. — A tenant of land continues to occupy it after 
 the expiration of his lease, without coming to any 
 fresh agreement with his landlord ; on what terms "wdll 
 he be taken to hold; and how must any question 
 respecting the admissibility of a local custom as 
 evidence in an action against the tenant for breach 
 of his contract with his landlord be determined? 
 
 Q,. — What is an " away -going " crop ? Suppose that 
 a lease under seal between landlord and tenant contains 
 no stipulation respecting the right thereto, would 
 evidence of a local custom, that the tenant was 
 entitled to it, be admissible ? 
 
 Life Assurance. 
 
 Q. — In what respect does a contract of life assurance 
 fundamentally differ from a contract of insurance 
 against the perils of the sea or against fire ?
 
 155 
 
 Q. — State the point decided in Dalby v. the India 
 and London Life Insui'ance Company, 15 C. B., 365, 
 relative to a life policy of insurance, and what earlier 
 decision was overruled in that case. 
 
 Marine Insurance. 
 
 Q. — In jure non remota causa sed proxima spectatur. 
 Explain generally the meaning of this maxim in 
 reference to the law of insurance. 
 
 Q, — Aliud est celare, aliud tacere. Explain the 
 meaning of this rule in connection with the law of 
 maritime insurance. 
 
 Q. — Illustrate the maxim : In pari delicto potior est 
 conditio possidentis or defendentis, by reference to a 
 policy of insurance. 
 
 Master and Servant. 
 
 Q. — A. and B. are fellow workmen in the employ of\ / 
 C. ; whilst engaged in their duties as such, A. sustains \. Y / 
 a bodily hurt through the negligence of B. : what rule '^r' 
 is here to be applied for determining C.'s liability to ' "^ 
 damages for the injury done in an action at the suit of 
 A.? 
 
 Q. — What point was decided in Cutter v. Powell as 
 to the right to wages where a seaman dies during the 
 voyage ? 
 
 Q. — Specify various species of injuries which, as 
 Serjeant Stephen says, are " incident to the relation 
 between master and servant, and the rights accruing 
 therefrom." 
 
 Q. — Will an action lie against a man for refusing to 
 give his servant a character ? 
 
 Partnership. 
 
 Q. — Distinguish between an active, nominal, and a 
 dormant partner; and state the test applicable in
 
 156 
 
 determining whether an individual is liable as a 
 partner, at the suit of a third person, in a court of law. 
 
 Q. — Can two ordinary mercantile firms having a 
 partner in common, sue one another at law ? State the 
 reasons of the rule upon this subject. 
 
 Q,. — In what cases may there be a remedy at law by 
 a partner against his co-partner ? 
 
 Q. — What is the doctiine of our Common Law as to 
 survivorship inter mercatores in regard to (1) the right; 
 (2) the remedy ? 
 
 Q. — State the several methods by which Joint Stock 
 Companies for trading purposes may be constituted, 
 and show the advantages possessed by any of those 
 methods over the others. 
 
 Q. — Subject to what restrictions is each partner in a 
 trading fiiTu to be deemed an accredited agent of the 
 firm? 
 
 Frincipal and Agent. 
 
 Q,. — "What is the general maxim on which the law 
 of principal and agent depends ? Give some ordinary 
 illustrations of it. 
 
 Q,. — Distinguish between a broker and a factor, and 
 explain what is meant by a del credere commission. 
 
 Q. — State generally the extent of the liability of a 
 factor in respect of damages done to goods placed in 
 his custody, and cite cases in support of your state- 
 ment of the law upon this subject. 
 
 Q,. — When a factor sells goods for an undisclosed 
 principal, in whose name may, or must an action be 
 brought for the price of such goods ? What is the rule 
 as to set-off applicable in this case ? 
 
 Q. — What is the maxim of law as to the ratification 
 of a contract ? Does it apply also to a tort ? Give 
 instances illustrating youi- opinion. 
 
 Q,. — What is the rule laid down by Dr. Stoiy, as to 
 the liability of principal and agent, for the price of 
 goods purchased by the latter, on account of the 
 former ?
 
 157 
 
 Q. — State any exception to, or limitation of the 
 rule, that "the ratification of a tortious act done by 
 an agent, is eqiiivalent to a prior command." 
 
 Q. — Explain fully, and in what manner an auc- 
 tioneer ordinarily acts as agent for the vendee, as well 
 as for the vendor of goods, at a sale by auction. 
 
 Q. — Distinguish between " a general" and " a par- 
 ticular" agent. 
 
 Q,. — By applying what test is the authority confided 
 to a general agent to be measm-ed ? Explain fully the 
 principle upon which the rale in question rests. 
 /(/(^Q. — An agent is not in general authorised even in 
 cases of necessity, to boiTow money upon the credit of 
 his principal. Mention special exceptions to this rule, 
 and state the reasons upon which they rest. 
 
 Q. — Mention cases in which one labouiing under an 
 incapacity to contract, may nevertheless contract as 
 agent for another. 
 
 Q,. — Tinder what circumstances will an action ex 
 delicto be maintainable against an agent contracting 
 as such .? Cite cases bearing upon this point. 
 
 Q,. — The extent of the agent's authority is (as 
 between his principal and third parties) to be measiu-ed 
 by the extent of his usual employment. Illustrate 
 this proposition by examples. 
 
 Q,. — A. enters into a written contract with B., 
 describing himself as agent for C, at the same time 
 representing, and bond fide believing that he is duly 
 authorized in that behalf. C. repudiates the contract 
 on the ground that A. had no authority to act for him 
 in that matter. WillB., who is thus damnified, have 
 any remedy, and if so, what form of action against A ? 
 
 Q. — Specify qualifications of the rule. Vicarius non 
 habet vicarium. 
 
 Q,. — At the time of making a contract of sale, the 
 party buying the goods represented that he was buying 
 them on account of persons resident in Scotland, 
 whose names he did not mention. The seller of the 
 goods did not enquire who the real pui'chasers were, 
 but afterwards debited the agent who purchased the
 
 158 
 
 goods. "Would the vendor upon these facts be pre- 
 cluded fi'om suing the principal for the price of the 
 goods ? 
 
 Q,. — State the facts in Cornfoot v. Fowke, 6 M. and 
 W. 358, the decision there arrived at, and your own 
 opinion on the case. 
 
 Q,. — j^ote shortly the law applicable for determining 
 the liability of an um-cmunerated agent, whether in 
 respect of contract or of tort. 
 
 Q. — A., a tradesman, has been in the habit of 
 supplying necessaries to B., the wife of C, who is 
 abroad. C. dies abroad, and afterwards, but before 
 the fact of liis death is known to A. or B., goods are 
 supplied to B. by A. for the use of herself and family, 
 on the credit of C. Will B. be liable for the price of 
 such goods at suit of A. ? Will the executors of C. 
 be liable for the price ? 
 
 Q,. — Under what circumstances may a principal who 
 ratifies a tort, become liable in respect of it ? 
 
 Sale. 
 
 Q,. — Define the contract of sale. What peculiar 
 efficacy attaches to a sale of goods in market overt ? 
 
 Q. — How are the requirements of the 17th section 
 of the statute of frauds ordinarily complied with, so 
 that the purchaser of a chattel at a sale by auction may 
 be bound. 
 
 Q. — How does an acceptance " difi'er from an actual 
 receipt" of goods under the Statute of Frauds, sec. 17? 
 
 Q,. — Specify various exceptions to the rule, that 
 "there is no implied warranty of title in the contract 
 of sale of a personal chattel." In what recent cases 
 has this rule been discussed ? 
 
 Q. — Will a wan-anty of a horse extend to defects 
 patent at the time of sale ? 
 
 Q. — A. sold a horse without warranty, and delivered 
 it to B. Sometime afterwards. A., at B.'s request, 
 warranted that the horse was free from vice. The 
 horse however proved to be vicious. Would the maxim
 
 159 
 
 caveat emptor apply in the case, or could the wan'anty 
 be considered as incorporated with the original contract 
 of sale ? To what decided case is reference made in 
 this question ? 
 
 Q. — Under what cii'cumstances, and to whom is the 
 priA-ilege of stopping goods in transitu allowed, and 
 how may this right be defeated ? 
 
 Q. — By what considerations would you determine 
 the liability of a member of a club, for the price of 
 goods supplied by a tradesman to the club ? Cite cases 
 having reference to this subject. 
 
 Q. — How does the rule caveat emptor apply as I'egards 
 (1) the quality of; (2) the title to goods? 
 
 Q. — What points respecting the sale of goods were 
 resolved in the Case of Market Overt ? 
 
 Q. — Explain fully the nature of the difficulty which 
 has been felt in intei-preting the following words in 
 the 17th section of the statute of frauds : "except the 
 buyer shall accept part of the goods so sold, and 
 actually receive the same." What various meanings 
 have been judicially put upon these words ? 
 
 Q. — Explain the mode of applying the maxim : 
 Res perit suo domino by reference to Tarling v. Baxter. 
 State the nature of the action in that case, and the 
 facts which appeared in evidence. 
 
 Q. — "^Tiere a chattel, such as a desk or bureau, sold 
 by public auction, is subsequently found to contain 
 secreted in it valuable property, by what consideration 
 would you detennine in whom the property thus dis- 
 covered is legally vested ? 
 
 Wrongs independent of Contract. 
 
 Q. — TVTierein does a tort differ from a contract and 
 from a crime ? 
 
 Q. — How was the right of action for misrepresent- 
 ation recognised in Pasley v. Freeman affected by the 
 6th section of Lord Tentcrden's Act (9 G. IV., c. 14)? 
 
 Q. — State fully the natui-e of the action available, 
 and in whose name or names should it be brought to
 
 160 
 
 recover damages for an assault and battery committed 
 on a feme covert ? 
 
 Q. — State shortly the considerations by which you 
 would be guided in detemiining the liability attaclung 
 to the owner of premises, who allows an excavation 
 therein to remain unfenced, in consequence of which 
 damage is caused to the complainant. 
 
 Q. — Illustrate the maxim that the law will rather 
 suffer a private mischief than a public inconvenience. 
 
 Q,. — Does liability attach to a pubHc servant who 
 in obedience to orders from government commits a 
 trespass ? Does the rule respondeat superior apply in 
 this case ? What mode of redi'ess may sometimes be 
 available against the Crown ? 
 
 Q. — State the facts in Humphi-eys v. Brogden, 12, 
 Q. B. 739, and put additional facts which might have 
 affected the decision in that case. 
 
 Q. — Frustra legis auxilium quaerit qui in legem 
 committit. Exemplify this maxim. 
 
 Q,. — Give some of the instances usually put to 
 show the distinction between an action on the case 
 and trespass. "Whence did the former form of action 
 derive its origin and nature ? 
 
 Q. — State what you consider to be the principle 
 point decided in Scott v. Shepherd. 
 
 Q. — Can you mention any case at all similar to 
 Ashby V. Wliite ? 
 
 Q. — "What is meant by a conversion in trover? How 
 may it be evidenced ? 
 
 Q,. — Illustrate the maxim : Omnia praestimuntur 
 contra spoliatorem. In what leading case was the 
 principle involved in it applied ? 
 
 Q,. — In what case was the nile "that every man's 
 house is his castle" particularly discussed, and its 
 limitations laid down ? 
 
 Q. — Contrast briefly the civil liability of one non 
 compos mentis for his tortious act, with the liability 
 which attaches to him for a violation of our Criminal 
 Law.
 
 161 
 
 Q. — Illustrate the maxim : Sic utere tuo ut alienum 
 non laedas. 
 
 Q. — Is trespass maintainable by an administrator for 
 acts done after the death of the intestate, and before 
 the date of the letters of administration. 
 
 Q. — What were the facts in the Six Cai-pentcrs' 
 case. 8 Rep. 146? And what was the rule of law 
 there laid down ? How has the nile of law referred 
 to in the preceding question been modified, so far as 
 regards distress for rent by the statute 11 G. 2, c. 10, 
 8. 19? 
 
 Q. — State shortly the civil Liability of an infant ex 
 delicto. 
 
 Q. — Under what circumstances in an action for 
 "wrong independent of contract," will the intention 
 with which the alleged wi'ongful act was done be 
 material ? And when may it not be so ? 
 
 Q. — A. by sinking a well on his own land, di'aws off 
 water from the well of B., his neighbour, whereby he 
 is inconvenienced, and sustains loss. Would an action 
 for damage thus caused be maintainable at the suit 
 of B. against A. ? State fully the gi'ounds of your 
 opinion. 
 
 Q. — Distinguish between these different kinds of 
 trespass: ( 1 ) to the person ; (2) Qttare clausum fregit ; 
 (3) De Bonis asportatis. 
 
 Q. — What is the rule respecting the suspension of 
 a right to sue where the act done whereon such right 
 is founded involves a felony ? 
 
 Q. — State the nature and extent of the legal liability 
 attaching to the owner of a sunken vessel lying in the 
 channel of a na\'igable river, towards the owner of a 
 ship, which has sustained damage by coming into 
 collision with the wreck. 
 
 Q. — Illustrate the rale that a man must have taken 
 to have intended that which is the necessary or 
 natui'al consequence of his act in civil proceedings. 
 
 Q. — Cite cases illustrating the rule injuria non 
 excusat inj'uriatn. 
 ^ 1^ yQ. — What is the common law right of the surface
 
 162 
 
 owner to support, as against one working the subjacent 
 mineral strata, in a mining district ? 
 
 Q,. — A Gas Company employs competent workmen 
 to repair the gas-pipes laid down in a public thorough- 
 fare, omitting however to give any specific directions 
 in regard to the precautions which should be taken to 
 prevent accidents to passers by. One of the workmen 
 while engaged in doing the necessary repairs, by his 
 negligence, causes an individual, lawfully using the 
 thoughfare. Will the company be Kable to make 
 compensation to the party injiu-ed ? 
 
 Q,. — Will an action lie against a witness who 
 maliciously gives false e-\T.dence at a civil trial, to the 
 detriment of another ? 
 
 Q,. — State facts which might afford ground for an 
 action, (1) of trover; (2) of detinue; (3) on the case. 
 
 Q,. — A. falsely and fraudulently represents to B. 
 that he (A) is authorized by C. to order goods on his 
 (C.'s) account. The goods are accordingly suppKed 
 to A., and C. who declines to pay for them, is unsuc- 
 cessfully sued by B. for their price. Explain the 
 natiu-e of the action, which under these circumstances 
 would lie at the suit of B. against A., and what 
 damages would be recoverable in it ? 
 
 Q. — A. erects upon B.'s land a house without license 
 so to do from B. Will B. be justified in entering the 
 house by force, A. and his family being in it, and 
 expelling them ? Specify the leading cases which bear 
 upon this question. 
 
 Q. — ^\Tiat do you understand by the phi'ase Damnum 
 sine injuria and Injuria sine clarnuo ? Show how they 
 are usually applied. 
 
 Q. — What is the doctrine of onr law as to " contri- 
 butoiy negligence." Cite cases in illustration of it. 
 
 Q. — A surgeon undei-takcs gratuitously to attend a 
 sick person, and injures him by improper treatment. 
 Explain fully the law here applicable for determining 
 the civil liability of the siu'geon. 
 
 Q. — A. having at B.'s request consented to allow his 
 horse to pastui'e gi'atuitously with A.'s horse, puts
 
 163 
 
 them together for the night time in a field, the fences 
 of which are defective ; E.'s horse during the night 
 falls through a gap in the fence, into an adjoining 
 field, and is killed. Is A. liable to B. for the damage 
 thus sustained by him ? 
 
 Q. — Put cases illustrating the meaning of par 
 delictum in in pari delicto potior est conditio defendentis. 
 
 Q,. — State shortly the civil liability of one who finding 
 lost property, appropiiates it to his own use. 
 
 Q,. — What is the presumption of law as to the 
 property of a tree which grows on the boundary of 
 two fields, so that its roots extend into the soil of 
 each? 
 
 Q. — Define the nature of " a legal injury." 
 
 Q,. — What is meant by saying that damage is " too 
 remote to be the subject of an action"? Cite cases 
 in illustration of the rule. How do you reconcile the 
 decision in Scott v. Shepherd with the rule as to 
 remoteness of damage. 
 
 Q. — What was the point decided in Hooper v. Lane 
 as to the liability of the sheriff'? 
 
 Q. — Put various cases in which (1) an assault and 
 battery; (2) an entry on the land of another without 
 license from him, may be justified. 
 
 Q. — Wlierein does an action for false imprisonment 
 diff'er from an action for a malicious arrest ? 
 
 Q,. — What are the ingredients in the right of action 
 for a malicious prdsecution, and what are the respec- 
 tive functions of the judge and jury in such an action? 
 
 Q. — A., a gamekeeper employed by B. to kill game, 
 shoots so carelessly as to injure C. whilst lawfully 
 passing along the adjacent highway. Explain the 
 nature of the remedy available to C, in order to 
 obtain compensation for the hurt sustained, and state 
 against whom it may be had. 
 
 Q. — What must appear upon the evidence in an 
 action of trover, in order that the plaintiff may be 
 entitled to the verdict ? 
 
 Q. — In an action for Ubcl what communications arc
 
 164 
 
 deemed to be privileged? How may the defence of 
 " privileged communication " be raised ? 
 
 Q. — Distinguisb between a misfeasance and non- 
 feasance, and exemplify the proposition that an action 
 of tort may lie for a non-feasance causing damage to 
 the complainant. 
 
 Q. — A. ^the wife of B.) falsely and fraudulently 
 represents to C. that a certain bill of exchange, pur- 
 porting to be accepted by B." had been accepted by 
 him ; in consequence of which misrepresentation, C. 
 sustains pecuniaiy damage. "Would an action lie at 
 suit of C. against A. or B., or both jointly, upon the 
 above facts? What is the peculiar difficulty in the 
 case ? 
 
 Q. — D. (the agent of E.) by fraudulently affirming 
 to r. (a customer) that certain timber belonging to E. 
 is sound, induces F. to purchase it. E. was ignorant 
 of the defective condition of the timber, and had in no 
 way authorized D. to sell it as sound. Would an 
 action ex delicto be maintainable upon these facts at 
 the suit of F., who has paid for the timber more than 
 it was worth, against E. ? 
 
 Q. — Suppose that A. (in the last question but one) 
 had obtained an advance of money to her own use on 
 the bill of exchange which purported to bear B.'s 
 acceptance, could she have been indicted for obtaining 
 the money by false pretences ? 
 
 Q. — How was the maxim, " Where there is a right, 
 there is a remedy" exemplified in Ashby v. White. 
 
 Q. — In an action against a Eailway Company for 
 negligence and damage thence residting, would it 
 suffice for the plaintiff to prove that an accident had 
 occurred in order to thi'ow the onus prolandi on the 
 defendants ? 
 
 Q. — For the benefit of what persons only can an 
 action be brought under Lord Campbell's Act, (9 and 
 10 Vic, c. 93) for compensation in cases of death 
 caused by negligence ? 
 
 Q. — Mention three distinct classes of cases in which
 
 165 
 
 an action for slander will lie without proof of special 
 damage. 
 
 Q. — Illustrate the distinction between absolute and 
 special property by reference to Anuoiy v. Delamiiie. 
 
 Q. — Put states of facts out of wliich might arise a 
 right to sue ex delicto or to proceed by indictment. 
 
 Q. — What were the facts in Barnes v. Ward, and 
 what was the decision upon them ? 
 
 Hedress hy act of Party. 
 
 Q. — Mention various modes in which a civil injury 
 may be redressed by the mere act of the party 
 aggrieved. 
 
 Q. — Specify cases in which a'nuisance may be abated 
 by a private person. 
 
 Q,. — A flock of sheep, being di'iven along a highway 
 pass on to a line of railway, tlu^ough a gate (which is 
 under the control of the railway company) and sustain 
 damage from a train ; supply additional facts for 
 determining the liability, it' any, attaching to the 
 company. 
 
 Process. 
 
 Q. — To what points must attention usually be 
 directed before issuing the writ of summons ? 
 
 Q. — State shortly the piu-port of an ordinary writ 
 of summons. How must it be served ? 
 
 Q.. — State the proper mode of proceeding by action 
 against a British subject out of the jurisdiction, 
 
 Q. — Under what circumstances, and how may a 
 writ of capias be issued on mesne process. 
 
 Q,. — How long does the writ of summons issued in 
 pursuance of the Common Law Procedure Act, 1852, 
 continue in force? How may it be renewed ? Tinder 
 what circumstances may a renewal be necessary ? And 
 what is the proper course to take when a defendant 
 evades service of a wiit ?
 
 166 
 
 Q. — "What is meant by the common indorsement of 
 debt and costs ? "VVlicn and -^hy is this required? 
 
 Q. — Explain what is meant by a special endorsement 
 of the writ of summons, and what is the advantage to be 
 derived from specially indorsing the wiit ? 
 
 Q. — Explain the distinction between a local and a 
 transitory action. Is the distinction still retained ? 
 
 Q.. — What is a " concuiTent" writ of summons, and 
 under what circumstances may it be practically 
 useful ? 
 
 Q. — State shortly the mode of entering an appearance 
 to an action. 
 
 Q. — What coru'se should be adopted by a plaintiff in 
 case of the defendant's non-appearance; (1) where 
 the wi'it of summons is specially indorsed ; (2) where 
 it is not so indorsed ? 
 
 Q. — State shortly the natui'e of the proceedings in 
 an action for a mandamus under the Common Law 
 Procedure Act, 1854. 
 
 Q,. — In what cases may the wiit of injunction be 
 claimed at common law ? 
 
 Q. — How may a non-joinder of plaintiffs be amended 
 before trial ? 
 ji'> Q,. — Explain the change effected by the Common 
 Law Procediu'e Act, as regards the consequence of a 
 mis-joinder of plaintiffs in an action. 
 
 Q. — Would an action lie in one of oiu' Superior 
 Courts ; (1) on a bill of exchange accepted and made 
 payable in France ; (2) for an assault and battery 
 there committed; (3) for land there situated? 
 
 Q. — How may a misjoinder of defendants in an 
 action be cured under the Common Law Procedure Act, 
 1852? 
 
 Q. — What was the former, and what is the present 
 rule as to the joinder of causes of action in the same 
 suit ? 
 
 Q,. — Can you mention any statute passed since the 
 Common Law Procedure Act, 1852, the mode of 
 procedure under which is analogous to the special 
 endorsement on the writ ?
 
 167 
 
 Q. — Enumerate cases in which the County Coui't 
 has concurrent jimsdiction with a Superior Court. 
 
 Q. — In what cases must notice of special defence be 
 given in a suit in the County Court ? 
 
 Q,. — State what is meant bj' a "Court of Record." 
 "What liabilities may attach to the judge of such a 
 court for an act done by him ? 
 
 Q. — How is an action to be commenced against a 
 foreigner residing out of the jurisdiction of our Courts? 
 
 Q. — Where may the writ of summons in an action 
 be served ? 
 
 Q. — State the period of limitation in an action of (1) 
 detinue; (2) trover; (3) trespass for assault; (4) case 
 for slander. 
 
 Q. — Upon what policy are the various statutes of 
 limitation founded ? What is the period of limitation 
 in each form of action ex contractu ? 
 
 Q. — Specify the remedies available at law ( 1 ) upon a 
 judgment recovered ; (2j upon a contract under seal ; 
 (3) upon a simple contract. 
 
 Q,. — How ma)' the specific delivciy of a chattel in 
 some cases be compelled ? 
 
 Q. — In what name or names may an action be 
 brought upon a claim arising to a married woman 
 during coverture ? 
 
 Q. — In what classes of cases might an action of 
 contract or an action of tort be available at the option 
 of the complainant? 
 
 Q. — How is the maxim : " Interest rcipuhlxcae ut 
 sit finis litium,^^ illustrated by the case of Marriott v. 
 Hampton ? 
 
 Q,. — State what you understand by the maxim : 
 " Bebitum et contractus stmt nulUus loci.'''' 
 
 Q. — What is meant by saying that damage is " too 
 remote" to be the subject of an action ? How do you 
 reconcile the decision in Scott v. Shepherd, with the 
 rule as to remoteness of damage ? 
 
 Q. — Distinguish between an action for tlic dii-ect 
 invasion of a legal right vested in the plaintiff, and
 
 168 
 
 an action for a breach of a legal duty owing to him 
 which causes damage ? 
 
 Q. — Would proof of special damage he requisite to 
 sustain an action; (1) for libel; (2) for slander on 
 plaintiif, touching his profession ; (3) for a malicious 
 prosecution ? 
 
 Q. — What remedy may the subject sometimes have 
 against the Crown, and under what circumstances 
 may it be available ? 
 
 Q,. — A. contracts with B. to sell and deliver to him 
 specific goods on a futiu'c day, prior to which, how- 
 ever, A. sells and delivers the goods to C. Would it 
 be competent to B. to sue A. for breach of contract 
 before the day named for the delivery of the goods ? 
 Cite cases in support of your opinion. 
 
 Q. — Wliat is meant by a "prerogative" writ? 
 Enumerate the various prerogative writs which issue 
 out of Coiuts of Common Law. 
 
 Pleadings. 
 
 Q. — After what period from the sei-vice of a WT^t of 
 summons may the plaintiif be compelled to declare ; 
 and what steps must the defendant take in order to 
 compel him ? 
 
 Q. — What change has been effected by the Common 
 Law Procedure Act, as regards the statement of 
 promises in a declaration founded upon contract ? 
 
 Q. — Put cases in which the venue is — (1) local — (2) 
 transitoiy. 
 
 Q. — What is meant by "a condition precedent"; 
 and what change has been effected by the Common 
 Law Procedure Act in reference to its performance in 
 pleading ? 
 
 Q. — What would be the main ingredients in the 
 right of action upon facts such as those in Chandelor 
 V. Lopez ; first, if the declaration were framed in 
 contract ; secondly, if it were foimded in tort ? 
 
 Q. — How does a demuiTcr diff'er from a plea ?
 
 169 
 
 Q. — By what considerations should a pleader be 
 governed in determining whether to demui' or to plead 
 to the plaintiff's declaration ? 
 
 Q. — Within what time must a defendant demur to 
 the plaintiff's declaration ? 
 
 Q. — Is it competent to a party to plead and demur 
 to the same pleading ? 
 
 Q,. — What is the recognised classification of pleas? 
 Give an instance characteristic of each of the leading 
 classes of pleas. 
 
 Q. — Explain the meaning of the following terms 
 used in pleading: "traverse," "departure," "new 
 assignment," "duplicity," and "argumentativeness." 
 
 Q. — Mention some of the ordinaiy pleas in an action 
 of covenant or assumpsit. 
 
 Q. — By the 8th pleading laile in actions on contract, 
 "all matters in confession and avoidance including not 
 only those by way of discharge, but those which show 
 the transaction either void or voidable in point of law, 
 shall be specially pleaded." Enumerate various 
 defences which must be specially pleaded under the 
 above iiile. 
 
 Q. — Can fraud be pleaded as a defence in an action 
 upon a judgment of a couii; of record, and upon a 
 deed ? 
 
 Q. — What is the ordinary time for pleading in bar 
 to an action, the defendant being within the juris- 
 diction, and in abatement ? 
 
 Q. — When is coverture pleadable in bar, when in 
 abatement, to a declaration for goods sold and de- 
 Kvered ? 
 
 Q. — ^\niat is meant by an equitable plea ? Is such 
 a plea pleadable in ejectment? 
 
 Q. — State shortly tlie nature of the following pleas, 
 and say in what actions they may be pleaded. Set 
 off, payment into coui't. Nil hahiiit in tenementis. 
 
 Q. — What was decided in the Duchess of Kingston's 
 case as to the doctrine of estoppel ? 
 
 Q. — How is illegality to be i)leaded in an action 
 
 G
 
 170 
 
 ex contractu ? Upon what authority is yoirr answer 
 founded ? 
 
 Q. — Of what does the plea of " Not Guilty" operate 
 as a denial, and what is the effect of the plea of non- 
 assumpsit in an action against a carrier for non-delivery 
 of goods ? 
 
 Q. — State any limitations as defined in recent 
 decisions of the statutory provisions allowing equitable 
 defences to be pleaded. 
 
 Q. — What is meant by a plea puis darrein conti- 
 nuance ? 
 
 Explain the natui'e of the pleas solvit ad diem and 
 solvit post diem in an action on a bond. Under what 
 statute is the latter of those pleas pleadable ? 
 
 Q. — What do you understand by a plea of "accord 
 and satisfaction" ? 
 
 Q. — What is put in issue by pleading "non- 
 assumpsit" to a declaration on a special contract? 
 
 Q. — What provision is contained in the Common 
 
 Law Procedure Act, 1854, having reference to an 
 
 action upon a bill of exchange or other negotiable 
 
 instmment wliich has been lost ? 
 
 "ij \^ Q,. — What is the ordinary time for pleading in reply? 
 
 Q. — To the attainment of what object is our system 
 of pleading mainly directed? Illustrate your answer 
 by examples ? 
 
 Q,. — Can judgment without satisfaction, recovered 
 against one of two joint debtors, be successfully 
 pleaded in bar of an action against the other contract- 
 ing party ? 
 
 Trial and Evidence. 
 
 Q. — What is the usual time for notice of trial ; and 
 what is meant by short notice ? 
 
 Q. — A\Tiy and with what special object is a notice 
 to produce or admit documents given ? 
 
 Q,. — State the best and simplest tests available for 
 determining upon whom at the trial of an action the
 
 171 
 
 burden of proof lies ; and the reasons on which the 
 rule is founded. 
 
 Q. — Give illustrations of the rule that the best 
 evidence of which a case in its nature is susceptible 
 should be presented to the juiy. 
 
 Q. — On what grounds is hearsay evidence in general 
 inadmissihle ? 
 
 Q,. — What was the point decided in Doe d.Tatham 
 V. Wright (7 Ad. and E., S. C. 5, CI. and Fin., 670) 
 as to the admissibility in evidence of letters addressed 
 to a person whose sanity was in question ? 
 
 Q,. — What important point connected with the nile 
 as to the admissibility in evidence of entries against 
 interest was decided in Higham v. Ridgway, 10 East 
 109? 
 
 Q. — Omnia praesumuntur rite esse acta. Illustrate 
 this maxim of our law of evidence. 
 
 Q,. — What important point connected with the law 
 of evidence was niled in Carter v. Boehm, 3 Burr., 
 1905 ; and has since been much agitated ? 
 
 Q. — What is meant by res inter alios acta ? Give 
 instances showing what is the rule of evidence with 
 reference to it. 
 
 Q. — Contra non volentem nulla currit praescriptio. 
 Explain and illustrate this i-ule. 
 
 Q. — Under what circumstances are entries made by 
 deceased persons admissible in evidence ? To what 
 rule does their admissibility oflfer an exception, and 
 upon what gi'ounds has it been established ? 
 
 Q. — Res judicata pro veritate accipitur. What is the 
 meaning of this rule ? Is there any exception to it ? 
 
 Q. — What particular point connected with the law 
 of evidence was decided in Price v. Earl of Torington, 
 1 Salk. 285 ? 
 
 Q. — In what manner does a receipt operate in 
 evidence: (1) when under seal; (2) when not under 
 seal? 
 
 Q. — Distinguish between a presumption of law, and 
 a presumption of fact.
 
 172 
 
 Q. — Specify presumptions of law whicli are con- 
 clusive, and which may be rebutted. 
 
 Q. — What are the principal gi'ounds of objection to 
 the competency of witnesses ? 
 
 Q. — Is a wife a competent witness for or against 
 her husband: (1) In a civil action; (2) In a criminal 
 proceeding ? State the limitations (if any) imposed on 
 her competency. 
 
 Q. — State the point decided in Goss v. Lord Nugent, 
 5 B. and Ad. What important point was raised in 
 the case as to the fourth section of the Statute of 
 Frauds, but not formally decided ? 
 
 Q. — What is the extent of the limit of the rule 
 that " evidence of usage or custom is admissible to 
 explain a written contract?" 
 
 Q. — Specify some matters which are judicially 
 noticed without proof. 
 
 Q. — Indicate various classes of questions which a 
 witness at Nisi Prius would not be held compellable 
 to answer. 
 
 Q. — Specify the respective functions of judge and 
 jury when a question arises whether a communication 
 was privileged or not, or whether articles supplied to 
 an infant are necessaries. 
 
 Q. — How may e-^idence of an act or declaration, not 
 otherwise admissible, sometimes be so as fonning part 
 of the res gestae. 
 
 Q,. — State the four general rules laid down by Mr. 
 Taylor as governing the production of evidence to a 
 jury. 
 
 Q. — Could the want of jiu-isdiction in a Superior 
 Coui't be waived by the parties ? What is meant by 
 an agreement to oust the jmisdiction of the Courts ? 
 Would such agreement be valid ? 
 
 Q. — Explain what is meant by a leading question ? 
 
 Q. — What important laile, in regard to the admis- 
 sibility of evidence, was settled in Omichund v. Barker, 
 Willes, 538 ? 
 
 Q. — Cuilihet in sua arte credendum est. Illustrate 
 this maxim.
 
 173 
 
 Q. — Specify the various modes of proceeding avail- 
 able against a witness who fails to attend, and give 
 evidence at a civil trial, having been subpoenaed so 
 to do. 
 
 Q. — How may it be material to distinguish between 
 contract and tort, as regards the right of a plaintiff to 
 his costs when suing in a Superior Coiu't ? 
 
 Q. — Mention varioiis kinds of hearsay evidence 
 which are admissible by our law. 
 
 Q. — Sem2)er in olsciiris quod minimum est sequimur. 
 Illustrate this maxim by reference to the law of 
 evidence. 
 
 Q. — In what qualified sense must the rule be 
 understood that "a negative is incapable of proof" ? 
 
 Q. — C, by excavating in his own land near to its 
 boundary, causes the downfal of D's ancient house 
 erected in adjoining laud, and when sued in case for 
 this injur}' pleads the Statute of Limitations. It 
 appears in evidence that the excavation was made more 
 than six years before the commencement of the action, 
 but that the damage accrued within that period. For 
 whom should the verdict be entered ? 
 
 Q. — How may a non-joinder of plaintiffs be amended 
 at the trial ? 
 
 Q. — In an action by indorsee against acceptor of a 
 bUl of exchange, the defendant pleads that the bill was 
 accepted by him for the accommodation of the drawer, 
 and was indorsed to the plaintiff without value. To 
 this plea the plaintiff replies that the bill was indorsed 
 to him for a valuable consideration. On which party 
 does the onus prohandi lie ? Explain fuUy the grounds 
 of your answer. 
 
 Q. — What threefold duty devolves upon a judge 
 presiding at a trial by jury ? 
 
 Q. — Illustrate the respective functions of the judge 
 and jury by reference to an action for goods sold and 
 delivered. Plea — infancy. Replication — that the goods 
 were "necessaries." 
 
 Q. — How may the attendance of witnesses be com-
 
 174 
 
 pelled — (1) before a Justice of the Peace; (2) at Nisi 
 Prius? 
 
 Q. — What is the true measure of damages in an 
 action against the sheriff for an escape ? 
 
 Judgment and Execution. 
 
 Q. — What is the ordinary writ of execution ; first, 
 against the person; second, against the goods? and how 
 long, if unexecuted, does it remain in force ? 
 
 Q. — State shortly the nature of the writ : haheri 
 facias possessionem. 
 
 Q. — How may judgment be signed in an action for 
 non-appearance where the writ of summons was not 
 specially indorsed ? 
 
 Q,. — Illustrate the doctrine of estoppel by reference, 
 (1) to the judgment of a Court of Record, (2) to a 
 bond, (3) to a bill of exchange. 
 
 Q. — In what cases may a sheriff execute a writ by 
 breaking open the outer door of a dwelling house ? 
 
 Proceedings subsequent to Judgment. 
 
 Miji, Q- — Specify various grounds on which the motion 
 for a new trial is ordinarily made. 
 
 Q. — How have proceedings in arrest of judgment 
 been affected by the Common Law Procedure Act. 
 State the proceedings which may be had on this 
 motion. 
 
 Other proceedings in the Superior Courts. 
 
 Q. — What is the office of a writ of certiorari ? 
 
 Q. — Give a sketch of the proceedings in Replevin. 
 Under what various and dissimilar circumstances may 
 this action be maintained ? 
 
 NATURE OF CRIMINAL LAW. 
 
 Q. — What is the main object of the statute 14 and 15 
 Yic, c. 100, intituled "An Act for further improving
 
 175 
 
 the Administration of Criminal Justice," as set forth:' 
 in the preamble thereto ? 
 
 Q. — Give a definition of an "indictment," and state 
 what test you would apply for determining whether a 
 particular wrongful act is indictable or actionable. 
 Under what circumstances may an act done give rise 
 as well to an indictment as to an action ? 
 
 Q,. — State concisely the peculiar office of the grand 
 jury, of the common jury, and of a judge on a criminal 
 trial. 
 
 Q. — "What is the peculiar characteristic of a felony 
 at common law, as distinguished from a misdemeanor ? 
 
 Q. — In what varioxxs ways may the capacity to 
 commit a crime be affected ? 
 
 Q. — State shortly the mode of procedure by criminal 
 information. 
 
 Q,. — In what various ways may the capacity to 
 commit a crime be affected ? 
 
 Q. — Define what is meant by a " crime" and " a 
 criminal act." 
 
 Q. — Distinguish between "motive," "intention,", 
 and " attempt," in connection with criminal law. / 
 
 Q. — Does our law regard drunkenness as a defence in 
 answer to a criminal charge ? Put various states of 
 facts illustrating the view which you entertain upon 
 this subject. 
 
 Q. — " Ignorantia juris quod quisque scire tenetur 
 neminem excusat." Explain and illustrate this rule by 
 reference to our criminal law. 
 
 Q.. — Under what circumstances may a right of action 
 be said to merge in a felony ? 
 
 Q. — How does the rule "JVuUum tempus occivrit regi^* 
 apply in reference to the procedure by indictment ? 
 
 Q,. — Wherein does a criminal information difi'er from 
 an indictment ? 
 
 Q,. — Illustrate the maxim " Nemo tenetur prodere 
 seipsum." 
 
 Q. — Blackstone lays down (4 Com. p. 21), that to 
 constitute a crime against human laws, there must be ; 
 "first, a vicious will; and secondly, an unlawful act
 
 176 
 
 consequent upon Buch. vicious -will." Put cases in 
 which the will does not join with the act so as to make 
 the individual doing it punishable. 
 
 Q. — Specify the rules of law applicable for deter- 
 mining the criminal liability of an infant under the 
 age of twenty-one. 
 
 Q. — Put cases showing that a person whilst out of 
 the jurisdiction of our court, may so act as to' be 
 amenable on a criminal charge when brought within 
 it. 
 
 Q. — Refer the undermentioned offences respectively 
 to the class of felonies, or that of misdemeanors: 
 perjuiy, larceny, the obtaining of money by false 
 pretences, and forgery at common law. 
 
 Q. — Put cases showing that an attempt to commit a 
 misdemeanor may be indictable. Put cases also in 
 which it would not be so, or in which there could not 
 in strictness, be an attempt to commit a specific offence . 
 
 Q. — Explain fully the various modes in which 
 criminal proceedings may be commenced against one 
 who is suspected to have committed a crime. 
 
 Q. — State fuUy the rule of our law in regard to the 
 criminal responsibility of a feme covert. 
 
 Q. — Suggest some test available for determining 
 whether a criminal prosecution may lawfully be com- 
 promised. 
 
 Q. — Distinguish between an indictable fraud and 
 one which is merely actionable. 
 
 Q,. — A. is a manufacturer of fireworks, and keeps 
 on his premises a stock of gunpowder and combustibles, 
 contrary to Act of parliament. Diiring A.'s absence 
 from home, through the negligence of his servants, 
 the combustibles ignite, and a firework exploding 
 causes the death of a person passing near to the pre- 
 mises. Could A. be indicted upon these facts ? If 
 so, for what offence ? 
 
 Burglary. 
 Q. — Define the offence of burglary.
 
 177 
 
 Q. — By what evidence will the words "break and 
 enter" in an indictment for burglary be satisfied ? 
 
 Conspiracy. 
 
 Q. — Define the offence of conspiracy. Is it a felony 
 or misdemeanor? And give instances of conspiracies 
 which would be indictable. 
 
 Embezzlement. 
 
 Q. — Wherein docs the offence of embezzlement differ 
 from that of a larceny by a servant? What test is 
 applicable for determining between the offences. 
 
 False Pretences. 
 
 Q. — Explain the nature of the offence of obtaining 
 goods or money by false pretences. Mention tests for 
 determining what is a false pretence within the statute. 
 
 Q. — E., by falsely representing that he Avas a naval 
 officer, induced F. to enter into a contract to provide 
 him with board and lodging at so much per week, and 
 in pursuance of such contract E. was supplied with 
 food. Could E. be convicted under the statute of 
 obtaining the articles of food, thus suppKed to him, by 
 false pretences? Explain fully the grounds of your 
 opinion upon tliis case. 
 
 Q. — If on the trial of a person for the statutory 
 offence of obtaining goods by false pretences, it be 
 proved that he obtained the property in such manner 
 as to amount in law to a larceny, what verdict should 
 be given ? 
 
 Q,. — A. offers a chain in pledge to B. (a pawnbroker) 
 falsely and fraudulently stating that it is a silver chain, 
 whereas, in fact, it is not silver. B. tests the chain, 
 and relj-ing entirely on his test and examination, 
 advances money to A. upon the chain. Can A. be 
 con\4ctcd upon this evidence of obtaining the money 
 advanced, by false pretences ? Explain fully the 
 grounds of 3'our opinion.
 
 178 
 Housebreaking. 
 Q,. — Define the offence of housebreaking. 
 
 Larceny. 
 
 Q,. — Define the offence of larceny at Common Law, 
 and explain in what manner the statute 20 and 21 
 Vic, c. 54, (The Fraudulent Trustees Act) has altered 
 the law concerning larceny. 
 
 Q. — Specify various things whereof larceny cannot 
 be committed at common law. 
 
 Q. — Is it in your opinion necessary to show a taking 
 luori causd in order to sustain an indictment for larceny. 
 Cite cases bearing upon this point. 
 
 Q. — What do you understand by the phrase "larceny 
 includes a trespass." 
 
 Q. — Under what circumstances is the finder of lost 
 property, who appropriates it to his own use, guilty of 
 larceny ? Can you mention any recent case upon the 
 subject ? 
 
 Q. — What were the facts, and what was the decision 
 upon them in Reg. v. Thurborn, 1 Den., C. C. 387, in 
 Reg. V. Preston, 2 Den., C. C. 353, and in Merry v. 
 Green, 7 M. and W., 623 ? 
 
 Q. — A. bona fide hires a horse for a particular 
 purpose, and when that purpose has been accomplished, 
 wrongfully sells the horse and receives the proceeds of 
 the sale. Is A. indictable for larceny ? Explain fully 
 the grounds of your answer. 
 
 Q.. — A., the servant of B., is sent with his master's 
 cart to fetch coals from the wharf of a coal merchant 
 with whom B. has dealings. A. returning with the 
 coals placed in his master's cart, wrongfully disposes of 
 them for his own profit. Is he guilty of larceny in so 
 doing ? What is the peculiar difiiculty in this case ? 
 
 Q,. — What is the rule as to "Election" at the trial 
 of an indictment for larceny : the indictment containing 
 one count only, and the property appearing to have 
 been stolen at different times ?
 
 179 
 
 Q. — Illustrate the meaning of the phrase a taking 
 * ' ammo fur audi. ' ' 
 
 Q,. — State circumstances which might dispense with 
 proof of the corpus delicti on a trial for larceny. 
 
 Q. — Explain the maxim: Furtum non est ubi initium 
 hahet detent ionis per dominum rei? 
 A'^^ Q.. — Under what circumstances will a feme covert 
 indicted for larceny be entitled to an acquittal, although 
 proved to have taken the goods laid in the indictment 
 animo fur audi. 
 
 Q,. — How is the offence specifically charged in an 
 indictment for larceny ? 
 
 Q. — Distinguish briefly the offence of larceny from 
 that of obtainmg goods or money by false pretences. 
 
 Q. — State fully the reasoning on which it has been 
 held that a wrongful taking, coupled with a subsequent 
 felonious appropriation of property will constitute the 
 offence of larceny. 
 
 Q. — In what does a " taking" differ fi'om an 
 " asportation" in the definition of larceny ? 
 
 Q. — k. finds in the secret drawer of a bureau 
 purchased by him at a sale by auction, a purse of 
 money, which he approi)riates to his own use. Under 
 what circumstances would he be guilty of larceny in 
 so doing? 
 
 Q,. — Evidence of a continuing trespass in reference 
 to a chattel taken without any animo furandi, and of 
 a subsequent felonious appropriation of such chattels 
 by the trespasser has been held sufficient to support 
 an indictment for larceny. Explain the grounds of 
 the decision here referred to, and cite the case in 
 which the point above specified arose. 
 
 Q. — What point was decided in Reg v. Eiley, 
 Dearsl, 149, in regard to the law of larceny? What 
 were the facts appearing in that case ? 
 
 Q,. — A. is indicted for simple larceny ; the evidence 
 for the prosecution shows, that he had fraudulently 
 converted to his own use, property of which he was 
 bailee, without however breaking bulk or otherwise,
 
 180 
 
 determining the bailment. Can A. be convicted upon 
 this indictment, and if so, of what offence ? 
 
 Lihel. 
 
 Q. — What important alterations in the criminal law 
 concerning libel were effected by Lord Campbell's 
 Act, (6 and 7 Vic, c. 96) ? 
 
 Q,. — State the various modes of procedure, civil or 
 criminal, available for libel. 
 
 Q. — Explain how the onus prohandi may be shifted 
 from the one party to the other, on the trial of an 
 indictment for libel. 
 
 ManslauffJiter and Murder. 
 
 Q. — How is the offence of manslaughter to be 
 distinguished from murder? Put cases illustrating the 
 distinction. 
 
 Q. — Give a definition of excusable and justifiable 
 homicide, and give an instance of each of those species 
 of homicide. 
 
 Q. — Give instances explanatory of the expression 
 "Malice aforethought" which occurs in the definition 
 of murder. 
 
 Q,. — A. assaults C. with malice aforethought. B. 
 (A.'s servant) in ignorance of the felonious design aids 
 in the assault which results in the death of C. Upon 
 these facts what degree of guilt attaches to A. and 
 toB. ? 
 
 Q. — State the facts in MackaUey's case, 9 Rep. 61, 
 and draw therefrom such deductions as may appear to 
 be sustainable. 
 
 Q,. — Explain fully why it is that on an indictment 
 for murder the jury may convict of manslaughter. Can 
 you mention the case in Coke's Reports wherein this 
 point was discussed. 
 
 Q,. — A workman throwing down rubbish from a 
 house-top killing a person passing underneath, may, 
 according to circumstances, be guilty of murder, man- 
 slaughter, or homicide not felonious. State facts in
 
 181 
 
 addition to those supposed which may be apropriate to 
 establish the truth of this remark. 
 
 Q. — What is the liability of and mode of proceeding 
 against an accessory (1) before, (2) after the fact to 
 the crime of miu'der ? 
 
 Q. — "What is the form of an indictment for murder ? 
 and for manslaughter ? 
 
 Q,. — A subject of the Crown commits murder on a 
 foreigner, out of the Queen's dominions. Is he amenable 
 to our law ? 
 
 Q. — A. is illegally arrested by a constable, and 
 whilst in custody kills the constable and escapes. 
 Under what circumstances would this homicide amount 
 to manslaughter, and under what cu'cumstances to 
 murder ? 
 
 Ihiisance. 
 
 Q. — Exemplify the distinction between a " public " 
 and a "private" nuisance, and state the mode of 
 procedure which may be available in respect of either. 
 
 Prize Fights. 
 
 Q. — What degree of criminalty attaches or may 
 attach to the principals engaged in, and to the specta- 
 tors present at a prize fight ? 
 
 Shooting. 
 
 Q. — A. feloniously shoots at and wounds B., mis- 
 taking him for C. How should the offence committed 
 by A. be charged against them in the indictment ? 
 Cite any recent case bearing on this point. 
 
 Treason. 
 
 Q,. — Define the offence of misprision of treason. 
 
 Q. — How is the maxim "voluntas reputatur profacto^' 
 to be understood in connection with the crime of treason, 
 and the statute of treasons, (25 Edward 3, st. 5, c. 2) ?
 
 182 
 
 Trial in Criminal Law. 
 
 Q. — ^TJnder what circumstances will the deposition 
 of a witness duly taken by the committing magistrate 
 be admissible in evidence against the prisoner on his 
 trial at the sessions or assizes. 
 
 Q,. — Can a jury convict of the " attempt " on an 
 indictment for a felony or misdemeanor ? 
 
 Q. — State shortly the test for determining whether 
 an indictment may be amended at the trial, and give 
 instances showing the mode of applying such test. 
 
 Q,. — State exceptions to the maxim that " a man 
 shall not be twice vexed in respect of the same matter." 
 
 Q. — Distinguish between a judicial and an extra- 
 judicial confession. State the principal limitations to 
 the admissibility of the latter in evidence against an 
 accused. 
 
 Q,. — Halemus optimum testem confitentem reum. 
 State fully the reasoning pro and con. as to the correct- 
 ness of this saying. 
 
 Q. — Explain how the onus prolandi may be shifted 
 from the one party to the other on the trial of an 
 indictment for libel. 
 
 Q. — Under what circumstances may a dying decla- 
 ration be received in evidence. 
 
 Q,. — What specific consequences ensue upon a con- 
 viction for felony, which do not follow a conviction for 
 misdemeanor ? 
 
 Q. — Enumerate various oifences which, by statute 
 of the present reign, have been taken out of the 
 jurisdiction of Quarter Sessions. 
 
 Q,. — State shortly the mode of proceeding before a 
 magistrate on a charge of assault. 
 
 Q — In what cases has a justice of the peace discre- 
 tionary power to admit to bail ? 
 
 Q. — Enumerate various special pleas which may 
 occur in criminal cases. 
 Kti\ ^" — Exemplify the maxim that " no man can be a 
 judge in his own cause " by reference to magisterial 
 law.
 
 CONVEYANCING.
 
 185 
 
 OrTLINE or CONVEYANCING. 
 
 Of Modern Tenures. 
 
 On the abolition of military tenures in the reign of 
 Charles II., all tenures were turned into free and 
 common socage, save only tenures in frankalmoign 
 and copyholds. 
 
 Tenure in socage is a tenure by any free and certain 
 service, and comprises grand and petit serjeanty, 
 burgage, ancient demesne, and gavelkind. Grand 
 serjeanty is where a man holds lands of the king by 
 honorary ser\"ices, to be performed in person, as to 
 carry the king's banner, or his sword at the coronation. 
 The honorary services of grand serjeanty are expressly 
 reserved by the statute abolishing military tenures. 
 Petit serjeanty is where a man holds lands of the king 
 to yield to him yearly a bow, a sword, or other thing 
 belonging to war. Tenure in burgage is where one 
 holds tenements in an ancient borough of which the 
 king or other person is lord, to pay to him a certain 
 rent. The customs of this tenure are known by the 
 name of Borough English, and one of the most 
 remarkable of them is, that the youngest and not the 
 eldest succeeds to the burgage tenement on the death 
 of his father. Tenure in ancient demesne is confined to 
 lands held in socage of those manors that were fonnerly 
 in the possession of the crown by the services of 
 cultivating the demesnes of such manors, or by a render 
 of pro\-isions. Lands of gavelkind tenure (which mostly 
 prevails in Kent) descend to all the sons equally as 
 co-parceners ; in default of sons to daughters ; and in 
 default of lineal descendants upon collaterals in like
 
 186 
 
 manner. They do not escheat upon conviction or 
 execution for felony ; and a minor of the age of 1 5 
 years seised in possession may by feoffment alienate 
 absolutely. 
 
 Tenure in copyholds is derived from tenure in 
 villenage which was when the services were base and 
 uncertain. The tenants hold by copy o-f court roll or 
 admission as common copyholders at the will of the 
 lord, or as free copyholders, or customary freeholders, 
 according to the custom of the manor. 
 
 Teniu'e in frankalmoign is where a religious corpor- 
 ation holds lands to them and their successors for ever, 
 on condition of performing religious services. By this 
 tenure the parochial clergy hold their lands. 
 
 Tlie nature of Real Property. 
 
 Real property consists of land, and of all rights and 
 profits arising from and annexed to land that are of a 
 permanent and immoveahle nature, and is usually com- 
 prehended under the words lands, tenements, and 
 hereditaments. Land means any ground whatever, 
 and includes everything above and below the siuface, 
 except gold and silver mines which, by royal preroga- 
 tive, belong to the crown. Tenement is a word of still 
 greater import, signifying anything which may be 
 holden by a tenure. Hereditament is the largest and 
 most comprehensive word, including not only lands 
 and tenements, but whatever may be inherited. 
 
 Real property is either coi-poreal or incorporeal. 
 Corporeal property consists wholly of substantial and 
 permanent subjects all of wliieh may be comprehended 
 under the general denomination of land. Chattels, 
 such as deer in a park, fishes in a pond, rabbits in a 
 warren, doves in a dove house, charters, court rolls, 
 deeds, and other evidences of the land, together with 
 the chests and boxes in which they are contained, all 
 which are usually annexed to the inheritance and 
 descendible to the heirs, are called heir looms. 
 
 Incorporeal property consists of rights and profits
 
 187 
 
 arising from and annexed to lands, such as advowsons, 
 rents, offices exercisable witliin certain places, though 
 not annexed to land, and dignities or titles^ of honor 
 having been originally annexed to land. 
 
 Quantity of Estates. 
 
 As all lands are considered to be held mediately or 
 immediately from the queen, the interest which the 
 tenant has in land is called an estate. The fii\st general 
 division of estates is into such as are freehold, or less 
 than freehold. An estate of freehold is an interest in 
 lands, or other real property held by a free tenure for 
 the life of the tenant or that of some other person, or 
 for a period of legal indeterminate duration. An estate 
 for a man's own life is considered greater than an estate 
 for the life of some other person. Estates of freehold 
 are either of inheritance or not of inheritance. Estates 
 freehold of inheritance are either in fee simple, condi- 
 tional, or base fees. Estates freehold, not of inheritance 
 comprise estates for life, which are either by act of 
 party or by operation of law, such as an estate tail after 
 possibility of issue extinct, and estates by curtesy, in 
 dower, and in jointure. An estate to A. for 99 years, 
 if he so long live, is, however not an estate of freehold, 
 but one less than freehold, as the duration (99 years) 
 is definitively fixed. 
 
 Estates less than freehold comprise estates for years, 
 from year to year, at will, and on sufferance. 
 
 Estates in fee simple. 
 
 An estate in fee simple or an inheritance absolute, 
 is where one has lands or tenements to hold to him 
 and his heirs for ever. There is no gi'cater estate than 
 an estate in fee simple. The incidents of an estate in 
 fee simple are the power of alienation, either of the 
 whole fee or any smaller interest, its descenilible 
 quality to heirs general, its liability to curtesy and 
 dower, and to debts by specialty and simple contract.
 
 188 
 
 as well as to Crown debts. To create an estate in fee 
 simple by will, any words showing an intention to 
 pass the whole interest or fee will be sufficient. In 
 a deed however, except in conveyances to corporations, 
 the word heirs is in general essential to create an estate 
 in fee simple. 
 
 An estate limited to a person and his heirs, with a 
 qualification annexed to it by which it is provided, 
 that it must cletennine whenever that qualification is 
 at an end, is called a qualified or base fee. Thus on a 
 gi-ant to A. and his heirs, tenants of the manor of 
 Dale, whenever the heii's of A. cease to be tenants 
 of that manor, the estate determines. 
 
 Estates Tail. 
 
 A conditional fee, at the common law, was a fee 
 limited to some particular heirs of the donee, exclusive 
 of others ; as to the heirs of a man's body, thus ex- 
 cluding collaterals. It was called a conditional fee, 
 from the condition by which it was subject, that, if 
 the donee died without such particular heirs, the land 
 should revert to the donor. On the birth of issue the 
 estate became alienable, subject to forfeiture for 
 treason, and could be charged with incumbrances, so 
 as to bind his issue. 
 
 This mode of construing conditional fees, completely 
 frastrated the pui-pose for wliich these estates were 
 intended, and in order to perpetuate their possession 
 the statute de Bonis Conditionalibus (13 Edward I. 
 c. 1) was passed. The statute after reciting the right 
 of alienation assumed by the donees of conditional 
 fees, enacts "that the will of the giver according to 
 the form in the deed of gift, manifestly expressed 
 should be observed, so that they to whom a tenement 
 was so given under condition, should not have power 
 to alien the same tenement, whereby it should not 
 remain after the death of the donees, to their issue or 
 to the donor or his heir if issue failed." The con- 
 struction of this sort of conditional fee was that it
 
 189 
 
 vests an estate of inheritance in the donee, and some 
 particular heirs of his to whom it must descend, ' 
 notwithstanding any act of the ancestor, and that the 
 estate of the donor is a reversion expectant on the 
 detcnuination of that estate. 
 
 An estate tail may therefore he described as an 
 inheritance deriving its existence from the statute de 
 Bonis Conditional ibus, and descendible to some particular 
 heirs only of the person to whom it is granted, and 
 not to his heirs general. Estates tail are either in 
 tail general or in tail special. An estate in tail general 
 is one to a man and the heirs of his body. An estate 
 in tail special is one to a man and the heirs of his 
 body by a particular wife. Estate tail are also in 
 tail male, as to a man and the heirs male of his body, 
 or tail female as to a man and the heirs female of his 
 body. 
 
 A gift in franli-marriage is an absolute mode of 
 creating an estate tail, as where tenements are given 
 by one man to another, together with a wife, who is 
 the daughter or cousin of the donor, to hold in frank- 
 marriage, by which expression the donees shall have 
 the tenements to them and the heirs of their bodies ; 
 that is, they arc tenants in special tail, and restrained 
 fi'om aKenation by the statute Be Bonis Condition- 
 alibus. 
 
 " Tenements" is the only word used in the statute ; 
 but this word includes not only all corporeal heredit- 
 aments, but also incoi'poreal hereditaments which 
 relate to or arise out of land as commons, rents, and 
 annuities, if charged on land. Offices relating to land, 
 an equity of redemption, money to be laid out in land 
 and dignities, may be also entailed ; but estates ptir 
 autre vie, and chattels real and personal are not entail- 
 able within the statute. Estates pur autre vie may, 
 however, be de\-ised and limited in strict settlement, 
 by way of remainder, like estates of inheritance so as 
 to answer the pmposes of an entail ; and teims for 
 years and personal chattels may also be settled for a 
 like pui-pose by executoiy dcsdse, or by deed of trust,
 
 190 
 
 provided the limitations do not transgress the law of 
 *■ perpetuity. 
 
 An annuity to a man and the heirs of his body, 
 unless charged on land, is a conditional fee at common 
 law as before the statute ; and the grantee after the 
 birth of issue may bar the heir or reversioner. 
 
 The inconveniences which resulted from the institu- 
 tion of estates tail became so numerous that at length, 
 in the reign of Edward the Fourth, a method was 
 discovered for barring these estates by an actual but 
 collusive action called a recovery, in which the transfer 
 of the property was effected. " The tenant in tail, on 
 the collusive action being brought, was allowed to 
 bring into coiu't some third person, presumed to have 
 been the original gi^antor of the estate tail. The 
 tenant then alleged that this third person had warranted 
 the title ; and accordingly begged that he might defend 
 the title which he had so warranted. This third person 
 was accordingly called on ; who, in fact, had had 
 nothing to do with the matter ; but being a party in 
 the scheme, he admitted the alleged warranty, and 
 then allowed judgment to go against him by default. 
 Whereupon judgment was given for the demandant or 
 plaintiff, to recover the lands from the tenant in tail ; 
 and the tenant in tail had judgment empowering him 
 to recover a recompence in lands of equal value from 
 the defaulter, who had thus cruelly failed in defending 
 his title. But as the defaulter had no lands to give, 
 the judgment of the court was in favour of the issue 
 a!gainst the wrong party ; and the estate tail was 
 therefore baiTed, and with it the remainders and 
 reversions." Estates tail were also fonnerly barred 
 by fine. A fine was an amicable composition and 
 agreement of an actual but collusive suit, whereby 
 the estate in question was acknowledged to be the 
 right of one of the parties. A fine, however, only 
 ban'ed the estates tail. In lieu of fines and recoveries 
 a deed to bar the entail has been substituted. 
 
 The principal incidents of estates tail are: 1. "Waste. 
 2. Dower, 3. Curtesy, 4. Bar.
 
 191 
 
 Estates for Life. 
 
 Estates for life are either by the act of parties or 
 the operation of law. Of the former kind are estates 
 for one's own life, or for the life of another, and called 
 an estate pur autre vie. Incident to all estates for life 
 are estovers and emblements. Estovers consist of an 
 allowance of wood from the land for fuel, and the 
 repair of the house, the plough, and the fences. 
 Emblements are crops growing on the land to which 
 executors of tenants for life are entitled. Estates for 
 life created by operation of law are : 1 . Tenancy in 
 tail after possibility of issue extinct. 2. Tenancy by 
 curtesy of England. 3. Tenancy in dower. 
 
 A tenancy iti tail after possihility of issue extinct 
 aiises where lands are given to a man and his wife 
 in special tail, and either of them dies without issue, 
 the survivor is tenant in tail, after possibility of issue 
 extinct, because there is now no possibility of any 
 issue inheritable to such estate tail. In several re- 
 spects, this estate partakes of the natm'e of an estate 
 for life, but the tenant is dispunishable for waste. 
 
 An estate by the curtesy of England is an estate for 
 life, given by law to a husband on the death of his 
 wife, seised of an estate of inheritance ; and to which 
 any issue bom alive during the maniage, might by 
 possibility inherit. 
 
 Aliens and persons attainted appear to be the only 
 persons incapable of being tenants by the curtesy. 
 
 The requisites for an estate by curtesy are, 1. 
 MaiTiage. 2. Seisin in fact as to coi-poreal heredita- 
 ments, or as to incoi'poreal hereditaments a seisin in 
 law. 3. Birth duiing the life-time of the wife of 
 issue, alive capable of inheriting the estate. 4. Death 
 of the wife. In gavelkind lands the husband is only 
 entitled to one half the lands, and while a widower ; 
 but the birth of issue is not requisite for his title. 
 
 An estate in dower is an estate for life, given by 
 law to the widow in the third part of such lands and 
 tenements, as were her husband's in fee simple or fee
 
 192 
 
 tail at any time during tlie marriage, and to -wliicli 
 tlie issue (if any) of tlie marriage might by possibility 
 inherit. The seisin of the husband must be either in 
 fact or in law, as regards all women manied before 
 2nd January, 1834 ; but as to women married on or 
 since that date, his seisin is not necessary to entitle 
 his widow to dower, and she also is entitled to dower 
 whether the estate of inheritance is legal, equitable, 
 or partly legal and partly equitable. IJnder the old 
 law there was, and is no dower of a trust. A limita- 
 tion to a trustee to uses to har doiver, is as to women 
 married before the date just mentioned, the usual way 
 of barring dower where a conveyance of lands is made 
 to the husband in fee simple, and is so framed as to 
 give the puixhaser all the powers and advantages of a 
 person seised in fee simple. As regards women manied 
 since that date the right to dower is liable to be 
 defeated by any whole or partial alienation or charge 
 either by will or deed of the husband, by any declar- 
 ation of liis intention by deed or will that his widow 
 shall not have dower, or by a devise of any lands out 
 of which she is dowable. The widows of traitors are 
 not entitled to dower, which is also forfeited by 
 adultery, attainder, divorce before the death of the 
 husband, or detention of the title deeds from the heir. 
 A jointure owes its origin to a clause in the Statute of 
 Uses enacting that no woman who had a jointure 
 would be allowed to claim dower ; and is, according to 
 Lord Coke, " a competent livelihood of freehold for the 
 wife of lands or tenements to take effect presently in 
 possession or profit after the decease of her husband 
 for the life of the wife at least, if she herself be not 
 the cause of its determination or forfeiture." The 
 requisites of a jointure are: 1. It must be made 
 before marriage, unless after the death of the husband 
 the widow elects to take a jointure made <?/'i(i?r marriage. 
 2. It must be made to the woman herself, and not to 
 anyone in trust for her. 3. It must be for the life of 
 the wife. 4. It must be in lieu of her whole dower,
 
 19,3 
 
 and be so expressed. 5. It must take effect immedi- 
 ately upon the decease of the husband. 
 
 There arc also equitable jointures, as a trust estate, 
 a covenant to settle lands, or to pay an annuity aa 
 jointure, but the widow has a right of election whether 
 she will accept it or not. 
 
 Estates less than Freehold. 
 
 Estates for years are created by a grant of lands 
 for a certain number of years, and were originally 
 introduced for the purposes of cultivation, in consider- 
 ation of a return of com, hay, or other portion of 
 the crops. An estate for years is frequently called a 
 term. Another name for an estate for years is a chattel 
 real. Of whatever length an estate for years may be, 
 it is considered less than a freehold estate, and a term 
 for a smaU number of yeai's, or even for a year, or half a 
 year, is in contemplation of law as large an estate as 
 one for many years. The tenant of an estate for years 
 is entitled to estovers, unless restrained by special 
 agreement, but is not entitled to emblements unless 
 the determination of the estate is uncertain. 
 
 An estate from year to year arises either by the 
 agreement of landlord or tenant, or takes place when 
 an estate at will exists, and rent is paid half yearly or 
 yearly. This estate is determined by six months' 
 notice to quit, so as to terminate with the time in each 
 year when the tenant entered. 
 
 An estate at will arises where lands and tenements 
 are let by one man to another, to have and to hold to 
 him at the will of the lessor, or may arise from 
 implication. The estate is determinable at the will 
 of either party. Neither party however, can determine 
 the estate at a time which would be prejudicial to the 
 other. The estate is determinable by any act of 
 ownership inconsistent -with the natui-e of the estate, 
 as by entering on land and cutting down trees, or a 
 lease for years, to commence immediately, or by any 
 n
 
 194 
 
 act of desertion, or which is inconsistent with this 
 estate, such as an assignment, or the commission of 
 waste*. 
 
 An estate at suferance arises where a person continues 
 in possession after a particular estate is ended. 
 
 Customary Estates. 
 
 Customary estates, which are usually called copyholds 
 may be described to be a parcel of the demesnes of a 
 manor held at the will of the lord according to the 
 custom of the manor, by a grant from the lord, and 
 an admittance of the tenant entered on the rolls of 
 the Manor Court. Copyholds, as already mentioned, 
 are divided into common copyholds, and free copyholds 
 or customary freeholds. Copyholds are regarded as 
 inferior in point of interest to estates for years of 
 socage tenure. The circumstances necessary for the 
 existence of copyholds are, 1. A manor. 2. A court 
 baron or a freeholders' court, and a customary court. 
 3. The lands granted must have been parcel of the 
 manors, and demised, and demisable by copy of court 
 roll from time immemorial. By general custom copyholds 
 may be leased for a year, and for years by licence of 
 the lord. The lord of the manor is generally entitled 
 to the timber, but he cannot cut it without permission 
 of the copyholder. 
 
 The estates which may be held in copyholds are 
 usually for lives, although estates in fee, and estates in 
 tail (if warranted by custom) are not unfrequent. A 
 copyholder is entitled to estovers. He cannot without 
 a custom dig for mines, nor, without the licence of the 
 lord, dig in new mines. 
 
 The usual incidents of copyholds are : 1 . Fealty. 
 2. Suit of Court. 3. Escheat. 4. Fines on admit- 
 tance. 5. Fealty. 
 
 Copyholds are conveyed by surrender and admittance. 
 
 Copyholds are destroyed by 1. Extinguishment. 2. 
 Forfeiture. 3. Enfranchisement.
 
 195 
 
 Equitahle Estates. 
 
 This term is applied to such estates as are usually 
 regulated by tlie rules of ccjuity. Of this natiu'e are 
 Trusts, to which Uses previously to the 27 Hen. 8, c. 
 10, (The Statute of Uses) were nearly synonymous. 
 Before that statute a iise was a right in equity to the 
 profits of land, the legal seisin of which was in 
 another, and arose when the owner of real estate 
 conveyed it by feoffment to some friend with a secret 
 agreement that the feoffee should be seised of the lands 
 to the use of the feoffor, or of a third person. Thus the 
 legal seisin was in one person, and the use or right to 
 the rents or profits was in another. Uses became 
 general in the reign of Edward the Third, to avoid 
 the statutes against mortmain. These uses were taken 
 under the protection of the Court of Chancery in order 
 to compel the person seised to perform the trust. Xot 
 being objects of tenure uses were not liable to relief, 
 wardships, or marriages, and mainly to preserve these 
 profitable incidents of feudal tenure the Statute of 
 Uses was passed by Henry the Eighth, enacting that 
 whenever a person should stand seised to the use of 
 another, that the latter, or cestui que use, should be 
 deemed the legal owner. The effect of this statute 
 was to transfer the actual seisin and possession in fact 
 \\ithout livery of seisin, entry, or attornment. And 
 the possession thus transferred was not a mere seisin 
 or possession in law, but an actual seisin and possession 
 in fact ; not a mere title to enter on the land, but an 
 actual estate. 
 
 The circumstances necessary to the operation of the 
 Statute of Uses are: 1. A person seised to the use of 
 some other person. 2. A cestui que use in being {in 
 esse). 3. A use in esse in possession, remainder, or 
 reversion. In the limitation of uses a fee may be 
 limited upon a fee, a fee may be limited to commence 
 at a future period, and an estate may be made to cease 
 by a matter ex post facto. 
 
 The object and the intention of the Stat' >? of Uses
 
 196 
 
 ■were to destroy that double property in land wMch 
 had been introduced into the Enghsh law by the 
 invention of uses. If, therefore, the intention of the 
 legislature had been carried into effect, no use could 
 ever have existed for more than an instant, for the 
 moment a use was created the statute would have 
 transferred the legal seisin and possession to such a 
 use. But the strict construction which the judges 
 put on that statute defeated in a great measure its 
 effect, as they determined that there were some uses 
 to which the statute did not transfer the possession, 
 so that uses were not entirely abolished, but still 
 continued separate and distinct from the legal estate, 
 and were taken notice of, and supported by the Court 
 of Chancery under the name of "trusts." A trust 
 estate may be described to be a right in equity to take 
 the rents and profits of lands, the legal estate of which 
 is vested in some other person ; to compel the person 
 thus seised of the legal estate, who is called the trustee 
 to execute such conveyances of the land as the person 
 entitled to the profits, who is called the cestui que trust 
 shall direct, and to defend the title to the land. 
 
 Trusts are created in three direct modes ; 1 st, where 
 a use is limited upon a use ; 2nd, on a limitation to 
 trustees to pay over the rents and profits to a third 
 person; and 3rd. on a limitation of a term of years 
 in trust. Trust terms for years are either in gross, or 
 attendant on the inheritance. Terms in gross are those 
 which are separated from the inheritance, and vested 
 in trustees for the use of particular persons not entitled 
 to the freehold, or ion particular purposes. Terms in gross 
 are in general governed by the same rules as legal 
 ones. Terms attendant on the inheritance, are terms 
 whose purposes have been satisfied, but kept on foot to 
 protect real property, and partly to keep it in the 
 right channel, and are distinguished from terms in 
 gross, from being held in trust for the owner of the 
 inheritance. Terms are attendant on the inheritance 
 either by an express declaration of trust, or by con-
 
 197 
 
 struction of law. Previously to the 8 and 9 Vic, 
 c. 112, the assignment of attendant terms was the usual 
 practice on the purchase of estates in fee simple, but 
 that act has extinguished the terms themselves, and 
 so rendered their assignment impossible. 
 
 Estates on Condition. 
 
 An estate on condition is one to which a qualification 
 or restriction is annexed, wheieby it is provided that in 
 case a particular event does or does not happen, an 
 estate shall commence, be enlarged, or defeated. 
 Conditions are either precedent or subsequent. "Where 
 a condition must be performed before an estate can 
 commence it is called a condition precedent, but where 
 the effect of a condition is either to enlarge or defeat 
 an estate already created, it is called a condition 
 subsequent. Conditions are construed precedent, or 
 subsequent according to the intention of the parties. 
 The distinction between a condition precedent, and a 
 condition subsequent is that where performance is 
 impossible, illegal, or repugnant to the nature of the 
 estate and the condition is precedent, no estate will 
 vest until the condition be performed, but where it is 
 subsequent the estate will become absolute, and the 
 condition is void. 
 
 Among estates on condition we may also include 
 mortgages, estates by statute merchant, statute staple, 
 and elegit. 
 
 A mortgage is a pledge of land as a security for the 
 repayment of money. Mortgages are of two kinds, 
 viz : the "Welsh, or vivum vadium, or common kind 
 vadium morttium. A Welsh mortgage is where a man 
 borrows a sum of another, and grants him an estate to 
 hold till the rents and profits shall repay the sum 
 borrowed. The common kind of mortgage is where a 
 man borrows of another a specific sum, and grants him 
 an estate for the whole, or for part of his interest, as 
 in fee or for a term of years, on condition that if the
 
 198 
 
 mortgagee shall repay the mortgage money on a certain 
 day mentioned in the mortgage deed, that then the 
 mortgagee may re-enter on the estate so granted in 
 pledge, or as is now the usual way, that the mortgagee 
 shall re-convey the estate to the mortgagor. 
 
 The estate becomes vested in the mortgagee absolutely 
 at law if the money is not paid by or on the day men- 
 tioned, and the mortgagor is out of possession. In all 
 mortgages there is a covenant from the mortgagor, his 
 heirs, executors, and administrators, to repay the debt 
 and interest, which creates a personal covenant between 
 the mortgagor and mortgagee for the payment of the 
 money. A mortgagor can redeem the estate within 
 twenty years from the last acknowledgement of the 
 relation of debtor and creditor subsisting between 
 them by the mortgagee or so long as that relation 
 appears to subsist between them, unless upon the 
 application of the mortgagee the right to redeem be 
 previously foreclosed by a decree of the court. This 
 power to redeem is called the mortgagor's equity of 
 redemption. A mortgagor is allowed to redeem on 
 payment of principal, interest, and expenses. A 
 mortgagee may compel a mortgagor to redeem or he 
 may foreclose. By foreclosiu'e a mortgagor loses his 
 equity of redemption. Mortgages are almost entirely 
 subject to the control of the courts of equity. 
 
 Estates may also be held by a creditor as a security 
 for the repayment of money by a legal and compulsory 
 process, which may be either by statute merchant, 
 statute staple, or elegit. A statute merchant, and a 
 recognizance in the nature of a statute staple are now 
 obsolete, and the only process of compulsory security 
 now used is the writ of elegit. By it a creditor is put 
 in possession by the sheriff of the whole of the lands 
 of the debtor, and whether the estates are legal or 
 equitable, until the money due on the judgment on 
 which the writ issued is paid. The judgment binds 
 all estates legal and equitable, and is an actual charge, 
 but purchasers without notice are protected in equity.
 
 199 
 
 Of the time of enjoyment of Estates. 
 
 Estates in regard to the time of enjoyment are either 
 in possession, reversion, or remainder. 
 
 An estate in 2^osse>>sion is one to which there is a 
 right of present enjoyment. 
 
 An estate in reversion is what remains in the grantor 
 upon the creation of a less estate than his own. Thus 
 where a lease is made by one seised in fee simple, his 
 estate is a reversion, and will become an estate in 
 possession on the expiration of the lease. 
 
 An estate in remainder is one to take effect on the 
 expiration of a preceding less estate, and originally 
 created together with it. Remainders are either vested 
 or contingent. A vested remainder is one limited to a 
 person caj)able of receiving the possession should the 
 preceding less estate happen to terminate, as to A. for 
 life, remainder to B. in fee. A remainder is contingent 
 when the particular estate may happen to end beiore 
 the person to whom the remainder is limited can take 
 the possession, or is limited to a person, or a class of 
 persons, not ascertainable at the time of the limitation. 
 A limitation to A. for life, and after the death of B. 
 remainder to C. in fee., furnishes an 'illustration of a 
 contingent remainder of the former kind, while a 
 limitation to A. and B. for life with remainder to the 
 survivor in fee, is an example of the latter kind of 
 contingent remainder. 
 
 In the creation of remainders the following rules 
 must be observed: — "First, there must be a present or 
 particular estate created, which if the remainder be a 
 vested one must be at least for years ; or, if the 
 remainder be contingent must be an estate of freehold ; 
 as an estate of freehold cannot commence at a future 
 time by the common law. Secondly, the particular 
 estate and the remainders must be created by the same 
 deed. Thirdly, the remainder must vest in the grantee 
 during the particular estate, or at the very instant it 
 determines. Fourthly, and if the remainder be con- 
 tingent it must be limited to some one that may by
 
 200 
 
 common possibility be in existence (esse) at or before 
 the determination of the particular estate. The contin- 
 gency must not be illegal, remote, or repugnant." — 
 "Watkin's Conveyancing, 8th edition, by Merrifield. 
 A contingent remainder must not be confounded with 
 a conditional limitation. The former is regarded as a 
 continuance of the prior estate, but a conditional 
 limitation defeats a prior estate, and is regarded as 
 a different estate. A contingent remainder must also 
 be distinguished from an executory devise. The former 
 requires a particular estate to support it, but the latter 
 does not. By an executory devise a fee may be limited 
 after a fee; a fee may be limited to commence at a 
 future time, and previously to the 8 and 9 Vic. c. 106, 
 there was also another distinction that contingent 
 remainders could, and executory devises could not, be 
 destroyed by the act of the person taking the preceding 
 estate. 
 
 Cross remainders arise out of a tenancy to two or 
 more persons in common, for life, or in tail. They 
 may be created in deeds by express words, but in wills 
 they may be implied. Cross remainders are where the 
 share of each tenant in common accrues to the surv-iving 
 tenants equally in common instead of devolving on the 
 reversioner or remainder-man until the failure of all 
 the tenants in common or their issue. 
 
 Of the Numher and Connexion of the Tenants. 
 
 Estates in regard to the tenants are either in 1. 
 Severalty. 2. Joint Tenancy. 3. Coparcenary. 4. 
 Tenancy in Common. 
 
 An estate in severalty is where a person holds lands 
 in his own right only withoiit having any other joined 
 or connected with him. An estate in joint tenancy is 
 where lands or tenements are granted to two or more 
 persons to hold in fee simple, fee tail, for life, or 
 for years. 
 
 The requisites to this estate are 1 . TTnity of interest. 
 2, Unity of Title. 3. Unity of Time. 4. Unity of
 
 201 
 
 Possession. The survivor will take tlie whole estate. 
 Unity of time is not always one of the requisites of 
 this estate, as where the estate is limited to trustees 
 to uses, the parties will take as the uses arise, and be 
 considered as being in under the conveyance to the 
 trustees. Joint tenants are said to be seised per my 
 et per tout by the half or moiety and by all, that they 
 and each of them have the entire possession as well 
 of eveiy parcel as of the whole, or each has an 
 undivided moiety of the whole, and not the whole 
 of an undivided moiety. A release is the proper mode 
 of transferring di freehold interest, held in joint tenancy 
 from one joint tenant to another. A joint tenancy 
 may be destroyed by a voluntary, or compulsory 
 partition, or by grant to a stranger. A joint tenancy 
 is not however destroyed by a devise. 
 
 An estate in coparcenary arises where a person seised 
 in lands in fee simple or fee tail dies, and leaves more 
 than one female heii* as daughters, sisters, aunts, or 
 other females on whom by the law of descents the 
 estate descends jointly. This estate may also arise by 
 custom, as where the male children take by gavelkind 
 and other customary descents, where the estate 
 descends in equal moieties. Like in a joint tenancy 
 there is a unity of interest, title and possession in 
 estate in coparcenary, but they differ in being by descent 
 and not hj purchase. Coparceners have in judgment 
 of law distinct freeholds. 
 
 A tenancy in common is where two or more hold lands 
 or tenements in fee simple or tail, for life or years by 
 several titles, and occupy the same in common. This 
 estate if in fee simple, is created by a conveyance of 
 lands to two, to have and to hold the one moiety to 
 the one and his heii's, and the other moiety to the 
 other and his heirs. The only unity required between 
 tenants in common is that of imity of possession. 
 A tenancy in common may be created by the de- 
 struction of a joint tenancy as well as of an estate 
 in coparcenary.
 
 202 
 
 Incorporeal Hereditaments. 
 
 Incorporealhereditaments compiise Advowsons, Tithes, 
 Commons, Ways, Offices, Dignities, Franchises, and 
 Rents. 
 
 An advowson is a right of presentation to a church 
 or ecclesiastical edifice. Presentation is the offering 
 a clerk to the bishop, while nomination is the offering 
 of a clerk to the patron. Thus a mortgagor has a 
 right to nominate, but a mortgagee to present. 
 Advowsons are either appendant, or in gross. An 
 advowson apiyendant is one annexed to the manor in 
 which the church was fii-st created. An advowson in 
 gross is one which is separated from the manor to 
 which it was appendant, by any legal conveyance. 
 
 Tithes may be described to be a right to the tenth 
 part of the produce of lands, and the personal industry 
 of the occupiers. Tithes are praecUal, personal, or 
 mixed. Praedial tithes consisting of the immediate 
 produce of the land are due of common right, it being 
 a principle of the common law that all lands ought 
 to pay tithes. Mixed and personal tithes are due only 
 by custom, therefore unless they have been usually 
 paid they are not demandable. Tithes are also divided 
 into gi'eat and small tithes. The tithes of com, hay, 
 and wood are great tithes. Mixed and personal tithes 
 together with tithes of hops, potatoes, madder, and 
 wood are small tithes. 
 
 Tithes have been mostly commuted under the Tithe 
 Commutation Acts for a rent charge, payable half 
 yearly, and calculated according to the averages of the 
 prices of grain published in the London Gazette. 
 Tenants paying the rent charge may deduct the amount 
 from the rent. Powers of distress are also granted 
 })y the Act for the recovery of the rent charge. 
 
 Common is a right or privilege which one or more 
 persons have to take or use a part or portion of the 
 lands, waters, woods, or produce of the lands of 
 another. This pririlege is divided into common of pas- 
 ture, common appendant, common appurtenant, common 
 
 I
 
 203 
 
 because of vicinage, common in gross, stinted common, 
 common of estovers, common of turhary, common of 
 piscary. A right of common may be extinguished by 
 release, unity of possession, or under the Enclosure 
 Acts. 
 
 Ways, or rights of way, entitle individuals or a 
 particular description of individuals to pass over the 
 grounds of another. Ways are either a footway, a 
 footway and highway, or a footway, horseway and 
 cartway. The last is either the queen's highway or a 
 private road. A right of way can only be used accord- 
 ing to the grant, or the occasion from which it arises. 
 
 An office is a right to exercise a pubKc or private 
 employment, and to take the fees and emoluments 
 belonging to it ; and all offices relating to land or 
 exerciseable witliin a particular district or relating to 
 land, are deemed incorporeal hereditaments, and 
 classed under the head of real property. Offices are 
 either judicial, or ministerial. Judicial offices relate to 
 the administration of justice, and must be exercised 
 by persons of sufficient skill and experience in the 
 duties of such offices. Ministerial offices are those 
 where little more than attention and fidelity are 
 required to the due discharge of them. 
 
 Dignities ard personal honours originally connected 
 with land, and are considered incorporeal heredit- 
 aments. Dig-nities are either, 1. By writ. 2. By 
 letters patent. 3. Mamage. 4. Descent. 
 
 Rents are defined by Lord Chief B. Gilbert to be " an 
 annual return made by the tenant, either in labour, 
 money, or provisions, in retribution of the land that 
 passes." There are thi^ee kinds of rents : rent service, 
 rent charge, and rent seek. Rent service is where a 
 tenant holds his land by fealty and certain rent. 
 This rent was originally called rent service, because it 
 was given as a compensation for the services to which 
 the land was originally liable. A right of distress is 
 inseparably incident to rent service. A rent charge is 
 so called because in the grant of rent out of lands by 
 deed a power of distress is inserted in the grant, and
 
 204 
 
 thus the lands are charged with a distress for the 
 recovery of the rent. A rent charge may he created 
 either hy gi-ant or hy means of the Statute of Uses, 
 when a right of entry is usually given. A rent seek, 
 or bare rent, is nothing more than a rent for the 
 recovery of wliich no power of distress is given either 
 by common law or agreement of the parties ; but by 
 the statute 4, Geo. II., c. 28, s. 5, a power of distress 
 is made incident to such rents. Rents of assize are 
 rents of freeholders, and copyholders to the lord of a 
 manor. The rents of freeholders are frequently called 
 chief rents. Both sorts are indifferently called quit 
 rents. 
 
 Francliises are royal privileges or branches of the 
 king's prerogative subsisting by a grant from the crown. 
 Franchises are of vaiious kinds, as a forest, a chase, a 
 parh, a free tvarren, a ma7ior, a court leet, estrays, 
 wreck, treasure trove, royal fish, o, free fishery , a hundred 
 or ivapentalce, a fair, or market. 
 
 Of Title in general. 
 
 Title is the manner in which estates may be 
 acquired or lost. The acquisition of an estate in laud 
 is commonly ^ said to be either by descent or purchase, 
 but more accurately speaking, it is either by act of 
 law, or act of the party, which is technically called 
 purchase. Title by act of law expresses all those 
 modes of acquisition whereby the law itself casts the 
 right to the estate upon the acquirer independently of 
 any act or interference of his own. Of these the 
 principal mode is title by descent, but the teiTa will 
 also inchide title by escheat, and also that of tenant hy 
 the curtesy, and of tenant in doiver. 
 
 Purchase, on the other hand, though in its vulgar 
 and confined acceptation, it is applied only to such 
 acquisitions of land as are obtained by way of bargain 
 and sale for money, or some other valuable consider- 
 ation, yet properly includes every lawful mode of 
 coming to an estate by the act of a party as opposed to
 
 205 
 
 the act of law, and consisting of title by forfeitures, 
 occupancy, alienation, or conveyance. 
 
 A complete title consists of possession, or an 
 acknowledgement of title from the party in possession, 
 the right of possession, and the right of property. 
 
 Remitter is the doctrine of law which adjudges a 
 man to hold by the elder title when he possesses two 
 titles to land : one a more ancient, and another a later 
 title. 
 
 Of Title hy Descent. 
 
 Descent, or hereditary succession, is where a person 
 on the death of his ancestor intestate acquires his 
 estate as his heir-at-law. An heir, therefore, is he 
 upon whom the law casts the estate immediately on 
 the death of the ancestor ; and an estate so descended 
 on the heir, is in law, called the inheritance. 
 
 An heir must be legitimate, and a natm^al born 
 subject, or the child of a natural bom subject, or the 
 gi'andchild of a British subject on the father's side. 
 A person naturalized is also capable of inheriting 
 lands. 
 
 The lilies, or canons, of descent are : 1. Descent is 
 always to be traced from the purchaser, that is, from 
 the person who has acquired the land in some other 
 way than by descent, and the last owner shall be 
 considered to be the piu'chaser unless it can be proved 
 that he inherited the same, in which case the descent 
 must be traced till we arrive at a person as to whom it 
 cannot be proved that he inherited. With regard, 
 however, to descents which have occurred on deaths 
 before the 1st of January, 1834, the old law is still in 
 operation, and by it descent was traced from the person 
 last actually seised. 
 
 2. The male issue is admitted before the female. 
 
 3. Of several males all being in equal degree, the 
 eldest inherits, but the females all together. 
 
 4. That the lineal descendants in infinitum of any 
 person deceased shall represent their ancestor ; that is,
 
 206 
 
 shall stand in the same place as the person himself 
 would have done had he been living. The three 
 preceding niles also prevailed in the old law of 
 descents. 
 
 5. That on failure of lineal descendants or issue of 
 the piu'chaser, the inheritance shall descend to his 
 nearest legal ancestor, in preference to any person 
 who would have been entitled to inherit, either by 
 tracing his descent through such lineal ancestor, or in 
 consequence of there being no descendant of such 
 lineal ancestor ; so that the father shall be preferred to 
 a brother or sister, and a more remote lineal ancestor 
 to any of his issue other than a nearer lineal ancestor 
 or his issue. By the old law on failure of lineal 
 descendants or issue of the person last seised, the 
 inheritance descended to his collateral relations being 
 of the blood of the first pui'chaser subject to the 
 thi'ee preceding rules. 
 
 6. None of the maternal ancestors of the person 
 from whom the descent is to be traced, nor any of 
 their descendants, shall be capable of inheriting until 
 all his paternal ancestors and their descendants shall 
 have failed ; and also that no female paternal ancestor 
 of such person, nor any of her descendants, shall be 
 capable of inheriting until all his male paternal 
 ancestors and their descendants shall have failed, and 
 that no female maternal ancestors of such person, nor 
 any of his descendants shall be capable of inheriting 
 unto, all his male paternal ancestors and theii" descend- 
 ants shall have failed. This rule is somewhat 
 analogous to that in collateral descents under the old 
 law directing that kintbed derived from the blood 
 of the male ancestors, however remote, shall be 
 admitted before those from the blood of the female, 
 however near; unless where the lands have in effect 
 descended from a female. 
 
 7. Any person related to the person from whom the 
 descent is to be traced by the half-blood shall be 
 capable of being his heir ; and his place in the order 
 of inheritance is declared to bo next after any relation
 
 207 
 
 of the same degree of the wliole blood and his issue, 
 where the common ancestor shall be a male, and next 
 after the common ancestor where such common ancestor 
 shall be a female ; so that the brother of the half-blood 
 on the part of the father shall inherit next after the 
 sister of the whole blood on the part of the father and 
 their issue, and the brother of the half-blood on the 
 part of the mother, shall inherit next after the mother. 
 Under the old law the collateral heir of the person last 
 seised must have been of the whole blood, and a 
 relative of the half-blood was incapable of being his 
 heir. 
 
 8. In the admission of female paternal ancestors, 
 the mother of the more remote male paternal ancestors 
 and her heirs shall be preferred to the mother of a less 
 remote male paternal ancestor and her heirs ; and in 
 the admission of female materaal ancestors, the mother 
 of the more remote male maternal ancestor and her 
 heirs shall be preferred to the mother of a less remote 
 male maternal ancestor and her heirs. 
 
 9. Where there shall be a total failirre of heirs of 
 the purchaser, or any land shall be descendible, as 
 if an ancester had been the pui'chaser thereof, and 
 there shall be a total failiu-e of the heii's of such 
 ancestor, then and in every such case the land shall 
 descend, and the descent shall thenceforth be traced 
 from the person last entitled to the land, as if he had 
 been the piu'chaser thereof. 
 
 Of other Titles ly Laiv. 
 
 Escheat is where lands revert to the lord of the fee 
 on the death of a tenant without heii's, or on his 
 attainder for treason, or murder. In cases of treason 
 the Crown is entitled to the land by escheat. By 
 3 and 4 W. IV., c. 106, s. 10, when the person from 
 whom the descent of any land is to be traced shall 
 have had any relation, who having- been attainted shall 
 have died before such descent shall have taken place, 
 then such attainder shall not prevent any person from
 
 208 
 
 inheriting surh land, who wonld have been capable 
 of inlieriting the same })y tracing his descent through 
 such relation, if he had not been attainted, unless 
 such land sliall have eselieated in consequence before 
 1st January, 1834. Lands vested in any person upon 
 any trast or by way of mortgage, are exempt from 
 escheat. In cases of attainder for other felonies than 
 murder, the lands are only forfeited for the life of the 
 offender. 
 
 rrcHcription is where a man can show no other title 
 than that of long usage, and is applicable to incorporeal 
 hereditaments only. The distinction betAveen a pre- 
 scription and a custom is, that the latter is a local 
 usage, and not annexed to any person. Previously to 
 the 2 and 3 W. IV., c. 7, the prescription must have 
 gone back or rather raised a presumption that it was 
 in existence at the time of legal memory (1 Hie. I., 
 July, 1189), but since that act the enjoyment for 30 
 and 60 years of rights of common, for 20 and 40 years 
 of rights of way or other casements, and for 20 years 
 of light is sufficient, unless such rights, casements, or 
 light have been enjoyed by consent. 
 
 The Statutes of Limitation also confer a title and 
 operate as an extinguishment of a remedy by action 
 without giving the estate to the other ; and are there- 
 fore properly called a negative prescription. Thus the 
 rights of the crown are barred after the lapse of 60 
 years. No person can bring an action for the recovery 
 of lands but within 20 years next after the time at 
 which the right to bring such action shall have first 
 accrued to him or to some person through whom he 
 claims ; and as to estates in reversion or remainder, or 
 other future estates, the right shall be deemed to have 
 first accrued at the time at which any such estate 
 became an estate in possession. Eut a written 
 acknowledgement of the title of the person entitled, 
 given to him or his agent, signed by the person in 
 possession, will extend the time of claim to 20 years 
 from such acknowledgment. If, however, when the 
 right to bring an action fixst accrues, the person
 
 209 
 
 entitled should be under disability to sue by reason of 
 infancy, coverture ^if a woman}, idiocy, lunacy, un- 
 soundness of mind, or absence beyond seas 10 years 
 are allowed from the time when the person entitled 
 shall have ceased to be under disability, or shall have 
 died, notwithstanding the period of 20 years above- 
 mentioned may have expired, yet so that the whole 
 period do not, including the time of disability, exceed 
 40 years ; and no farther time is allowed on account of 
 the disability of any other person than the one to 
 whom the right of action first accrues. 
 
 The time for bringing an action or suit to enforce 
 the right of presentation to a benefice is limited to 
 three successive incumbencies, all adverse to the right 
 of presentation claimed, or to the period of 60 years 
 if the three incumbencies do not together amount to 
 that time ; but whatever the length of the iacum- 
 bencies, no such action or suit can be brought after 
 the expiration of 100 years from the time at which 
 adverse possession of the benefice shall have been 
 obtained. Money secured by mortgage, or judgment, 
 or otherwise charged upon land, and also legacies are 
 to be deemed satisfied at the end of 20 years if no 
 interest should be paid, or written acknowledgement 
 given in the meantime. The right to rents, whether 
 rents service or rents charge, and also the right of 
 tithes when in the hands of laymen is subject to the 
 same period of limitation as the right to land. And 
 in every case where the period limited by the act is 
 determined, the right of the person who might have 
 brought any action or suit for the recovery of the land, 
 rent, or advowson in question within the period is 
 extinguished. 
 
 Title hi/ Occupancy (though now abolished) was 
 where a man was tenant pur autre rf>. or had an estate 
 granted to himself only ^without mentioning his heirs) 
 for the life of another man, and died without alienation 
 during the life of ce-ftui q\u vie or him by whose life it 
 was holden, in which case he who could first enter on 
 the land might lawfully retain the possession so long
 
 210 
 
 as cestui que vie lived by right of occupancy. But if 
 the estate pur autre vie had been granted to a man and 
 his heirs during the life of the cestui que vie, and the 
 grantee died without alienation, and while the life for 
 which he held continued there could not be a title by 
 common occupancy, but the heir would succeed, and 
 was called a special occupant. 
 
 The Title by common occupancy in an estate piir autre 
 vie has been in effect annihilated by the successive 
 provisions of the legislature. For by the statute of 
 frauds, 29 Car. II., c. 3, s. 121, 14 Geo. II., c. 20, and 
 7 W. IV., and 1 Vic, c. 26, such an estate is rendered 
 devisable by wiU, and when no disposition has been 
 made by the deceased owner, and there is no special 
 occupant, it is placed, on the death of the owner, on 
 the same footing with his personal estate. This subject 
 is at present regulated by the statute last mentioned, 
 which, after repealing the former enactments (except 
 as to the estates pur autre vie of persons dying before 
 1st January, 1838), provides in terms somewhat more 
 extensive than the prior statutes, that an estate ^wr 
 autre vie, of whatever tenure, and whether it be a 
 corporeal or incorporeal hereditament, may in all cases 
 be devised by last will and testament ; and (s. 6) that 
 if no disposition by will be made of an estate pur autre 
 vie of a freehold nature, it shall be chargeable in the 
 hands of the heii', if it comes to him by reason of 
 special occupancy as assets by descent (as in the case 
 of freehold land in fee simple) ; and in case there shall 
 be no special occupant of any estate jfj^^r autre vie it 
 shall go to the executor or administrator of the party 
 that had the estate by virtue of the grant; and in 
 every case where it comes to the hands of such per- 
 sonal representatives shall be assets in his hand to be 
 applied and distributed in the same manner as personal 
 estate. 
 
 Title by forfeiture is a punishment annexed by law 
 to some illegal act or negligence in the owner of lands, 
 tenements, or hereditaments, whereby he loses all his 
 interest therein, and they go to the party injured as a
 
 211 
 
 recompcnce for the wrong which either he alone, or the 
 public, together with himself, hath sustained. The 
 two kinds of forfeiture are — 1st, Forfeiture by aliena- 
 tion as in mortmain; 2nd, Forfeiture by wrongful 
 disclaimer. Title may also be lost by merger, which 
 is the annihilation by act of law of a less estate in a 
 greater when the two estates are united in the same 
 person in the same right. The requisites to produce 
 merger are : — 1. The estates must meet in the same 
 person without any intervening estate ; 2. They must 
 be estates not rights; 3. They must be estates in the 
 same part of the land ; 4. The estate in remainder or 
 reversion must be greater in quantity ; 5. The estates 
 must unite in the same person in the same right, or if 
 in different rights they must meet by act of party and 
 not by mere act of law, and an absolute power of 
 alienation must be incident to both estates when in 
 different rights; 6. Both estates must be legal or 
 equitable. From the operation of the statute de Bonis 
 Conditionalibus an estate tail will not merge in a 
 reversion in fee. The doctrine of merger has also been 
 materially qualified by the 3 and 4 W. IV., c. 74, s. 
 39, and the 8 and 9 Vic, c. 106, s. s. 8 and 9. 
 
 Of Title hy Alienation. 
 
 The most usual and universal method of acquiring a 
 title to real estates is that of alienation or conveyance, 
 in which tenn is included every mode of acquisition 
 of property, by the act of the party. 
 
 Of the Parties to an Alienation. 
 
 Corporations, religious or others may purchase lands, 
 yet, unless they have a licence to hold in mortmain, 
 they cannot retain such purchase, but it shall he 
 forfeited to the lord of the fee. Coi-porations sole and 
 aggregate are subject to certain restrictions in the 
 alienation of estates. 
 
 Lunatics or Idiots are disabled from entering into
 
 212 
 
 contracts. The committees of idiots and lunatics are 
 however, enabled to deal with their estates. Acts 
 done during lucid intivals are also valid. 
 
 An Infant is disabled from entering into contracts, 
 either as vendor or purchaser, but if he contracts to 
 buy an estate, and pays a deposit it cannot in the 
 absence of fraud be recovered back. A contract may 
 be confirmed by an infant after he attains his majority, 
 and which if once done cannot afterwards be avoided 
 by him ; for all such acts and deeds of an infant as 
 are merely voidable may be ratified by him when he 
 comes of age. A feoffment made under a custom by 
 an infant is however valid. 
 
 A married tvomati is disabled from contracting during 
 coverture, regarding her real estate. By 3 and 4 W. 
 lY., c. 27, every manied woman, not being tenant in 
 tail, is enabled by deed to dispose or release any estate 
 in her lands, which she alone or she and her husband 
 in her right may have therein. But to render such 
 an assurance valid, it is necessary not only that 
 both husband and wife should concur therein, but 
 also that she should be examined separate and apart 
 from her husband before a judge, or by the commis- 
 sioners appointed under the Act, as to her freedom 
 and consent, (s. s. 77, 79) in addition to which the 
 deed must be duly acknowledged according to the 
 terms prescribed by the Act. 
 
 A Tenant in Tail under the Fines and Recoveries 
 Substitution Act, (3 and 4 W. 4, c. 74) where there is 
 a protector of the settlement, can bar the remainders 
 expectant upon the detennination of his estate with 
 the concurrence or consent of such protector, but a 
 tenant in tail may by assurance under that statute bar 
 his own estate in the lands, and thus create a base fee ; 
 producing, in fact, the same effect that a fine with 
 proclamations would have done under the old system. 
 
 In general, the protector is the owner of the 
 preceding estate to the estate tail, although the settlor 
 entailing lands is empowered by the settlement to 
 appoint any number of persons not exceeding three,
 
 213 
 
 and not being aliens to be protectors ; and lie is also 
 empowered by a power of appointment in the settle- 
 ment to perpetuate the protectorship to any persons not 
 exceeding 3, not being aliens, whom he may think pro- 
 per (s. 32) but the same section also provides that every 
 deed appointing a protector under a power in a settle- 
 ment, and every deed by which a protector shaE 
 relinquish his office, shall be void, unless em^olled in 
 Chancery "within 6 months after the execution thereof. 
 The protector has the absolute power of giving or 
 withokling his consent. The entail must be barred 
 by a deed, and a contract, though under seal, will be 
 insufficient for the ptu'pose. Every assiu-ance by a 
 tenant in tail (except a lease not exceeding 21 years 
 at rack rent, or not less than 3-5 ths of a rack rent) 
 will be inoperative unless enrolled in Chancery within 
 six calendar months after the execution, but when so 
 enrolled it will take effect from the time it was 
 executed (s. 41). Provision is also made in the Act 
 for cases of disability of the protector. 
 
 Tenants in tail where the reversion is in the Crown, 
 and tenants in tail after possibility of issue extinct, 
 are prohibited from disposing of their estates. Where 
 estates are pui'chased by the nation as a reward for 
 public services, the tenants in tail are usually pro- 
 hibited from disposing of their estates. Women tenants 
 in tail ex provisione viri under the statute 1 1 Heniy 
 VTI., c. 20, of estates created before the Fines and 
 Recoveries Substitution Act are under a similar re- 
 striction, but such estates tail cannot be created since 
 the Fines and Eecoveries Substitution Act. 
 
 Of Deeds. 
 
 A deed is a wiiting on parchment or paper, sealed 
 and delivered to prove and testify the agreement of 
 the parties whose deed it is to the things therein 
 contained. Deeds are either deeds poll or indentui^es. 
 A deed poll has its edge even, and is made by one 
 person only. An indenture is a mutual agreement
 
 214 
 
 between two or more persons, whereof each party has 
 usually a part, the first skin of parchment on which it 
 is written, being cut in an undulating line. Fonnerly 
 where a deed was described as an indenture, but was 
 not indented, it did not take effect as such, but it 
 will now by 8 and 9 Vic, c. 106. s. 5. 
 
 The requisites for a deed are — 1. Sufficient parties 
 and a proper subject-matter; 2. A good and sufficient 
 consideration to render the deed good in equity; 3. 
 Writing, or printing, or both, on paper duly stamped ; 
 4. Words sufficient to specify the agreement, and bind 
 the parties legally and orderly set forth ; 5. Reading, 
 if desired; 6. Sealing and signing; 7. Delivery; 8. 
 Attestation by witnesses, where required by law. 
 
 All deeds by which lands may be conveyed or charged 
 derive their effect either from the common law or the 
 Statute of Uses. Deeds which derive their effect from 
 the Common Law are — 1. Feoffments; 2. Grifts; 3. 
 Grants; 4. Leases; 5. Exchanges; 6. Partitions; 7. 
 Releases; 8. Confirmations; 9. Surrenders; 10. 
 Assignments; 11. Defeasances. 
 
 In ancient times a feofinent was the only mode of 
 conveyance, and was a gift of the inheritance, accom- 
 panied with a formal delivery of possession by the 
 feoffor to the feoffee. This formal delivery of posses- 
 sion was called livery of seisin, and was of two kinds, 
 livery in deed and livery in law. Livery in deed is the 
 actual deliveiy of the possession where the feoffor 
 comes himself upon the land, and taking the ring of 
 the door of the principal mansion delivers the same to 
 the feoffee in the name of seisin ; or it may be by 
 words only without the delivery of anything. Livery 
 in Imo, or within view, was where the feoffor was not 
 actually on the land or in the house ; but being withia 
 sight of it says to the feoffee " I give to you and your 
 heirs yonder house and land ; go and enter into the 
 same and take possession of it accordingly." Until the 
 enactment of the Statute of Frauds no writing was 
 necessary for a feoffment, and by the late act (8 and 9 
 Vic, c. 106) a feoffment must be by deed, if other
 
 215 
 
 than a feoffment made under a custom hy an infant. 
 The most remarkable effect of a feoffment was its 
 tortious operation, whereby a freehold was transferred ' 
 without regard to the feoffor's quantity of estate; 
 but this incident was abolished by the 8 and 9 Yic., 
 c. 106. A feoffment was in ancient times the regular 
 mode of conveying corporeal hereditaments, which 
 were from this circumstance said to "lie in livery." 
 
 A grant was the proper mode of conveying incorporeal 
 hereditaments ; hence the expression that advowsons, 
 rents, and other incorporeal hereditaments " lie in 
 grant." A grant in general could not be made with- 
 out deed, and will pass no more than what by law the 
 grantor is enabled to convey. By the 8 and 9 Yic, 
 c. 106, corporeal hereditaments are made to lie in 
 grant. 
 
 The term gift was properly applied to the creation 
 of an estate tail, as a feoffment was to that of an estate 
 in fee simple. It differed in nothing from a feoffment, 
 but in the nature of the estate that passed by it, and 
 livery of seisin must have been given to the donee to 
 render it effectual. 
 
 A lease is a conveyance of lauds and tenements to a 
 person for life, years, or at Avill, m consideration of a 
 rent or other recompcnce. A lease for years must be 
 perfected by entry. In a lease the word "demise" 
 is generally used, and implies a covenant for quiet 
 enjoyment, unless when qualified by an express 
 covenant. 
 
 The usual parts of a lease are: 1. Parties. 2. 
 Demise. 3. Parcels. 4. Habendum. 5. Reddendum. 
 Covenants by the lessee to pay the rent and taxes, to 
 keep the premises insured and in repair, and to yield 
 up at the end of the term, and to enable the landlord 
 to enter and inspect. There are also usually a proviso 
 for re-entry, and a covenant by the lessor for quiet 
 enjoyment. A lease for a period exceeding three 
 years must be by deed. 
 
 An exchange is a mutual grant of equal interests, the 
 one in consideration of the other. The requisites for
 
 216 
 
 an exchange are equality in quantity of estates, and 
 that the word "exchange" be used. Previously to 
 the 8 and 9 Vic. c. 106, the word "exchange" implied 
 a right of re-entry on the eviction of either of the 
 parties from the lands exchanged. The inconvenience 
 was ob\T.ated in modern practice by means of mutual 
 conveyances. An exchange of any tenements or here- 
 ditaments (not being copyhold) made after the 1st day 
 of October, 1845, is void at law, unless made by deed. 
 
 A partition is an agreement by which two or more 
 joint tenants, coparceners, or tenants in common divide 
 the lands so held among them in severalty, each taking 
 a distinct part. Since the 8 and 9 Vic, c. 106, all 
 partitions of hereditaments (not being copyhold) shall 
 be void at law imless made by deed. Previously to 
 this act a partition between coparceners implied a 
 condition, by virtue of which, if either was lawfully 
 evicted she might enter in the other allotments, and 
 thus annulling the partition, be restored to her old 
 undivided share in the remaining tenements. This 
 difficulty was however obviated by mutual con- 
 veyances. 
 
 A release is a conveyance of a right to a person in 
 possession of the land in which the right exists. The 
 most usual operation of a release is by way of enlarge- 
 ment of estate, as where he who has the reversion and 
 inheritance releases all his right and interest in the 
 lands to the person who has the particular estate. A 
 release may also enure by way of passing an estate 
 (mitter Testate), by way of passing a right (mitter le 
 droit)' by way of extinguishment, and by way of entrg 
 and feoffment. Except, however, in a release to enlarge 
 an estate, the fee may be conveyed without the use of 
 words of inheritance. 
 
 A confirmation is a conveyance whereby a voidable 
 estate is ratified and made unavoidable, or where a 
 particular estate is increased. In the latter respect the 
 operation of a confirmation is precisely similar to that 
 of a release by way of enlargement of estate. On
 
 217 
 
 neither of these conveyances is livery of seisin 
 requisite. 
 
 A surrender is the falling or yielding up of a less 
 estate as for life or years into the greater estate in a 
 reversion or remainder. By the Statute of Frauds a 
 surrender was required to be by deed or note in 
 writing, signed by the surrenderor or his agent. By 
 8 and 9 Vic, c. 106, s. 3, a surrender in writing of 
 any interest in any hereditament, not being a copyhold 
 interest, and not being an interest which by law might 
 have been created without writing, made after 1st 
 October, 1845, shall be void at law unless made by 
 deed. 
 
 An assignment is properly a transfer of a person's 
 Avhole interest, whatever that interest may be, although 
 the term is usually applied to the transfer of a term 
 for years. By the 8 and 9 Yic, c. 106, an assignment 
 of a chattel interest, not being copyhold in any tene- 
 ments or hereditaments, shall be void at law unless 
 made by deed, while, on the other hand by sec. 2, an 
 assignment even of a lease for life may be effected by 
 deed of grant without livery of seisin. 
 
 A defeasance is a collateral deed made at the same 
 time as a feoffment or grant, containing certain condi- 
 tions upon the performance of which the estate then 
 created, may be defeated or wholly undone. This was 
 the mode in which mortgages in former times were 
 usually made, the, mortgagor enfeoiiing the mortgagee, 
 and he at the same time executing a deed of defeasance 
 whereby the feoffment was rendered void on repayment 
 of a certain day of the money borrowed. Things 
 merely executory ^ as rents or conditions, might always 
 be avoided by a defeasance made after the time of their 
 creation. Defeasances in this country are now of rare 
 oceuiTence. 
 
 Deeds which derive their effect from the Statute of 
 Uses are of two kinds. First, where tlie deed only 
 transfers the use which is said to operate without 
 transmutation of possession^ because the alteration of 
 the legal seisin and possession is effected by the mere 
 I
 
 218 
 
 operation of the statute ; secondly, where the legal 
 estate is transfen'ed by a common law assui'ance, and 
 a use is declared on snch assurance. This is said to 
 operate hy transmutation of possession, because the legal 
 seisin is first transfen'ed by a common law assurance. 
 
 A bargain and sale operates without transmutation of 
 possession, and is a contract by which a person conveys 
 his lands for a pecuniary consideration, in consequence 
 of which a use arises to the bargainee, and the Statute 
 of Uses immediately transfers the legal estate and 
 possession to the bargainee. Bargains and sales of 
 estates of inheritance or freehold must be made by deed 
 indented, and enrolled within six lunar months from 
 the date in one of the courts at Westminster, or before 
 the clerk of the peace, and a justice of the peace for 
 the county in which the lands are situate. 
 
 A covenant to stand seised is the second kind of deed 
 deriving its effect from the Statute of Uses, and operates 
 without transmutation of possession, for it only 
 transfers the use. No species of property can be 
 transferred by a covenant to stand seised, which 
 cannot be conveyed to a use, and the covenantor must 
 be seised in possession or entitled in remainder, or 
 reversion at the time of the execution of the deed, 
 because the use must arise out of the seisin or right, 
 which the covenantor has at the time. The consider- 
 ation for this conveyance must be natural love for a 
 wife or legitimate child, or for a near relation by 
 blood, and cannot be money. 
 
 A Lease and Release is the tliird kind of conveyance 
 usually classed under those deriving their effect from 
 the Statute of Uses, but of which only one part is 
 derived from that statute, and the other from the 
 principles of the common law. It is in fact, a bargain 
 and sale for a year, and a common law release operating 
 by enlargement of estate. Bargains and sales of estates 
 of inheritance, or of freehold must, as we have seen, 
 be enrolled, but the statute makes no provision for 
 the enrolment of bargains and sales of estates less than 
 freehold. Advantage was taken of this omission in
 
 219 
 
 the statute, and a bargain and sale for a year was 
 made by the vendor to the person to whom the lands 
 were to be conveyed ; by this a use was raised in the 
 bargainee without any eni'olment, to which the statute 
 transfeiTed the possession. Thiis the bargainee became 
 immediately capable of accepting a release of the 
 freehold and reversion ; and accordingly a release was 
 made to him, dated the day next after the day of the 
 date of the bargain and sale. In this manner the 
 pui'chaser became seised of an estate in fee simple, 
 and as a lease and release operates by transmutation 
 of possession, no actual entry was necessary. Until 
 lately a lease and release was the most common assur- 
 ance for the transfer of freehold estates, but has now 
 in a great measui'e been superseded by grants to uses. 
 By the 4 and 5 Vic, c. 21, a release, if expressed 
 to be made in pursuance of that statute, was made as 
 effectual as a lease and release by the same parties. 
 
 A feoffment to uses was the ordinary conveyance of 
 the common law, of which the natiu'e has been abeady 
 explained, but with a limitation to uses superadded. 
 This method involving as it does, the necessity of 
 making livery of seisin, is however rarely employed. 
 
 A ffrant to uses has nearly superseded the four 
 preceding conveyances. In its ancient and proper 
 application a grant was confined to the transfer of 
 incorporeal hereditaments, but since the 8 ■and 9 Vic, 
 c. 106, s. 2, has also been applicable to that of 
 corporeal hereditaments, from the provision of the 
 statute declaring that " corporeal hereditaments shall, 
 as regards the conveyance of the immediate freehold 
 thereof, be deemed to lie in grant as well as livery." 
 
 Limitations and modifications of estates by virtue of 
 poivers are also derived from the Statute of Uses. 
 There are also common law powers, as a power of 
 attorney, and all powers relating to personal estates. 
 Powers under the Statute of Uses derive their effect 
 from that statute and operate contraiy to the rules of 
 the common law, as in powers of revocation and new 
 appointment, with limitations of uses in the n •mtime
 
 220 
 
 and until and in default of appointment. Lands may 
 also be conveyed by, 1. Private act of parliament. 2. 
 The King's grant ; and 3. A will or devise. The objects 
 of a private act of parliament are various, but in regard 
 to our subject are usually to supply in a deed an 
 omission which is absolutely necessary to carry it into 
 execution, and to rectify a palpable mistake. 
 
 As it is a rule of the common law that the king can 
 only give by matter of record, therefore the King's 
 grants are contained in charters, or letters patent under 
 the great seal, which are usually addi'essed to all the 
 king's subjects. There have been no grants of parks, 
 wan-ens, or free chase for the last two centuries. 
 
 Of Wills. 
 
 The last mode of conveying real property is by 
 devise ^ or disposition contained in a person's last will, 
 to take place at the death of the devisor. It is 
 generally agreed that the power of devising lands 
 existed in the time of the Saxons, but upon the 
 establishment of the NoiTuans it was taken away as 
 inconsistent with the principles of the feudal law, and 
 although many of the restraints on alienation by deed 
 were removed before Glanville wrote, yet the power of 
 devising lands was not allowed for a long time after. 
 The power of de\ising continued, however, as to 
 socage lands situated in cities and boroughs, and 
 also as to all lands in Kent, held by the custom of 
 gavelkind ; and as the ancient Saxon laws are supposed 
 to have remained unaltered in Kent, this is an addi- 
 tional proof that lands were generally devisable in the 
 time of the Saxons. 
 
 The practice of devising the use of lands carried 
 the power of disposing of real property much further 
 than was consistent with the nature of tenures. It 
 tended to deprive the lords of theii' wardships, profits 
 of marriage, and reliefs ; and the king of his primer 
 seisin, livery, and fines for alienation, which constitu- 
 ted a considerable pai't of the ancient revenue of the
 
 221 
 
 crown. This together with many other inconveniences 
 that flowed from the doctrine of uses was removed hy 
 the Statute of Uses, which uniting the legal seisin of 
 the land to the use, effectually took away the power 
 of de-vising. 
 
 The inconveniences which attended this restraint 
 on the disposition of lands hj devise induced the 
 legislature in a few years after to pass the 32 Hen. 8, 
 c. 1 , by which every proprietor of land was empowered 
 by writing to devise the whole if held in socage, and 
 two tliirds, if held by knight service of the king or 
 other person. This act was explained and amended 
 by 34 and 35 Hen. 8, c. 5. Under the authority of 
 these statutes no more than two thirds of land held by 
 knight sen'ice could be devised, but in consequence of 
 the abolition of militaiy tenures, and the conversion 
 of knight service and all the other old modes of 
 holding lands into common socage, the operation of 
 these statutes was extended to all fi'eehold estates in 
 fee simple. The statutes of wills being in the 
 affirmative were held not to take away the custom of 
 de^'ising ; and fonncrly it was of importance in many 
 cases to resort to the custom of devising as being most 
 beneficial to the devisee. But now the two powers 
 are by the statute 7 W. 4, and 1 Vic, c. 26, assimil- 
 ated and made commensm-ate. Wills made before the 
 1st Januaiy, 1838, are however not affected by that 
 statute, but are regulated by the prior law on the 
 subject, unless re-executed, re-published, or rexaved, 
 since the new law came into operation. A will to be 
 valid under the prior law was requii'ed to be in 
 wiiting, and signed by the party so devising the 
 same, or by some other person in his presence, and by 
 his express dii'cctions, and to be attested and sub- 
 scribed in the presence of the said devisor by tln-ee or 
 fom- credible witnesses, or else it was utterly void and 
 of none effect. For a will of personalty, however, no 
 Avriting was in general requisite until the 1 Vic, c. 
 26, although almost invariably employed. No par- 
 ticular form is requisite for a will, but to be valid.
 
 222 
 
 Tinder the new law, it must be in writing and signed 
 at the foot or end thereof by the testator or some other 
 person in his presence, and by his direction ; and such 
 signature shall be made or acknowledged by the 
 testator in the presence of two or more witnesses 
 present at the same time ; and such witnesses shall 
 attest and shall subscribe the will in the presence of 
 the testator. The words " signatiu-e at the foot or end 
 of a will " have been explained by the Wills Act 
 Amendment Act, 1852. Soldiers in actual military 
 service, or seamen on a voyage, may make verbal wills 
 in the presence of one witness. 
 
 Previously to the 1 Vic, c. 26, a person under 21 
 could make a will of personalty, by custom devise 
 copyholds, and if a father, could also de\dse the 
 guardianship of his chikben. Since that Act a person 
 to be capable of making a will must be 21 years of 
 age. He must also be of sound mind, capable of 
 comprehension, and under no undue iniluence. A 
 married woman can only make a will of lands in 
 execution of a power expressly conferred on her for 
 that purpose. Of chattels real and personal she may 
 make a will with the assent of her husband, or inde- 
 pendently of her husband where property has been 
 settled to her separate use, or an express power to make 
 a will has been conferred upon her. Where a husband 
 has been banished for life, or she holds property as an 
 executrix or administratix, a married woman is also 
 empowered to make a will. A lunatic duiing a lucid 
 interval may make a will. A alien fiicnd (that is, a 
 subject of a country with which we are at peace) may 
 make a will of personalty, and of whatever interest 
 he may legally hold in land. 
 
 Any natural person, who is not a witness or the 
 wife or husband of a witness to a will, may take a 
 devise or legacy under a will. In general coi-porations 
 unless they have a licence to hold lands in mortmain 
 cannot be devisees. For charitable pui-poses, no estate 
 or interest of any kind in land, or money or personal 
 estate to be laid out in land can be given by will. By
 
 223 
 
 Bcvcral Acts of parliament however, various eoqiorations 
 and charitable institutions have been empowered to 
 take land by will, or money secured on land. An alien 
 would appear to be capable of taking by devise only 
 the interest he may legally hold in land. Any words 
 sufficient to denote the persons meant by the testator, 
 and to distinguish them from all others will be a good 
 description of the devisees. 
 
 Since the 1 Vic, c. 26, a person may by will dispose 
 of all real and personal estate, which he shall be 
 entitled to, either at law or in equity, at the time of 
 his death, and which if not so devised, bequeathed or 
 disposed of, would devolve upon the heii--at-law or 
 customary heir of him, or if he became entitled by 
 descent, of his ancestor, or upon his executor or 
 administrator. Rights of entry, mere possibilities 
 without an interest, and some customaiy estates could 
 not under the former law be devised. All real and 
 personal estate to which a testator may become entitled 
 subsc(]^uently to the execution of a will, and belonging 
 to him at the time of his death will also pass unless 
 expressly excluded. Before the late Act the law was 
 different as to real estate. 
 
 A will may be revoked in four ways : 1 . By another 
 will, or by a document executed and attested as a will, 
 containing a clause expressly and explicitly revoking 
 the former will. 2. By a subsequent will or codicil 
 containing dispositions inconsistent with those in the 
 former will. 3. By the destruction before the death 
 of the testator, of the first will with the intention on 
 the part of the testator thereby to revoke it. 4. A 
 Nvill is also revoked by marriage, except a will made 
 in exercise of a power of appointment when the real 
 or" personal estate thereby appointed would not, in 
 default of appointment, pass to the heii-, personal 
 representative, or next of kin of the appointor. 
 
 Obliterations and alterations where the words remain 
 legible, and cancellation by (b'awing lines across the 
 whole or any part of the will are of no effect unless 
 properly executed and attested.
 
 224 
 
 Devises and bequests contained in wills are liable to 
 failure from the death of the de\isee or legatee before 
 the testator. This is called the doctrine of lapse. It 
 applies equally to devises of real estate, and to 
 bequests of personalty. Since the 1 Vic, c. 26, 
 however, devises of estates in tail shall not lapse, but 
 where the devisee in tail dies during the life-time of 
 the testator leaving issue, the devise .shall take effect 
 as if he had died immediately after the testator, unless 
 a contrary intention appear by the will (s. 32). Gifts 
 to childi-en or other issue who shall die before the 
 testator, having issue li-sdng at the testator's death, 
 are not to lapse, but if no contrary intention appear by 
 the will, are to take effect as if the persons had died 
 immediately after the testator. In other cases lapse 
 may be pi-evented by directing the property to go over 
 to another on the death of the first devisee before the 
 testator. A limitation to the heirs, executors, and 
 administrators of the de\dsee will not prevent a lapse, 
 but the result will be otherwise if the words are or his 
 heirs, executors, or administrators. 
 
 In the constmction of wills the general nile is that 
 the intention must be effectuated. For this pui'pose 
 words are rejected or suppKed. Thus the word "or" 
 is construed and, and "and" or. Where there is a 
 latent ambiguity in a will it may be explained. In 
 the description of the things given no technical words 
 are necessary, but the words should denote with 
 sufficient certainty what is meant to be given. A 
 devise without words of limitation was formerly held 
 to create only an estate for life, but since the 1 Vic, 
 c. 26, where any real estate shall be devised to any 
 person without any words of limitation, such devise 
 shall be constnied to pass the fee simple, or other the 
 whole estate or interest which the testator had power 
 to dispose of by will in such real estate, unless a 
 contrary intention shall appear by the will. Another 
 important rule of construction is that with regard to 
 the words dying without issue in an executory devise 
 (as where an estate in fee simple is devised to A. and
 
 225 
 
 upon his dying without issue then to B.). Before the 
 late act these words were intei-preted to import an 
 indefinite failure of issue unless restrained by the 
 context to the death of the person ; but section 29 
 enacts that in any demise or bequest of real or personal 
 estate, the words "die without issue," or "die without 
 leaAing issue," or "have no issue," or any other 
 "words which may import either a want or failui'e of 
 issue of any person in his lifetime or at the time of 
 his death, or an indefinite failure of his issue shall be 
 construed to mean a want or failure of issue in the 
 lifetime or at the death of such person, and not an 
 indefinite failui'e of his issue, unless a contrary 
 intention shall appear by the will, by reason of such 
 person having a prior estate tail, or of a preceding gift, 
 being, without any impKcation arising from such 
 words, a limitation of an estate tail to such person or 
 issue, or otherwise. Pro\'ided that this act shall not 
 extend to cases where such words as aforesaid import 
 if no issue who shall Kve to attain the age or other- 
 wise answer the description required for obtaining a 
 vested estate by a preceding gift to such issue.
 
 226 
 BOOKS or REFEEEXCE ON CONTEYANCING. 
 
 Amos and Ferard on Fixtures. 
 ■VBlackstone's Commentaries. Vol. II. 
 Coke upon Littleton. Butler's notes. 
 Cmise's Digest. Title XVI., " Remainders." 
 Dart's Vendors and Purchasers. 
 Fisher on Mortgages. 
 Gale on Easements. 
 Hargreave on the Thelhison Act. 
 Hayes on the Common Law, Uses and Trusts. 
 
 J^ on Conveyancing. 
 
 Hayes and Jarman's Concise Forms of Wills. The 
 
 notes to the last edition. 
 Jai-man on Wills. ' 
 
 Lord St. Leonards' Essay on the Real Property Statutes. 
 Lewin on Trusts. 
 Lewis on Pei-petuities. 
 Prideaux on Judgments. 
 Sanders on Uses, by Sanders and Warner. 
 Shelf ord's Law of Copyholds. 
 
 Mortmain. 
 
 Real Property Statutes. 
 
 -Smith's Leading Cases. The last edition. 
 
 J{ (Josiah William) Real and Personal Property. 
 
 ^he Statutes, 22 and 23 Vic, c. 35 ; 23 and 24 Vic, 
 c. 38; 23 and 24 Vic, c. 145. (Hunter or 
 Langley's Edition of those Acts.) 
 /I' The Statute of Limitations, 3 and 4 AV. IV., c. 27. 
 > Stephen's Commentaries. Vol. I. 4th edition. 
 Sugden on Powers. 
 
 Vendors and Ptirchasers. 
 
 VTudor's Leading Cases in Conveyancing. 
 White and Tudor's Leading Cases in Equity. 
 j/Williams, Joshua, on the Law of Personal Property. 
 
 ' A ,, ,, Real Property. 
 
 ^The Wills' Act, 1 Vic, c. 26 ; 15 and 16 Vic, c. 24 ; 
 
 24 and 25 Vic, c c. 114, 121, as to Domicil, and as 
 
 to the Wills of Personalty, made by British subjects.
 
 227 
 
 QUESTIONS 01^ CONVEYANCING. 
 
 Tenures. 
 
 Q. — Explain the doctrine of tenure, and show 
 concisely how that doctrine has aifected estates in land, 
 1. In regard to enjoyment ; 2. In regard to the 
 modification of ownership; 3. In regard to the forms 
 of conveyance. 
 
 Q. — Describe the tenure of estates in gavelkind, 
 borough English, and ancient demesne. 
 
 Q. — What was the object of the statute Quia 
 Mnptores ? 
 
 The kinds of Propertrj. 
 
 Q. — Classify the principal kinds of property under 
 the two heads of "real" and "personal" estate. 
 
 Q. — A testator devises a house and estate to A. for 
 life, and after his decease to his first and other sons 
 in tail male with remainder over ; he also directs that 
 the pictures in the house shall go with it as heir-looms. 
 The eldest son of A. dies an infant, and without issue. 
 The second son also dies an infant, but leaving an only 
 son. A. then dies leaving a third son, and the grandson 
 him surviving. Who is entitled to the pictures ? 
 
 Quantity of Estates. 
 
 Q. — Is there any difference in the quantity of the 
 following estates ? — a lease to A. for 99 years ; a lease 
 to A. for 99 years if B. should so long live ; a lease to 
 A. for three lives; a lease to A. for 99 years if he 
 should so long live. 
 
 U. — What are corporeal and incorporeal heredita- 
 ments respectively ? Give examples of each kind.
 
 228 
 
 Estates in Fee Simph. 
 
 Q,. — How many kinds of estate in fee-simple are 
 there ? How do they differ as to quality ? and what 
 effect had the Statute de Donis on their quantity ? 
 
 Q. — A. seised in fee dies intestate and indebted. 
 Mention the various kinds of debts to which the 
 descended estate is liable ; the order in which they will 
 be paid, and the extent of the heir's liability ? 
 
 Q. — Give a definition and point out the difference 
 between an estate of freehold and of an estate in fee- 
 simple. Must an owner of a fee-simple necessarily 
 hold the whole of the soil ? Give examples in illus- 
 tration of your answer. Which is the greater estate ? 
 
 Q. — Devise by will (since 1838) of fee-simple land 
 to A. ; grant by deed of fee -simple land to A. What 
 estate does A. take in each of those cases. Give the 
 reasons for your answer. 
 
 Q. — Grant or devise to A., B. and C. and their heirs ; 
 to A., B. and C. and the survivors, and survivor of 
 them and his heirs; to A., B. and C. equally, and their 
 respective heirs. What estates are taken under the 
 above limitations? 
 
 Q. — Are there any ; and, if any, what instruments 
 operating inter vivos, by which at law or in equity an 
 estate in fee-simple may be acquired wdthout the use 
 of the word "heirs?" 
 
 Q,. — Explain the origin and growth of the tenure of 
 an estate in fee- simple ; and in so doing trace the steps 
 by which the tenant idtimately obtained absolute 
 power of alienation over the fee against the lord. 
 
 Estates Tail. 
 
 Q. — What is an estate tail ? 
 
 Q. — To what extent has the power of alienation by 
 tenants in tail been enlarged by the 3 and 4 Wm. IV., 
 c. 74? 
 
 Q. — Define the office of "Protector to a settlement." 
 What effect would the giving or withholding his con-
 
 229 
 
 sent have upon the estate acquired by a tenant in tail 
 under a disentailing deed ? 
 
 Q. — In a disentailing assurance under the new law, 
 what important point is to be regarded in the wording 
 of the operative part ? To what extent can a tenant 
 in tail in possession bind his issue and the remainder 
 men by contract ? 
 
 Q,. — Give the different kinds of estates tail, and the 
 words necessary to create by deed such estates tail. 
 
 Q. — A fee-simple estate is granted by deed to A. 
 and his heirs male ; a similar estate is devised by will 
 to B. and his heirs male. What estates do A. and B. 
 respectively take ? Give the reasons for your answer. 
 
 Q. — To what statute do estates tail owe their origin? 
 What are the only kinds of property which may 
 strictly be subjects of entails, and why and on what 
 grounds was the restricted construction of the statute 
 adopted ? What is the result of an attempt to entail 
 property not coming within the provisions of the same 
 statute ? 
 
 Q. — A. is tenant for life with remainder to B. in 
 tail. Explain the mode of conveyance, in use at the 
 present day, for vesting in a purchaser from A. and B. 
 an estate in fee-simple in possession. 
 
 Q. — An estate is devised to A. for life, remainder to 
 the first or other sons of A. who shall be living at A.'s 
 death, and the heirs of the body of such first or other 
 son, remainder to B. in fee. A. has two sons both of 
 age, and joins with the elder in executing a disentail- 
 ing assurance, and in conveying the estate to a 
 pm'chaser in fee. Does the purchaser take a fee-simple 
 absolute or any less estate ? 
 
 Q. — Explain the nature of a fine and a recovery; 
 illustrate yoiu- answer by describing the effect of each 
 on an estate tail, and the remainder expectant thereon. 
 
 Q,. — How were entails ban-ed before 1834, and how 
 are they now barred ? Suppose A. had been tenant in 
 tail in possession, with remainder to himself in fee, 
 coidd he (before 1834) have barred this estate in more 
 ways than one ; and if he could, give your reasons for 
 preferring one of those plans.
 
 230 
 
 Q. — A., tenant for life of fee simple estates with 
 power of leasing and other powers, and B., tenant in 
 tail in remainder, wishes to bar the entail, and limit 
 the estates in such a manner that A. may still have a 
 life estate, and also retain the powers referred to, and 
 that B. may have the remainder in fee. Give shortly 
 the scheme of snch a disentailing deed. 
 
 Q. — Fee simple lands are by a settlement dated 
 before the year 1834, conveyed to a gi-antee and his 
 heirs to the use of Maiy, a married woman, for her 
 life for her separate use, remainder to her first and 
 other sons successively in tail. Who would be the 
 proper parties to a disentailing deed to be executed in 
 the present year of the estate tail created by the above 
 settlement ? In other words, do Mary and her husband, 
 or does Mary alone, or her husband alone, fill the office 
 of protector of the settlement ? 
 
 Q. — A. tenant for life, remainder to B. for life, 
 remainder to C. in tail male ; who are the necessary 
 parties to a disentailing deed ? And after the execution 
 by those parties, what further ceremony is necessary to 
 the perfecting of the assurance, and within what time 
 must that ceremony be performed ? 
 
 Q. — Can a tenant in tail in possession make a good 
 equitable mortgage which would bar the issue in tail 
 of the entailed lands by a mere deposit of the title 
 deeds with or without a deposit in writing ? Or is 
 any, and if any, what kind of assurance necessary ? 
 
 Q. — Freeholds and copyholds are assured unto and 
 to the use of X. and his heirs in trust for A. for life, 
 with remainder upon trust for B. and the heirs of his 
 body. Who are the proper parties to a bar of the 
 entail so created, and what ceremony is requisite in 
 addition to the execution of the disentailing deed ? 
 As to the copyholds, can the interested parties adopt 
 more courses than one ? 
 
 Q. — An annuity {tiot charged on land) is given to A. 
 and his heirs ; another similar annuity is given to B. 
 and the heirs of his body. What is the nature of the 
 interest of A. and B. respectively in these annuities, ?
 
 231 
 
 "What powers of alienation have A. and B. respcctiYely 
 over the annuities, and in the case of the death of A. 
 intestate, and of B. -without issue, who would become 
 entitled to the several annuities ? 
 
 Q. — Has a tenant in tail, after possibility of issue 
 extinct, any — and if any, what — powers and privileges 
 over his estate which are not possessed by a tenant for 
 life? 
 
 Q. — Lands are limited to A. and B. (two sisters) and 
 the heirs of their bodies. What estate do A. and B. 
 respectively take und(>r that limitation ? 
 
 Q. — Is an estate tail of a tenant in tail who dies 
 without barring the entail subject to any, and, if any, 
 what debts of the tenant in tail ? 
 
 Estates for Life. 
 
 Q. — Point out the difference between an estate for 
 life by operation of law, and by act of party ? 
 
 Q. — What acts may tenants for life impeachable, 
 and not impeachable for waste, do or pennit in respect 
 of the dealing with or management of the settled 
 estate ? 
 
 Q,. — Of what quality is an estate pur autre vie in 
 land ? Under what circumstances is the holder of an 
 estate pur autre vie called the general occupant, and 
 the special occupant respectively ? 
 
 Q. — State the several modes by which quasi tenants 
 in tail pur autre vie in possession and in remainder may 
 bar their quasi estates tail. 
 
 Q,. — How does an "estate tail after possibility of 
 issue extinct " arise ? What are the respective rights 
 and pri\dleges of a tenant for life, with or without 
 impeachment of waste, and of a tenant in tail after 
 possibility of issue extinct, with respect to the cutting 
 of timber and other acts of waste ? 
 
 Q. — A tenant in fee grants a lease "to A. for life," 
 and a tenant in tail grants " a lease to B. for life," for 
 whose lives do these lessees respectively hold ? Give 
 the reasons for your answer.
 
 5b 
 
 232 
 
 Q,. — What acts or omissions constitute ** voluntary 
 waste," "permissive waste," and "equitable waste" 
 respectively ? "Who are the parties entitled to relief 
 in cases of waste, and how is such relief obtained ? 
 
 Q. — A tenant for life and a tenant in tail respectively 
 pay oflP charges on their settled estates. What, in the 
 absence of evidence of intention, is the presumption of 
 law with respect to the merger or continued existence 
 of those charges respectively ? 
 
 Doiver. 
 
 Q. — Distinguish between Dower and Jointure. To 
 what extent has the widow's right to dower been 
 invaded by recent enactment ? 
 
 Q. — What are the six legal requisites to the bar of 
 a woman's dower by jointure? 
 
 Q. — How may the dower of a woman married before 
 the 1st January, 1834, and the dower of a woman 
 maiTied since 1st January, 1834, be respectively 
 barred ? 
 
 Q. — On what day did the new Dower Act come into 
 operation ? To what event does that day refer ? 
 
 Q,. — What is the effect of a late decision as to the 
 common dower uses in a conveyance made before the 
 day on which the Dower Act came into operation on 
 the dower of a woman manied to the pui'chaser after 
 that day ? 
 
 Q. — Give a definition of dower applicable to the 
 state of the law before the passing of the Dower Act 
 of 1833. 
 
 Q. — Give the outline of a common conveyance of a 
 fee simple estate, from A. and B., his wife entitled to 
 dower, to C, a purchaser to dower uses, — gi'^'ing also 
 the heads of the covenants for title. What superadded 
 ceremony is necessary to the completion of the deed ? 
 
 Q. — An estate is conveyed to such uses as A. shall 
 appoint, and in default of appointment to A. for life, 
 remainder to the right heirs of A. A.'s marriage 
 takes place previous to 1834 ; is A.'s wife entitled to
 
 233 
 
 her dower ? If so, can A. nevertheless make a gootl 
 title to a purchaser free from dower ? 
 
 Estate hy the Curtesy. 
 
 Q. — Define tenancy by the ciu'tesy. A married 
 woman seised of an estate in tail-male dies leaving a 
 daughter. Is the husband tenant by the ciuiesy ? 
 
 Estates for years. 
 
 Q. — Define a lease, an under-lease, and an interesse 
 termini. An assigiimcnt of a term of years is made to 
 A., to the use of B., docs the Statute of Uses apply? 
 
 Q. — Give the heads of the usual covenants contained 
 in an assignment of leaseholds for years from a vendor 
 to a purchaser. 
 
 Q,. — Leaseholds for years are, generally, classed 
 under the head of personal estate ; are such leaseholds, 
 under any, and (if any) what circumstances, considered 
 or dealt with otherwise than as personalty ? 
 
 Estates from year to year. 
 
 Q. — A. becomes quarterly tenant to B., the tenancy 
 commencing on the 25th of March. When must A. 
 or B. give notice to the other to determine the tenancy? 
 
 Q. — During what time must a tenant remove fixtures 
 which by law are removeable as between him and his 
 landlord, and what exceptions are there to the general 
 rule on this point ? 
 
 Q,. — What is the general rule of law with respect to 
 annexations made by a tenant to the property ^'of the 
 landlord ? Give some of the most important instances 
 in which, in modern times, relaxations have been made 
 in this rule. 
 
 Estates on Condition. 
 
 Q. — Explain the operation of a mortgage deed at 
 law; and describe accurately the several rights and
 
 234 
 
 remedies of a mortgagor and mortgagee at law, and in 
 equity. 
 
 Q.— TVTiat is meant by a judgment debt ? Wbat is 
 its effect under the statute of 1 and 2 Vic., c. 100, 
 upon the landed property of the judgment debtor? 
 Through what period ought an intended purchaser to 
 extend his search for judgments against the vendor ? 
 
 Q,. — At what time does the statutory period of 
 limitation begin to run as between mortgagor and 
 mortgagee ; ( 1 ) where the. mortgagor is in possession ; 
 (2) where the mortgagee is in possession. 
 
 Q.— The 42nd section of the 3 and 4 W. IV., c. 27, 
 enacts that "no arrears of interest with respect to any 
 sum of money payable out of any land shall be 
 recovered but within six years from the time the same 
 shall have become due," and the 3rd section of 3 and 4 
 "W". IV., c. 42, enacts that " all actions of covenant upon 
 any specialty shall be sued within 20 years after the 
 causes of such actions shall have accrued." How do 
 you reconcile these two sections in the case of a 
 mortgage deed containing the iisual covenant for 
 payment of principal and interest, when more than 
 20 years' arrears of interest have accrued due ? 
 
 Q. — Draw up a scheme of a mortgage in fee with 
 the usual power of sale ; and explain the advantages 
 resulting from the insertion of such a power. 
 
 Q,. — Distinguish between conditions precedent and 
 subsequent; and illustrate the effect of the non- 
 performance of either kind of condition upon the estate 
 to which it is annexed. 
 
 Q. — State and explain the difference in the law as it 
 affects real and personal estates respectively with 
 regard to restraints on marriage. Give the reasons of 
 your answer. 
 
 Q. — Explain the term "equity of redemption," and 
 show how it may be lost with reference to the pro- 
 visions of the 3 and 4 W. 4, c. 27. 
 
 Q. — "^Tiei'e should a judgment be registered ? And 
 as to one place of legistration, what must be done, and 
 how often, to keep the judgment subsisting ?
 
 235 
 
 Q. — A mortgagee in fee has a power of sale prior in 
 creation, to the date of judgments against the mort- 
 gagor ; can the mortgagee make a good title against 
 the judgment creditors, and what are the rights of 
 those creditors in the supposed case ? 
 
 Q. — State shortly the principal enactments of the 
 new statute 18 and 19 Yic, c. 15, upon judgments, 
 and show what are the most important changes wrought 
 by that statute. 
 
 Q. — In drawing a mortgage to trustees who are 
 advancing their trust money, notice of what fact 
 should be omitted from the mortgage, and what 
 declaration should be inserted ? Give the reasons for 
 your answer. 
 
 Q,. — What is the difference between the common 
 covenants for title in a conveyance and in a mortgage 
 of an estate in fee simple. 
 
 Q. — A lessee whose lease contains a reservation of a 
 large ground rent and onerous covenants, borrows money 
 on mortgage. What form of mortgage would be most 
 advantageous to the mortgagee, and for what reasons ? 
 
 Q. — A tenant for life in possession of estate A., and 
 a tenant in tail in possession of estate B., both die 
 after having respectively paid off mortgages existing 
 on their respective estates before the dates of the 
 settlements respectively. The mortgages are simply 
 transfen^ed to the tenant for lile, and tenant in tail 
 respectively in the ordinary form. What is the 
 presumption of law as to the merger or continued 
 existence of each of the above mortgages ? 
 
 Q. — State the rule of equity with respect to the 
 marshalling of securities as between the mortgagees and 
 incumbrancers of the same mortgagor. 
 
 Q. — Give instances in which the person entitled to 
 the first charge upon an estate has lost the benefit of 
 that charge by the effect of merger. 
 
 Q. — Under what cii'cumstances will a power of sale 
 authorize a mortgage ? What was decided by Strong- 
 hill V. Anstey upon this point ? 
 
 Q. — What are the reasons given for the doctrine laid
 
 236 
 
 down in "WTiitworth. v. Gangain with reference to the 
 priority of an equitable mortgage over a subsequent 
 judgment creditor, who has sued out an elegit without 
 notice of the mortgage. 
 
 Q,. — A. mortgages a trust estate or an equity of 
 redemption in fee simple hereditaments and a policy of 
 assurance to B. Is notice to the holder of the legal fee, 
 or the first mortgagee, or the assurance office, absolutely 
 necessary ; and, if necessary, for what reason in each 
 case ? 
 
 Q. — "What debts may be tacked by a first mortgagee 
 ha\'ing the legal estate, and for what persons ? 
 
 Q. — What is the effect of a late statute as to the 
 liability to pay mortgages on devised or descended 
 property ? 
 
 Q. — A., the owner of a fee simple estate mortgages it 
 in fee to B., with power of sale to secure £1000. A., 
 subsequently mortgages the same estate to C. for £900, 
 and afterwards to D. for £800. D. gives notice of 
 his security, but C. gives no such notice. The estate 
 is then sold by B. under his power of sale for £2100. 
 "Will the notice of B. be productive of any benefit to 
 him, and what will be the shares of C. and D. 
 respectively in the £1000, the balance, after paying off 
 the first mortgage ? 
 
 Q,. — Suppose an advance to be made on a second 
 mortgage to an owner of land who has previously 
 executed a mortgage of the same land, to secure a sum 
 already due and further advances. Can the first 
 mortgagee, after notice of the second mortgage, and to 
 the prejudice of the second mortgagee, make further 
 advances ? If such advances are made, in what 
 manner would they be charged upon land ? 
 
 Q,. — "What, until recently, was the effect of a licence 
 by a lessor to a breach of condition by his lessee ? 
 "What is the effect of the statute 22 and 23 "Vic. c. 35, 
 in this respect ? 
 
 Q. — Give the form of a memorandum by way of 
 equitable mortgage which usually accompanies a 
 deposit of title deeds on the loan of money, A. being 
 the lender, and B. the borrower.
 
 237 
 
 Estates in Joint Tenancy, Coparcena/ry, and Tenancy 
 in Common. 
 
 Q. — An estate is conveyed to A., B. and C. as joint 
 tenants in fee. A. conveys all his estate and interest 
 to B. : what is the quality of B.'s and C.'s estate 
 respectively ? 
 
 Q. — A. and B. are joint tenants in fee. A. devises 
 all his real estate and dies before B. : is the jointure 
 severed ? 
 
 Q. — Limit an estate to A. and B., (1) as joint 
 tenants in tail; (2) as joint tenants in fee; and (3) as 
 tenants in common in fee. A. and B. are joint tenants 
 in fee; by what process can they be seised of their 
 respective shares in severalty ? 
 
 Q. — An estate is conveyed to A. and B. and their 
 heirs. A. conveys all his interest to C. in fee : what 
 is the quality of C.'s estate ? 
 
 Q. — A., seised in fee, dies intestate, leaving two 
 daughters, B. and C. B. conveys all her estate in the 
 lands to D. in fee. What is the quality of B.'s estate 
 before and after the conveyance ? 
 
 Q,. — Explain the diiference between an estate in 
 coparcenary, an estate in joint tenancy, and an estate 
 held in common. 
 
 Q,. — What is the effect upon the joint tenancy of 
 the marriage of a woman entitled as one of several 
 joint tenants to: — 1. Freehold estates; 2. Personal estate 
 in possession ; 3. Personal estate in reversion ? 
 
 Q. — A. and B. buy a fee simple estate and pay the 
 purchase money in equal shares : the conveyance is 
 taken to A. and B. as joint-tenants in fee : A. dies 
 intestate and without having severed the joint tenancy. 
 In whom are the legal and beneficial ownership of the 
 estate vested? Answer the same qiiestion with the 
 variation — that the purchase-money was paid in un- 
 equal shares. 
 
 Uses. 
 
 Q,. — Define a springing use, a shifting use, and an 
 executory devise, giving examples.
 
 238 
 
 Q. — I. Bargain and sale to A. and his heirs to the 
 use of B. and his heirs. 
 
 II. Covenant to stand seised for the benefit of A. 
 and his heirs to the use of B. and his heirs. 
 
 III. Appointment (under a power) to A. and his 
 heirs, to the use of B. and his heirs. 
 
 IV. Grant, release, or feoffment to A. and his heirs 
 to the use of B. and his heirs. 
 
 Where is the legal estate in each of the above four 
 cases ? Give the reasons for your answers. 
 
 Q,. — What was the probable design of the Statute of 
 Uses ? State some of the most important changes in 
 the forms of assurance effected by that statute. 
 
 Q. — Explain the nature of a bargain and sale before 
 and after the Statute of Uses. 
 
 Q,. — Show in what way springing and shifting uses 
 do not conform to the common law. 
 
 Q, — What is the effect of a limitation in which the 
 estate of the cestui que use is greater than that of the 
 grantee to uses ? Por example, if land be conveyed to 
 A. for Hfe, to the use of B. for life, in tail, or in fee, 
 what estate does B. take ? 
 
 Q. — After the passing of the Statute of Uses, by 
 what means did the Court of Chancery regain a large 
 portion of the equitable jurisdiction of which that 
 statute was intended to deprive it. 
 
 Q. — What are the four requisites for the due 
 creation of a use ; and what words are sufficient to 
 raise a use ? 
 / [ i Q- — Devise by will of fee simple lands to A. and his 
 heirs, in trust for B. and hit. heirs ; where is the legal 
 estate in each of those examples ? Does the learning 
 of uses apply to devises by will ? 
 
 Q,. — To answer what purposes were uses originally 
 invented? What were the principal acts relating to 
 uses prior to the act 27 Hen. 8, c. 10? State shortly 
 the objects of those acts, including that of 27 Hen. 8, 
 c. 10. 
 
 Q. — What considerations were requisite to raise a 
 use or trust before the Statute of Uses ?
 
 239 
 
 Q. — What conveyances do, and what do not operate 
 by transmutation of possession ? An estate in fee 
 simple is conveyed to A., to the use of B., in trust for 
 C., "what estates do A., U., and C. respectively take 
 when the convej^ance is made? (1) by lease and 
 release; (2) by bargain and sale enrolled. 
 
 Q,. — In whom is the legal and equitable estate 
 vested in the following examples : Demise by one 
 seised in fee to A., to the use of B. ; an assignment of 
 a term of years to A., to the use of B. 
 
 Q,. — What, in the opinion of Mr. Hayes, was the 
 design of the Statute of Uses ; and what according to 
 the same learned author, were some of the most 
 important and prominent actual results of that statute? 
 
 Q. — A limitation of the legal fee in land to the use 
 of A. for life, with remainder to the use of the first 
 son of B., a bachelor. Suppose at A.'s death B. still 
 continues a bachelor, what is the effect of the above 
 limitation? Would the result be the same if the 
 subject-matter were an equitable interest or a copyhold 
 estate in land ? Give the reasons for your answer. 
 
 Q- — A., seised in fee, limits the estate to B. for life, 
 remainder to the heirs of his (A.'s) body, remainder to 
 C. in fee : docs A. take any estate under this limitation ? 
 
 Q. — What is a resulting use, and how is the con- 
 struction that a use is a resulting use rebutted ? 
 
 Q. — State the circumstances under which the 
 doctrine of scintilla juris et tituli came into question. 
 What were the various opinions as to this doctrine ? 
 Has any, and, if any, what act, been lately passed 
 affecting the doctrine referred to ? 
 
 Trusts. 
 
 Q,. — When did the danger of remoteness in limit- 
 ations of real and personal estate first arise ? 
 
 Q. — Explain the doctrine of cy-pres, and its connec- 
 tion with the law of perpetuity. 
 
 Q. — Within what limits are trusts for accumulation 
 now restricted by law ? When was this restriction 
 first imposed ?
 
 240 
 
 Q. — Before the legislative interference referred to in 
 the last question, for what period might real and 
 personal estate have been accumulated ? 
 
 Q,. — A., seised in fee of lands subject to dower, 
 ahens to B. in fee, who gets in an old outstanding 
 term. After the passing of the 8 and 9 Vic, c. 112, 
 B. aliens to C. in fee. Does the term act as a 
 protection against the dower of B.'s wife as well 
 as A.'s ? 
 
 Q. — A man possessed of a sum of stock standing in 
 his own name, and also entitled to a sum of stock 
 standing in the name of trustees, settles both sums on 
 his marriage in the usual manner. Give an accurate 
 analysis of the form of settlement. 
 
 Q. — Draw out a complete scheme of an ordinary 
 marriage settlement. The intended husband's fortune 
 consists of a sum of money secured by the demise of 
 freeholds for a term of years ; the intended wife's 
 fortune, of a sum of stock standing in her own name, 
 which is to be settled to her separate use. 
 
 Q. — Explain the difference between marriage articles 
 and a marriage settlement, and the circumstances under 
 which it would be necessary to resort to the former. 
 
 Q. — What is meant by limiting a freehold estate of 
 inheritance in strict settlement ? Set out the substance 
 of the limitations in their proper order. 
 
 Q,. — Is a trust for a charitable purpose liable to be 
 barred by the statute of Limitations (3 and 4 W. IV., 
 c. 27.) Lands were devised to A. in fee, charged 
 with an annuity of £10 for the use of the poor of X. 
 The anmiity remains unpaid, and no claim is made on 
 behalf of the charity for 20 years after the testator's 
 death. Is the estate in the hands of A. discharged 
 from the annuity ? 
 
 Q,. — A small fee simple estate is to be included in a 
 marriage settlement for the benefit of the husband, and 
 wife and children of the marriage. What is the best 
 mode of drawing such a settlement ? and give reasons 
 for the plan which you advise. 
 
 Q. — What is the best form of and the best time for
 
 241 
 
 a disclaimer of an estate or tnist ? Can a married 
 woman disclaim an estate in land and in what manner ? 
 Can a trustee, after accepting the trusts of a settlement, 
 retire from the trusteeship under any, and what 
 circumstances ? 
 
 Q. — Is it possible to settle upon a male real or 
 personal estate (not his own at the time of the settle- 
 ment) in such a way that his creditors may have no 
 power over that property? Is there any diiference 
 between a trust for a male until he shall become bank- 
 rupt and a trust for a male for life with a 
 pro\4so defeating his life interest on his bankruptcy ? 
 
 Q,. — By a marriage settlement executed prior to the 
 marriage, moneys of the husband and wife respectively 
 are vested in trustees upon trust for the husband and 
 wife successively for life, and after the death of the 
 survivor for the children of the marriage, with a 
 proviso that if the husband becomes bankrupt or 
 insolvent the life-interest of the husband in all the 
 trust property is to cease for the benefit of his wife 
 and children. To what extent is such a settlement 
 valid ? 
 
 Q,. — Is the nile against perpetuities applicable to 
 limitations which take effect b)^ way of remainder in 
 the same manner as to limitations taking effect by 
 way of executory devise or springing and shifting 
 use ? State the opinions of the different authorities 
 on this subject, and give the reasons for your adopting 
 any one of those opinions. 
 
 Q. — Under what disabilities do trustees, counsel, 
 solicitors, and guardians respectively rest with respect 
 to contracts and dealings with their cestuis que trustent, 
 clients, and wards respectively. 
 
 Q,. — A testator devises real estate to A. (or A. and B.) 
 absolutely, but no trust appears on the face of the wiU. 
 In fact, the devise is made to A. (or A. and B.) for 
 charitable purposes. "What acts of the testator, or of 
 the devisee or de\'isees arc necessary to raise a trust 
 for the charitable pui-poses intended ? And if such a
 
 242 
 
 trust arises, what is the result as to the devised real 
 estate ? 
 
 Q,. — State and illustrate " the rule against perpe- 
 tuities." 
 
 Q. — What is an attendant term ? When is a term 
 said to be attendant by construction of law ? 
 
 Q. — Under what circumstances may a purchaser 
 even with notice of a prior objection to title obtain a 
 good title, and is there. any exception to this rule ? 
 
 Q. — After A. has executed a voluntaiy conveyance 
 of fee simple estates in favour of his wife and children, 
 what power or dominion over those estates remains in 
 A.? Can a valuable consideration be supplied by any, 
 and if any, what acts of A., or any other persons, 
 after such execution ? 
 
 Q. — Explain the nature of the protection afforded 
 prior to 1846, by the assignment of a satisfied tenn to 
 a trustee upon trust to attend the inheritance. 
 
 Q. — Under what circumstances is a purchaser 
 affected by actual or constructive notice ? 
 
 Q. — Is the enrolment of a document, or the regis- 
 tration of a judgment, a bill of sale, or annuity deed, 
 or of a deed in the Middlesex or Yorkshire registry 
 notice to a purchaser? And is a purchaser who is 
 fixed with notice of the existence of any of the 
 liabilities which are not duly registered bound by all or 
 any, and if any, which of them though unregistered ? 
 
 Q. — A. devises or conveys two fee simple estates, 
 one of them to B. and his heirs upon trust for C. 
 and the heirs of his body; the other to B. and his 
 heirs upon tnist to settle the same upon C. and the 
 heirs of his body, so as to prevent C. from defeating 
 the entail. Under what classes of trusts respectively 
 would you place these two de\ases or conveyances ? 
 and show what would be their effect respectively as to 
 the dominion of C. over the two estates. 
 
 Q,. — Prior to the passing of the act 22 and 23 Yic, 
 c. 35, under what circumstances could tiiistees having 
 a power of sale but no express power to give good 
 receipts, give valid discharges for the purchase money, 
 
 i
 
 243 
 
 and what alteration has the lastly named act made in 
 this respect ? 
 
 Q. — What facts or circumstances will make binding 
 on a debtor, and all persons claiming under liim, a 
 deed of conveyance and assignment by the debtor to 
 trustees for the general benefit of creditors, which deed 
 was voluntaiy in its execution ? 
 
 Q. — An executoiy tnist is so framed that, if 
 caniod literally into effect, it would be void on 
 account of its transgressing the pei-petuity line. 
 "Would the tnist fail altogether, or would it be earned 
 out to any, and if any, what extent, and by what 
 means ? 
 
 Q. — In a transaction between vendor and purchaser, 
 what is the point of time prior to wliich a purchaser 
 must be fixed ■with actual or constnictive notice of an 
 incumbrance, so as to render him liable, in case he 
 disregards such notice ? 
 
 Q. — What is the rule of Courts of Equity with 
 respect to the liability of purchasers fi'om vendors 
 holding a fiduciary position to see to the application of 
 the purchase-money, and has this rule been affected in 
 any, and if any, what way, by a recent act of par- 
 liament ? 
 
 Q,. — Under a general charge of debts upon real 
 estate, state what, according to some recent decisions, 
 are the powers of executors to sell such real estate 
 under a will dated before the 22 and 23 Vic, c. 35, 
 came into operation. What alteration has the lastly 
 named act made in this respect ? 
 
 Estates in Remainder and Reversion. 
 
 Q. — Explain the difference between a remainder and 
 a reversion ; state the reasons why a vested remainder 
 can, and a contingent remainder cannot, be supported 
 by a chattel interest in land. 
 
 Q. — A temi of years is assigned to A. for life, 
 remainder to B. absolutely. How shoidd the assign- 
 ment be framed so as to make the limitation to B. 
 valid?
 
 244 
 
 Q. — What is the nature of the uncertainty which 
 forms the leading distinction between a vested and a 
 contingent remainder ? 
 
 Q. — Does the rule in Shelley's case apply with equal 
 force; (1) where a man by mariiage agi'ees to settle 
 his estate upon himself for life with remainder to the 
 heirs of his body; and (2) where similar limitations 
 are contained in a will ? 
 
 An estate is limited to A. for life, remainder to the 
 first and other sons of B. in tail, remainder to C. in 
 fee. To whom does the estate go upon the death of 
 A., leaving B. surviving, but unmarried ? Give a 
 reason for your answer. 
 
 Q. — Enumerate the kinds of contingent remainders, 
 and give examples of each kind. 
 
 Q,. — Since the passing of the Act 8 and 9 Vic. c. 
 106, is a contingent remainder liable to failure or 
 destruction by any, and if any, what means ? Is it 
 still necessaiy to adopt any, and if any, what plan, to 
 prevent such failure or destruction ? 
 
 Q. — Docs the heir of a settlor take by purchase or 
 descent under a limitation to A. for life, remainder to 
 the right heirs of the settlor ? 
 
 Q. — Are there any, and what remainders which a 
 recovery could not, and a deed perfected in the manner 
 required by the statute 3 and 4 W. 4, c. 74, cannot, 
 bar? 
 
 Q. — Is a contingent remainder now transferable at 
 law, and under what statute ? what was the effect 
 before that statute of a formal transfer of a contingent 
 remainder ? 
 . » , Q,. — Give the rule in Shelley's case as to fee simple 
 ' ' Estates. Is there any analogous rule with respect to 
 personal estate ? 
 
 Q. — What is the principle of Merger ? Give a 
 reason for the co-existence in the same person of "an 
 estate tail," and the inimediate reversion in fee." 
 
 Q. — An estate is limited to A. for life, remainder to 
 B.'s sons in tail, remainder to C. in fee. In how many 
 ways could A. and C. under the old law have dealt
 
 245 
 
 with their respective estates, so as to destroy the 
 contingent remainder to B.'s sons. 
 
 Q._-Wrhat is the effect of the 8 and 9 Vic, c. 106, 
 8. 9, as to the merger or suiTcnder of reversions 
 expectant on leases ? 
 
 Q. — To what extent has the power of alienating 
 contingent and executoiy interests by deed or will 
 been enlarged by recent legislation ? An estate is 
 limited to A. for life, remainder to the right heirs of 
 G. S., who is living at the time the limitation takes 
 effect. G. S. dies, leaving E. his eldest son and heir 
 at law ; B. devises his contingent interest to C. ; A. 
 dies. Is the devise by B. valid at the present day ? 
 
 Q. — The vendor and purchaser of a reversion respec- 
 tively labour under disadvantages which materially 
 decrease the value of a reversion ; what are those 
 disadvantages ? and how can they or either of them be 
 overcome by any, and if any, what means ? 
 
 Q,. — Explain the difference between remainders, 
 springing uses, and executory de^•ises. Land is devised 
 to tnistees for 500 years, remainder to the fii'st and 
 other sons of A. in tail, remainder to B. in fee. A. 
 has no son at the testator's decease ; is the limitation 
 to A.'s sons valid ? 
 
 Q. — An estate is limited to A. for life of C, remain- 
 der to B. for life, remainder to D. in fee. A. surrenders 
 to B. ; B. dies, living C. Does D.'s remainder vest in 
 possession ? 
 
 Q. — "A fee cannot be limited on a fee." How do 
 you reconcile tliis doctrine with the validity allowed 
 to limitations in a fee on a contingency with a double 
 aspect ? 
 
 Q. — An estate is granted by deed to A. for life, with 
 remainder to his heirs male. What estate does A. take 
 under the grant ? 
 
 Q. — Explain and illustrate the difference between a 
 conditional limitation and a contingent remainder. 
 
 Q. — Prior to 1834, what power of alienation at 
 law had the owner of an executory or contingent fee ? 
 
 Q. — A., by his will, gives bis real and personal
 
 246 
 
 estate (the real estate eompiisirig both legal and 
 equitable interests in land) to his wife for Hfe, and 
 after her death to his children, who shall attain 21, in 
 equal shares. At A.'s death he has seven children, of 
 whom John has alone attained 21. At the widow's 
 death two others, William and Maiy, have attained 
 21, the rest being minors. John dies intestate in the 
 life-time of his mother, the widow. At the death, 
 who are entitled to the testator's real and personal 
 estate ? 
 
 Q. — What is the Common Law rule as to covenants 
 running with the reversion, and what important 
 variation of the rule was made by an early act of 
 parliament ? 
 
 Q. — Was the law with respect to the destructibility 
 of contingent remainders applicable to contingent 
 remainders in copyhold hereditaments, or to contingent 
 remainders in equitable estates in freehold heredita- 
 ments ? Give the reasons for your answer. 
 
 Powers. 
 
 Q,. — How many kinds of powers are there ? Give 
 examples of each kind. 
 
 Q. — A tenant for life, with a power of leasing in 
 possession, desires to raise a sum of money upon 
 the security of his Hfe interest. How is the mortgage 
 usually framed so as to prevent any question arising as 
 to the future exercise of the power ? 
 
 Q. — Has the act for the Abolition of Fines and 
 Recoveries made any alteration in the exercise of the 
 powers given to married women ? Land is devised to 
 such uses as A., a married woman, shall appoint, and 
 in default of appointment to her in fee. Can A. make 
 a good title to a purchaser without the concurrence of 
 her husband ? 
 
 Q. — Wliat is the origin and nature of the usual 
 powers of sale and exchange inserted in settlements of 
 real estate ? How are they framed so as to avoid any 
 infringement of the rule against perpetuities ?
 
 247 
 
 Q. — State the general principle, as laid clown in 
 Alexander v. Alexander, npon -^^hich the courts deal 
 with the excessive execution of powers, and give a 
 few examples of cases in which the courts have 
 supported the execution of powers where the donee 
 has exceeded the tenns of his power. 
 
 Q. — Explain the principle on which powers of re- 
 vocation and new appointment operate ? 
 
 Q. — ^Tiat is the difference in the mode of their 
 operation between — 1. Common Law powers and 
 statutory powers not by way of use; 2. Powers 
 operating under the Statute of Uses ? How would 
 limitations of use, affecting the legal fee contained in 
 instruments exercising each of those classes of powers, 
 take effect and be construed ? 
 
 Q. — ^\Tiat is meant by a power operating under the 
 Statute of Uses ? Illustrate your answer by examples, 
 and point out the difference between general and 
 particular powers of appointment. 
 - Q. — An estate is conveyed to such uses as B. shall 
 appoint, and in default of appointment to the use of 
 C. in fee. B. appoints to A. for Kfe, with remainder 
 to A.'s first and other sons in tail. Wliat difference 
 does the appointment make in the estate which C. 
 takes in the land? 
 
 Q. — "Wliat kind of power is that by which a married 
 woman is enabled to dispose of property given to her 
 separate use ? 
 
 Q. — The donee of a general power appoints to his 
 son A. for life, \Wth remainder to liis (A.'s) sons as 
 tenants in common in fee, A. being imbom at the 
 time the power was created. Is this a valid limitation 
 of the property? Would it make any and what 
 difference if the power were created by deed or will ? 
 
 Q. — What act on the part of a tenant for life, who 
 has a power of leasing in possession, will have the 
 effect of suspending or extinguishing the power? 
 
 Q. — "WTiat is the object of giving to a tenant for life, 
 in a settlement of real estate, a power of leasing ? 
 
 Q. — An estate is settled to such uses as A. shall
 
 248 
 
 appoint, and in default of appointment to uses in strict 
 eettlement. A. appoints the fee, reserving a power of 
 revocation alone. Will the exercise of this latter 
 power have the effect of restoring the original power. 
 
 Q,. — If the donees of a power wishes the discretion 
 in the donees to be transmissible, what is the best form 
 of such a power? 
 
 Q,. — If a particular power includes objects beyond 
 the pei-petuity line, is it under any, and, if any, what 
 circumstances vaKd ? Is there any, and, if any, 
 what variation in the rule of construction in this 
 respect when applied to general powers ? 
 
 Q. — Give the different rules by which the coui-ts are 
 governed in construing — 1. Powers of sale in settle- 
 ments; 2. Trusts for sale; 3. Powers of sale in 
 mortgages as to their exercise by the surviving donees 
 or trustees by the real or personal representatives, or 
 the assignees of such donees or trustees. 
 
 Q,. — By marriage settlement an estate is limited to 
 such uses as A. shall appoint in favour of his children 
 or more remote issue. An appointment is made in 
 favour of A.'s son for life, with remainder to the 
 children of A.'s son in equal shares. Is the appoint- 
 ment valid to its full extent. If not, how would you 
 modify it so as to make it good. 
 
 Q,. — An estate is devised to trustees for a term of 
 years upon trust to sell, and out of the proceeds of the 
 sale to raise a sum of money; subject thereto the 
 estate is de\dsed to A. and his issue in strict settlement. 
 Are the trustees justified in raising the sum required 
 by mortgage. 
 
 Q. — A fee simple is limited to a pui'chaser and his 
 heirs to such uses as the purchaser shall appoint, and in 
 default of appointment to the use of the purchaser, his 
 heii's and assigns. Can the power so given be executed 
 by the purchaser ? State the different opinions on the 
 point, and give your reasons for adopting one of those 
 opinions. 
 
 Q,. — \\Tiat is the principle adopted by the courts in 
 construing instruments exercising powers in those cases
 
 249 
 
 in wliich some unauthorised condition is annexed to 
 the gift? 
 
 Q. — In what cases, and under what circumstances, 
 will the doctrine cy-prcs or approximation be applied 
 to the construction of instruments exercising powers ? 
 Show the operation of the rule in some particular 
 cases. 
 
 Q. — In what cases and in whose favour will equity 
 relieve against the consequences of the defective 
 execution of powers ? What are the provisions of 22 
 and 23 Vic, c. 35, in this respect? 
 
 Q,. — What is now the law with respect to illusory 
 appointments ? A., who has a power to appoint 
 £20,000 amongst his childiTU (of whom he has five) 
 appoints one shilling each to four of such chikben, and 
 all the rest of the £20,000 to the fifth. Is this a 
 a valid appointment of the £20,000 ? 
 
 Q. — Into what classes were powers divided by Hale, 
 C. B. in Edwards v. Slater ? Give examples of eacL 
 of those classes of powers. 
 
 Q. — May any, and, if any, which of those powers 
 be suspended or extinguished, and by what means ? 
 
 Incorporeal Hereditaments. 
 
 Q. — Will tithes without being expressly named pass 
 as appurtenant to the land out of which they issue ? 
 Suppose the land and the tithes unite in one person in 
 the same right, will the tithes merge in the fee, or is 
 any other, and, if any, what process necessary to their 
 merger ? 
 
 Q. — Is the right of presentation to a benefice when 
 detached from the advowson real or personal estate ? 
 In the case of a mortgage of an advowson, or of the 
 bankniptcy of the owner of a next presentation, to 
 whom in each case does the light of presentation 
 belong ? 
 
 Q- — ^\Tiat were the propositions affirmed by the 
 court in the case of Suiy v. Pigott ? 
 
 Q. — When are hereditaments said to lie in grant,
 
 250 
 
 and "when in livery ? Has there been any alteration 
 made in this respect by recent legislation ? 
 
 Q. — Distinguish between profits a prendre and 
 easements. For what period must a vendor prove 
 uninterrupted enjoyment in order to show a title to 
 either kind of property under the 2 and 3 W. 4, c. 71 ? 
 
 Q. — ^Tiat is an advowson ; and what length of title 
 must be fiu-nished by the vendor of an advowson on an 
 unrestricted contract for sale. 
 
 A. — A., the owner of the fee of a close of land, by 
 deed grants to B. " a right of way " over that close ; 
 may B. take along with him horses, cattle, or vehicles, 
 any or which of them over A.'s close ? 
 
 Q. — What is meant by emblements ? How does the 
 doctrine relating thereto affect tenant for life, for 
 years, and at will ? 
 
 Q. — How many kinds of waste are there ? Is a 
 tenant in tail punishable for waste ? 
 
 Q. — Original grants are made of two rent-charges 
 issuing out of fee-simple estates, one simply to A. in 
 tail, the other to B. in tail, with remainder to C. in fee. 
 A., in the one case, and B., respectively execute and 
 enrol disentailing assurances in their own favour of 
 their respective rent-charges. What is the result in 
 each case ? 
 ^ P » Q- — State the different kinds of advowsons, and in 
 what manner the churches, when vacant are filled. 
 To what extent are resignation bonds legal ? 
 
 Q. — Define an easement. In how many ways may 
 an easement be extinguished respectively ? 
 
 Q. — What is the difference between rent and interest 
 as to the mode of their accruer ? At what time of the 
 day fixed for its payment does rent fall due ? Suppose 
 an owner in fee dies at 10 a.m. on the rent day, 
 to whom would the rent falling due on that day 
 belong. 
 
 Q. — State shortly the effect upon rents and annuities 
 of the two Apportionment Acts, 11 Geo. 2, c. 19, and 
 4 and 5 W. 4, c. 22. Show how the operation of the
 
 251 
 
 lastly-named act lias been restricted by reported 
 decisions. 
 
 Q. — In what manner must an casement be created at 
 law in favour of B. over the land of A., and is there 
 any difference between the rules of courts of law and 
 equity in this respect ? 
 
 Q. — How is an annual rent-charge in fee best 
 created ? Where is the sale of land, in consideration of 
 a perpetual rent-charge most commonly adopted ? 
 "What was the effect, until lately, of a release from the 
 rent-charge of part of the land subject thereto, and 
 what is now the law in this respect ? 
 
 Copyholds. 
 
 Q. — How are copyhold estates passed from a vendor 
 to II purchaser ? State which are the essential and 
 fonnal parts respectively of the process. 
 
 Q. — What are the several riglits generally of the 
 lord and copyholder with respect to the timber and 
 minerals upon and under copyhold property ? 
 
 Q. — On the admittance of joint tenants of copyholds 
 held of arbitraiy manors, what fine is payable, and 
 how is the amount of the fine ascertained ? 
 
 Q. — How were entails of copyholds (held of manors 
 in which there is a custom to entail) barred before 
 1834, and how are entails in such copyholds now 
 barred ? 
 
 Q,. — What power of leasing has a copyholder ? Do 
 the statutes relating to uses and dower respectively 
 apply to any, and, if any, to what extent to copy- 
 holders ? 
 
 Q. — Wliat is a reputed manor ? Prior to what time 
 must the origin of all copyhold manors be referred, 
 and why ? 
 
 Personal Property. 
 
 Q. — To what maximum number are the legal owners 
 of a British ship limited ? ^\^lat is the effect of an
 
 252 
 
 omission from the registry of the name of any owner ? 
 and what is necessary to the completion of the title of 
 a mortgagee of a ship or of any share therein ? 
 
 Q. — What interest must exist to give validity to an 
 insurance by one person on the life of another ? 
 
 Q. — On an assignment for valuable consideration of 
 a policy of assurance of stock in the funds, standing in 
 the names of trustees, of a legacy, or of a debt, what 
 should be done to perfect the title of the assignee ? 
 and is what you say should be done a necessity, or is it 
 only advisable as a precaution against any, and what 
 events ? 
 
 Q. — "What act was lately passed as to the distribution 
 of the personal estate of an intestate ? What is the 
 effect of that act ? 
 
 Q. — A. being indebted to B. in a sum of money 
 insures his (A.'s) life to the amount of the debt in the 
 name of B. as security; afterwards A. pays B. the 
 debt ; B. retains the policy and continues to pay the 
 premiums. Subsequently A. dies. Whiat are the 
 respective rights of B., and the legal representatives of 
 A., in respect of the policy ? 
 
 Title hj Alienation. 
 
 Q. — Give the most important of the enactments of 
 the statute 8 and 9 Vic, c. 106, to amend the law of 
 real property. 
 
 Q,. — Trustees under a power of sale enter into a 
 written contract for sale and die before executing a 
 conveyance. Can the purchaser obtain a good title 
 from any, and if any, what persons ? 
 
 Q. — Trace and explain the changes in the common 
 form of transfer of coi'poreal hereditaments from a 
 period prior to the passing of the Statute of Frauds 
 down to the present time. 
 
 Q. — A purchase is made of a piece of land, or of a 
 house, and nothing is said about tenure. "VNTiat is the 
 tenure assumed to be ? 
 
 Q. — What lonirth of title can a pui'chaser require
 
 253 
 
 his vendor to show on an unrestricted contract for the 
 purchase of fee simple lands? Has the Statute of 
 Limitations (3 and 4 Wm. IV., c. 27) made any 
 difference in this respect ? 
 
 Q,. — On an unrestricted contract for the sale of land 
 is the vendor or the purchaser in the most favourable 
 position ? Give the reasons for your answer. In the 
 preparation of a common purchase agreement on the 
 sale of land, what are the principal points to be 
 guarded against by a person advising on behalf of the 
 vendor. 
 
 Q. — What is the doctrine of Courts of Ecjuity as laid 
 down in Macreth v. Symmons, with respect to the lien 
 of a vendor for unpaid purchase money ? 
 
 Q — The acceptance by the vendor of security for 
 unpaid purchase money in some cases will, in others 
 will not, deprive the vendor of his lien. Give examples 
 of each class of cases. 
 
 Q. — Give the heads of the common conditions of 
 sale produced by the vendor on the offering of a fee 
 simple estate for sale by auction, in several lots. On 
 the sale of leaseholds for years, what is the most 
 necessary and important special condition of ,3ale ? 
 
 Q. — Wliat exceptions are there to the general rule 
 that all interests in land must be created or evi- 
 denced by wi'iting ? 
 
 Q. — In what respects has the Power of Alienation by 
 deed or will been extended by recent legislation or 
 judicial decision ? 
 
 Q. — Statutes have been lately passed affecting 
 agricultural fixtures and emblements respectively, and 
 a third as to mortgage debts or devised property. 
 What is the effect of each of those thi-ee statutes, and 
 what was the prcAious state of the law on those points 
 respectively ? 
 
 Q. — A purchaser on an unrestricted contract buys 
 land, which tiu-ns out to be subject to titlies, land-tax, 
 and quit-rents. In respect of any, and if any, which 
 of these payments may the purchaser require compen- 
 sation from the vendor ?
 
 254 
 
 Q. — What are the rolativc rights of vendor and pur- 
 chaser in cases where sales and purchases are made 
 subject to and therefore witli notice of life estates, 
 annuities, or leases, wliich turn out to be non-existent, 
 or to have been obtained from the vendor by fraud ? 
 
 Q,. — Suppose a purchaser to pay part of his purchase 
 money before the execution of his conveyance by the 
 vendor, has the purchaser any, and if any, what 
 security? 
 
 Q. — In a transaction between vendor and piu'chaser, 
 what is the point of time at or before which it is 
 important to prove notice to a puixhaser of an incum- 
 brance upon the purchased property ? Suppose a pur- 
 chaser to receive notice after the point of time last 
 referred to, what are the pui'chaser's rights as to 
 getting in prior incumbrances, and thereby improving 
 his condition ? 
 
 Q,. — Give a definition of constructive notice. Under 
 what circumstances is a client bound by notice to his 
 counsel or solicitor ? 
 
 Q. — Give the heads of a common contract between 
 A., vendor, and B., pui'chaser, for the sale and pur- 
 chase of an acre of fee simple land. 
 
 Q,. — On an um-estricted contract for the pui'chase oi 
 land, what are the iTiles as to the custody and 
 covenants for production and fiuTiishing copies of deed 
 and evidences of title, and as to the costs of thos( 
 covenants and copies respectively. 
 
 Q. — In what cases, if any, may a good title to land 
 be obtained against legal and equitable incumbrances, 
 or either of them, under the following circumstances :— 
 1. Where the vendor has notice; 2. Where the pur 
 chaser has notice ; 3. Where both vendor and purchasei 
 have notice ? 
 
 Q. — Land occupied by a tenant is piu'chased. C 
 what rights of the tenant is it assumed that the tenanc_ 
 is notice to the pm'chaser ? 
 
 Q. — State and explain the niles with respect to th 
 several records and registers of deeds, crown debt; 
 legal and equitable proceedings, judgments and decree
 
 255 
 
 against owners of land, being or not being notice to a 
 purchaser, and show what are the advantages and dis- 
 advantages to a purchaser of searching or omitting to 
 search those records and registers respectively. 
 
 Q. — Give concisely the heads of a common contract 
 for the sale by A. to B. of a house of the tenure of 
 leasehold for years. 
 
 Q,. — A grant is made by deed of a, mill or factoiy, 
 nothing being said about fixtures. What kind, if any, 
 of machinery or fixtm'es would pass to a grantee. 
 And if the gi-ant were by way of mortgage, would 
 registration xinder the recent Bills of Sales Act be 
 necessary ? 
 
 Q. — Beal estate is settled on a father for Hfe, 
 remainder to his eldest son in tail. The father and 
 son join in an em-olled deed, barring the entail and 
 limiting the estate to the father in fee. The father 
 aftei-wards sells to a purchaser. Can the father make 
 a good title, or would you make any, and, if any, 
 what requisition on behalf of the purchaser ? 
 
 Q. — Upon what principle do Coiu'ts of Equity pro- 
 fess to act in deciding whether those coiu'ts will or 
 will not decree the specific performance of contracts ? 
 
 Q. — Will Courts of Equity decree specific perfonn- 
 ance of contracts for the sale and purchase of any, 
 and, if any, what kinds of property, other than real 
 property or chattels real. 
 
 Q. — What are the difficulties relating to title on the 
 part both of the vendor and purchaser attending the 
 sale and purchase of an estate in reversion, and how 
 are those difficulties on each side best met or removed ? 
 
 Q. — What damages at law can be recovered from a 
 vendor by a purchaser: — 1. "WTiere the contract has 
 been rescinded ; and 2. "Wliere the contract is affimied ? 
 
 Q. — Are there any circumstances in which, in cases 
 of suits for specific performance, the rule that the 
 unsuccessful litigant pays the costs of both sides is 
 varied or modified ? 
 
 Q. — ^Tiat relief is granted by or imder 22 and 23
 
 256 
 
 Vic, c. 35, to a lessee in respect of breaches of a 
 covenant to insure ? 
 
 Q. — Under a charge of debts in a will dated in the 
 present year (1863), who, under the provisions of the 
 last-named act, can make a good title to land devised 
 by that will in the several modes set out in the act 
 referred to ? 
 S. i Q. — A., the owner of fee simple land, lets it to B. 
 on a building lease for 800 years, at an annual rent of 
 £20, which rent is known as a ground rent. A. sells 
 the ground rent to X. What is the proper form of 
 conveyance from A. to X. ? 
 
 Q. — Tinder the circumstances stated in the last 
 question, B. underlets the demised land for 799 years, 
 at an annual rent of £100, and sells this rent (called 
 " an improved rent ") to Y. What is the proper form 
 of assignment from B. to Y. 
 
 Q,. — Will verbal statements of the vendor or his 
 auctioneer at an auction, varying from or qualifying 
 the signed particulars and conditions, bind or affect 
 the purchaser to any, and, if any, what extent ? 
 
 Q,. — Show to what extent, and how and by what 
 means the real estate of a testator or intestate is now 
 made liable to the payment of his debts, of whatever 
 natiu'e. 
 
 Q. — In what cases will a power of sale arise in 
 executors by implication? A testator, after charging 
 all his real and personal estate with payment of his 
 debts, devises his real estate to A. in fee, and appoints 
 B. his executor. The personal estate is insufficient for 
 the payment of the testator's debts. Can B. sell the 
 real estate. Cite authorities. 
 
 Q,. — Under what circumstances will a Common Law 
 power of sale survive ? Is there any statute affecting 
 this point ? 
 
 Title hy Banlcruptcy. 
 
 Q. — What persons are subject to the Bankrupt Laws? 
 State a few of the acts or omissions which constitute
 
 257 
 
 acts of bankruptcy. What dealings with a person 
 who subsequently becomes bankrupt are protected by 
 the provisions of the Bankrupt Act ? 
 
 Q. — To what extent is a peer or member of the 
 House of Commons affected by the Bankrupt Laws ? 
 
 Q. — "Within what period after the act of bankruptcy 
 must the petition for adjudication be filed ? 
 
 Q. — In what way are the copyhold estates of a 
 bankrupt disposed of, and dealt with under the pro- 
 visions of the Bankruptcy Acts ? 
 
 Q. — Are there any exceptions to the enactment that 
 all a bankrupt's property vests in his assignees on their 
 appointment ? 
 
 Q,. — A bankrupt is possessed of a lease, and of an 
 agreement for a lease : what proceedings should be 
 taken by the lessor that he may put himself in the best 
 position with respect to such lease or agreement ? 
 
 Q. — Two sums of £5,000 each, belonging to the 
 intended husband and wife respectively, are settled by 
 an ante-nuptial settlement upon the husband for life or 
 until his bankrujitcy, and, subject thereto, upon trusts 
 in favour of the wife and children. To what extent 
 are those trusts valid ? 
 
 Descent. 
 
 Q. — State the rules according to which, at the 
 present day, the heir to an estate in fee simple is to be 
 ascertained on the death of his ancestor, and point out 
 the alterations in the Law of Descent effected by the 
 3 and 4 W. IV., c. 106 ? 
 
 Q,. — To what extent was the half-blood admitted 
 under the old Law of Descent ? What alterations in 
 the Law of Descent have been effected on this subject 
 by the 3 and 4 W. IV., c. 106 ? 
 
 Q. — A man has a son. A., and two daughters, C. and 
 D. A. purchases an estate in fee and dies intestate, 
 and mthout issue. To whom does the estate descend, 
 and why ?
 
 258 
 
 Q. — What is the difference between an heir apparent 
 and an heir presumptive ? 
 
 Q. — From what person was the descent of an inherit- 
 ance traced under the old law. 
 
 Q. — In ascertaining the root of descent, has the 
 burden of proof been shifted, and, if so, in what 
 manner ? 
 
 Q. — A purchaser of an estate in fee simple dies 
 intestate, leaving four daughters, and no other child or 
 issue. One of these daughters dies leaving an only 
 son. To what part of the whole estate is that son 
 entitled ? State what difference of opinion exists on 
 the point, and give reasons for preferring one of those 
 opinions. 
 
 Q. — The purchaser of an estate dies intestate, 
 leaving two daughters ; a daughter dies intestate 
 leaving a son; what is the nature of the son's tenancy? 
 
 Q. — Is the doctrine of descent founded on common 
 or statute law ? 
 
 Q. — In what respect is the 3 and 4 W. IV., c. 106, 
 altered by the 22 and 23 Vic, c. 35 ? 
 
 Q. — A father dies intestate leaving him surviving, 
 the following issue, and no more, namely, two 
 daughters, one grand-daughter (the only child of a 
 deceased only son), and one grandson (the only child 
 of a deceased daughter) : to whom will the real and 
 personal estate of the father belong ? 
 
 Title ly Escheat and Forfeiture. 
 
 Q. — Show how a remainder and a reversion respec- 
 tively are affected by the law of escheat. 
 
 Q. — What is the effect of a comdction for treason, 
 murder, or any other felony upon the real and personal 
 property respectively of the felon ? 
 
 Q,. — Mention the causes that led to the introduction 
 of the rule against perpetuities, and the restrictions 
 that it has imposed upon the power of alienation. 
 
 Q. — Can an inalienable interest in property be given
 
 259 
 
 by any, and, if any, what means to or in trust for a 
 male? 
 
 Q. — State the general purpose and policy of 9 G. II., 
 c. 36, and point out the restrictions thereby imposed 
 \ipon the alienation of land for charitable purposes. 
 
 Q. — One of the suggestions for the amendment of 
 the law of mortmain is " that the unrestricted privilege 
 already possessed by testators of disposing of their 
 pure personalty for charitable purposes should be ex- 
 tended to personalty savouring of the realty." What 
 is your opinion of the policy of this suggestion ^ 
 Illustrate your answers by cases. 
 
 Q. — Against what evils were the Statutes of 'Xfort- 
 main directed ? Does the statute of 9 G. II., c. 86, 
 fall, strictly speaking, within that class of statutes ? 
 Mention the different descriptions of personal property 
 that are included therein with any modern decisions on 
 this point. 
 
 Q. — "What is essential to the validity of a conveyance 
 as against creditors under the 13 Eliz., c. 5. State the 
 general principle deducible from the authorities as to 
 the extent of indebtedness necessary to be proved 
 in order to set aside a voluntary conveyance as against 
 existing and subsequent creditors. 
 
 Q. — What are charitable — and what are superstitious 
 uses ? Give a few examples of each class. 
 
 Q. — What property may be given to a charity by 
 will? 
 
 Q. — Explain the doctrine of Cy-pres with respect to 
 charities. Name a few of the institutions and corporate 
 bodies exempt from the operation of the law of mort- 
 main. 
 
 Q. — ^What is attainder, and how and when does it 
 arise ? What is the difference between escheat and 
 forfeiture ? 
 
 Q. — Wliat are the two causes of, and what is liable 
 to escheat ? 
 
 Q. — In case of attainder for treason, or felony, what 
 are the respective rights (as to the real and personal
 
 260 
 
 property of the traitor or felon) of tlie crown, and tlie 
 immediate lord of the fee ? 
 
 Q. — State the rule against perpetuities. By what 
 governing principle, and at what point of time, is the 
 validity of limitations with respect to the perpetuity 
 rule tested ? If a gift is made to the members of a 
 class, some of whom may, and others may not, be 
 within the perpetuity line, how is such a gift construed ? 
 
 Title under the Statute of Limitations and ly 
 Fre&crijytion. 
 
 Q. — Was any fixed period prescribed previous to the 
 late Statute of Limitations for bringing a suit in equity ? 
 Has the act introduced any alteration ? 
 ^ Q. — In what manner, and to what description of 
 property could a title by prescription have been 
 formerly acquired at the common law ? Mention the 
 alterations introduced by statute, and the extreme 
 periods during which rights of way must now be 
 enjoyed, so as to render them indefeasible. 
 
 Q. — Explain and illustrate the difference between 
 positive and negative prescription. 
 
 Q,. — From what time does the period of limitation 
 prescribed by the 3 and 4 "Wm. lY., c. 27, begin to 
 run, where the claimant is a reversioner or remainder- 
 man expectant on an estate tail ? Land is limited to 
 A. for life, remainder to B. in tail, remainder to C. in 
 fee. B. disentails and sells to a purchaser without 
 A's. consent. When does the statutory period begin 
 to run as against C. ? 
 
 Q. — What is the difference between a right by 
 custom and a right by prescription ? 
 
 Q. — By what length of possession and with what 
 savings in the case of disabilities may a good title now 
 be^obtained to any land or rent ? Is it necessary that 
 such possession should be adverse ; and in this respect 
 whatsis the difference between the present law, and 
 the law as it stood before the passing of the Act 3 and 
 4 Wm. IV., 0. 27 ?
 
 261 
 
 Q. — TLow many years' arrears of rent or interest 
 may be recovered against the land ? Suppose a mort- 
 gagee under a mortgage in the ordinary form were to 
 allow the money to continue unpaid for nineteen years? 
 What (if any) would be the mortgagee's remedies for 
 such arrears of interest ? 
 
 Q. — In the cases of express trusts and implied trusts 
 respectively, when does the time which is to form the 
 statutoiy bar begin to run in favour of the person in 
 possession ? 
 
 Q,. — Give the most important enactments of the 
 Statute of Limitations (3 and 4 Wm. IV., c. 27) with 
 respect to land, and show how the new law differs 
 from the old. 
 
 Parties to Conveyance. 
 
 Q,. — How and by what means is a corporate body 
 enabled to hold land? Give the words of limitation 
 in the conveyance of fee simple estates to a corporation. 
 
 Q. — By what means, and with what superadded 
 ceremonies, is the estate or interest in land of a married 
 woman transferred or released? In what way may 
 land be limited, so that a married woman can dispose 
 of the legal and beneficial estates therein without the 
 trouble and cost of the course of proceeding above 
 referred to ? 
 7oh Q- — Can a married woman disclaim or elect by deed, 
 and how must such her desire be effected ? Is the 
 deed of a married woman affecting freehold property 
 (though not exercising a power) good in any, and what 
 cases without the concurrence of her husband ? and 
 what proceedings must be taken to perfect such a 
 deed? 
 
 Q. — What is the extent of the estate and interest 
 of a husband in his power over the following property 
 of his wife: 1. Her Fee Simple estates; 2. Her 
 Equitable Reversionary Glioses in Action not settled 
 to her separate use. 
 
 Q. — What are the rights and the powers of transfer
 
 262 
 
 of the husband and wife, or either of them over the 
 following property of the wife : 1 . Her personal 
 chattels ; 2. Her paraphernalia ; 3. Her legal and 
 equitable choses in action ; 4. Her legal and equitable 
 terms of years. 
 
 Q. — What are the provisions of the statute 20 and 
 21 Vic, c. 57 ? 
 
 Q. — Real and personal property of the wife may be 
 so settled as not to be saleable or transferable during 
 the coverture by the husband and wife, or either of 
 them. How would you frame such a settlement ? 
 
 Q. — By what process, and with what accompanying 
 ceremony could a married woman before 1834 have 
 passed or released her interest in land ? 
 
 Q. — Pee simple estates are duly conveyed to and 
 to the use of a trustee in fee, upon trust for A. B., 
 a married woman, in fee, for her separate use. What 
 power of disposition has A. B. over the equitable fee ? 
 
 Q. — Assuming generally a capacity to buy and sell 
 real estate, give a few of the most usual causes of 
 incompetency, and state the reasons for such incom- 
 petency. 
 
 Q. — Subject to what risks does a person who is 
 disqualified but not prohibited from purchasing real 
 estate, hold the real estate purchased by him. 
 
 Q. — In what cases, and under what circumstances, 
 may the contracts of a married woman for the sale of 
 real estate be enforced against her in equity ? 
 
 Q. — What estate or interest in land in England can 
 be held legally or beneficially by an alien ? 
 
 Q,. — By what process, and under what statute can 
 an alien make himself capable of holding land in 
 England? 
 
 Deeds. 
 
 Q. — What, if any, is the efiect upon the deed itself 
 of the want of a stamp, or of a proper stamp, upon 
 such deed ? 
 
 Q. — What is now necessary to the validity of a 
 mortgage or bill of sale of personal chattels ?
 
 263 
 
 Q. — Two acts have been lately passed affecting 
 annuity deeds. What is the result of the povisions 
 of those acts ? 
 
 Q. — Give shortly the covenants usually entered into 
 by the lessor and lessee respectively of a lease at rack- 
 rent of a dwelling-house in a large town. 
 
 Q. — What are tortious and innocent conveyances 
 respectively? Has any assurance at the present day 
 a tortious operation ? Give the authority for your 
 answer. 
 
 Q. — A\Tiat form of deed would you select as the best 
 for carrying out an exchange or partition of land ? 
 Give the reasons for your answer. 
 
 Q. — How can land be effectually given to a charity, 
 and is there in the so-called Mortmain Act any, and, if 
 any, what provision personal to the donor, a fulfilment 
 of which is necessary to the gift ? Must the requisite 
 lastlj^ referred to, with respect to the donor, be 
 fulfilled with respect to the grantor, in the case of a 
 bond fide sale by him, to a charity for a valuable 
 consideration ? 
 
 Q. — A. conveys fee simple hereditaments to B. in 
 fee ; A. mortgages in fee similar hereditaments to C. ; 
 A. assigns leaseholds for years to D. Give the heads 
 of the covenants for title entered into by A. in each of 
 these transactions, and show how those covenants 
 differ from one another. Are any, and, if any, what 
 covenants required from D. ? 
 
 Q. — A. purchases a portion of B.'s estate in fee 
 simple, and covenants with B. that neither he or his 
 assignees wiU build upon the land conveyed except in 
 a particular manner. Explain fully the natui'e and 
 extent of the equitable doctrine which enforces from a 
 purchaser for valuable consideration from A. the per- 
 formance of the covenant. Cite authorities. 
 
 Q — Is any, and what ceremony necessary to the 
 perfecting of a bargain and sale ? 
 
 Q. — Is any consideration nccessaiy to the validity of 
 a deed at common law ? What consideration is neces- 
 sary to the validity of deeds operating under the Statute
 
 264 
 
 of Uses with and without transmutation of possession 
 respectively ? And explain the reason why a use 
 destitute of consideration arises with, but not without 
 transmutation of possession. 
 
 Q. — There are a few cases in which technical words 
 are absolutely necessary in assurances of real estate. 
 What are those cases ? 
 
 Q. — Are there any, and, if any, what words which 
 will now imply covenants for title in conveyances or 
 leases of land ? How is this implication rebutted ? 
 
 Q. — A. sells and conveys to B. the following estates 
 respectively. 1. The equity of redemption of a fee 
 simple estate. 2. A leasehold estate for years at an 
 annual ground rent. Give the heads of the covenants 
 usually entered into by A. and B. resjjectively in each 
 of the above deeds of transfer. 
 
 Q. — E. and P. devisees in trust for sale of fee simple 
 estates sell and convey those estates to X. in fee. 
 Give the heads of the covenants entered into by the 
 parties to the deed. 
 
 Q. — What are the essential parts of a deed ? Ex- 
 plain the difference between a deed and a contract. 
 
 Q. — The owner of an equity of redemption, subject 
 to a mortgage in fee, contracts to sell to a purchaser 
 who pays off the mortgage debt. Draw up a scheme 
 of the conveyance with the proper covenants. 
 
 Q,. — Give examples of cases in which deeds inopera- 
 tive to pass the fee simple in the manner originally 
 intended by the framers have been held operative in 
 another character. 
 
 Q. — Give the heads of the covenants for title by the 
 vendor and mortgagor respectively usually inserted in 
 a conveyance and mortgage respectively of fee simple 
 lands. Point out the difference between the two sets 
 of covenants. 
 
 Q. — Is the signature of a party to a deed, in addition 
 to his seal, necessaiy to the due execution of that deed 
 by him ? How does a corjioration execute a deed ? 
 Is the presence or attestation of one witness or more
 
 265 
 
 necessary to tlie validity of a deed in any, and, if any, 
 what cases ? 
 
 Q. — After a lessee has assigned the demised tenement, 
 what are his liabilities, under his express and implied 
 covenants respectively, with regard to breaches 
 committed both before and after such assignment ? 
 
 Q. — To what extent do the benefit and burden of 
 covenants relating to the land respectively entered into 
 with the owner of the land, and hy the owner of the 
 land run -n-ith the laud at law ? And are the equita- 
 able rules in this respect identical with those at law? 
 
 Q. — The donee of a general power of appointment 
 conveys to A. in fee, and enters into the usual covenants 
 for title. Is a purchaser from A. entitled to the benefit 
 of these covenants? 
 
 Q. — Give the rules laid down in Spencer's case, with 
 respect to the forms of the lien parts of the covenants 
 (in a demise of lands) relating to things existent and 
 non-existent at the date of the covenants, and with 
 respect to the liabilities of the covenantor and his 
 assigns under these covenants respectively. Give ex- 
 amples in application and illustration of the rules. 
 
 Q,. — Real estate is settled on A. for life, remainder 
 to B. in fee. During A.'s life time, B. scUs his 
 remainder in fee in the estate in question to C. In 
 what position is C. placed in case he should sell to D ? 
 
 Q. — Who are the necessary parties to a deed bai'ring 
 an estate tail created by orchuary mamage settlement ? 
 What additional coremony is necessary for the per- 
 fecting of the disentailing ? 
 
 Q. — A mortgagee in fee dies intestate. WTio are 
 the necessary parties to a reconveyance of the mort- 
 gaged property, or a transfer of the secuiity, and for 
 what reasons ? 
 
 Q. — AVhat is the object of inserting covenants for 
 title in a purchase deed ? An estate is conveyed to A. 
 to uses to bar dower. A. appoints to a purchaser in 
 fee. Will A.'s covenants for title run with the land ? 
 Give your reasons. 
 
 Q. — In what cases, and to what extent, is the 
 
 L
 
 266 
 
 absence of a valuable consideration fatal to the validity 
 of a deed of conveyance ? Can the apparent want of 
 such consideration on the face of the deed be supplied 
 by extrinsic evidence ? 
 
 Q. — Mention some of the most prevalent rules for 
 the construction of written instmments. Is the rule 
 in Shelley's case one of construction ? 
 
 Q. — A. seised in fee sells a portion of his estate to 
 B. and covenants to produce the title deeds. A. 
 afterwards sells the residue of the estate to C. and 
 hands over the deeds to him. Has a pui'chaser claim- 
 ing under B. any or what right at law or in equity as 
 against A. or C. to compel the production of the deeds ? 
 
 Q. — A trader by deed conveys and assigns all his 
 personal estate to trustees for the benefit of his 
 creditors. In what manner, and with what accom- 
 panying formalities, should such a deed be perfected 
 so that the property of the trader may be the most 
 quickly available for the purposes of that deed ? 
 
 Q,. — Prior to the year 1834, what were the different 
 modes of conveyance of freehold estates at the Common 
 Law, and under the Statutes of Uses by instruments 
 inter vivos ? "WTiich of these modes may still be 
 adopted, and by what statutes have the others been 
 respectively abolished or rendered unnecessary ? 
 
 Q,. — In di'awing a lease of land, in a case where the 
 owners and incumbrancers are numerous, what is the 
 best fonn of the operative or demising part, and the 
 reddendum. 
 
 Q. — Define a voluntary conveyance or settlement, 
 and give examples. A conveyance of land is made to 
 a puj'chaser for valuable consideration with notice of a 
 prior voluntary deed ; how are the rights of the parties 
 affected : — 1 . "WTiere the conveyance is made by the 
 author of the voluntary deed ; 2. "Where it is made by 
 his heir or devisee. Cite authorities in favour of yoiir 
 answer. 
 
 Q,. — In what cases will a voluntary conveyance be 
 Bupported against purchasers and creditors ? Cite cases. 
 
 Q,. — Under what circumstances may a post-nuptial
 
 267 
 
 settlement become valid as against subsequent pur- 
 chasers. Cite authorities. 
 
 Q. — Show by what means an estate in land, to com- 
 mence in futuro may be created by deed inter vivos. 
 Can the same result be obtained in any, and, if any, 
 what way by will ? 
 ?*(i Q- — Where two clauses or parts of a deed are 
 absolutely repugnant and iiTcconcilable, what mle of 
 construction prevails? Apply the iiile to the case of 
 a deed where the premises and habendum are repugnant 
 and irreconcilable. 
 
 Q. — A sale is made by A. a bachelor, of a piece of 
 land for building pui-poses to B. (who was married 
 before 1 834) in consideration of a perpetual annual rent 
 of £10. Give the outline of the conveyance from A. 
 to B. What covenants are usually inserted in such a 
 conveyance ? 
 
 Q,. — What powers and provisions usually inserted in 
 a mortgage are now supplied by the operation of the 
 act 23 and 24 Vic, c. 145? 
 
 Q. — A., who has piirchased land, sells it to X.; B., 
 to whom land has descended from his father, sells it to 
 X.; C. mortgages both purchased and descended land 
 to X.; D., a trustee for sale, sells land to X. What 
 covenants for title or other covenants do A., B., C, and 
 D. respectively give to X. under the above circum- 
 stances ? 
 
 Q. — B. purchases a fee simple estate from A. and 
 directs it to be conveyed to X. and his heirs to the use 
 of B. for lif(^, remainder to the use of the fii'st and 
 other sons of B. successively in tail, remainder over. 
 With whom is A. to enter into the covenants for title 
 and for production of deeds and other covenants, in 
 order that they may nin with the land? Give the 
 reasons for your answer. 
 
 Conveyances at Common Law. 
 
 Q. — What are the so-called Common Law assu- 
 rances ?
 
 268 
 
 Conveyances under the Statute of Uses. 
 
 Q. — What was the theory of the modem conveyance 
 by lease and release ; and what statutes have rendered 
 this form no longer necessary ? Under what circum- 
 stances is the loss of a lease (or bargain and sale) for a 
 year now unimportant ? 
 
 Q. — Are all or any of the following limitations valid : 
 a limitation at Common Law to A. for life, and on the 
 expiration of one year after his decease to B. in fee ? a 
 like limitation by way of use in a deed ; a like limita- 
 tion in a will where A. dies before the testator ; a 
 limitation by deed or will to the use of A. in fee from 
 Christmas next. Explain fully the principles applicable 
 to each case. 
 
 Q. — Grant of fee simple lands to A. and his heirs, 
 to such uses as A. shall appoint, and in default of 
 appointment to the use, &c. There is a difference 
 between the opinions of text writers as to the validity 
 of this limitation. State the different opinions, and 
 give reasons for preferring one of them. 
 
 Q. — State the objections (if any) to a conveyance to 
 a corporation being taken by lease and release. How, 
 prior to 1845, was such a conveyance usually taken ; 
 and in what form would such a conveyance be now 
 drawn? 
 
 Q. — State the objections to a conveyance for a 
 money consideration (in which conveyance there is a 
 succession of limitations) being earned out by an 
 enrolled indentui'e of bargain and sale operating 
 imder the Statute of Uses. In the case of an indenture 
 of bargain and sale under a Common Law power, do 
 the same objections exist. Point out and explain the 
 difference in the operation of the two indentures. 
 
 Q,. — Explain the natui'e of a bargain and sale, and a 
 covenant to stand seised. "Why cannot a general power 
 of leasing be reserved to the bargainee ? 
 
 Wills. 
 
 Q. — What was the extent of the testamentary power
 
 269 
 
 over real estate previous to the passing of the Statute 
 of Uses ? "When and how was the power subsequently 
 enlarged ? 
 
 Q. — Explain the doctrine of lapse. State with 
 precision the substance of the 32nd and 33rd sections 
 of the late Statute of Wills. Land is devised (by will 
 made after 1837) to A. and his heirs : — A. dies before 
 the testator. What estate does A.'s son take — 1. 
 Where A. is a stranger ; 2. Where A. is the testator's 
 Bon. 
 
 Q. — In what cases will marriage not operate as a 
 revocation of a will made under a power of 
 appointment ? 
 
 Q. — Give a summary of the statutory rules of con- 
 struction comprised in 1 Vic, c. 26. Illustrate your 
 answer by examples, and cite authorities. 
 
 Q. — A. has power to " appoint by instrument in 
 writing under his hand and seal." Would A.'s vsdll, 
 executed according to the provisions of the New Wills 
 Act, be a good execution of the power? Give the 
 decisions on the point. 
 
 Q. — A will contains a specific gift of things of a 
 perishable nature (such as wine, provisions, stores, 
 cattle, and so on) to A. for life, with a gift over on his 
 death to B. absolutely. How is such a disposition 
 construed, and what would be the result if the gift 
 were residuary instead of specific ? 
 
 Q. — The vesting of the absolute ownership and 
 enjoyment cannot be suspended beyond a certain 
 period. Upon what principle is this policy of the 
 law founded ? Give the substance of the case by which 
 the extreme limits of the period of suspension were 
 defined ? 
 
 Q. — Give a short statement of the case which 
 occasioned the passing of the 39 and 40 Geo. III., 
 c. 98, and also a summary of the provisions contained 
 in that statute. Does the act establish to any extent 
 the validity of a testamentary trust for accumulation, 
 which is otherwise void as transgressing the rule 
 against perpetuities ? Give a reason for your answer.
 
 270 
 
 Q. — A valid executory devise is made of land, but 
 the event upon which the future gift is to take effect, 
 does not happen for more than twenty-one years after 
 the testator's death ; there is no gift of the inter- 
 mediate rents and profits, nor any express direction to 
 accumulate. Does the Thellusson Act apply so as to 
 negative the title of the devisee to the accumidations 
 that have accrued subsequently to the expiration of 
 twenty-one years, and before the happening of the 
 event specified ? 
 
 Q,. — Can you give any instances in which technical 
 words are absolutely necessary in a will ? 
 
 Q. — By what general rule are the courts guided in 
 deciding whether devises or gifts are vested or con- 
 tingent. 
 
 Q. — By what superadded directions or limitations 
 wiU. a devise or gift contingent in terms (for example 
 to A. when or if he shall attain 21) be converted into a 
 vested devise or gift ? 
 
 Q. — Define an executory devise. When was this 
 mode of limitation first introduced? An estate is 
 limited to A. for life, and after the expiration of one 
 year from his decease to the unborn children of B. 
 Is this limitation good by deed or will ? 
 
 Q. — To what extent has the testamentary dominion 
 over real estate been erdai'ged by means of the late 
 Statute of WiUs ? 
 
 Q. — "WTiat is the primary and what is the secondary 
 meaning of the word "issue" in a will? Does the 
 rule in Shelley's case apply in the following examples: 
 A devise to A. for life, remainder to the issue of A. 
 as tenants in common, their heirs and assigns? Cite 
 authorities. 
 
 Q. — Give the usual form of the testimonium clause 
 to a will on more than one sheet of paper, and of the 
 attestation to a will. As the Statute of Wills expressly 
 enacts (section 9), that no form of attestation shall be 
 necessary, why is the attestation usually drawn with 
 so much precision ?
 
 271 
 
 Q. — Is the rule against perpetuities confined to 
 limitations of real estate ? 
 
 Q. — Show how the new law of wills differs from the 
 old on the folio Aving points, namely, the age of the 
 testator; the execution of wills (including testamentary 
 appointments), and the competency of attesting wit- 
 nesses ; the revocation of Avills ; the effect of a will 
 on after-acquired property; and the destination of 
 lapsed or void devises. 
 
 Q. — By a will dated since 1st January, 1838, a 
 testator possessed of fee simple estates and leaseholds 
 for years gives all his messuages, lands, and heredita- 
 ments to A., and all his (the testator's) personal Qstate 
 to B. Will A. or B. take the leaseholds for years? 
 Give the reason for your answer. 
 
 Q. — A devise of the legal fee to A. for life, and after 
 his death to the children of B. who shall attain twenty- 
 one as tenants in common in fee. Suppose that at A.'s 
 death; 1. B. has no child, but subsequently children 
 are bom ; 2. B. has childi'en, but no child who has 
 attained twenty-one; 3. B. has ten children, of whom 
 at the death of A. four have attained twenty-one and 
 six are under that age. "What is the construction of 
 the above limitation in each of the above three cases ? 
 Would j-ou come to the same conclusion if the limita- 
 tions were of the equitable fee in land, or if the 
 limitations were trusts of personalty ? Give the reasons 
 and authorities for your answer. 
 
 Q. — A tenant in tail in possession executes an 
 ordinary mortgage in fee of his family estates by deed 
 duly enrolled. By his will, on the assumption that his 
 eldest son and heir in tail will take the entailed estate 
 burdened only with the mortgage, the tenant in tail by 
 his will gives all his real and personal estate to his 
 younger children equally. Will the testator's intention 
 be carried out on his death ? Give the reasons for your 
 answer. 
 
 Q. — Late cases have shown that it is possible for 
 a testator to evade the prohibitions of the so-called 
 Mortmain Act. State the plans adopted in the cases
 
 3Ji 
 
 272 
 
 referred to, and explain the principle upon which the 
 devises were upheld. 
 
 Q.. — What kind of property may bo given to a charity 
 by a will ? Give the best form of a gift to a charitable 
 institution. 
 
 Q. — If a will is revoked, how may it be revived ? 
 If a later will revokes a former will, and the later will 
 is itself subseqiiently revoked, what effect has the last- 
 named revocation upon the first will ? 
 
 Q. — What law governs the testamentary disposition, 
 or descent, or distribution, in case of intestacy, of 
 leaseholds for years, situate in England, belonging to 
 an Englishman domiciled out of the United Kingdom ? 
 State the different opinions on this point, and give 
 reasons for adopting one of those opinions. 
 
 Q,. — Is a will of real and personal property, as to its 
 execution, form, and interpretation, governed by the 
 laws affecting the place of the birth of the testator, or 
 of his abode at the time of the execution of his will, 
 or of his death, or of the place where he dies, or where 
 the property is situated, or where the will is executed ? 
 Have any, and, if any, what alterations been lately 
 made by statute in these respects, or any of them, as 
 to real or personal property ? 
 
 Q. — A. having manors, advowsons, land, shares, 
 stock, furniture, pictures, money, and every other kind 
 of property, wishes by his will to give all he possesses 
 to B. Make A.'s will in the fewest number of words. 
 
 Q.— The 29th section of the 1 Vic, c. 26, has 
 assimilated the rules of construction, applicable to 
 testamentary gifts of real and personal estate, where 
 there is a gift over introduced by a clause importing 
 an indefinite failure of issue of the first taker ; 
 show how this has been effected. Land is devised 
 (subsequent to the passing of the act) to A. for life, 
 and in default of issue to B. in fee ; what estates do 
 A. and B. respectively take ? 
 
 I
 
 EQUITY.
 
 275 
 
 OUTLINE OF EQUITY JURISPRUDENCE. 
 
 Equity jurispnidence may properly be said to be 
 that portion of remedial justice which is exclusively 
 administered by a court of equity. Courts of equity 
 afford relief in regard to those rights where the remedy 
 at law is doubtful, inadequate or incomplete, but cannot 
 relieve against any defect, imperfection or abuse of the 
 law itself. Courts of equity are equally bound by 
 precedents with courts of law, and can give no 
 different construction to the law from that which 
 governs courts of law. 
 
 Courts of equity act on established maxims. These 
 maxims are : 1 . Equity will not suffer a right to be 
 mthout a remedy. 2. Equity will interfere where a 
 due remedy cannot be had at law. 3. Equity will in 
 general follow the law. 4. Equity discountenances 
 delay. 5. Where there is equal equity, the law must 
 prevail. 6. Equality is equity. 7. Whoever comes 
 into equity must come with clean hands. 8. Whoever 
 seeks equity must do equity. 9. Equity regards that 
 as done wliich ought to be done. 10. Priority of time 
 gives the better equity. 1 1 . Equity imputes an inten- 
 tion to fulfil an agreement. 
 
 Of the Division of Equity. 
 
 Equity jurisprudence comprises Remedial, Executive, 
 Adjustive, Protective, and Auxiliary Equity. 
 
 Remedial Equity. 
 
 Remedial equity comprises cases of Accident, Mis- 
 take, Actual Fraud, and Constructive Fraud.
 
 276 
 
 An accident is any unforeseen event, misfortune, losa, 
 act or omission, as is not the result of any negligence 
 or misconduct iu the party. Accidents are remediable 
 in equity; if not (1) Accidents remediable at law; or 
 not (2) Accidents neither remediable at law or in 
 equity. 
 
 A mistahe is any unintentional act, omission or error 
 arising from ignorance, surprise, imposition or misplaced 
 confidence. Mistakes are remediable in equity if made 
 by the sufferer alone under circumstances which give 
 rise to a presumption that there has been some undue 
 influence, misrepresentation, imposition, mental imbe- 
 cility, surprise or confidence abused. A mistake in 
 matters of law is not remediable; but where the 
 mistake is one of title of such constant occurrence as 
 to be understood by the community at large, it will 
 be remedied. Ignorance of foreign law is always 
 remediable, being regarded as a mistake of fact. 
 Mutual mistakes are not remediable, except in cases 
 of mutual surprise, or where the parties supposed 
 that the subject-matter of the contract existed, when 
 in reality it was not in existence ; or where the parties 
 supposed that they had purchased something which 
 the others did not intend to sell, or where the mistake 
 is the result of a miscalculation by the defendant's 
 agent in favour of the defendant. 
 
 On the subject oi fraud, Courts of Equity have 
 wisely never laid down as a general proposition, what 
 shall constitute fraud, or the extent of remedial equity 
 on the ground of fraud. 
 
 Fraud is divided into actual and constructive fraud. 
 
 An actual fraud is something done, said, or omitted, 
 with the design of perpetrating what the party must 
 have known to be a positive fraud. 
 
 Actual frauds comprise, 1 . Misrepresentation ; 2, 
 Concealment; 3. Gross inadequacy of price accompanied 
 with other circumstances; 4. Unjustifiable refusal of 
 consent to a marriage ; 5. Unfairness in contracts with 
 infants, or deranged, intoxicated, or distressed persons. 
 
 Constructive frauds are acts, statements, or omissions
 
 277 
 
 which operate as virtual frauds on individuals, or, if 
 generally permitted, would be prejudicial to the public 
 welfare, and are not clearly resolvable into mere 
 accident or mistake, and yet may have been uncon- 
 nected with any selfish or evil design, or may amount, 
 in the opinion of the party chargeable therewith, to 
 nothing more than what is justifiable or allowable. 
 Constructive frauds comprise, 1. Frauds on public 
 policy ; 2. Frauds of persons in confidential relations ; 
 3. Frauds on persons peculiarly liable to be imposed 
 on; 4. Virtual frauds on individuals irrespective of 
 any confidential relation or any peculiar liability to be 
 imposed on. 
 
 Of Executive Equity. 
 
 One branch of this department of equity comprises 
 legacies, portions donationes causa mortis. 
 
 Another, and perhaps the most extensive branch of 
 equity jurisprudence, is that of trusts. 
 
 A trust is a beneficial interest in, or a beneficial 
 ownership of, real or personal property, unattended 
 with the possessory and legal ownership thereof. Tnists 
 are either express, implied, or constructive. 
 
 Express trusts are those which are evidenced by a 
 written document. Trusts are either executed or 
 executory. A trust executed is a trust which appears 
 to be finally declared by the instrument creating it. A 
 trust executory or directory is a trust raised either by a 
 stipulation or by a direction, in express terms or by 
 necessary implication, to make a settlement or assur- 
 ance to uses or upon trusts which are indicated in, but 
 do not appear to be finally declared by the instrument 
 containing such stipulation or direction. Express 
 charitable trusts receive a more liberal construction 
 than gifts to individuals. 
 
 An implied trust is one which arises from presump- 
 tion, as where a conveyance is made without a 
 consideration, and without a use or trust, and in other 
 cases.
 
 278 
 
 Constructive trusts arise not from presumption but 
 from the construction of equity, as where repairs or 
 improvements are made by a joint owner, or a person 
 with a defective title, and in other cases. 
 
 The specific performance of affreemenis is another 
 branch of executive equity. By the Common Law, if 
 a person, who ought to perform a contract or covenant, 
 failed to do so, no redress could formerly be had, 
 except in damages. On this ground a specific per- 
 formance will be decreed in equity where damages 
 would not afford an adequate compensation. But 
 equity will not interfere where damages at law would 
 amount to a comj)lete compensation. 
 
 Adjustive Equity. 
 
 • 
 
 One of the principal subjects of adjustive equity is 
 that of accotint. Courts of Equity, however, will only 
 take jurisdiction of accounts, where they consist of 
 equitable claims, or the accounts (although cognizable 
 at law) are complicated, or where a remedy which is 
 or was peculiar to a Court of Equity is required. 
 Accounts are divided into open, stated and settled 
 accounts. 
 
 The administration of assets is another principal 
 subject of adjustive equity. The application for 
 assistance is sometimes made by the executor or 
 administrator. Assets, that is, property available for 
 the payment of debts of a deceased person are divided 
 into legal and equitahle. Assets are legal or equitable 
 according as the remedy of the creditor to make them 
 available for the payment of debts, is at law or in 
 equity. Equitable assets include real property which 
 the deceased had by will charged with or devised for 
 payment of his debts, although liable for payment of 
 them by act of parliament. There are many cases in 
 which parties, whose right at law is confined to one 
 fund, would fail to obtain the satisfaction of their just 
 claims, if left to the course of law, but are enabled to 
 obtain fuU satisfaction thereof by means of a particular
 
 279 
 
 adjustment effected by Courts of Equity, termed the 
 marshalling of assets. This may be defined to be such 
 an arrangement of the different funds of the common 
 debtor of two or more creditors as may satisfy every 
 claim, so far as, without injustice, such assets can be 
 applied in satisfaction thereof, notwithstanding the 
 claims of pai'ticular individuals to prior satisfaction out 
 of some one or more of those funds. 
 
 Mortgages, pledges, and liens also form an important 
 departmoit of adjustive equity. It may be considered 
 as an almost universal rule, that wherever a convey- 
 ance or an assignment of an estate is originally 
 intended as a security for money, whether this inten- 
 tion appears on the deed itself or by any other 
 instrument, or even by parol evidence, and whether 
 directly or indirectly, it will ever after be considered 
 in equity as a mortgage, and therefore redeemable on 
 the usual terms ; though, at the time of the loan, or 
 as part of the same transaction, there may be an 
 express agreement between the parties that it shall not 
 be redeemable, or that the right of redemption shall 
 be confined to a particular time, or to a particular 
 person, or description of persons ; for such an agree- 
 ment wiU bo void. There may, however, be an 
 absolute purchase with a right of repurchase, and 
 either introduced into the agreement for sale at the 
 time or made at a subsequent period. 
 
 The doctrine of tacking occurs where a thii'd incum- 
 brancer by mortgage, without notice of a second 
 incumbrance at the time of lending his money, pur- 
 chases the first legal mortgage, judgment, statute, or 
 recognizance, even after notice of the second mortgage, 
 so as to acc^uire the legal title, and holds both securities 
 in his own right, equity avLU tack both incumbrances 
 together in his favour; so that the second mortgagee 
 A\all not be permitted to redeem the first without 
 redeeming the third also, on the principle that where 
 the equities are equal the law shall prevail. This 
 doctrine does not apply where the incumbrancer did not 
 originally advance his money on the immediate credit
 
 280 
 
 of the land, as a creditor by recognizance. Equitable 
 mortgages are created either by a written instrument 
 or by a deposit of deeds with or without writing. A 
 mortgage of personal property is a transfer of the 
 ownership itself, subject to be defeated by the per- 
 formance of the condition within a certain time. But 
 a pledge only passes the possession, or at most a special 
 property to the pledgee, with a right of retainer tUl the 
 debt is paid or the engagement is fulfilled. 
 
 Liejis in Equity are wholly independent of the 
 possession of property. The usual way of enforcing 
 a lien in equity, if not discharged, is by a sale of the 
 property to which it is attached. The usual kinds of 
 equitable lien are those of a solicitor for costs, of a joint 
 tenant for the expenses of the renewal of a lease, and 
 of a trustee on the trust estate for his expenses. 
 
 In several cases of apportionment and contribution 
 assistance may be had at law. But even in these cases 
 it may be necessary to resort to equity, instead of 
 proceeding at law, in order to avoid a multiplicity of 
 suits. An apportionment may be made either of a 
 benefit, or of an incumbrance, loss, expense, or liability; 
 and in the case of an apportionment of the latter class, 
 a corresponding contribution is enforced consequent on 
 such an apportionment. The most usual cases of 
 apportionment are between different persons having 
 distinct limited interests in an estate which is under 
 mortgage or in a leasehold state which is renewed, 
 or between sureties, or in questions of general average. 
 
 Election and satisfaction are two other subjects of 
 adjustive equity. Election is the choice between two 
 rights by a person who derives one of them under an 
 instrument in which a clear intention appears that he 
 should not enjoy both. The instances in which courts 
 of law have put a person to his election are cases of 
 title, which, by reason of their inconsistency, are 
 technically incapable of simultaneous assertion; as in 
 the case of a claim under and against his landlord. 
 The doctrine of election arises in equity, in cases 
 where a grantor, or more commonly a testator, gives
 
 281 
 
 away, either knowingly or by mistake, that in which 
 he has no interest, or the whole of that in which 
 another person besides himself has an interest, and in 
 the same instrument makes a gift of other property to 
 the owner of the property so given away, or to the 
 person entitled to such interest. In such cases the 
 owner of such property, or the person entitled to such 
 interest, cannot both take the gift and retain his 
 own property or interest; but, if he takes the gift, 
 he must resign his own property or interest. On 
 the other hand, if he elects to hold his own pro- 
 perty or interest, or, as the phrase is, if he elects 
 against the instrument, he cannot have the gift ; or at 
 least he cannot have the entire gift without compen- 
 sating the party to whom he has disappointed by 
 electing to take his own property. 
 
 Satisfaction may be defined to be the making of a 
 donation with the express or implied intention that it 
 shall be taken as an extinguishment of some claims 
 which the donee has upon the donor. 
 
 Equitable claims of satisfaction usually arise in 
 three classes of cases : — 
 
 1. In cases of portions secured by a marriage 
 settlement. 
 
 2. In cases of portions given by a will, and an 
 advancement of the donee afterwards in the testator's 
 life time. 
 
 3. In cases of legacies to creditors. 
 Partnership disputes; adjustments in cases of debtor 
 
 and creditor, or of creditors and sureties ; cases of set- 
 off; damages and compensation and partition; the 
 settlement of boimdaries, and the assignment of dower 
 are also important heads of Adjustive Equity. 
 
 Protective Equity. 
 
 Under this head are comprised cases of : 
 1. Protection from litigation or injury, afforded by 
 cancelling, delivering up, and securing of documents.
 
 282 
 
 2. Protection from litigation respecting the property 
 of another by means of interpleader. 
 
 3. Protection from repeated or renewed litigation, or 
 from unjust legal proceedings afforded by decrees upon 
 bills of peace or bills to establish wills and by injunc- 
 tions. 
 
 4. Protection from loss or injury, in other cases by 
 injunction. 
 
 5. Protection fi'om another's absconding by the writ 
 of Ne Exeat Regno. 
 
 6. Protection of property, by taking away the 
 possession or receipt thereof, or by requiring security. 
 
 7. Protection of infants by the removal of children • 
 from their parents, the appointment or removal of 
 guardians, the direction of a suitable maintenance 
 where the infant is a ward of court, or the interdiction 
 of the marriage of a ward of the court without its 
 consent. 
 
 8. Potection of persons of unsound mind. 
 
 9. Protection of married women by enforcing con- 
 tracts recognized in equity, and made between them 
 and their husbands before or after marriage, in regard 
 to their pin-money and paraphernalia of wdves, their 
 separate estate, or their equity to a settlement or 
 maintenance out of their own property, or by enforcing 
 deeds for immediate separation, so far as the principles 
 acted on by the court, permit. 
 
 Auxilio/ry Eqydty. 
 
 Under this head are comprised : 
 
 1 . Discovery in aid of a suit or defence in another 
 court. 
 
 2. The taking and preservation of testimony in aid 
 of a suit or defence in another court as by bill to 
 perpetuate testimony, or by bill to take testimony de 
 bene esse.
 
 283 
 EQUITY TLEADING AND PRACTICE. 
 
 Proceedings in the Conrt of Chancery are either by 
 way of information by the Attorney- General or other 
 proper officer, by hill in the nature of a petition to the 
 Ijord Chancellor, or toithoui bill as by claim, summons, 
 or special case. 
 
 The suit is by way of information when it is instituted 
 on bclialf of the Crown, or of those who partake of its 
 prerogative, or whose rights are under its particular 
 protection, as the objects of a public charity. In all 
 informations to enforce private rights, the proceedings 
 are carried on in the name, and under the direction of 
 a relator, who is answerable for the propriety, conduct, 
 and costs of the suit. In all substantial respects 
 however, an information is like a bill. 
 
 By parties not partaking of the prerogative of the 
 Crown, a bill is the usual method of commencing 
 proceedings in Chancery. A bill consists of six parts : 
 1. The title of the court; 2. The names of the parties 
 to the suit; 8. The address to the Lord Chancellor or 
 the holders for the time being of the Great Seal; 4. 
 The name, occupation and address of the plaintiff; 5. 
 A concise statement, divided into paragraphs, of the 
 material facts on which the plaintiff relies,, and con- 
 cluding with a prayer for the particular relief required, 
 and for general relief; 6. The names of the defendants 
 and the signature of the counsel who drew the bill. 
 
 The objects for which a bill is filed are usually relief 
 and discovery, and in some cases injunction. 
 
 The bill is then printed and filed, and copies served 
 upon the defendants. In cases of despatch, as where 
 a bill prays a writ of injunction, or of 7ie exeat, or is 
 filed for the purpose either solely or amongst other 
 things, of making an infant a ward of court, a wiittcn 
 copy may be filed : in these cases, a printed copy 
 must be filed within fourteen days, otherwise the 
 written copy will be taken off the file, and the suit 
 must be recommenced. On the biU for service is an 
 endorsement either in writing or print, commanding
 
 284 
 
 the defendant within eight days after service, exclusive 
 of the day of such service, to cause an appearance to be 
 entered for him in the office of the clerks of records 
 and writs. Should the defendant appear, an appear- 
 ance in a required form is entered in the office, and 
 notice given to the plaintiff. If however, the defendant 
 should not appear, the plaintiff may enter an appearance 
 for him within three weeks, or after that time by leave 
 of the court. The next step taken by the plaintiff 
 after appearance by the defendant, is usually the 
 preparation of interrogatories. The interrogatories 
 consist of a series of questions framed from the statement 
 of the plaintiff's case in the bill, and usually arranged 
 in the same order. The interrogatories are generally 
 drawn, or at least settled by counsel. At the foot of 
 the draft interrogatories are appended the signature 
 of the counsel who drew the interrogatories, and a 
 note stating which interrogatories each defendant is 
 required to answer. An engrossment on parchment 
 of the interrogatories is then made, and within eight 
 days from the time limited for the appearance of the 
 defendant, filed at the office of the clerks of records 
 and writs. By special leave of the court, however, 
 a plaintiff may obtain further time to file interrogatories. 
 When the interrogatories have been filed and the 
 defendants have appeared, as many copies are then 
 made by the plaintiff's solicitor as there are solicitors 
 for defendants or defendants appearing in person. 
 Each of these copies is then compared with the 
 original on the files of the court, and, if found correct, 
 is marked as an office copy. One of these office copies 
 is then served on each of the several solicitors for the 
 defendants or on the defendants themselves if they 
 have appeared in person. 
 
 The Defence. 
 
 There are four modes of defence to a bill and these 
 are — 1. Demurrer; 2. Plea; 3. Answer; 4. Disclaimer. 
 And all or any of these modes of defence may be joined,
 
 285 
 
 provided each relates to a separate and distinct part of 
 the bill. 
 
 A demurrer is employed -whenever the defendant 
 thinks that the plaintiff is not according to the case 
 stated in the bill entitled to relief from a Court of 
 Equity. The objections which give rise to a demurrer 
 are usually considered to be nine in number, viz., — 
 1. That the subject of the suit is not within the 
 jurisdiction of a Court of Equity ; 2. That some other 
 Court of Equity has the proper jurisdiction; 3. That 
 the plaiatiif is not entitled to sue by reason of some 
 personal disability ; 4. That he has no interest in the 
 subject, or no title to institute a suit concerning it ; 
 5. That he has no right to call on the defendant 
 concerning the subject of the suit; 6. That the 
 defendant has not that interest in the subject which 
 can make him liable to the claim of the plaintiff; 
 7. That for some reason founded on the substance of 
 the case the plaintiff is not entitled to the relief he 
 prays. To these may be added — 8. The deficiency of 
 the bill to answer the puiposes of complete justice ; 
 and 9. The impropriety of confounding distinct subjects 
 in the same bill, or of unnecessarily multiplj-ing suits. 
 A demurrer always commences by a protestation against 
 confessing the truth of any matter, so as to enable the 
 defendant to dispute the facts alleged in the bill on any 
 other occasion. Although bills for discovery are no 
 longer necessary, bills for rehef are usually accompanied 
 by discovery. The grounds of demurrer to a discovery 
 are various ; but one of the most frequent occurrence 
 is, that the discovery, if given, would subject the 
 defendant to penalties or forfeiture. A defendant 
 cannot, however, demur to the discovery only unless 
 he demur to the relief, as tlie discovery is considered 
 to be incident to relief. The demurrer is signed by 
 counsel, engrossed and filed, ^s'otice that the demurrer 
 has been filed is then given to the plaintiff. On 
 receiving notice that the demurrer has been filed, 
 the plaintiff either obtains an Order of Course to 
 dismiss the bill with costs, amends his bill^ or sets
 
 286 
 
 down the demurrer for argument. If the demurrer is 
 to the whole bill, the plaintiff is bound either to obtain 
 leave to amend his bill and serve the order for such 
 leave on the defendant, or to set down the demurrer 
 for argument, and in either case within twelve days 
 exclusive of vacations after the filing of the demurrer. 
 Where the demurrer is to part of a bill, three weeks 
 exclusive of vacations is the time allowed for amending 
 the bill, or for setting the demurrer down for argument. 
 On the day of hearing, the cause is called on in turn, 
 when the demurrer is argued, and either allowed by 
 the court or overruled with or without costs. If the 
 demurrer is to the whole bill, the allowance of the 
 demurrer will in general terminate the suit, unless 
 leave is given to amend the bill. If the demurrer be 
 only partial, the bill may be amended, notwithstanding 
 the allowance of the demurrer. 
 
 A plea is rarely resorted to as a defence to a bill, and 
 only in cases where the ground of defence is reduced 
 to a single point, which does not appear on the face of 
 the bill, as where the claim of the plaintiff is barred 
 by the Statute of Limitations, a release, or an award. 
 In some cases, however, leave will be given by the 
 court to plead doubly, or offer two or more matters of 
 defence in the plea. Pleas are of three kinds — 1. To 
 the jurisdiction of the court; 2. To the person of the 
 plaintiff or defendant; 3. In bar of the suit. The 
 plea is signed by counsel, and by the defendant, who 
 has also to swear to its truth, unless it be a plea to the 
 jurisdiction of the court or in disability of the person of 
 the plaintiff, or a plea in bar of any matter of record, 
 or as of record. The plea is then engrossed on parch- 
 ment, and filed, and notice given to the plaintiff, who 
 then generally adopts one of three courses. These are 
 to set doicn the plea for hearing if the plea is had in law; 
 if the plea is good in law hut untrue in fiict, to reply, or 
 if the plea is sufficient and true, but the plaintiff can 
 produce new matter, which will obviate its effect to 
 amend the hill. 
 
 On the hearing of a plea, the court usually pro-
 
 2 87 
 
 nounces one of the four following orders : that the plea 
 be allowed simply, that the benefit of it be saved to 
 the hearing ; that it be ordered to stand for an answer 
 with or without liberty ; or that it be overruled. 
 
 Answers constitute the usual mode of defence to bills, 
 and are either voluntary or compulsory. Answers are 
 voluntary/ when no interrogatories have been delivered 
 to the defendant, compulsory Avhen he has been required 
 to answer. The answer of the defendant contains not 
 only the answer of the defendant to the interroga- 
 tories, but such statements material to the case as the 
 defendant may think necessary or advisable for his 
 defence. The answer is divided into paragraphs 
 numbered consecutively. The answer is signed by 
 counsel. If the defendant, not having been required 
 to answer, do not answer, he will be considered to 
 have traversed the case made by the bill. In preparing 
 an answer, the general rule to be observed is that it 
 must be precise and not evasive, or, in other words, 
 the defendant must answer fully. Nothing but what 
 is relevant to the defence, or what is called for by the 
 bUl, should be inserted in an answer. At the foot of 
 the body of the answer is appended the signature of 
 counsel, and after that the schedules, if any. The 
 defendant is allowed fourteen days from the time of 
 delivery of interrogatories to put in his answer. 
 Further time to answer is, however, readily obtained. 
 The draft answer, signature of counsel, and the 
 schedules (if any) are then engrossed on parchment. 
 At the end of the engrossment the defendant signs his 
 name. The truth of the answer is then sworn to by 
 the defendant, and opposite the defendant's signature 
 is appended the jurat or attestation that the defendant 
 has sworn to the truth of the answer. The answer 
 is then filed at the record and writ clerks' office and 
 notice of the filing given on the same day to the 
 plaintiff. An oflice copy of the answer is then pro- 
 cured by the plaintiff. If the answer is insufficient 
 the plaintiff will then file exceptions to it, and these 
 are either set down for hearing, or if the defendant
 
 288 
 
 should think that they will be allowed by the court 
 he submits, and puts in a further answer. If the 
 answer should be sufficient the plaintiff either intro- 
 duces into his bill new matter by way of amendment, 
 or he will proceed to take the judgment of the court 
 on the truth and effect of the matters stated in. the 
 bill and answer. 
 
 There are three ways of doing so : if the plaintiff 
 thinks that the allegations in the answer are sufficient 
 to entitle him to a decree, and is willing to admit the 
 . truth of the answer he will set down the cause on hill 
 and answer ; if he wishes to rely on some parts of the 
 answer, and contradict others he will give notice of 
 motion for decree ; lastly, if he denies the whole of the 
 answer, he can do so by filing a replicatioyi. 
 
 A disclaimer renounces all title to the matter in 
 demand. A disclaimer must be accompanied by an 
 answer if the defendant ever had an interest in the 
 matter in demand. 
 
 The evidence to be used at the hearing is either that 
 of the pleadings, oral, or by affidavit. On hearing 
 by bill and answer the only evidence is that of the 
 pleadings. On motion for decree evidence by ajfidavits 
 is used. Where a replication is filed the defendant 
 cannot read his answer, but must prove its statements 
 by evidence. Each answer is only evidence against 
 the defendant, whose answer it is, except in an inter- 
 pleader suit. On the question of the costs of the suit, 
 however, each defendant is at liberty to read his 
 answer, not only as against the plaintiff, but also 
 against his co-defendants. After replication has been 
 filed in a cause the evidence may, at the option of 
 either party, be taken orally. The oral examination 
 takes place before one of the examiners of th^ court, 
 or before an examiner specially appointed by the court. 
 The answers are taken down in writing, and at the 
 close of the examination are read over to the witness, 
 and signed by him in the presence of the parties. The 
 depositions are then signed by the examiner, trans- 
 mitted by him to the record office, and there filed.
 
 289 
 
 Copies of the depositions are then obtained and con- 
 stitute the oral evidence used at the hearing. 
 
 The Searing and Decree. 
 
 Where a cause is at issue by filing a replication a 
 subpoena to hear judgment must be served on the 
 defendants themselves or their solicitor, except in 
 consent causes. So where a traversing note (which has 
 the same effect as if the defendant had filed an answer 
 traversing the whole biU) has been filed against a 
 defendant, a subpoena to hear judgment is necessary. 
 
 The cause having been set down will appear in the 
 paper, and in its turn be called on for hearing. The 
 plaintiff's counsel then states the case, the matters in 
 dispute, and reads the evidence by which the plaintiff's 
 case is supported. The defendant's counsel adopts a 
 similar course with regard to the defence, and the 
 plaintiff's counsel replies. At the conclusion of the 
 argument the judge pronounces the decree, the heads 
 of which are taken down by the registrar attending the 
 court, and also by the counsel on their briefs. Minutes 
 of the decree are then bespoken from the registrar and 
 drawn up by him. The minutes are then settled by 
 the registrar in the presence of the parties. The settled 
 minutes are subsequently left at the registrar's office, 
 when the decree wiU be drawn up. When drawn up 
 the decree is compared with the settled minutes and 
 then left at the office of the registrar, by whom it is 
 passed by marking it with his initials. The decree is 
 then entered in the registrar's book. If desired, the 
 decree can be enrolled within six months from its date, 
 or afterwards by leave of the court. No appeal to the 
 House of Lords against a decree can take place unless 
 it be enrolled. An enrolled decree cannot also be 
 varied by the process of rehearing, but a bill of review 
 must be filed. Enrolment may, however, be prevented 
 by lodging a caveat, or notice to the officer not to enrol 
 the decree, and the service of the order for setting 
 down the appeal. The proceedings after the decree
 
 290 
 
 are usually service of the copy of the decree on each 
 defendant, payment of money into court either before 
 or after taking the accounts, the issue of a commission 
 to make partition, to settle boundaries, or to assign 
 dower. If the decree at the hearing was only inter- 
 locutory in its nature it will usually again be brought 
 before the court on further consideration. The result 
 of the accounts and enquiries directed by the inter- 
 locutory decree to be taken is brought under the notice 
 of the court; and the decree made on this occasion is 
 usually final, and includes the question of costs. 
 
 During the progress of a suit many incidental pro- 
 ceedings take place, as applications for leave for further 
 time, or for the production of documents, orders to 
 revive a suit, motions for injunction, or a receiver, for 
 the issue of a writ of ne exeat, or for the dismission 
 of a bill, and petitions for the payment of money out 
 of court. 
 
 Proceedings without hill comprise petitions, claims, 
 special cases, settlements, and summary proceedings 
 under the Trustee or Winding-up Acts, applications on 
 behalf of charities, or by or against solicitors.
 
 291 
 
 BOOKS OF REFERENCE ON EQUITY. 
 
 Calvert on Parties to Suits in Equity. 
 Fonblanquc on Equity. 
 ^ General Orders of the Court of Chancery of the 1 st 
 Febi-uary, 1861, and 5th February, 1861. 
 
 f"a)Ties' Outline of Equity, 
 "unter's Suit in Equity, 
 litford on Pleading, 
 othier on Partnership, by Tudor. 
 >^ Smith's Manual of Equity Jurisprudence. 
 ^Spence's Equitable Jui-isdiction of the Court of 
 
 Chancery. 
 jj'Statutes 15 and 16 Vic, c. 86; 22 and 23 Vic, c. 
 35 ; 23 and 24 Vic, c 38 ; 23 and 24 Vic, c 145 ; 
 25 and 26 Vic, c. 42. 
 Story's Eqiiity Jurisprudence. 
 ^White and Tudor' s Leading Cases. 
 Wigrani's Points in the Law of Discovery.
 
 292 
 
 QUESTIONS 01^ EQriTT. 
 
 Nature and Extent. 
 
 Q. — What is Aristotle's definition of Equity ? By 
 whom has it been adopted. Distinguish the various 
 significations in which the word equity is used. 
 
 Q. — Mention the principal advantages and disadvan- 
 tages which would probably arise from the frision of 
 the equitable with the legal jurisdiction ? 
 
 General Maxims. 
 
 Q. — In what manner has the jurisdiction of the 
 court been extended by its acting in personam ? Give 
 instances of its acting in rem at the present, and at 
 an early period. 
 
 Q. — Explain and illustrate the maxim : Eq^uity 
 follows the law. ^Tien is it applicable ? 
 
 Q. — Give an illustration of the maxim : He who 
 seeks equity must do equity. Are there any rights not 
 enforceable except thi'ough its operation ? 
 
 Q,. — Explain and illustrate the maxim : Where there 
 is equal equity the laio must prevail. 
 
 Q. — In what respect is the maxim : Jus accrescendi 
 inter mercatores locum non hahet more extensively 
 appKed in equity than at law ? 
 
 Q. — Explain and illustrate the maxim : Equality is 
 equity. 
 
 Q,. — Explain and illustrate the maxim : A man 
 must come into a Court of Equity tvith clean hands. 
 
 Q. — A. seised in fee of an estate demises it for seven 
 years ; and the lease contains a clause empoweiing the
 
 293 
 
 lessee to purchase the estate for a stated amount at 
 any time before the expii-ation of the terai. The lessor 
 dies shortly after making the lease, having by his will 
 given his real property to A. and his personal to B. : 
 just before the tennination of the lease the lessee 
 exercises his option to purchase. Who is entitled to 
 the purchase money ? and who is entitled to the rent 
 which became due preAriously to the option being 
 declared ? 
 
 Q. — Illustrate the maxim : Eq^uiUj considers that as 
 done which ought to he done. 
 
 Q. — State the principal exceptions to the rule : Qui 
 prior est tempore potior est jure; firstly, as regards real; 
 secondly, as regai'ds personal estate. 
 
 Accident. 
 
 Q. — In whose favour will equity aid the defective 
 execution of a power ? And on what principle is the 
 relief afforded ? 
 
 Q. — An apprentice is bound to his master for a 
 certain number of years : shortly after the indenture of 
 apprenticeship is executed, the master dies. Can the 
 whole of the apprentice fee be recovered? What 
 equitable considerations are applicable to the case ? 
 
 Q. — Will a Coiu-t of Equity gi-ant relief on a 
 negotiable seciuity which has been lost, and, if so, 
 on what grounds ? 
 
 Q,. — Will a Court of Equity in general gi-ant relief, 
 where an accident, affecting the subject-matter of an 
 agi'eement, has occuiTed which is neither provided for 
 by the agreement, nor apparently was in the con- 
 templation of the parties, when they entered into it ? 
 Illustrate yoiu- opinion by an example. 
 
 Q. — A tenant by his lease (for which he pays a 
 considerable premium) covenants to insure and keep 
 insured the premises against fire. There is a proviso 
 in the lease that, in case any of the covenants are 
 broken, the landlord may re-enter on the premises, 
 and repossess them as of his former estate. The
 
 294 
 
 insui'ance is thi'ough inadvertence allowed to expire, 
 and shortly afterwards it is renewed by the tenant. 
 The landlord accepts a quarter's rent after the breach 
 of covenant has occurred, but without being informed 
 of the circumstance. On becoming acquainted with 
 it, he commences an action of ejectment against the 
 tenant ; is the tenant entitled to any, and what relief 
 in equity ? 
 
 Q. — A sum of stock is vested in tinistees i;pon trust 
 to pay the same to such person as A., a married 
 woman, shall, by any wi'iting under her hand, 
 attested by a credible witness appoint ; and in default 
 of aj)pointment, upon trust to pay the dividends to 
 A. for her separate use during her life, and after her 
 decease upon trust for the children of A. equally. A. 
 and her husband sign a letter addi'essed to the trustees, 
 requesting them to transfer the stock to her husband. 
 The signatures are unattested. The trustees comply 
 with the request. There are several children of the 
 marriage. Have they any and what claim against the 
 trustees ? 
 
 Q. — A sum of stock is vested in trustees upon trust 
 for such of A.'s chikben as he shall by deed appoint, 
 and in default of appointment upon trust for B. 
 absolutely. A., having several children, gives the whole 
 of the stock by will to one of them. "VVTio is entitled 
 to it? 
 
 Q. — A tenant covenants to keep buildings in repair, 
 and there is a proviso in the building lease that the 
 term thereby granted shall cease on the breach of any 
 covenant. The premises being out of repair, the land- 
 lord brings an action of ejectment, and obtains a 
 verdict against the tenant. Is the tenant entitled to 
 relief in equity ? 
 
 Mistake. 
 
 Q. — Distinguish between the cases of mistakes in 
 law, and mistakes in facts, with regard to the relief 
 afforded by Courts of Equity ?
 
 295 
 
 Q. — In what cases will equity p;rant relief upon a 
 joint bond," as if it were a several as well joint 
 obligation. 
 
 Q. — A. and B. wlio had advanced conflicting claims 
 to an estate execute a deed of compromise by which 
 A., in consideration of the estate being conveyed to 
 him, releases all right to the residue. B. afterwards 
 institutes a suit in equity to set aside the conveyance 
 to A. on the gi-ound that A. had in fact no interest 
 whatever in the estate. On investigation this appears 
 to be the case : will the deed be set aside in the 
 .absence of fraud under any, and what circumstances ? 
 
 Q. — A freehold estate is devised to trustees to the 
 use of A. for life without impeachment of waste, and 
 after his decease to the use of his first and other sons 
 in tail. Power is given to the ti"ustee, with the con- 
 sent of the tenant for life, to sell all or any part or 
 parts of the land, tenements, and hereditaments so 
 devised, for such price as to them shall seem reason- 
 able, and to that end to revoke the uses therein-before 
 declared ; the trustees are also empowered to give 
 receipts for the purchase-moneys. 
 
 The estate is sold by the trustees, with the consent 
 of the tenant for Hfe, but the timber standing upon 
 it (which is of considerable value) is not included in 
 the sale, because it is supposed that the tenant for 
 life (being unimpeachable for waste) is entitled to the 
 value of the timber. He enters into a contract for the 
 sale of the timber with the pui'chaser of the estate, and 
 gi'ants the growing timber to him by the same deed as 
 that by which the trustees convey the lands and 
 buildings. The tenant for life receives the purchase- 
 money for the timber ; but, some years afterwards 
 conceiving that he is not entitled to retain it, pays 
 the amount to the tmstees, who invest it upon the 
 trusts declared by the will respecting the money to 
 arise from sale of the estate. After the death of the 
 tenant for life, can the next remainder man recover 
 the estate at law, and will he be restrained from doing 
 so in equity ?
 
 296 
 
 Q. — Explain and illnstrate the rule that an equitable 
 presumption may be rebutted by parol evidence. 
 
 Q. — A testator directs land to be purchased by his 
 tinistees, and to be settled upon trust for his daughter 
 for life, and after her decease upon trust for the heirs 
 of her body ; and he devises lands of which he is seised 
 to the same trustees, upon trust for the daughter for 
 life, and after her decease upon trust for the heirs of 
 her body. And he says that the limitations of the 
 lands to be purchased, and of the lands devised are 
 intended to be in strict settlement. What estate will 
 the daughter take therein respectively ? , 
 
 Q. — A. sells and B. purchases , a fann under the 
 mutual mistake that it contains 30 acres, when, in 
 fact, it contains 20 acres only. It is described in the 
 conveyance by the names of the fields, and as contain- 
 ing 30 acres. By an error in transcription, one of the 
 fields mentioned in the draft is omitted in the deed. 
 Has the purchaser any, and what relief against these 
 mistakes ? 
 
 Q. — A. agrees to purchase a house from B., and the 
 agreement is duly reduced into writing and signed by 
 A. It is discovered that at the time of the agreement 
 being entered into, the house had been destroyed by 
 fii'e, although neither party to the agreement was 
 aware of the fact. Is A. bound by the agreement in 
 equity ? 
 
 Q. — A., knowing that he has a certain claim against 
 B., executes a release to him of all claims in the most 
 general terms. A. afterwards discovers that he had 
 another claim against B. at the time of executing the 
 release. Will the Court of Chancery relieve A. against 
 the operation of the release on this claim, if the intention 
 with which the release was executed, can be clearly 
 established by evidence ? 
 
 Q. — Ai'ticles are entered into before the marriage, 
 and a settlement is executed after marriage pur- 
 porting to be made in pursuance of the articles, but, 
 in fact, departing from them in material particulars. 
 Wliich will prevail? The provisions of the articles
 
 297 
 
 or those of the settlement ? State the gi-ounds of your 
 opinion. 
 
 Actual Fraud. 
 
 Q. — In what cases will a suppressio veri invalidate 
 a contract for sale ? 
 
 Q,. — What was the ancient rule of law as to con- 
 tracts entered into by a lunatic ? In what cases will 
 they be set aside in equity ? 
 
 Q. — What is the meaning of the tenns intrinsic 
 and extrinsic circumstances as applied to matters of 
 fraud ? Does the concealment of intrinsic in any, and 
 what cases differ in effect from the concealment of 
 extrinsic circumstances ? 
 
 Q. — The owner of a mine in treating for the sale 
 of it, represents the quantity of ore which he has 
 annually raised as much greater than the real quan- 
 tity. The person to whom these representations are 
 made sends an agent to view the mine, and he is 
 permitted to inspect accounts, from which the quan- 
 tities of ore actually raised can be ascertained. The 
 principal having received the report of the agent, 
 concludes the pui'chase of the mine, at a price greatly 
 exceeding the true value. Will a Coui't of Equity set 
 aside the purchase at his instance ? 
 
 Q,. — A person makes a statement (material to a 
 ti'ansaction about to be concluded) which he believes 
 to be tiTie, but wliich subsequently proves to be false. 
 Another to whom the statement is made, acting upon 
 the faith of it, concludes the transaction, and after- 
 wards finds himself in a situation less advantageous 
 than that in which he would have been placed if the 
 statement had been true. Has he any, and what 
 remedy against the person wlio made the statement ; 
 firstly at law, secondly in equity ? 
 
 Q,. — Is inadequacy of price to any, and what extent 
 a sufficient ground in equity for setting aside a contract 
 of sale? 
 
 Q. — On what gi'ounds is the juiisdiction of the
 
 298 
 
 Court of Chancery in matters of fraud established? 
 Is this jurisdiction universal, or arc any, and what 
 frauds excluded from its operation ? 
 
 Q,. — Is imbecility (not sufficient to support a com- 
 mission of lunacy) a ground for setting aside a contract 
 or conveyance in any, and what cases ? 
 
 Constructive Fraud. 
 
 Q. — State the rules by which the court is guided 
 with respect to a purchase made by a trustee from his 
 cestui que trust. 
 
 Q,. — What was the ancient doctrine of the court 
 as to alienating the subject-matter of a suit pendente 
 lite ; and in what manner has the rule on the subject 
 been altered by a modern act of parliament ? 
 
 Q. — To what extent are conditions in restraint of 
 marriage invalid? In what manner did the rules of 
 the English law on the subject originate? 
 
 Q. — Is a plea of pui'chase for a valuable consider- 
 ation without notice, a good defence against a legal 
 title? State the reasons on which your opinion is 
 founded. 
 
 Q,. — In what cases will a settlement made by a 
 woman previously to marriage without consent of her 
 intended husband be set aside at his instance after 
 marriage ? 
 
 Q. — State the rales acted upon by the coiu't relating 
 to bargains with remainder-men and reversioners. 
 
 Q. — A solicitor takes from Ids client a mortgage as 
 security for costs then due, and thereafter to become 
 due in a suit already commenced. Costs are incurred 
 in the suit after the execution of the mortgage. Can 
 the • solicitor enforce his security to any, and what 
 extent ? 
 
 Q. — Previously to a marriage, the intended husband 
 in order to induce the fiither of the lady to give his 
 consent, obtains the transfer into his own name of a 
 considerable sum of stock belonging to a friend, who 
 without the knowledge of the father, takes a bond
 
 299 
 
 from the intended husband for a sum equal to the 
 value of the stock. No settlement is made on the 
 maniage, but it takes place under the belief on the 
 part of the father, that the stock is the property of 
 the husband. The wife dies without issue, shortly 
 after the maniage. Will a Court of Equity on the 
 application of the husband restrain an action on the 
 bond ? 
 
 Q. — A client during the progress of a suit being 
 satisfied with the conduct of his solicitor, grants him 
 as an additional reward for his services, a lease of 
 property not the subject of the suit on very advan- 
 tageous tenus. The client dies intestate shortly after the 
 suit is concluded, having paid the solicitor's bill of 
 costs. Is the heir of the client entitled to have the 
 lease set aside in equity ? Is there any conflict of 
 authorities on the point ? 
 
 Q,. — A solicitor purchases an estate from a client, 
 who shortly afterwards files a bill to have the convey- 
 ance set aside. State fii-stly what case the plaintiff 
 must establish (supposing that it is unanswered by the 
 defendant) in order that the plaintifl" may be entitled 
 to a decree in big favour ; and secondly, the plaintiff 
 proving such a case, what fact or facts must the 
 defendant prove in order to defeat the plaintiff's 
 claim ? 
 
 Q. — The owner of a leasehold estate, believing that 
 he is in danger of being prosecuted for a felony and 
 convicted, assigns his term to trustees for thp benefit 
 of his wife and chikben. Will the claim of the Crown 
 in case of conviction prevail over that of the wife and 
 childi'en ? 
 i"C Q,. — Two persons enter into an agreement to divide 
 equally between themselves whatever may be left to 
 either by another, from whom they conceal the agree- 
 ment ; he makes a bequest to one only. Can the other 
 enforce the agreement in equity ? 
 
 Q. — Define champerty and maintenance. To what 
 extent does equity follow the law as regards this 
 subject ?
 
 300 
 
 Q. — The tenant for life of an estate, with power of 
 appointment to such one or more of his children as he 
 shall think fit, appoints the whole to his eldest son 
 shortly after he has attained 21 years of age. The 
 father and son then convey the fee to a purchaser, and 
 the pui'chase-money is by the deed expressed to be paid 
 to both. Can the pui'chaser make a good title to the 
 estate ? State the reasons on which your opinion is 
 founded. 
 
 Q,. — An ante-nuptial settlement contains a stipula- 
 tion in favour of a collateral who is not a party 
 to the settlement. Is the collateral a pui'chaser for a 
 valuable consideration within the 27 Eliz., c. 4? Quote 
 authorities and state the grounds on which your opinion 
 is founded. 
 
 Q,. — Explain what is meant by constructive notice. 
 "What notice will be sufficient to render a registered 
 instniment invalid as against a prior unregistered 
 instrument ? 
 
 Q. — Under what circumstances, and at whose in- 
 stance, will a conveyance be set aside by vii'tue of the 
 statute 13 Eliz., c. 5, and, if set aside, what classes 
 of creditors will be allowed to take, advantage of the 
 decree ? 
 
 Q. — Explain the changes in the law effected by the 
 Statute of Eraudulent Devises. 
 
 Q. — A fund is settled upon trust for such of the 
 tenant for life's children, and in such shares as he 
 shall appoint, and in default of appointment for the 
 childi'en equally. He had two daughters and appoints 
 the whole fund to one, on an understanding, but not 
 an absolute agTeement, that she will settle a moiety 
 on her sister for life with remainder to her sister's 
 children. The settlement is executed by the appointee 
 accordingly and without the knowledge of her sister. 
 The father then dies. Is the settlement unimpeachable? 
 
 Q.. — An act of parliament empowers a rector, with 
 the consent of the patron of the living, to raise money 
 for building a new rectoiy house by means of an 
 annuity for lives to be charged on the rents and
 
 301 
 
 profits of the rectory. Difficulty is experienced in 
 raising the money, and the patron himself advances it 
 in consideration of an annuity, of as small an amount as 
 any other person was willing to accept, being granted 
 to a tnistce for him. Can the transaction be supported? 
 
 Q,. — A. conveys an estate to B., his solicitor, at an 
 under value. A. afterwards sells and conveys by deed, 
 for valuable consideration, such interest as he still has 
 in the estate to C. Can C. sustain a bill to set aside 
 the sale to B. ? 
 
 Q,. — In what counties are deeds relating to land now 
 registered ? Explain the advantages and disadvantages 
 attendant on the present system of registration. 
 
 Q. — A. purchases an estate with notice of an incum- 
 brance, and then sells it to B. who has not notice. B. 
 Bells it to C. with notice. Is the estate bound in the 
 hands of C. ? State the reasons on which the rule of 
 the eoiu-t is founded. 
 
 Q. — Pending a treaty of marriage, the intended wife 
 makes a settlement of all her property on herself for 
 life for her separate use with remainder to her children 
 by a foiTaer marriage. The settlement is not com- 
 municated to the intended husband. The treaty is 
 broken off, and the lady marries another person who 
 is also without notice of the settlement. Is it valid 
 as against him ? 
 
 Legacies. 
 
 Q. — A testator bequeaths specifically a sum of money, 
 " due to him, on mortgage from A. B." The mortgage 
 is paid off in the life-time of the testator, who, upon 
 receiving the money, reinvests it upon another mort- 
 gage security : the testator then dies. Is the legatee 
 entitled to the amount so invested? Have the rules 
 of the Court of Chancery, applicable to this case, 
 undergone any fluctuations? What is the doctrine 
 of the Civil Law on the same subject? 
 
 Q,. — Real estate is devised to trustees upon trust to 
 sell, and divide the proceeds among several persons,
 
 302 
 
 some of whom die in the life-time of the testator. 
 Are probate and legacy duties payable in respect" of all 
 or any, and what part of the property ? 
 
 Q,. — The executor of a testator, who has bequeathed 
 pecuniary legacies and the residue of his personal 
 estate, commits a devastavit. By whom shall the loss 
 be sustained? 
 
 Q,. — In what manner does the jurisdiction of equity 
 to decree payment of general legacies appear to have 
 originated. 
 
 Q. — In what coiu'ts was a suit for the payment of 
 a legacy formerly maintainable, and in what courts 
 can such suit now be maintained ? 
 
 Q. — A testator gives a legacy of £100 to A. out of 
 the £3 per cent, consols standing in liis (the testator's) 
 name, and he gives £100, part of the said £3 per cent, 
 to B. The testator afterwards sells all the stock 
 standing in his name. Are A. and B. entitled to their 
 legacies ? How are such legacies described ? 
 
 Q. — What circumstances must generally conciu' in 
 order that a donatio mortis causa may have validity ? 
 In what respects does it differ from, and in what does 
 it resemble a legacy ? 
 
 Q,. — Explain the tei-ms nuncupative will, and when 
 is it valid ? 
 
 Q. — A testator bequeaths his personal estate in 
 general terms to one for life with remainder over ; in 
 what manner will a Court of Equity require that this 
 bequest should be carried into effect ? 
 
 Q,. — From what soiu'ce are the iTdes applied by the 
 Coiu"t of Chancery to questions concerning legacies 
 chiefly derived ? Give an outline of the circumstances 
 which led to the adoption of such rales in Chancery. 
 
 Q. — In what respect docs a donatio mortis causd 
 differ from a gift inter vivos ? 
 
 Q. — A. in immediate expectation of death delivers 
 a watch to his servant, with directions to give it to B., 
 and to tell B. that he is to keep it in case A. dies. 
 A. has pre^-iously made a will, by which he bequeaths
 
 303 
 
 all his property to C. The watch is delivered to B., 
 but A: has previously died. ^Tio is entitled to it ? 
 
 Q. — A testator gives a service of plate to A., and 
 the residue of his property to B. The testator having 
 insiu'ed tlie plate takes it with him on a voyage. The 
 ship is lost with the testator and plate on board. Who 
 is entitled to the insurance money ? 
 
 Q. — The obligee of a bond under no immediate 
 apprehension of death, wiites on the back of the 
 bond, " I hereby assign the sum of money secured by 
 this bond to my son, A. B." The obligee signs the 
 indorsement and hands the bond to liis son. Who is 
 entitled to the amount secured ? 
 
 Ex2)ress Private Trusts. 
 
 Q,. — Distinguish between the trust of the English 
 and the Usufrudus, and Fidei Commissum of the 
 Roman law. 
 
 Q,. — Distinguish between executoiy and executed 
 trusts ; and between the iiiles of constniction applicable 
 to trusts of each species. 
 
 Q. — In what manner is the creation of tnists 
 affected by the Statute of Frauds ? Is any exception 
 made to the general provision ? 
 
 Q. — ^Tiat consideration is sufficient to support a 
 declaration of trust '? In what light is an imperfect 
 conveyance regarded in equity ? 
 
 Q. — A testator by will dii-ects his executors to invest 
 d sum of money, and to stand possessed thereof upon 
 trast to pay the annual proceeds to A. for life, and 
 after his decease to pay or transfer the sum or securities 
 on which it has been invested to B. The investment 
 is made accordingly ; A. dies, and more than 20 years 
 from his death elapse without any payment to B. Is 
 he precliuled from recovering the legacy ? 
 
 Q. — Mention the leading rules which have been 
 laid down for the intei-pretation of precatory words in 
 a testamentary instniment ? 
 
 Q. — A testator by his wiU gives the residue of his
 
 304 
 
 personal estate to A., and recommends Idm to give so 
 mucli as may remain undisposed of at his decease to B. 
 Does B. take on the testator's decease, any and what 
 interest in his residuary estate ? 
 
 Q. — A. conveys property to tmstees upon trusts for 
 sale, and out of the proceeds to pay certain creditors of 
 A. mentioned in a schedule, hut not parties to the 
 deed; and upon fiuiher trust to pay the residue to B., 
 who is a stranger in blood to A., and a volunteer. 
 After the property has been sold, and both the creditors 
 and B. have become aware of the nature of the tiTist- 
 deed, A. requii-es the trustees to hand over the proceeds 
 of the sale to liim. Can they safely comply with this 
 request to any and what extent ? 
 
 Q. — A testator devises freehold lands to trustees 
 upon ti'usts for sale, and to stand possessed of the 
 proceeds for A. and B. equally. B. is an alien. Can 
 the trustees, with the concui-rence of A. and B., make 
 a good title to the estate ? 
 
 Q. — By a post-nuptial settlement, A. conveys a free- 
 hold house, of which he is seised in fee to trustees upon 
 tinists for the benefit of his wife and childi'en. He 
 also, by the same instrument, declares that he stands 
 possessed of a sum of stock standing in his name upon 
 the Kke trusts. Subsequently for valuable considera- 
 tion A. transfers the stock to B., and also for valuable 
 consideration executes a deed purporting to convey the 
 house to him. B., at the time of the consideration 
 paid, has notice of the settlement. Have the wife 
 and children of A. a remedy to any and what extent 
 against B. ? 
 
 Q,. — A. is seised to himself and his heirs of a freehold 
 house, possessed of a tei-m of two years in another 
 house, and has a sum of £10,000 stock standing in his 
 name. He holds the property upon tnist for B., his 
 heirs, executors, and administrators. B. gives a parol 
 direction (clearly established by evidence) to A., 
 desiiing him to hold the two houses and stock upon 
 trast for C. absolutely. B. dies intestate, the property 
 is claimed by his heir and personal representatives,
 
 305 
 
 and by C. Who is entitled to the houses and stock 
 respectively ? 
 
 Q. — By marriage articles it is agi'eed that a freehold 
 estate shall be vested in trustees upon trust, for the 
 intended husband for life, and after his decease for his 
 first and other sons successively in tail male, with an 
 ultimate trust in favoiu' of his heirs ; and it is fui'ther 
 agi-eed that a leasehold estate shall be limited on the 
 Kke trusts, so far as the rales of law and equity will 
 permit. In what manner should this agreement be 
 executed as regards the leasehold estate ? 
 
 Q. — A., prcA-iously to his marriage, covenants with 
 trustees that he will, within one year after his maniage, 
 pay them £1,000 upontrast for his wife, her executors 
 or administrators, in case she survives him : he also 
 covenants with the trustees to leave his wife, if she 
 sui'vives, other £2,000. The husband outlives the 
 year, and then dies intestate and without issue, pos- 
 sessed of personal estate worth £6,000. To how much 
 is the widow entitled ? 
 
 Q,. — A father, previously to the mamage of his 
 daughter agi'ees with the intended husband to leave by 
 will £5,000 for the benefit of his daughter for life, 
 and at her death to be divided among her childi'en. 
 The husband agrees to pay on the death of the father a 
 like sum to trustees on similar trusts. The tcnns of 
 the agreement between the father and husband are 
 never reduced into wi'iting. The father dies, having 
 by will bequeathed the whole of his property to his 
 childi'en other than the daughter. The husband also 
 dies without having fulfilled his agreement. Have the 
 widow and her children any remedy against the estates 
 of her husband and father respectively ? 
 
 Charities. 
 
 Q. — Explain the nature and extent of the jurisdic- 
 tion belonging to the visitors of a charity ? Does it 
 ever exclude that of a Court of Chancery, and with 
 what questions is it competent to deal ?
 
 306 
 
 Q. — In what case is the distribution of a fund 
 devoted by will to charity, directed bj^ sign manual '? 
 
 Q,. — Explain what is meant by a superstitious use ; 
 and mention the statute to which reference is made for 
 the purpose of determining whether a use is super- 
 stitious ? 
 
 Q,. — "What is the leading provision of the statute, 
 and is it prospective in its ojDcration ? 
 
 Q. — A testator directs his executors to sell his lease- 
 hold property, and to lay out one half of the money 
 so to be produced in creating a monument to himself in 
 a particular church, and the other half in purchasing 
 an organ for the same church. Are they valid bequests? 
 
 Q. — On what grounds has the court proceeded in 
 deteiTQining whether uses shall be considered charitable 
 or not ? Give instances of uses with regard to which 
 the question has been held doubtful. By what maxims 
 has the court been guided as to enforcing charitable 
 uses ? 
 
 Q,. — In what case is the Court of Chancery without 
 jurisdiction to administer a charitable trust not void by 
 the Statute of Mortmain ? "V^Tiat, in such an instance, 
 is the proper mode of proceeding ? 
 
 Q. — A testator bequeaths by his will a sum of 
 money "for such charitable purposes as he shall by 
 codicil direct," and dies without making a codicil. 
 How shall the money be disposed of? 
 
 Q. — In what manner are real and personal estate 
 given to superstitious uses applied, and on what grounds 
 have the decisions on this subject proceeded? 
 , ,. Q. — What are the leading provisions of the statute 
 ''^' of charitable uses? When was it enacted, and for 
 what purpose is it usually referred to at the present 
 day? 
 
 Implied Trusts. 
 
 Q,. — In what cases will an implied trust arise on a 
 purchase in the name of another person ? State the 
 circumstances of the case Dyer v. Dyer, and the grounds 
 of decision.
 
 307 
 
 Q. — Explain the term equitable waste. Can it be 
 committed by a tenant in tail under any, and what 
 circumstances ? 
 
 Q. — Cestui que trust of real estate dies intestate and 
 without an heir. To whom does the beneficial interest 
 in the property belong? Give reasons and quote 
 authorities for your opinion. 
 
 Q. — A person enters into a covenant to purchase 
 lands of a certain value, and to settle them on trusts 
 specified in the instrument. He afterwards purchases 
 lands, which are conveyed to himself in fee simple, but 
 does no further act towards oaiTying his covenant into 
 execution, nor does he otherwise manifest any intention 
 to do so. Are the lands (which are of smaller value 
 than that specified in the covenant) bound by the 
 settlement during his life so as to prevent him from 
 alienating them, released from the settlement to a pur- 
 chaser without notice ? Are they bound after the 
 covenantor's decease, supposing them to remain until 
 that time unalienated ? Quote authorities for your 
 opinion. 
 
 Q. — A testator gave his real estate to trustees upon 
 trust to sell the same, and directed that the money to 
 arise from the sale shall be considered part of his 
 personal estate. He gives these moneys together with 
 the residue of his personal estate to his friends A. and 
 
 B. in equal shares. B. dies in the life-time of the 
 testator. To whom does the money, which he would 
 have taken if living, belong ? 
 
 Q,. — A testator devises freehold lands to trustees upon 
 trust for A. during his life, and after his decease upon 
 trust to sell the lands and divide the moneys thence 
 arising equally between B. and C; but if in the life- 
 time of A. either B. or C. should die, then the share 
 of him so djang is to belong to the other. A., B., and 
 
 C. survive the testator, but the two last die in the 
 life-time of A. "Wlio is entitled to the land in equity ? 
 
 Q. — A. purchases and pays for a freehold estate, but 
 it is conveyed by his direction unto and to the use of 
 himself, B. his son, and C. his nephew (to whom A.
 
 308 
 
 does not stand in loco parentis) and their heirs. A. dies 
 and afterwards B. dies, leaving C. surviving A. and B. 
 
 A. and B. have made wills disposing of their real estate 
 in favour of E. and F. respectively. Who is beneficially 
 entitled to the estate conveyed to A., B. and C? 
 
 Q. — A father, previously to the marriage of his 
 daughter, promised the intended husband to give the 
 freehold estate of D. to the daughter. No conveyance 
 is executed, but shortly after the marriage the father 
 gives up possession of the estate to his son-in-law. 
 The father and daughter die, each leaving a son. 
 Who is entitled to the estate in equity ? 
 
 Q. — An estate is conveyed to A. and his heirs upon 
 trust for B. and his heii's. A. is attainted of felony, 
 and dies intestate. B. afterwards dies intestate and 
 without heirs. To whom does the land belong. 
 
 Q. — A testator devises lands to A. for life, with 
 remainder to B. in fee ; and he charges those lands 
 Avith a sum of £10,000, which is to be held upon trust 
 for D. for life, and after his decease for E. absolutely. 
 E. dies during the testator's life-time. The sum of 
 £10,000 is raised by a mortgage of the estate, and the 
 interest paid to D. for life. A. and B. die during the 
 life-time of D. On D.'s decease, who is entitled to 
 the £10,000 ? 
 
 Q. — An estate is devised to A. for life, with remainder 
 to B. for life, remainder to C. in fee. A. suffers the 
 mansion-house to become ruinous. Has C. any remedy 
 at law, or in equity ? 
 
 Q. — A legal mortgage is made to A. as a security for 
 a sum of money expressed in the deed to have been 
 advanced by A., but which was in fact advanced by 
 
 B. A., who has the custody of the mortgage deed, 
 deposits it as a security for the advance of a sum 
 (equal to that secured by the deed) made to himself by 
 C., who has no notice that A. is a trustee. A. appro- 
 priates this money, and becomes insolvent. Who is 
 entitled to the money secured by the mortgage deed ? 
 
 Q. — A father purchases an estate in the name of his 
 Bon, to whom it is conveyed. Give the reasons against
 
 309 
 
 admitting parol evidence to prove that the father did 
 not intend to make an advancement, and the reasons in 
 favour of admitting such evidence. How has the point 
 been decided ? 
 
 Constructive Trust. 
 
 Q. — A trustee aliens the trust estate. "Will the 
 estate be still subject to the trust under any, and what 
 circumstances — 1. If the alienee has given no con- 
 sideration fertile estate; 2. If he has given a valuable 
 consideration ? 
 
 Q. — A conveyance is expressed to be made in con- 
 sideration of the purchaser entering into a covenant 
 contained in the deed for the payment of an annuity to 
 the vendor during his life. Has the annuitant a lien 
 on the estate ? 
 
 Q,. — A. sells and conveys an estate to B., but does not 
 receive the whole of the purchase-money. A judgment 
 creditor of B. extends the land under an elegit. Has 
 A. any, and what remedy in respect of the land ? 
 
 Q. — Explain the natiu'e of a vendor's lien. "What 
 kinds of property are liable to such lien ? and in case 
 of the purchaser's death, by whom must the lien be 
 discharged ? 
 
 Q. — A., who is seised in fee of a freehold estate, 
 conveys it without any consideration, to B. in trust 
 for C, the trust for C. being duly declared hj B., in 
 a separate instrument ; B. conveys the property for a 
 valuable consideration to D, who has notice that the 
 conveyance from A. was voluntary, but no notice of 
 the trust in favour of C. Who is entitled to the estate ? 
 
 Q,. — A. purchases an estate from B. and the convey- 
 ance is executed, but part of the purchase-money 
 remains unpaid. A. dies, having devised his estate to 
 C, and bequeathed the residue of his personal property 
 after giving certain legacies to D. By whom shall the 
 balance of the purchase-money be paid ; 1. supposing 
 the residue sufficient to pay aU the debts, and the 
 pecuniary legacies ; 2. supposing it sufficient to pay 
 the debts only ?
 
 310 
 
 Q. — A testator, who is entitled to WTiiteacre and 
 Blackacre for a term of years at a rent below the real 
 value, bequeaths the term to A. to hold the same upon 
 trust for B. during his life, and after his decease upon 
 trust for C. absolutely. 15 . before the term has expired 
 obtains a grant to himself of a fi-esh term in Whiteacre 
 for a sum of money paid to the assignee of the original 
 lessor; and he also obtains for valuable consideration a 
 grant of the remainder in fee of Blackacre, expectant 
 on the determination of the original term, from the 
 same assignee of the lessor. B. dies shortly after the 
 time when the original lease, if in existence, would 
 have expired. Is C. entitled to any, and what interest 
 in Whiteacre and Blackacre respectively ? 
 
 Trustees and Executors. 
 
 Q,. — Can a mortgage by an executor of his testator's 
 assets to secure a debt of the executor be supported 
 in any, and what case ? 
 
 Q. — A trustee is directed to invest money on govern- 
 ment or on real security. He retains the funds in his 
 own hands, instead of making an investment. Will a 
 cestui que trust be entitled to a decree at his option 
 either that the trustee should account for the amount 
 of the trust money, with interest, or that he should 
 purchase as much three per cent, consols as the sum 
 in question would have purchased at the time the 
 investment ought to have been made, and account for 
 the dividends ? Support your opinion by authority. 
 
 Q. — What is meant by a specialty debt ? Is it ever, 
 and in what cases constituted by a breach of trust ? 
 
 Q. — In what courts is probate now granted ? What 
 is now, and what was formerly the effect of probate 
 with reference to real estate ? 
 
 Q. — A female executrix commits a devastavit, 
 marries, and then dies before her husband. Has a 
 creditor of the testator any remedy against the husband 
 at law or in equity ? What is the reason of the rule 
 on the subject ?
 
 311 
 
 Q. — The residue of personal estate, consistiBg of 
 money and leasehold property, is bequeathed to A. 
 upon trust for B. for life, and after his decease upon 
 trust for C. absolutely. Mention the different ways in 
 which it is lawful for A. to dispose of the money, and 
 state what coiu'se he should pursue with respect to the 
 leaseholds. 
 
 Q. — What precaution should be taken by a trustee 
 who places trust funds in the hands of a banker, with 
 whom the trustee keeps his own account, and why is 
 he required to take such precaution ? 
 
 Q. — A testator bequeaths a leasehold house to A., 
 and appoints B. executor. B., although the personal 
 assets not specifically bequeathed are amply sufficient 
 for the payment of debts, sells the house to C, who 
 has full notice of the will, and B. receives the purchase- 
 money. Has A. any, and what remedy against C? 
 
 Q. — In what respects does an executor differ from 
 an ordinaiy trustee ? and what is the difference between 
 the consequences ensuing from one of several trustees 
 joining with his co-trustees, and the consequences 
 ensuing from one of several executors joining with his 
 co-executor in signing a receipt ? 
 
 Q. — A., entitled to a leasehold estate, assigns it, by 
 a post-nuptial settlement, to trustees upon trust for 
 himself for life, and afterwards upon trust for his wife 
 and chilch'cn, but remains in possession until his 
 decease. After A.'s decease his executor, ha-sdng no 
 notice of the settlement, assigns the leaseholds to a 
 purchaser for value, who is also without notice. Who 
 is entitled to the property ? 
 
 Q. — An executor, trustee of the residuary- estate of 
 a testator for an infant is empowered by the wiU to 
 invest it on real or government securities. He employs 
 it in trade. On attaining 21 the infant files a bill 
 against the executor for an account of the residue. To 
 what decree is the plaintiff entitled ? 
 
 Specific Performance. 
 Q. — ^Tien a contract is entered into by which a
 
 312 
 
 person agrees to do certain acts, and not to do certain 
 other acts, will the Court of Chancery grant any 
 relief, if it cannot decree specific performance of the 
 acts to be done. Mention the leading cases which 
 have occurred on this subject. 
 
 Q. — In what cases will the court entertain a suit 
 for the specific performance of an agreement? Will 
 it entertain a suit for specific performance where the 
 relief sought is payment of a sum of money. 
 
 Q,. — Will the specific performance of an agreement 
 to repair be decreed in general ? Are there any 
 exceptions to the rule ? 
 
 Q. — Explain what is meant by want of mutuality 
 in a contract ? When is want of mutuality a sufficient 
 answer to a suit for specific performance ? 
 
 Q. — Explain the ride of court as to the admission 
 of parol evidence regarding the effect to be given to 
 an instrument or several instruments when the doctrine 
 of equitable presumption can be applied. 
 
 Q. — Is payment of part of the purchase-money such 
 a part performance as will take an agreement out of 
 the Statute of Frauds ? 
 
 Q. — State the rules acted on by the courts with 
 reference to family arrangements, and the reasoning on 
 which those rules are supported. 
 
 Q. — State generally under what circumstances specific 
 performance wiU be decreed, although the plaintiff is 
 unable to fulfil all the terms of his contract. 
 
 Q,.— In what cases will the Court of Chancery decree 
 specific performance of an agreement for the sale of 
 personalty ? 
 
 Q,. — Explain and illiistrate the rule : the assignee of 
 a chose in action takes it with all the equities attached 
 to it : should any exception be made in the case of a 
 fund vested in a trustee ? 
 
 Q,. — A. enters into a written agreement with B. to 
 sell him a certain estate, describing it as copyhold. A. 
 afterwards discovers that it is freehold. Can B. enforce 
 specific performance of the contract ? 
 
 Q. — In what cases is time considered in equity to be
 
 313 
 
 of the essence of a contract for sale ? When not of 
 the essence of the contract, in what manner should a 
 party to the contract proceed, if he wishes to put an 
 end to undue delay ? 
 
 Q- — A contract for the sale of an estate is signed by 
 the vendor. It is afterwards verbally agreed between 
 the vendor and purchaser that a field, not comprised 
 in the written contract, shall, for an addition to the 
 purchase-money, be included in the sale. The purchaser 
 accordingly takes possession of the field as well as the 
 estate, but the vendor afterwards refuses to convey the 
 field. Can the purchaser compel him to do so ? 
 
 Q. — In a written contract for sale of an estate, the 
 vendor agrees that an abstract of the title shall be 
 delivered within a certain number of days from the 
 date of the contract ; the abstract is not delivered for 
 several days after the time appointed. Can the pur- 
 chaser successfully insist on the non-delivery of the 
 abstract at the proper time as a ground of defence ; 
 firstly, to an action for damages sustained by breach of 
 the agreement ; or, secondly, to a suit for compfclling 
 specific performance. 
 
 Q,. — A person makes a valid promise with a stipula- 
 tion that in case of non-fulfilment, he shall pay a 
 certain sum of money. Will payment of this amount 
 be considered equivalent to performance, first at law ; 
 second in equity ? 
 
 Q,. — A. seised in fee of freehold property, seised as 
 of fee according to the custom of a manor of copyholds, 
 entitled to a sum of stock standing in his own name, 
 and to another sum of stock standing in the name of a 
 trustee, grants and assigns the whole of the propert}' 
 excepting the copyholds to his son, and covenants to 
 surrender the copyholds to the use of the son. The 
 grantor dies witliout having taken any further step. 
 Is the gift good to any, and what extent ? 
 
 Q. — A. upon the marriage of his daughter with B., 
 verbally promises him to pay, immediately after the 
 intended marriage £1000 to trustees, upon trust for 
 his daughter for life, and after her decease upoa trust 
 
 N
 
 314 
 
 for her children equally; and the intended husband 
 makes a similar promise to the father. The marriage 
 takes place, but neither sum is paid. There are several 
 children of the marriage, who, after the decease of 
 their mother, iile a bill against the father and grand- 
 father, to have the two sums ot £1000 paid and applied 
 to the trusts of the settlement. Are they entitled to 
 this relief? 
 
 Q. — Explain the terms "good," "valuable," and 
 "meritorious" consideration. And state accurately 
 what kinds of consideration ;ire sufficient in equity to 
 support an agreement. 
 
 Q,. — In what cases is notice to a trustee necessary in 
 order to confer priority ? In what manner does the 
 doctrine of equity applicable to such cases appear to 
 have originated ? 
 
 Q. — State the principal objections which may, in 
 particular cases, be successfully maintained to a suit 
 for the specific performance of an agreement, not being 
 such objections as would be available at law, by way of 
 defence to an action for breach of the agreement. 
 
 Accomit. 
 
 Q. — On what ground does the Court of Chancery 
 entertain jurisdiction in matters of account ? Will a bill 
 for an account lie in general by a principal against his 
 agent ? 
 
 Q. — What is meant by an equitable set-oif? In 
 what cases is it allowed ? 
 
 Q. — What is meant by general average ; and why is 
 it a proper subject of equitable jurisdiction ? 
 
 Q. — State the principal rules relating to the appro- 
 priation of payments ; in what respect does the English 
 differ from the Roman law on this subject? 
 
 Q. — What is meant by " a stated account" ? Is a 
 plea of an accoimt stated under any, and what circum- 
 stances a good defence to a bill for an account ? 
 
 Q. — Leasehold property is settled upon A. for life, 
 with remainder to B., his executors, administrators,
 
 315 
 
 and assigns. A. renews the lease, paying a fine, and 
 dies before the expiration of the lease. Can A.'s 
 personal representatives require B. to contribute any, 
 and what part of the sum laid out on renewal ? 
 
 Q,. — A. and B. are jointly indebted to a banking-house 
 which has stopped payment. The bank is indebted to 
 A. on his separate account to the same amount in 
 which A. and B. are indebted to the bank on their 
 joint account. A, transfers his credit by deed to 
 A. and B. (in order that the debt and credit may cancel 
 each other), and notice is given of the transfer to 
 the bank. Is the set-oif sustainable as against other 
 creditors of the bank ? 
 
 Q. — A bill being filed for a partition and account 
 by one tenant in common against another, can the 
 defendant be charged with an occupation rent for part 
 of the premises of which he has been in possession 
 with the consent of the plaintiff? 
 
 Administration. 
 
 Q. — What is meant by " marshalling assets" ? 
 
 Q. — Explain the term " Equitable assets." State 
 in what order assets of the following species are 
 applicable to the payment of debts : — Eeal estate 
 devised to be sold, and the proceeds employed in the 
 payment of debts ; chattels specifically bequeathed, and 
 real estate which descends to the heir. 
 
 Q. — A testator devises to A. lands, " subject to a 
 mortgage" and bequeaths a leasehold house, and furni- 
 ture to B. He leaves no other personal estate, and no 
 debts except the debt due on the mortgage. Can A. 
 insist that the legacy to B. or any part of it shall be 
 sold in order to satisfy the mortgage debt ? 
 
 Q. — State the grounds on which your opinion is 
 founded. 
 
 Q. — A testator devises certain freehold lands (all to 
 which he is then entitled) charged with the payment 
 of his debts to A. He purchases other freehold lands 
 after making liis will which contains no residuary devise
 
 316 
 
 of real estate. On his decease all his property is sold 
 when the personalty produces £500, the freeholds 
 •charged with debts £3,000, and the after-acquired 
 freeholds £3,500. The specialty debts amount to 
 £8,000, and the simple contract debts to £6,000. 
 What amount shall the specialty and simple contract 
 creditors receive respectively? 
 
 Q. — A testator devises all his real estate to his heir, 
 and gives several pecuniary legacies which he does 
 not charge upon his real estate. The personalty is 
 exhausted in payment of debts by specialty and simple 
 contract. Can the legatees obtain payment of their 
 legacies ? 
 
 Q,. — A. dies intestate, leaving a wife, a first cousin, 
 and a great-nephew, but no issue or other relations. 
 In what manner shall A.'s personal estate be divided ? 
 State the general rules applicable to the case proposed. 
 
 Q. — A testator bequeaths all his personal estate to 
 A., and devises his real estate to trustees upon trust 
 to sell, and out of the proceeds to pay his funeral and 
 testamentary expenses and debts, and to pay the residue 
 to B. Will the personal or real estate be held, the 
 primary fund for the payment of debts ? 
 
 Q. — A. mortgages leaseholds to B., and pledges 
 chattels personal to C. By his will, after mentioning 
 the mortgage and pledge, he bequeaths the leaseholds 
 " subject to the mortgage" to D., and the chattels 
 personal "subject to the lien" to E., and makes F. 
 residuary legatee. The testator leaves personal pro- 
 perty, not specifically bequeathed, sufficient to satisfy 
 all his debts. By whom shall the debts charged on 
 the leaseholds and chattels personal respectively be 
 borne? 
 
 Q. — A person enters into a voluntary covenant under 
 seal for the payment of money. His assets are dis- 
 tributed under a decree of the Court of Chancery. In 
 what order, with respect to specialty debts for good 
 consideration, simple contract debts, and legacies, shall 
 the voluntaiy bond be satisfied ? 
 
 Q. — A., who is seised of gavelkind lands, has two
 
 317 
 
 sons and three daughters. He devises the land to 
 trustees upon trust to sell the same, and diA^ide the 
 proceeds e(][ually among his daughters and second son, 
 declaring that Ids eldest son shall in no event take any 
 interest therein. One of the daughters dies in the life- 
 time of the father, and the eldest son dies intestate, 
 and without issue immediately after the father. The 
 trustees sell the land. How shall the proceeds be 
 divided ? 
 
 Q. — A testator commences his will by directing that 
 his debts shall be paid. He devises Whiteacre to A. 
 and Blackacre to B. He dies intestate as to Greenacre, 
 another freehold estate, of which he is seised in fee. 
 The three estates are worth £4,000, £3,000, and 
 £2,000 respectively. The testator leaves personalty, 
 not specifically bequeathed, by his will worth £1,000, 
 and his debts amount to £4,000. Out of what property 
 shall they be satisfied ? 
 
 Q. — A testator devises an estate to A. charged with 
 the payment of the testator's debts which amount to 
 £1,500 ; he devises an estate to B. charged with 
 legacies amounting to £800 ; and he devises another 
 estate to C. The three estates are freehold, and worth 
 £1,000 each, and the testator has no personal estate. 
 What will A., B., and C. receive respectively ? 
 
 Q. — A testator, who is entitled to leaseholds woi'th 
 £1,000 and to other personal property of the same 
 value, bequeaths a legacy of £1,000 to a charitable 
 institution. He dies indebted to the amount of £ 1 , 200 . 
 What will the charity receive ? 
 
 Q. — A testator gives to A. a legacy of £1,000 which 
 the testator charges upon his real estate. He gives 
 another legacy of £1,000 to B., but without charging 
 it upon real estate. The personal estate produces 
 £800. The debts amount to £500. The real estate is 
 of ample value. How much shall the legatees receive? 
 
 Q. — Will an equity of redemption in freehold 
 lands be considered in all, or any, and what cases as 
 equitable assets ? 
 
 Q. — A testator bequeaths £2,000 to A., and gives a
 
 318 
 
 freehold estate worth £1,000 to B. He has another 
 freehold estate worth £oOO, not devised by his will, 
 which descends to his heir. His personal estate 
 amounts to £300 and his debts to £600. What will 
 
 A. receive ? 
 
 Q. — A testator bequeaths his libraiy to A. charged 
 with the payment of the testator's debts, and his 
 furniture to B. By whom shall the debts be borne : 
 firstly, if the will contains a bequest of the residue ; 
 secondly, if it contains no such bequest ? 
 
 Legal Mortgages. 
 
 Q,. — Explain the essential provisions of a legal mort- 
 gage : At about what period and in what cases did 
 Coui-ts of Equity begin to relieve against the strictness 
 of the law as to redemption ? State generally the 
 distinctions contained in decrees for foreclosure, con- 
 ditional, and absolute. 
 
 Q. — A mortgage in fee, with power of sale, sells 
 part of the mortgaged estate during the Kfe of the 
 mortgagor, and the remainder after his decease. It is 
 provided by the mortgage deed that the surplus 
 shall be paid to the mortgagor, his executors, or 
 administrators. To whom should the mortgagee pay 
 the sui-plus ; fii'st, in case the produce of the first sale 
 was more than sufficient ; next, in case the second sale 
 was also necessary ? 
 
 Q. — It is stipulated by marriage articles that an 
 estate, of which the intended husband is seised in fee, 
 shall be settled to the use of the intended husband 
 and the heirs of his body by the intended wife. The 
 marriage takes place, but no settlement is executed. 
 The husband mortgages the estate to one who has 
 notice of the articles, and devises all his real estate 
 to a stranger and dies. The mortgagee files a bill of 
 foreclosure against the eldest son of the marriage. 
 AVhat decree will the court pronounce ? 
 
 Q,. — A. lends money to B. on his personal security. 
 
 B. has previously (without A.'s knowledge) made a
 
 319 
 
 first and second mortgage of an estate. A. obtains 
 judgment on his debt, and then purchases the first 
 mortgage, taking a transfer to himself. Can he tack 
 his judgment to the mortgage debt : firstly, inde- 
 pendently of the statute 1 and 2 Vic., c. 110; secondly, 
 by virtue of the statute ? 
 
 Q. — B. takes a transfer of a mortgage debt and 
 security from A., the original mortgagee papng a 
 sum less in amount than the original mortgage debt. 
 B. files a bill of foreclosure. For what sum will a 
 person interested in the equity of redemption, or having 
 a charge on the estate subsequent to that of A. be in 
 general entitled to redeem. Are there any, and what 
 exceptions to the rule ? 
 
 Q,. — A first mortgagee purchases the equity of 
 redemption from the mortgagor, there being a second 
 mortgage on the estate. To what decree in equity 
 against the first mortgagee, is the second mortgagee 
 entitled ? And why is he so entitled ? 
 
 Q. — Explain, " once a mortgage always a mortgage." 
 In an ordinary foreclosure suit has the Court of 
 Chancery authority to direct a sale instead of a fore- 
 closure, at the instance of the mortgagor, without the 
 consent of the mortgagee ? And, if so, whence is 
 such authority derived ? 
 
 Q. — Mention the circumstances which have been 
 relied on as showing that an instrument, in form a 
 purchase with a condition to re-purchase, is in fact a 
 mortgage. What important consequence depends on 
 the determination of the question ? 
 
 Q. — Can a bond be tacked to a mortgage against a 
 second mortgage, in any, and what case ? 
 
 Q,. — A. makes a legal mortgage in fee to B. The day 
 named in the proviso for redemption having passed, B. 
 institutes a suit against A. for foreclosure. A. then 
 mortgages the same estate to C. who is entirely ignorant 
 of B.'s mortgage, and the suit to which it has given 
 rise. B. obtains a decree of foreclosure absolute 
 against A. Could C, according to the original prin- 
 ciples of the court, enforce his security as regards the
 
 320 
 
 estate ? State the ground on which your opinion 
 proceeds, and whether any and what alteration has 
 hlfen made in the hiw on this subject. 
 
 Q. — A. makes a mortgage in lee, and dies intestate 
 without heirs. To whom does the equity of redemption 
 belong, and is it subject to any and what charges ? 
 
 Q. — A freehold estate is devised to a married woman 
 and her heirs. She and her husband mortgage the 
 estate by a deed which the wife acknowledges 
 separately, to secure a sum of money advanced to the 
 husband which he covenants with the mortgagee to 
 repay : according to the proviso for redemption the 
 mortgagee is to convey unto and to the use of the 
 husband and his heirs. The husband dies intestate 
 leaving personal estate sufficient to pay all his debts, 
 including the mortgage debt. Who is entitled to the 
 estate ? By whom must the incumbrance be borne ? 
 
 Q. — A. obtains judgment in an action at law against 
 
 B. and registers the judgment ; B. subsequently enters 
 into and signs in consideration of money advanced by 
 
 C, with notice of the judgment, a written agreement^ 
 that B. will execute to C. a mortgage of a freehold 
 estate, of which B. is seised for an estate of fee simple. 
 Before any further step is taken, A. sues out an elegit 
 and obtains possession of the estate. Is he entitled to 
 retain possession until he has received the amount due 
 on his mortgage ? 
 
 Q. — A. mortgages an estate to his bankers as security 
 for a balance then due to them from him, and for any 
 future advances which they may make on his account. 
 A. then mortgages the same estate to B. who has no 
 notice of the bankers' security. They, with notice of 
 B.'s security, afterwards make further advances to A. 
 Are the bankers entitled as regards these advances to 
 priority- over B 's mortgage ? Would the bankers have 
 priority if B. had notice of the bankers' security ? 
 
 Q. — A mortgagee, after the day named in the 
 covenant for payment has passed, requires payment 
 of the mortgage money and interest within one month. 
 The mortgagor does not pay within the month, but on
 
 321 
 
 the day .after the month has expired, tenders principal 
 and interest up to the day of tender. The mortgagee 
 requires six months' interest in addition. Is he entitl^^d 
 to receive it ? 
 
 Q. — State particularly in what mode or modes the 
 account of interest is taken in a suit to redeem against 
 a mortgagee in possession ? 
 
 Q,. — B., at A.'s request, agrees to advance him a 
 sum of money on mortgage of real property, to which 
 
 A. is legally as well as equitably entitled. The mort- 
 gage is executed, but, before advancing the money, B. 
 requires that the title deeds of the property should be 
 handed over to him. A. makes a reasonable excuse 
 for their non-production, with which B. is satisfied, 
 and advances the money accordingly. He afterwards 
 discovers that A., pi-eviously to the execution of B.'s 
 mortgage, had deposited the title deeds with C, in 
 order to secure a loan made by C. to A. What are the 
 rights of C. and B. in the mortgaged property ? 
 
 Q. — A. demises land to B. as a security for a debt, 
 with a proviso for redemption on a particular day, and 
 covenants with B. to pay on that day the amount with 
 interest. The mortgage is silent respecting a power of 
 sale. Mention the various remedies by which B. can 
 enforce payment after default. 
 
 Q. — A., seised in fee of an estate, conveys it to B. 
 and his heirs, subject to a proviso for redemption on 
 repayment by A. of a sum of money advanced to him 
 by B. A. afterwards mortgages the same estate to C. 
 
 B. dies, having devised the estate, and bequeathed the 
 mortgage -money to D., whom B. also appoints his 
 executor. B.'s estate, independently of the mortgage- 
 money, is sufficient for payment of his debts. D. 
 advances a further sum to A. on the same security 
 without notice of C.'s mortgage. Can D. tack the 
 further advance to the original debt as against C? 
 
 Q. — A. devises all his lands to B. and his heirs. 
 Will land, of which A. was seised in fee simple as 
 mortgagee, pass under this devise ? State the leading 
 rules applicable to this subject.
 
 322 
 
 Q. — Can a mortgagee tack a simple contract .debt to 
 his mortgage in any, and what circumstances ? and as 
 against whom ? 
 
 Q. — A. mortgages "Whiteacre and Blackacre to B. 
 A. afterwards mortgages Blackacre alone to C. B. files 
 a bill of foreclosure against A. and C. Sketch the 
 form of the decree. 
 
 Equitalle Mortgages. 
 
 2, Of ^- — 0^6 seised in fee of an estate conveys it to 
 trustees upon trusts for the benefit of his wife and 
 children. He afterwards deposits the title-deeds of the 
 estate as security for a sum of money advanced by a 
 person who has notice of the settlement. The depositee 
 institutes a suit against the depositor, his wife and 
 children, for the purpose of enforcing the security. Is 
 he entitled to any, and what relief? 
 
 Q. — Is any liability, under the covenants contained 
 in a lease, incurred by taking a deposit of the lease as 
 a security, and what are the remedies of the 
 depositee f 
 
 Lien. 
 
 Q. — The purchaser of an estate pays for it by means 
 of a cheque. The vendor executes the conveyance (by 
 which the purchaser is released from the purchase- 
 money) and signs a receipt endorsed on the deed. The 
 cheque is dishonoured, and the purchaser found to be 
 insolvent. Has the vendor a remedy under any, and 
 what restrictions ? 
 
 Q. — A contract for the purchase of land is abandoned 
 on the ground that the vendor cannot make a good title. 
 Has the vendor a lien for his deposit ? State the 
 principal grounds of argument on each side of the 
 question, and refer to decisions. 
 
 Q. — A. conveys an estate to B. "in consideration of 
 the covenant thereinafter contained" — that is to say, a 
 covenant by B. to pay A. an annuity for the life of A.
 
 323 
 
 The annuity falls into arrear, and B. dies insolvent. 
 Has A. any remedy against the estate ? 
 
 Q. — A testator directs that his executors after the 
 death of A. shall purchase in their names a government 
 annuity of £100 for the life of B. and pay him the 
 annuity half-yearly. A. and B. survive the testator, 
 but B. dies in A.'s life-time. Have B.'s personal 
 representatives any, and what claim against the 
 testator's estate? 
 
 Q. — A. gives a cheque of £30 to B. in order that B. 
 may pay that sum (being the annual premium on a 
 policy of assurance on A.'s life) to an insurance office. 
 B. gives the cheque to his bankers with directions to 
 place it to the credit of his own account, intending to 
 pay the sum due with a cheque drawn by himself. 
 Before the day for payment arrives B. dies insolvent. 
 When B. paid in the cheque there was a balance at the 
 bankers of £110 in his favour. In the interval between 
 that time and his death he drew cheques to the amoimt 
 of £120, and a sum of £40 was paid to B.'s account 
 during the same period. Has A. any, and what claim 
 on the £60. The amount in the banker's hand at the 
 time of B.'s death; or can A. merely claim pari passu 
 with the other creditors ? 
 
 Apportionment and Contribution. 
 
 Q. — Lands are devised to A. and B. and their heirs. 
 A. lays out money on the land in permanent improve- 
 ments. Upon his death, during B.'s life-time, can the 
 representatives of A. maintain any, and what claim 
 against B.? 
 
 Q. — A., B., and C. enter into a joint bond as 
 sureties for the payment of a debt due from D. to E. 
 A. dies, and D. having made default, B. pays the debt. 
 Has he a claim, and of what nature, and to what 
 amount against C, and the personal representatives of 
 A. respectively ? 
 
 Partnership. 
 
 Q. — A partnership was formed of five persons, one
 
 324 
 
 of whom died, and the other four parties continued in 
 tlie partnership, and afterwards became bankrupt: the 
 creditors of the four surviving partners sought to have 
 the debts of the five paid out of the assets of the 
 deceased partner, so that the estate of the four bank- 
 rupts might be thereby increased. What under these 
 circumstances was the decision of the court, and the 
 reasons upon which it was grounded ? 
 
 Q. — Two solicitors are in partnership together. A 
 sum of money is paid to their joint account at their 
 bankers, by a client to whom A. has undertaken to 
 find an investment. A. afterwards represents to the 
 client that the money has been invested on mortgage, 
 and for many years pays him money equal to the 
 interest which, he is told, is secured by the mortgage 
 deed. The money has in fact, never been invested, 
 but has been applied by A. to his own use. B. has no 
 further knowledge of the transaction than he might 
 obtain by an inspection of the account of the firm with 
 the bankers. A. becomes insolvent, and the non- 
 investment of the money is discovered. Is B. liable to 
 make good the amount to the client ? 
 
 Q. — Is probate duty payable in respect of land 
 purchased with partnership property, and for partner- 
 ship purposes. State the grounds on which your 
 opinion is founded. 
 
 Q. — A., B. and C. who are partners in trade, execute 
 ajointbondto secure a partnership debt. They execute 
 another joint bond as sureties for a person employed in 
 an office of trust, who becomes a defaulter. A. dies. 
 Is there any equity against his estate upon the bonds, 
 or either of them ? 
 
 Q,. — A. gives B. his partner a promissory note for an 
 amount found due to him from A., on a settlement of 
 the partnership accounts. B. proceeds at law to 
 enforce payment of the note. Can A. obtain an injunc- 
 tion against the proceedings on the ground that since 
 the note was given, there have been various transactions, 
 the account of which must be taken before the amount 
 due fi'om A. to B. can be ascertained ?
 
 325 
 
 Q. — A., B. and C. carry on business in co-partnership. 
 A. retires ; B. and C. by deed jointly covenant to 
 indemnify A . against the debts then due from the finn. 
 C. dies, and B. becomes insolvent. A. is compelled to 
 pay a debt due from the firm when he retired. Has 
 he a right to be indemnified out of the assets of C. ? 
 
 Q. — A., B. and C. carry on business in co-partnership 
 as bankers. C. dies, and at the time of his decease, 
 D., a customer of the bank, has a balance of £1000, 
 to the credit of his account. The banking business is 
 carried on without alteration by A. and B., after the 
 death of C. D. pays £500 to the credit of his account, 
 and afterwards draws out £800. B. dies, and the 
 bank stops payment. Has D. any, and what remedy, 
 and to what amount, against the estates of B. and C. 
 respectively ? 
 
 Q. — On what grounds does the Court of Chancery 
 exercise jurisdiction in matters of partnership, and in 
 what cases will it decree the dissolution of a partner- 
 ship ? 
 
 Q,. — Partnership debts are considered in equity as 
 joint and several. Explain accurately the meaning of 
 this rule and the grounds on which it has been adopted. 
 
 Q. — A. and B. not previously partners in trade, 
 purchase a freehold estate, with the view of dividing 
 it into small lots, and selling them at a profit. The 
 purchase-money is advanced by A. and B. in equal 
 shares, and the land is conveyed to them and their 
 heirs. A. dies in B.'s lifetime intestate, leaving a 
 widow, a son, and a daughter. No sale of the land 
 has taken place. Who is entitled to it at law and in 
 equity ? 
 
 Q. — What is the ordinary test of the existence of a 
 partnership in trade? Are partners in trade necessarily 
 part owners of the stock in trade ? Would a stipula- 
 tion that a partner shall be entitled to a share in the 
 profits, but not liable to any part of the losses arising 
 from the partnership transactions be valid to any, and 
 what extent ? 
 
 Q,. — One of two partners in trade dies. "WTiat
 
 326 
 
 remedies, and against whom, has a creditor of the firm 
 for the recovery of his debt at law and in equity ? 
 
 Q,. — Three persons, partners in trade for a term of 
 years, and entitled to equal shares in the profits, 
 purchase land with money belonging to the partnership, 
 for the purpose of erecting upon the land buildings, to 
 be employed in their trade. The land is conveyed unto 
 and to the use of the three and their heirs. One dies 
 intestate, leaving a wife, a son, and a daughter. Who 
 is entitled to the share of the deceased partner in the 
 purchased lands, the articles of the partnership being 
 silent on the subject? 
 
 Sureties. 
 
 Q,. — What are the general rights of a surety who 
 pays ofi" the bond of his principal? Apply this 
 do(c trine to the case of a joint bond executed by a 
 principal and his surety, and show whether the surety 
 who has paid the bond in the life-time of the principal 
 is to be considered as a specialty, or a simple contract 
 creditor. 
 
 Q. — In what respects do the rules of law and equity 
 differ as regards contribution between co-sureties ? 
 
 Q,. — B. becomes surety for the payment of a debt by 
 A. on a day certain. The creditor afterwards agrees 
 with A. that the time for payment of the debt shall be 
 extended, stipulating with A. that B. shall not be 
 discharged from his suretiship. B. is not a party to 
 that transaction. Is he still bound by his agreement ? 
 State the reasons on which your opinion is founded. 
 
 Q. — A creditor does not make to a surety, on his 
 entering into the suretiship, a full disclosure of the 
 circumstances calculated to influence the conduct of 
 the surety with regard to entering into the contract. 
 Is the contract void as a general rule? Refer to 
 decisions on this subject. 
 
 Q,. — A principal releases one of several co-siu'eties. 
 Are the others released ? Is there any distinction 
 between the rules of law and equity on the subject ?
 
 327 
 
 Q. — A. and B. are joint makers of a promissory note, 
 but B. signs the note merely as surety for A., a fact 
 which, is known to the promisee. B. dies in the life- 
 time of A. Has the promisee any remedy against B.'s 
 personal representatives ; firstly at law, secondly in 
 equity ? 
 
 Q,. — A. agrees to lend B. a sum of money on con- 
 dition that C. shall become surety for the debt, and 
 that B. shall deposit the title-deeds of an estate with 
 A. as a collateral security. C. duly enters into a 
 contract of suretiship, and the deeds are deposited with 
 A.; but C. is entirely ignorant that the deposit has been 
 made, or that there has been any agreement respecting 
 it. A. afterwards (without consulting C.) returns the 
 title-deeds to B. and subsequently commences an action 
 against C. on his contract. Can C, to whom the 
 transaction respecting the title - deeds has become 
 known, avail himself of it at law or in equity as a 
 defence to the action ? 
 
 Q,. — A. accepts a bill of exchange for the accom- 
 modation of B., the di'awer. The note is discounted 
 by C, and indorsed to liim by B. As a security for the 
 paj^ment of the bill when due, B. deposits Exchequer 
 bills of greater value than the amount of the bill of 
 exchange with A. A. and B. both become bankrupt, 
 the bill remaining unpaid. A. pays 5s. and B. 4s. in 
 the pound. In what manner shall the proceeds of the 
 exchequer bills be applied ? 
 
 Q. — A., B., C, and D. become jointly and severally 
 bound to E. in a bond for £1,000. The bond is, in 
 fact, given as a security for a sum of £1,000 advanced 
 by E. to A. alone ; B., C, and D. being merely sureties. 
 
 A. also deposits with E. the title-deeds of property 
 worth £500 as a further security. A. and C. become 
 entirely insolvent, and the day fiked for payment having 
 passed, B. pays the £1,000 to A. What right has B. 
 against D. and E. at law and in equity ? 
 
 Q. — A. and B. enter into a joint bond to recover a 
 sum of money advanced by C. to A. C. agrees with 
 
 B. to take two-thirds of the amount in discharge of the
 
 328 
 
 bond : the two-thirds are paid, and C. releases his claim 
 against B. A. dies. What is the nature and amount 
 of the debt due from his estate to B.? 
 
 Penalties and Forfeitures. 
 
 Q. — Upon what principle docs the Court of Chancery- 
 grant relief against the enforcement of a penalty ? 
 
 Q,. — A lessee covenants to insure the demised pre- 
 mises in the names of himself and the lessor, and the 
 lease contains a proviso for re-entiy on breach of the 
 covenants. The lessee insures in the name of the lessor 
 alone. Can the lessee make a good title to the lease ? 
 
 Q. — Upon the marriage of A. with B., it is agreed 
 that a sum of money shall be laid out in the purchase 
 of freehold lands, to be settled to the use of A. for his 
 life, with remainder to the use of B. for her life, with 
 remainder to the use of their first and other sons 
 successively in tail. C. the eldest son of the marriage 
 is convicted of felony, and sentenced to penal servitude. 
 "Whilst he is undergoing the sentence, the survivor of 
 his parents dies. The money has never been laid out. 
 Does any forfeiture take place ? 
 
 Q,. — The tenant of a farm covenants that he will not 
 break up or plough any part of the pasture land, and 
 if he does he will pay an additional rent of £2 an 
 acre for every acre broken up or ploughed. On the 
 tenant proceeding to plough some pasture lands, the 
 landlord files a bill for an injunction to restrain him 
 from doing so. Will the injunction be granted ? 
 
 Q. — The lessee of a house covenants to keep it 
 insured and in good repair : and the lease contains a 
 proviso empowering the landlord to re-enter if the 
 covenants are not performed. Will the Court of 
 Chancery grant an injuction against an action of eject- 
 ment commenced by the landlord; firstly, if the 
 covenant to insure has been broken, but is complied 
 with at the time of the action brought ; secondly, if 
 the house has been allowed to become ruinous ? 
 
 Q. — Distinguish between a stipulation for a penalty
 
 329 
 
 and a stipulation for liquidated damages. Mention 
 some of the rules for determining to which class 
 provisions of this nature belong. 
 
 Election. 
 
 Q. — A testator by will made before 1st January, 
 1838, devised his real estate to a stranger, and gave 
 a pecuniary legacy to his heir. The heir obtains 
 possession of the real estate, on the ground that the 
 execution of the vdll was attested by two witnesses 
 only. Is he entitled to the legacy ? 
 
 Q. — A fund is settled upon trust after the decease of 
 A., for such of his children as are living at his decease, 
 and in such shares as he shall appoint, and in default 
 of appointment, or so far as no such appointment shall 
 extend, for such children equally. He appoints one- 
 third to each of two children who are living at his 
 decease, and one-third to the child of a deceased child. 
 He also bequeaths legacies to each of his two children. 
 Upon his decease, leaving his grand-child, the two 
 claildren, and no other child surviving, to what are 
 the children entitled under the will and settlement ? 
 
 Q. — A testator domiciled in England by will, made 
 before 1st January, 1838, attested by only two wit- 
 nesses, and not valid according to the law of Scotland, 
 as a disposition of heritable property in that county, 
 bequeaths part of his personal property to one who is 
 his heir according to the law of both countries. Will 
 the heir entering on the Scotch or English estate be 
 allowed to receive the legacy also ? 
 
 Satisfaetion. 
 
 Q- — A testator gives by his will certain sums of 
 money for the benefit of children with respect to whom 
 he has placed himself in loco j)arcntis and their issue ; 
 afterwards, on the marriage of the children, he makes 
 settlements in favour of them and their issue of sums 
 smaller in amount than those given by the will, and
 
 330 
 
 dies without having altered the will. "What is the 
 effect of the advancements upon the legacies ? 
 
 Q. — A father dies indebted to a child for moneys 
 received to his use ; the father having by his will 
 bequeathed a share of his residuary personal estate to 
 the chUd greater than the amount of his debt. Is the 
 child entitled to both debt and legacy ? Mention the 
 leading rules relative to this subject. 
 
 Q,. — In what cases will a legacy, by the same or 
 different instruments, be considered cumulative or 
 substitutional? Is parol evidence admissible in de- 
 termining the question ? 
 
 Q. — A. on his marriage with B. covenants that at 
 his death he will leave her £500. By his will he 
 gives her a legacy of £300, but he makes no residuary 
 bequest. The residue, after setting aside the £300, 
 exceeds £3,000. Has the widow a right to claim the 
 £500, the £300, and her share of the residue, or to 
 what is she entitled ? State the grounds of your 
 opinion, and quote authorities. 
 
 Q,. — A testator by will directs his executors to 
 purchase, in their names or in that of A. (a stranger), 
 from some insurance company in England an annuity 
 of £100 for A.'s life, and bequeathed the same to him. 
 By a codicil, he directs his executors to purchase an 
 annuity of £100 from some insurance office in England 
 and Ireland, to be paid by such company to A. for life. 
 Are the legacies cumulative or substitutional ? 
 
 Q. — A debtor bequeaths his creditor a legacy smaller 
 in amount than the whole debt. Shall the legacy be 
 taken as a satisfaction jjro tanto ? 
 
 Q. — A testator by will bequeaths one year's wages 
 to the servants who shall be living at his decease, and 
 by a codicil he bequeaths one year's wages to the 
 servants who shall be living with him at his decease. 
 Are the servants entitled to both legacies ? 
 
 Q,. — A. by settlement made on his marriage covenants 
 with trustees to lay out £10,000 in the purchase of 
 lands, and to settle them on himself for life, with re- 
 mainder to the sons of the marriage successively in tail, 
 
 I
 
 331 
 
 with remainder to his own heirs. The wife dies in the 
 life-time of the husband without ever having had issue, 
 and then the husband dies intestate. Soon after the 
 marriage he had laid out £4,000 in the purchase of 
 lands, which were conveyed to himself and his heirs, 
 and so stood limited at his decease. A.'s heir claims 
 the land purchased and £10,000 out of A.'s personal 
 estate. To what is the heir entitled ? 
 f 4> Q. — A debtor leaves a creditor a legacy larger than 
 the amount of the debt, and a creditor leaves a debtor 
 a legacy larger than the amount of the debt. What 
 can the legatee claim in each instance. 
 
 Partition and Boundaries. 
 
 Q. — Explain the distinction between the modes of 
 effecting a partition at Common Law, in Equity, and 
 by the inclosure commissioners ? 
 
 Q. — Upon what principle has the jurisdiction of the 
 court to determine a question relating to a disputed 
 boundary between two provinces in America been 
 supported ? 
 
 Q. — In what cases will the Court of Chancery 
 interfere to settle confusion of boundaries ? 
 
 Cancellation of Instruments. 
 
 Q. — In what cases wiU a written instrument be 
 decreed to be delivered up by the Court of Chancery ? 
 
 Q. — In what cases will the Court of Chancery decree 
 the cancellation of an instrument which is void at law? 
 
 Interpleader. 
 
 Q. — According to the general rule could a biU of 
 interpleader be maintained by a sheriif against a creditor, 
 claiming money received by the sberiti' for the sale of 
 goods, under a writ of fi-fa issued by virtue of a judg- 
 ment obtained by the creditor, and against another 
 person who claims the money on the ground that he, 
 and not the debtor, was the owner of the goods sold ?
 
 332 
 
 Q. — In what cases will a bill of interpleader lie in 
 equity, and by what document must it be accompanied ? 
 
 Q,. — A. deposits goods in the hands of a factor. B. 
 requires the factor to deliver up the goods, alleging 
 that the goods belong to him (B.), and that A. had not, 
 at the time of the delivery, any interest in them. Can 
 the factor, who is threatened with an action both by 
 A. and B., obtain any and what assistance in equity ? 
 
 Bills to estahlish Wills. 
 
 Q,. — In what manner is the jurisdiction of a Court 
 of Equity to establish a will against an heir at law 
 exercised, and on what grounds has it been supported? 
 
 Q. — A testator (whose personal estate is sufficient 
 for the payment of debts and legacies) devises freehold 
 land, of which he is seised in fee to A. The heir of 
 the testator denies the validity of the will, but takes 
 no steps to enforce it. Can A. file a bill against the 
 heir to have the will established by decree of the Court 
 of Chancery ? "WTiat were the grounds of the doubt 
 entertained on this point ? 
 
 Injunction. 
 
 Q. — On what principle does the Coiu't of Chancery 
 grant injunctions to restrain the infringement of patents 
 for inventions, and under what circumstances will 
 such an injunction be granted? 
 
 Q. — A patentee files a bill against one, who as the 
 patentee alleges has infringed upon the patent by 
 selling articles differing only from those which are the 
 subject of the patent. The bill states that the defendant 
 has made large profits by the sale, and the interroga- 
 tories seek an account ot such profits. The defendant 
 by answer denies the validity of the patent, and also 
 that (if the patent were valid) the articles which he 
 has sold would be in any way affected by the patent. 
 Is the defendant bound to set forth the account 
 required ?
 
 333 
 
 Q. — A. engages with B. to act at B.'s theatre for a 
 certain number of nights, at a fixed rate of remunera- 
 tion ; and further, not to act at any other theatre 
 during the continuance of these performances. After 
 fulfilling part of his engagement, A. refuses to act any 
 more at B.'s theatre, and enters into a contract with 
 another manager to act at his theatre for a part of the 
 period, during which he had agreed to act for B. Can 
 B. obtain relief in equity, to any, and what extent ? 
 
 Q. — "WTiat jurisdiction is exercised by Courts of 
 Equity over the publication of private letters, and 
 upon what right does the jurisdiction proceed ? 
 
 Q. — A. agrees with B. to paint a series of portraits 
 at £100 a portrait, and until the series is completed, 
 not to paint for any other person. A. before the series 
 is completed, begins to paint for C. B. who has paid 
 for the portraits which have been finished, files a biU 
 against A., praying for a specific performance of the 
 agreement, and an injunction against B.'s painting 
 portraits for any one except A., until the series is 
 completed. Will B. succeed to any, and what extent ? 
 
 Q. — A testator devises a mansion-house, farm build- 
 ings, and land to A. for life, (without impeachment of 
 waste as regards the mansion-house) with remainder 
 to his first and other sons successively in tail, with 
 remainder to the heirs of A. A. suff'ers the farm 
 buildings to become ruinous, and begins to pull down 
 the mansion-house. The second son files a bill against 
 A., praying an injunction against his destroying the 
 house, and permitting the buildings to remain out of 
 repair, and for an account of the waste committed and 
 permitted. "Will the plaintiff obtain any, and what 
 relief ? 
 
 Q. — Does the Court of Chancery possess any criminal 
 jurisdiction ? Has it jurisdiction, in any and what 
 case, to prevent by injunction a misdemeanor from being 
 committed ? 
 
 Of other Protective Proceedings. 
 
 Q. — In what cases will the Court of Chanceiy compel 
 the delivery of specific chattels unlawfully detained ?
 
 334 
 
 Infants. 
 
 Q,. — Explain the origin of the jurisdiction exercised 
 by equity judges over infants : In what judges is such 
 jurisdiction vested, and in what manner is it conferred? 
 
 Q. — What infants are properly described as wards of 
 the Court of Chancery ? 
 
 Q,. — Property is vested in trustees upon trust for 
 childi-en at 21, with a direction that the trustees shall, 
 at their discretion, apply the income to the maintenance 
 of the children during their minority. Is theii' father 
 entitled to require the whole, or any part of the income, 
 to be applied to their maintenance in any and what 
 cases ? 
 
 Q. — By what rule is the Court of Chancery prin- 
 cipally guided in determining the religion in which an 
 infant, whose father is dead, should be brought up ? 
 
 Q. — A female ward of court marries shortly after 
 she has attained 21, and by settlement made previously 
 to her marriage ; but, after she is of age, settles the 
 whole of her property on her husband. Part of the 
 wife's property consists of a fund in court, and the 
 husband presents a petition, praying that it may be paid 
 to him. Win the application be granted ? 
 
 Lunatics. 
 
 Q. — Over whom does the jurisdiction in lunacy 
 extend ; to what purposes is it directed ; by what 
 judges can orders in lunacy be made ; and how is this 
 jurisdiction conferred upon them ? 
 
 Q,. — In what manner and at what period did the 
 jurisdiction in lunacy originate ? 
 
 Married Women. 
 
 Q,. — A. purchases stock in the name of himself and his 
 wife ; afterwards he, by wall, gives the rents of his real 
 property and the dividends of his funded property to 
 his wife for her life ; and, after her decease, the whole 
 to his daughter, her heirs, executors, and administrators.
 
 335 
 
 On the decease of the testator, his widow claims an 
 absolute interest in the stock and a life-interest in the 
 freeholds. Can this claim be suiDported ? 
 
 Q. — A sum of money is vested in trustees upon trust 
 for A. during his life, and, after his decease, upon trust 
 for B., a married woman, absolutely. C. is desirous of 
 purchasing her and her husband's interest in the stock. 
 In what manner must the transaction be conducted, in 
 order that the purchaser may be secure? Point out 
 the dangers against which it is necessary to guard. 
 
 Q,. — A testator dies indebted to an amount larger 
 than his personal estate, including the pmaphernalia of 
 his wife, and devises all his real estate to his heir. Is 
 the wife entitled to her paraphernalia ? 
 
 Q,. — A rent-charge is given to a married woman, and 
 for her separate use. She and her husband execute a 
 deed, granting the rent-charge for her life to a pur- 
 chaser for valuable consideration. The husband dies 
 leaving his wife surviving. Is the wife entitled to the 
 rent-charge from the decease of her husband ? 
 
 Q,. — Personal property is bequeathed to trustees upon 
 trust for a married woman for her separate use, and to 
 be disposed of as she shall direct, free from the debts, 
 control, or interference of her husband. She dies 
 without making any disposition of the property. Who 
 is entitled to it ? 
 
 Q. — Out of what property is a wife entitled to a 
 settlement in equity ? Can she successfully insist on a 
 settlement out of property vested in trustees on trust 
 for herself for life, in any, and what cases? 
 
 Q. — A. dies, having appointed an executor and feme- 
 covert executrix ; the husband invests money, part of 
 the estate, in his own name and that of the executor. 
 The husband dies, and the executor appropriates the 
 money to his own use. Is the estate of the husband 
 liable ? 
 
 Q,. — Personal property is given to a trustee upon 
 trust for ixfeme sole for her separate use in the event of 
 marriage, but without power of anticipation ; she 
 marries without any settlement being made, and after-
 
 336 
 
 wards joins her husband in assigning the property to a 
 purchaser for valuable consideration. Is the assign- 
 ment valid to any and what extent ? Mention the 
 leading decision on this subject and the doubt which 
 prevailed pre\dously. 
 
 Q,. — A suit is instituted by an executor against a 
 manied woman, who is the residuaiy legatee of the 
 testator, and her husband for administration of the 
 personal estate. The married woman by her answer 
 claims her equity to a settlement. The husband dies 
 before any further proceedings are taken in the cause. 
 Ai'e the chikben entitled, as against their mother, to 
 have a settlement executed ? 
 
 Q,. — Will the provisions of a deed of separation 
 executed by husband and wife alone be enforced in 
 eqiiity? What are the considerations which guide 
 the court in deciding the validity of a deed of separation? 
 
 Q,. — For what quasi debts of a feme covert can her 
 separate estate be made liable ? 
 
 Q. — A husband covenants that, in the event of his 
 wife surviving him, his heirs, executors, and adminis- 
 trators shall raise out of his real and personal estate an 
 annuity of £100, payable to his wife for her life. He 
 afterwards dies intestate. Is the widow entitled to 
 her share in the personal estate under the statute of 
 distributions, in addition to the annuity? 
 
 Q,. — Land is devised to a feme covert and her heirs 
 for her separate i;se. Can she dispose of the equitable 
 fee by deed or will during the life-time of her husband ? 
 Quote authorities for your opinion. 
 
 Q. — An executrix commits devastavits both before 
 and during coverture. Her husband dies in her life- 
 time ; are his assets liable to make good the devastavits 
 both before and during covertui^e ? Does equity follow 
 the law in this respect ? 
 
 Q. — A testator by his will (made before 1st January, 
 1838) gave all his real estate to a tnistee upon trust 
 to permit his wife to receive thereout an annuity of 
 £100 ; and he directed that a particular farm, of which 
 he was seised for an estate of fee simple in possession,
 
 837 
 
 should be enjoyed by his wife for her life, with power 
 to dispose thereof by deed or will. And he gave his 
 personal estate, with the rents of the residue of his 
 real estate, to his son for life, with divers remainders 
 over, and declared that his trustee should have authority 
 to demise any part of his (the testator's) estate and lands 
 for any tenn not exceeding 21 years. Can the testator's 
 widow claim her dower out of all or any parts of his 
 real estate, in addition to the benefit conferred upon 
 her by the will? Quote authorities and state the 
 reasoning on which they proceed. 
 
 Q. — Jewels, befitting her station in life, are presented 
 fo a manied woman by her husband, and others of a 
 similar character by her father. The husband having 
 no jewels (except those above-mentioned, so far as they 
 can be considered his) at the time of making his will 
 or of his death, bequeaths "all his jewels" to his 
 daughter. Will either, and wliich of the two sets of 
 jewels, pass by the bequest ? Will either, and which 
 of them, be subject to the debts of the husband, and, 
 if so, in what circumstances ? 
 
 Q. — An agreement between a husband and wife is 
 made to live separate from each other, with the inter- 
 vention of a trastee for the wife, and the husband 
 agrees to pay the trustee a specified annual sum for 
 the maintenance of the wife ; the husband afterwards 
 refuses to make the payment. Can specific performance 
 of the agi'eement be enforced against him ? 
 
 Q,. — A freehold estate is granted by deed to A. and 
 his heirs upon trust to pay the rents to B., a married 
 woman, for her separate use dm-ing her life, and, after 
 her decease, A. is to stand seised thereof to the use of 
 the heirs of B. What estate does B. take in the land? 
 
 Q. — A husband bequeaths his wife's paraphernalia 
 to his daughter and gives all other his personal estate 
 to his wife. Wliat is the wife entitled to claim ? 
 
 Q. — Realty and personalty are settled upon trust for 
 a married woman for her separate use for Hfe, and after 
 her decease upon tnist for such person as she shall 
 by will appoint. She appoints by will to a child;
 
 338 
 
 after her decease two persons, to whom she has given 
 promissory notes for good consideration, seek to enforce 
 payment out of the property appointed. To one of the 
 promisees she represented herself as unmarried, to the 
 other as a married woman. Will they succeed in 
 estabKshing their claims ? 
 
 Q. — A sum of stock is vested in trastees upon trust 
 for a married woman. Her husband requests the 
 trustees to transfer the stock to him. Will they be 
 justified in doing so ? Will they be justified in 
 refusing the request? And in the event of their 
 refusing, and a bill, praying the transfer, being filed 
 by the husband and wife, what course will be taketi 
 by the Court of Chancery ? 
 
 Q,. — Distinguish between a wife's separate estate, 
 pin-money, and paraphernalia. A mamed woman 
 makes a will pm-porting to dispose of her paraphernaKa 
 and arrears of pin-money, and arrears of an annuity 
 settled to her separate use. She dies in the life-time 
 of her husband, with whom she has never ceased to 
 reside. Can the bequest be sustained to any and what 
 extent ? 
 
 Q. — Is a married woman, in any and what case, 
 entitled in equity to a settlement out of her freehold 
 estate ? 
 
 Discovery. 
 
 Q. — Within what limits is the right to discovery 
 restricted in equity ? What were the points relating 
 to discovery decided in Hardman v. Ellames, and what 
 were the objections raised to that decision? 
 
 Q. — Can a right to discovery be made the foundation 
 of a right to relief in any and what cases ? 
 
 Q,. — Explain the nature of a bill for discovery, 
 at must appear on the face of the bill and against 
 whom will it lie ? 
 
 J'-wS 
 
 Bills to Perpetuate Testimony. 
 Q. — State generally when a bill to perpetuate
 
 339 
 
 testimony is maintainable. Will a bill lie to perpetuate 
 testimony on the ground that it may be required 
 to substantiate the right to a peerage. 
 
 Bills to Perpetuate Testimony. 
 
 Q. — What is meant by an examination de bene esse, 
 and in what cases is it allowed ? 
 
 Q. — "Wliat is meant by an examination pro interesse 
 suo ? 
 
 Q. — Explain the nature of proceedings in a bill to 
 perpetuate testimony, and against whom, and in what 
 circumstances can the testimony be employed ? 
 
 Q. — What interest is sufficient to support a suit to 
 perpetuate the testimony of witnesses ? 
 
 CHANCERY PRACTICE. 
 
 History. 
 
 Q. — From what source, and in what manner did the 
 Court of Chancery derive its origin ? 
 
 Q. — On what considerations were the decisions of 
 the earlier chancellors principally founded ? 
 
 Q. — What opinion lias Lord Bacon expressed as to 
 separating the administration of equity from that of 
 Common Law ? 
 
 Q. — State the gi'ound of objections formerly taken 
 to the writ of subpoena. When is it supposed to have 
 been introduced, and what is the present mode of 
 commencing a suit in Chancery ? 
 
 Q. — When does the appellate jurisdiction of the 
 House of Lords, in matters decided by the Chancellor, 
 appear to have originated ? AVhat remarkable con- 
 troversy took place on the subject ? 
 
 Q. — In what manner were suits anciently commenced 
 in the courts of Common Pleas and Chancery ? What
 
 340 
 
 occasioned the difference between the two modes of 
 procedure ? 
 
 Q. — What is the general nature of the complaints 
 on which the earliest relief in Chancery now extant 
 are founded? Do they confirm the theory that the 
 jurisdiction of the court originated in the assumption 
 of authority to enforce the uses of land ? 
 
 Q. — At what period does the equitable jurisdiction 
 of the Chancellor sitting alone appear to have been 
 first exercised, and when have the most considerable 
 changes in the practice of the court been introduced ? 
 What is the principal distinction between the references 
 to masters under the old system, and the adjournments 
 to chambers under the new ? 
 
 Q. — In what manner does the jurisdiction of the 
 Master of the Rolls appear to have originated ? Has 
 any controversy ever, and when, arisen respecting it ; 
 and in what manner was the question set at rest ? 
 
 Q. — What is meant by the extraordinary jurisdiction 
 of the Court of Chancery ? About what time does it 
 appear to have been established, and what other juris- 
 diction is inherent in the court ? 
 
 General Nature of Practice. 
 
 Q. — Mention the various modes of commencing a 
 suit in Chancery, and state generally the nature of the 
 eases to which each is adapted ? 
 
 Q,. — In what case is a suit properly commenced by 
 information ? Who is the informant, and by whom, 
 in case the information is dismissed with costs, are the 
 costs to be borne ? 
 
 Q. — What are the objects with a view to which 
 written pleadings are required by the Court of 
 Chanceiy ? 
 
 Q. — Mention the principal points in which the pro- 
 cedure of the Com-t of Chancery differs from that of a 
 coiu-t of Common Law ; and point out branches of the 
 jurisdiction exercised by the Couii of Chanceiy which 
 are attributable to this difference in procedure ?
 
 341 
 Of the Parties to Suits. 
 
 Q. — State the general rule whicli has prevailed in 
 the Coiu't of Chancery respecting the proper parties to 
 a suit. In what respects has the rule been affected by 
 the statute for amending the practice and course of 
 proceeding of the court ? 
 
 Q. — Explain the reason and meaning of the rule, 
 that a mere witness or agent cannot be made a party 
 to a bill in equity. Is it liable to any and what 
 exceptions ? 
 
 Q. — A testator directs that the residue of his 
 personal property shall be divided equally between A. 
 and B. A. files a bill* against the executor for an 
 account, and payment of A.'s moiety. Is B. a neces- 
 sary party to the fcuit ? Is he a proper party ? 
 
 Q. — Explain the doctrine of representation with 
 respect to parties. "What persons are- by themselves 
 incapable of instituting proceedings in Chancery ; and 
 by whom, as regards each class, should proceedings be 
 instituted ? 
 
 Q. — When can a husband be joined as a co-plaintiff 
 with Ms wife in a suit ? 
 
 Q,. — Can a bill be sustained against a person who is 
 not interested in the subject-matter of a suit, in any, 
 and what instances ? 
 
 Q,. — In what manner must a suit be instituted by a 
 manied woman, who claims, as her separate property, 
 a fund which is in possession of her husband and 
 claimed by him as his own. Can the evidence of the 
 wife or husband be received in such a suit ? 
 
 Q. — In what manner do bodies coi'porate, infants, 
 married women, and lunatics defend a suit respectively ? 
 
 Q. — ^Tio are the proper parties defendant to a bill 
 for discovery in aid of the defence to an action at law ? 
 
 Q. — In what cases does a suit abate ; and in what 
 manner is an abatement remedied ? 
 
 Bills. 
 Q. — Distinguish accm-ately between a bill for relief
 
 342 
 
 and a bill for discovery. Of which nature is a bill 
 "which prays for an injunction against proceedings at 
 law until a defendant has put in his answer ? 
 
 Q. — "What is the nature of a bill in Chancery 
 according to the present system, and of what parts 
 does it consist ? 
 
 Q. — What are the different kinds of bills not 
 praying relief, and in what cases do they lie respec- 
 tively ? 
 
 Q,. — What alteration has been made by the statute 
 15 and 16 Vic, c. 86, in the practice of the Court of 
 Chancery, with respect to the relief granted on bills of 
 foreclosure ? 
 
 Q. — In what manner is a tdefendant informed that 
 he is required to answer the bill ? 
 
 Pleas. 
 
 Q. — When can the case of a defendant be properly 
 stated by way of plea ? 
 
 Q. — Mention the advantages and disadvantages of 
 defending by plea and answer respectively ? 
 
 Q. — Distinguish between the averments and answers 
 in support of a plea. What are the objects which they 
 respectively fulfil ? 
 
 Q. — To a bill of discovery in aid of an action at law, 
 can a plea of a fact, which would fomi a good defence 
 to the action, be maintained ? State the grounds upon 
 which your opinion is founded ? 
 
 Q. — Is a defendant at liberty, in the Court of 
 Chanceiy, to file two pleas to the whole bill, or to the 
 one part of the bill ? Explain the reason of the rule 
 on this subject. 
 
 Q,. — What is the object of putting in a plea to the 
 whole bill, and what is the defence proper for a plea ? 
 
 Q. — How should a defendant proceed to take 
 advantage of the Statute of Limitations ? 
 
 Q. — A bill is filed for the purpose of setting aside, 
 on the ground of fraud, an agreement made in France 
 for the sale of an estate situate in that country. Is a
 
 343 
 
 plea to the jurisdiction sustainable, the defendant 
 being in Enp;land ? 
 
 Q. — A plaiutitf states a title dependent on his being 
 the heir of A. B., and alleges that the defendant in 
 conversation admitted the fact of such heirship. The 
 defendant puts in a plea simply denying that the 
 plaintiff is heir of A. B. Is the plea sufficient ? 
 
 Q. — A files a bill against C, stating that B. was 
 indebted to A. in the sum of £100, and that B. died, 
 having by his will appointed C. his executor, and 
 praying an account of B.'s assets received by C, and 
 payment of the debts thereout. C. files a plea stating 
 that he is not the executor of B., and that B., at his 
 decease, was not indebted to A. in the sum of £100, 
 or any other sum. A. sets down the plea for argu- 
 ment. Will it be allowed ? 
 
 Q. — What facts, stated in a bill, are put in issue if 
 a plea is filed ? In what manner must a plaintiff pro- 
 ceed who wishes to dispute the truth of a plea, and its 
 validity in law ? 
 
 Q. — In what cases should a plea be supported by an 
 answer? State the reason of the rule, and illustrate 
 it by an example. 
 
 Demurrer. 
 
 Q. — Can a demurrer be good in part and bad in part. 
 Explain the meaning of the iiile on this subject. Is 
 the rule equally applicable to pleas ? 
 
 Q. — A bill states certain facts and asserts a con- 
 clusion of law which the facts do not warrant ; but 
 which, if established, would entitle the plaintiff to 
 relief, and without which the plaintiff's case entii-ely 
 fails. Is a plea or demiu-rer the proper foim of defence ? 
 
 Q. — Is a demuiTcr, which is good to the relief 
 prayed by the bill, good to the discovery also ? State 
 the reason of the rule upon this subject. 
 3 ifZrf- Q. — What is meant by multifariousness in a bill ? 
 What is a bill of peace ? How far will the objection 
 of multifariousness apply to a biU of peace ?
 
 344 
 
 Answer. 
 
 Q,. — What is the office of an answer to a bill in 
 equity ? In what cases should an answer be put in 
 according to the present practice of the court ? 
 
 Q. — Explain the rule that a defendant who answers 
 at all must answer fully; and state the reason for 
 which it has been adopted. Is it open to any and 
 what exceptions according to the present practice of 
 the court? 
 
 Q,. — Must an answer, in support of a plea, be 
 sufficient in the ordinary acceptation of the word ? 
 
 Q. — What are the consequences (supposing the 
 plaintiff not to file interrogatories) of abstaining from 
 putting in an answer to the bill ? 
 
 Q,. — Explain the mode in which a defendant to a 
 bill in Chanceiy is compelled to answer the inter- 
 rogatories filed for his examination by the plaintiff ? 
 
 Q,. — With what view is a plaintiff empowered to 
 enforce an answer to interrogatories from a defendant ? 
 No interrogatories having been filed by the plaintiff, 
 is it ever and when expedient for the defendant that 
 he should file an answer to the bill ? 
 
 Q. — Can a suit in Chanceiy proceed in the absence 
 of any pleading on the part of the defendant ? Is it 
 in any, and what cases essential to the interests of the 
 defendant that he should file some pleading ? 
 
 Q. — Explain the term " Traversing Note." Is it 
 in any, and what case proper to file a traversing note 
 under the present system of procedure ? 
 
 Q. — A sufficient answer to a bill having been filed, 
 what arc the coiu'ses which are open to the plaintiff? 
 Mention the advantages and disadvantages attendant 
 upon each ? 
 
 Q. — State the various proceedings to be adopted by 
 each party after a plea to the whole bill has been filed ? 
 
 Q. — By what expedient is the use of special repli- 
 cations rendered unnecessary in Chancery ? 
 
 Q,. — In what manner is issue joined in a suit by 
 bill in equity ?
 
 345 
 
 Q. — No interrogatories for the examination of the 
 defendants having been filed, one defendant alleges a 
 single fact by way of plea, another defendant puts in 
 an answer merely alleging the same fact. The plaintiff 
 is doubtful whether the fact alleged is true, and 
 whether, if time, it constitutes a good defence to the 
 bill. He cannot gain any advantage in amending the 
 bill. How should he proceed ? 
 
 The Hearing and Evidence. 
 
 Q. — Explain the mode of taking the evidence of 
 witnesses in the Court of Chancery, and point out the 
 disadvantages of the former system. 
 
 Q. — In what cases is evidence taken before a jury ? 
 
 Q,. — To a bill containing several statements, one 
 defendant files a plea, denying one of the statements ; 
 another defendant puts in an answer, simply denying 
 the same statements. What are the issues of fact, and 
 of law tendered by the plea, and what by the answer ? 
 
 Q. — A person files a bill against two executors, 
 alleging that he is a creditor of their testator. To this 
 bUl the one puts in a plea denying the debt ; the other 
 an answer containing the same denial. The plaintiff 
 replies both to the pleas and the answer. What fact 
 must he be prepared to establish as against each 
 defendant ? 
 
 Q. — State for what purposes, and under what re- 
 strictions, and by and against whom, the answer of a 
 defendant can be used at the hearing of a cause. 
 
 Q. — A plaintiff does not file inteiTogatories for the 
 examination of the defendant, and the defendant does 
 not put in an answer. Are there any, and what facts, 
 which it is incumbent on the plaintiff to establish by 
 evidence ? 
 
 Q. — Explain these proceedings : "a motion for a 
 decree," and "setting down a cause on bill and answer." 
 
 Q,. — A plea being filed to the whole bill, whsit facts 
 are considered as admitted on the argument of the 
 plea ? What question is decided by the court on the
 
 346 
 
 argument, and supposing the decision to be against 
 the plaintiff, what question may he still raise with 
 reference to the validity of the plea ? 
 
 Q. — Explain the mode of proceeding at the hearing 
 of a suit in Chancery, when an answer has been filed 
 and evidence taken. 
 
 Q. — How should a party to a suit proceed who 
 desires that the evidence may be taken vivd voce at the 
 hearing? 
 
 The Decree. 
 
 Q. — A bill is filed by A. to set aside a sale by his 
 trustee to B., on the ground that it constituted a breach 
 of trust. B. files a plea, alleging simply that he is a 
 purchaser for valuable consideration. A. replies to the 
 plea, which is proved to be true. What will be the 
 result of the suit ? 
 
 Q. — An agreement relating to personal property is 
 entered into, reduced into writing, and signed by the 
 parties. By mistake, a material term of the agreement 
 has been omitted. A bill is filed by one party to 
 enforce the agreement really entered into, and another 
 bill is filed by the other party to enforce the written 
 agreement. What decree will be made in each case ? 
 
 Q,. — A. mortgages an estate to B. and subsequently 
 to C. B. files a bill for foreclosure ; what is the 
 proper form of decree ? 
 
 Q,. — What is the effect of setting down a cause for 
 hearing, and proceeding to hearing without joining 
 issue V 
 
 Q. — In what manner can a decree be reversed or 
 altered? first, when it has been enrolled; secondly, 
 when it has not been enrolled. 
 
 Proceedings after Decree. 
 
 Q,. — A suit having been instituted, praying it may 
 be declared that the defendant is trustee for the 
 plaintiff and his heirs, of an estate vested in the
 
 347 
 
 defendant for a legal estate of fee simple, the plaintiff 
 dies after witnesses have been examined, but before 
 decree. In what manner can a devisee under the 
 plantiff's will of the estate in question obtain the 
 benefit of the former proceedings. 
 
 Q. — What facts according to the former practice 
 could be introduced into a bill, by way of amendment ; 
 and when was a supplemental bill necessaiy, in order 
 to bring additional facts before the court? Is it in 
 any case necessary to file a supplemental bill according 
 to the present practice ? 
 
 Q. — What is the office of a bill of review, and of 
 a bill in the nature of a biU of review? What 
 restriction is imposed by the practice of the court 
 upon filing such bills, and what is the object of the 
 restriction ? 
 
 Q. — What is meant by the abatement of a suit. By 
 what events is it occasioned, and how is it remedied ? 
 Can an abatement be partial ? 
 
 Q. — In what manner can a plaintiff bring before the 
 court facts which have occurred subsequently to the 
 time of filing the bill, and how can a defendant bring 
 before the court facts which have occurred subsequently 
 to the time of putting in his answer ? 
 
 Q. — After a decree for foreclosure absolute has been 
 enrolled, will the Court of Chancery in any case or on 
 any grounds enlarge the time for redemption ? 
 
 Q. — What is meant by enrolling a decree in 
 Chancery ? la what mode, and on what grounds can 
 a decree which has been enrolled be reversed or 
 altered ? 
 
 Q. — A suit is commenced by a feme sole plaintiff 
 against a feme sole defendant. First, the plaintiff and 
 then the defendant marries ; afterwards, the husband 
 of the plaintiff dies. Explain the effect produced upon 
 the suit by each of these events, and the steps which 
 should be taken in consequence on behalf of the 
 plaintiff. 
 
 Q. — Plaintiff and defendant die before decree. Can 
 any, and what step be taken in the cause ; firstly, by
 
 348 
 
 the representatives of the plaintiff; secondly, by the 
 representatives of the defendant ? 
 
 Q. — A party to a suit in which a decree has been 
 made, is advised that the judge has proceeded on an 
 erroneous view of the law, and, since the decree was 
 pronounced the same party has discovered evidence 
 material to an issue in the cause, which, if brought 
 forward at the hearing might have affected the decree, 
 but which, although he exercised due dQigence, he 
 could not adduce at that time. Is there any mode by 
 which the benefit of the new evidence can be obtained, 
 and what course should the party who desires to use 
 the new evidence pursue, in order to have the supposed 
 error of law corrected, and the new evidence taken 
 into consideration? 
 
 Motions. 
 
 Q. — Explain the mode in which an injunction against 
 proceedings at law was obtained previously to the 
 15 and 16 Vic, c. 86, and state the alteration in the 
 practice occasioned by the Act, with the reason on 
 which the alteration was grounded. 
 
 Incidental Proceedings. 
 
 Q. — For what purpose can a summons be employed 
 in the Court of Chancery ? State the general nature 
 of the proceedings which can be founded on a summons. 
 
 Q,. — Distinguish between a bill and a petition in 
 equity ; and state generally what are the proper 
 objects of each. 
 
 Proceedings without Bill. 
 
 2 ^^ Q- — Explain the proceeding by claim. For what 
 purpose is it adapted ?
 
 INTERNATIONAL LAW.
 
 351 
 
 OUTLINE OF INTEENATIOIf AL LAW 
 
 International Law treats of the rights of nations and 
 individuals arising from the conduct of states to each 
 other; and of the rights of individuals as affected by 
 the municipal laws of different nations. The former 
 division is called Public International Law ; the latter, 
 Private International Law, or the Conflict of Laws. 
 
 Public International Law. 
 
 Most of the rules of Public International Law have 
 been derived from the Roman law, the doctrine of 
 expediency, the influence of pubKc opinion, and the 
 good, old rule that "might is right." Nations although 
 nominally equal, being in reality unequal both in 
 power and material resources, have difi'erent interests. 
 What might answer the pui'pose of a powerful nation 
 might not be equally advantageous for a weak nation. 
 For these reasons we flnd many of the rules of PubKc 
 International Law are exceedingly contradictory. In- 
 deed, on some questions of Public International Law 
 there are no rules, and in those cases the principles 
 which should prevail, must be determined by each 
 particular nation. Thus the question whether a mail 
 steamer, Kke the Trent, is liable to be taken into a 
 prize court for adjudication has never been judicially 
 determined. If the principle of public convenience in 
 the rapid transmission of mails is to decide the question, 
 the Trent was properly allowed to pursue her voyage 
 after the seizure of the Southern Commissioners. 
 Whether the emissaries of a rebel government before 
 their arrival at thecoimtry to which they are accredited,
 
 352 
 
 can, to evade capture, transfer themselves, and their 
 despatches from a vessel of the rebel government to 
 a vessel of the neutral nation, so as not to be liable to 
 be stopped on their passage by the cruisers of the 
 national government is another question, which remains 
 to be judicially decided. If the interest of aU neutral 
 nations to maintain their neutrality is to decide the 
 question, then such emissaries are liable to be stopped. 
 Unfortunately, many of the questions of Public Inter- 
 national Law run counter to national pride or national 
 interest. On these occasions, we need not be surprised 
 that passion usurps the place of argument, and might 
 of right. Numerous instances of the truth of this 
 observation will occur to every one acquainted with 
 the history of Public International Law. The facility 
 of communication between different countries, the 
 influence of the press, and the extension of education, 
 all lead however to the hope that national pride or 
 national interest wiU not for the future be the principle 
 on which many questions of International Law are 
 decided. Let the uniform rule of Public International 
 Law be justice between nation and nation, and then we 
 have a principle which will solve all doubts, and 
 remove all difficulties. But let one act of national 
 injustice, such as the partition of Poland, be overlooked 
 by the other nations, and it will be a thoi-n in their 
 side until justice be done. 
 
 The requisites of a nation is one of the first 
 questions discussed by Public International Law, 
 and these are said to be a government, a code of 
 laws, a national treasuiy, the consent and agree- 
 ment of the citizens, and the observance of treaties 
 of peace and alliance. Grotius, 2. 3. c. 3, sec. 1. The 
 definition implies that the state is sovereign, or inde- 
 pendent of the control of every other state. There 
 may be however, states that are not sovereign, and in 
 that case they are not recognised as nations by the 
 sovereign states. Thus the claim of the states styling 
 themselves " The Confederate States of America" to 
 be recognised as a nation is preposterous, so long as
 
 353 
 
 portions of the tcnitory claimed by them are occupied 
 by the authorities of the United States. Most of the 
 questions of Public International Law occur in time of 
 war, but there are many which arise during a state of 
 peace. While a state of peace exists between any 
 particular nations, their rights are usually defined by 
 treaty. Where no treaty exists or it has expired, the 
 principal questions of discussion relate to the right to 
 trade, the navigation of rivers or inland waters, the 
 boundaries of states, the right of fishing, the jurisdic- 
 tion over adjoining seas, and the right of a nation 
 possessing only the upper parts of a navigable river to 
 descend to the sea. On these subjects the practice of 
 nations is not uniform. That every nation is bound to 
 grant a passage for lawful purposes, through a country 
 to the people of other states ; that the surrender of 
 fugitive criminals is not justifiable, unless it be in 
 pursuance of a treaty obligation by the state, where 
 the criminal is apprehended; that ambassadors are 
 subject to the laws of the country only by which they 
 are sent ; and that consuls are responsible to the civil 
 and criminal laws of the country in which they reside, 
 are however uniform rules with nearly all nations. 
 
 During a state of war between any particular nations, 
 all other nations not engaged in the contest as allies, 
 or principals, are called neutrals. A state of war 
 may exist betAveen a nation and any part of its 
 dominions, or between two independent nations. The 
 former is usually termed a civil war. Where the civil 
 war " involves a contest for the sovereignty , other states 
 may remain indiff'erent spectators of the controversy, 
 still continuing to treat the ancient government as 
 sovereign, and the government de facto as a society, 
 entitled to the rights of war against its enemy ; or 
 may espouse the cause of the party which they believe 
 to have justice on its side. In the first case, the 
 foreign state fulfils all its obligations under the law of 
 nations; and neither party has any right to complain so 
 long as it maintains an impartial neutrality." Wheaton's 
 Elements of International Law, 6th edition, p. 32.
 
 354 
 
 As howerer, assistance is generally granted conformably 
 to the law of nations in cases of revolt, where rulers 
 have violated the social compact, there seems no reason 
 why assistance should not be uniformly granted to 
 rulers where subjects revolt without having justice on 
 their side. "Were this principle to prevail among 
 nations, we would not again behold a civil war, like 
 that between the United States and the Confederate 
 States, originating from sheer disappointment at the 
 result of the election of the head of the government. 
 
 Where a war breaks out between two sovereign 
 nations, a formal declaration of war is sometimes made. 
 In other cases, the recal of the ambassador is considered 
 tantamount to a declaration of war, or at least, to a 
 cessation of friendly relations. Private debts are 
 rarely, if ever, confiscated on an outbreak of war, but 
 their recovery at law is suspended until the return 
 of peace. In modern times public debts are never 
 confiscated. 
 
 No trade can take place between the subjects of two 
 countries at war, except by special licence. All contracts 
 made during the war are absolutely void. The only 
 exception to this strict and rigorous rule of international 
 jurisprudence is the case of ransom bills, where not 
 prohibited by local law, and bills drawn by prisoners 
 of war for their own subsistence. Not only the subjects 
 of the countries at war, but also foreigners may acquire 
 a hostile character by the following circumstances : 
 
 Possessions in the territory of the enemy. 
 
 Residence there for the purposes of trade. 
 
 A permanent residence there for any other purpose. 
 
 Continuance of, or entrance into a commercial part- 
 nership there during the war. 
 
 Trading in those branches of commerce confined in 
 time of peace, to the subjects of the enemy. 
 
 Sailing under the flag and pass of the enemy. 
 
 These circumstances in general only give rise to the 
 hostile character, when property is captured at sea, 
 for with property or private individuals on land 
 belligerents rarely interfere. These circumstances wUl
 
 355 
 
 become of even less moment, since the abolition of 
 privateering at the CougTcss of Paris, in April, 1856, 
 by Groat Britain, Austria, France, llussia, Prussia, 
 Sardinia, and Turkey. Thirty-six other powers have 
 also signified their intention to discontinue privateering. 
 A vessel captured at sea by a belligerent, is called a 
 pri%e, and must be brought by the captor with due 
 care, into some convenient port, for adjudication by a 
 competent court. " Where the captor is a man-of-war, 
 bound on the public service, such a vessel cannot 
 depart from her instructions, but must proceed upon 
 her original destination ; (Sir W. Scott, The Anna, 
 5 Robinson, 385) and in that case the vessel, if 
 belonging to the enemy may, it is said, be destroyed. 
 If impossible to bring in, the next duty of the captor 
 is to destroy enemy's property. Where doubtful 
 whether enemy's property, and impossible to bring in 
 no such obligation arises, and the safe and proper 
 course is to dismiss. Where it is neutral, the act of 
 destruction cannot be justified to the neutral owner, by 
 the gravest importance of such an act to the public 
 service of the captor' s.own state ; to the neutral it can 
 only be justified under any such circumstances by a 
 full restitution in value. These are rules so clear in 
 principle and established in practice, that they require 
 neither reasoning nor precedent to support them." Sir 
 W. Scott, The Felicity, 2 Dodson, 386. 
 
 At the Congress of Paris already mentioned, the 
 liability of property at sea to capture, was greatly 
 lessened by the two following declarations : 
 
 The neutral flag covers enemy's goods with the 
 exception of contraband of war. 
 
 Neutral goods, with the exception of contraband of 
 war, are not liable to capture under enemy's flag. 
 
 These two declarations were made by Great Britain, 
 Austria, France, Russia, Prussia, Sardinia, and Turkey, 
 and have since been adopted by thirty-six other powers. 
 
 During the progress of the war between the belli- 
 gerents neutral nations must be impartial. On the 
 other hand, neutral territory is inviolable by the
 
 356 
 
 belligerents. Accordingly, as states are considered to 
 have jurisdiction within a distance of three miles from 
 the sea-shore, no capture can be made within that 
 distance. The principal restrictions on vessels of a 
 neutral nation are against carrying contraband of war, 
 and enemy's despatches, and against contravention of 
 the law of blockade. 
 
 Where a vessel is bound between two neutral ports 
 no question of contraband of war can arise as to goods 
 of any kind. Even when goods are in a vessel bound 
 to an enemy's port the character of that port is always 
 taken into consideration, as well as whether the articles 
 are going with a higlily probable destination for 
 military or naval piu'poses. There is much diversity 
 in the mles of nations on the subject of contraband of 
 war. Arms and munitions of war, naval stores, and 
 materials for ship-building are unifonnly regarded as 
 contraband of war. By the municipal laws of some 
 nations the exportation of arms to a belligerent is 
 prohibited. 
 
 On the subject of canying enemy's despatches in 
 neutral vessels the rules appear to be : — 
 
 Enemy's despatches cannot lawfully be conveyed 
 between different ports of the enemy's countiy. 
 
 Enemy's despatches cannot lawfully be conveyed 
 between the enemy's colonies, and the mother country. 
 
 Enemy's despatches may lawfully be conveyed from 
 a neutral country to an enemy's country. 
 
 Enemy's despatches may lawfully be conveyed from 
 an enemy's country to a neutral countiy, unless they 
 have an ultimate hostile destination as to a colony of the 
 enemy. 
 
 Where despatches are conveyed between two neutral 
 ports, but have an ultimate hostile destination, there is, 
 in the absence of evidence to the contrary, a presump- 
 tion of innocence on the part of the master of the 
 vessel. Where the despatches are conveyed between 
 two neutral ports vnthout any ultimate hostile desti- 
 nation they may e fortiori be lawfully conveyed. 
 
 The interdiction of the conveyance in neutral vessels
 
 357 
 
 of military or naval officers of the enemy appears to be 
 regulated on similar principles to despatches ; but, 
 with this exception, that such officers cannot lawfully 
 be conveyed in a neutral vessel to an enemy's countiy. 
 
 " A blockade is a sort of circumvallation round a 
 place by which all foreign connexion and correspondence 
 is, as far as human power can effect, to be entirely cut 
 off." Sir W. Scott, in the case of the Vrow Judith. 
 The four legal requisites of a blockade are : " The fact 
 of the actual blockade must be established by clear 
 and unequivocal evidence ; the neutral must have had 
 due previous notice of its existence ; the squadron 
 allotted for the purposes of its execution must be com- 
 petent to cut off all communication with the interdicted 
 place or port ; and the neutral must have been guilty 
 of some act of violation either by going in or attempt- 
 ing to enter, or by going out with a cargo laden after 
 the commencement of the blockade." — Kent's Com- 
 mentaries on American Law, 10th edn., p. 151. 
 
 When a blockade is established at any port, a formal 
 notification of the blockade is usually given by the 
 blockading power to all other countries. After such a 
 formal notification has been given, the mere act of 
 sailing with a contingent destination to enter the 
 blockaded port, if the blockade shall be found to be 
 raised, will constitute the offence of contravention. 
 
 Where a blockade is established without any formal 
 notification, or de facto, any vessel sailing for the 
 blockaded port must be warned off by the blockading 
 squadron before being liable to condemnation. 
 
 Most places being blockaded by sea only, a neutral 
 may carry on commerce with them by inland com- 
 munication, and by the extension of railways thi'oughout 
 the world gi'eat facilities arc now afforded for doing so. 
 
 The penalty for a violation of blockade is usually 
 the condemnation of both cargo and vessel ; but in 
 some cases only one of them, should the owners of it 
 be deemed in the judgment of the Prize Court the only 
 guilty parties. 
 
 By the treaties of some nations, notice is required
 
 358 
 
 to be given by the blockading power before establishing 
 a blockade. 
 
 During the continuance of the war, each belligerent 
 has the right of search of every private vessel of a 
 neutral nation. This right is founded in necessity in 
 order that the belligerent may ascertain whether the 
 vessel be really neutral. This right cannot be exercised 
 on the vessels of war of a neutral nation. Warm 
 differences have several times arisen between nations 
 on the question whether vessels under convoy are 
 liable to be searched ; but the position assumed by 
 Great Britain is, that, unless in pursuance of a treaty 
 obligation, the right may be exercised. On this 
 subject, in the case of the Maria, Rob. Rep. 1, 340- 
 378, Sir William Scott said, ''Two sovereigns may, 
 unquestionably, agree, if they think fit, as in some 
 late instances they have agreed, by special covenant, 
 that the presence of one of their armed ships along 
 with their merchant vessels shall be mutually under- 
 stood to imply, that nothing is to be found in that 
 convoy of merchant ships inconsistent with amity or 
 neutrality ; and if they consent to accept this pledge, 
 no third party has a right to quarrel with it any more 
 than with any other pledge which they may agree 
 mutually to accept." 
 
 The right of search in time of peace does not exist 
 unless in pursuance of a treaty obligation. In all the 
 treaties for the suppression of the slave-trade, the right 
 of search is mutually conceded, and the trade itself is 
 made piracy when carried on by the subjects of the 
 respective nations. A treaty to that effect has lately 
 been concluded between Great Britain and the United 
 States, and the flag of the latter power like that of the 
 former will, in the words of Sir James Mackintosh, 
 "rise to loftier honom- by bending to the cause of 
 justice and humanity." 
 
 When a treaty of peace is made between the 
 contending nations, allies are always parties to the 
 treaty.
 
 359 
 Private International Law. 
 
 The subjects of Private International Law are mostly 
 persons, contracts and procedure. In regard to persons 
 Private International Law defines their nationality, 
 domicile, and legal competency. 
 
 Nationality is the duty of allegiance to a particular 
 state. Nationality may be acquired in various ways, 
 but is mostly a legal incident of birth. Thus every 
 one bom in the British dominions is a British subject, 
 unless a child of a foreign ambassador, or of parents 
 subjects of a state at the time of birth at war with this 
 country. Persons born out of the British dominions 
 also acquire a British nationality if their fathers or 
 grandfathers by the father's side were natiiral-bom 
 subjects, unless such ancestors at the time of the birth 
 of such cliildi'en were attainted of treason, or were 
 liable to the penalties of treason or felony, in case of 
 returning to the United Kingdom without licence, or 
 were in the actual service of a prince at enmity with 
 the Crown of this realm. Marriage by a woman since 
 the 7 and 8 Vic, c. 66, to a natui'al-born subject or 
 person naturalized also confers nationality. By the 
 7 and 8 Vic, c. 66, every person bom out of her 
 Majesty's dominions, of a mother being a natural-bom 
 subject of the United Kingdom, is made capable of 
 acquiring any estate, real or personal. The statute, 
 however, does not appear to confer nationality upon 
 the person so entitled. 
 
 British nationality cannot be divested by any act of 
 a subject. Thus, if an emigrant from England to the 
 United States were to become a citizen of the latter 
 country, that circumstance would in no degree lessen 
 the duty of allegiance to the former country. 
 
 Domicile is a voluntary residence at a particular 
 place with the intention of making it the permanent 
 abode of the resident. Domicile is mostly a question 
 of fact to be determined from the circumstances 
 attending residence in a particular country. 
 
 Domicile is of three kinds : Of origin ; by operation
 
 360 
 
 of law ; and of choice. Domicile of origin is acquired 
 by a person at the time of birth. If the father was 
 alive at the time of birth the domicile of the child is 
 that of the father, or if dead that of the mother, or if 
 both parents are unknown the domicile is the place 
 where the child was found. Domicile by operation of 
 law is one which arises from the provision of the 
 law. Thus a woman acquires by marriage the domicile 
 of her husband ; ambassadors and consuls, when not 
 ah'eady resident in the country in which they act, 
 retain the domicile of the country whose interests they 
 represent ; and the domicile of a child, until of age or 
 married, is that of the father ; in case of his death, of 
 the mother ; or, in case of the death of both parents, 
 of the guardian. Domicile of choice arises from the 
 intention of any adult not being a married woman. 
 This intention is either express or implied from circum- 
 stances. As a general rule, the place where a person 
 resides is his domicile in the absence of evidence to the 
 contrary ; but if he were only on a visit to the place 
 his domicile would remain unaltered. Where a person 
 is married his domicile is usually where his family 
 reside. "Where a person has two residences, the one 
 which may be regarded as the head-quarters of his 
 affairs is considered his domicile. Thus the domicile 
 of a landowner is his country seat, and that of a 
 merchant his town residence. Previously to the 24 
 and 25 Vic, c. 114, a wiR of personalty must have 
 been executed according to the law of the country 
 where the testator was domiciled at the time of his 
 death, and this is still the rule with regard to persons 
 not British subjects. By that act, however, a will of 
 any British subject dying after the passing of the act 
 (6th August, 1861) is valid in the United Kingdom if 
 made according to the requirements of the act. By the 
 24 and 25 Vic, c. 121, where a mutual convention is 
 made between Great Britain and any foreign state, a 
 subject of either is not to be considered domiciled in 
 the country of the other until he has been resident in 
 such country for one year immediately before his death,
 
 361 
 
 and such person has deposited in a public office of such 
 country, a declaration in wiiting of his intention to 
 become domiciled in such country. The legal compe- 
 tency of a person is usually denominated his status. 
 In some countries a person is not deemed of age until 
 25, while in others majority is attained at 21. 
 Where transactions are complete abroad, and in some 
 respects as to maniage, foreign status is recognised 
 in this country, but on no other occasions. 
 
 In regard to property, International Law treats of 
 the law by which it is regulated. The property is 
 cither immoveable or moveable. Immoveable property is 
 regulated exclusively by the law of the country where 
 it is situate, although the law of another countiy may 
 reach it indirectly through a personal remedy against 
 the owner. Moveable property is regulated by the law 
 of the place of the domicile of the owner, but on what 
 piinciplc jurists do not agi'ce. Where a person 
 domiciled in England desires to will real and personal 
 property, situate elsewhere, he should make two wills. 
 The one relating to the real property must be in the 
 form required by the law of the countiy where the 
 land is. situate. The other will relating to the per- 
 sonalty should be made according to English law. If, 
 however, the land is in Scotland care must be taken to 
 use, in the clause in whicli the land is conveyed, the 
 words give, grant, and dispose, in place of legate or 
 heqtieath. The document so disposing of land in Scot- 
 land is also liable to a deed stamp duty of £1 15s.; 
 the rule of the Scotch law being, that landed property 
 can only be conveyed by a dispositioti or deed. 
 
 In regard to contracts, the two principal rules are : 
 1 . The validity of the contract is to be determined by 
 the law of the place where the contract was made; 
 and 2. The remedy for a breach of contract is regulated 
 by the lex fori, or law of the countiy where the action 
 is brought. 
 
 In this countiy marriage is regarded as a contract, 
 and if valid according to the law of the place where 
 made is considered valid here. But where the marriage 
 p
 
 362 
 
 is between British subjects the marriage to be valid 
 must not have been within the prohibited degrees. 
 
 Procedure is regulated by the law of the country 
 where the suit is instituted.
 
 363 
 
 BOOKS OF EEFEEENCE ON INTERNATIONAL 
 LAW. 
 
 Bentham's Principles of International Law. 
 FoeHx Droit International Prive. 
 Grotius de Jure Pacis et Belli. 
 HazHtt and Eoche's Manual of Maritime Law. 
 Kent's Commentaries on American Law. The chapters 
 ■ I on International Law. 
 ^Story's Conflict of Laws. 
 'A^Ticaton's International Law. 
 vWestlake's Private International Law.
 
 364 
 
 QUESTIOIv^S ON PUBLIC INTERNATIONAL 
 LAW. 
 
 Of States. 
 
 Q,. — What is the voluntary, what the conventional, 
 
 and what the customary law of nations ? 
 
 Q. — State briefly the chief differences between the 
 constitutions of the Swiss Federal Union, of the United 
 States of America, and of the Germanic Confederation ? 
 
 Q. — What is the difference between a " Composite 
 State," and "a System of Confederated States." Give 
 examples of each kind. 
 
 Q. — Under what circumstances is a society of men 
 political and independent? Defijie " Sovereignty." 
 Of what nature do you consider the Sovereignty of 
 the United States of America, and that of the half 
 Sovereign States of the Romano -German Empire ? 
 
 Q. — In what sense does Bentham assert that the 
 afflictive power of the sovereign is the limit of his 
 rightful dominion ? What theory of the natui'e of law 
 is assumed in this proposition ? 
 
 Q. — Define Eminent Domain. What sort of property 
 in the National Territory are Sovereign States deemed 
 by each other to enjoy? 
 
 Q. — What is the character of the enquiry pursued 
 in the treatise : Be Jure Belli et Pads ? By what 
 canons does the author propose to guide himself ? 
 
 Q. — On what is founded the title of Great Britain 
 to sovereignty over Australia, Jersey, Canada, Ceylon, 
 and the Mauritius ? 
 
 Q. — What objections are there to the definition of a
 
 365 
 
 sovereign government given by Von Martens — "a 
 sovereign government is a government, which ought not 
 to receive commands from any external or foreign 
 government?" 
 
 Q. — When does a revolted state ascend from the 
 condition of an insurgent province to that of an inde- 
 pendent community ? 
 
 Q. — Define a supreme federal government. Give an 
 example of such government, and the reason for such 
 classification. 
 
 Q. — Explain the epithet unconstitutional, as contra- 
 distinguished to the epithet illegal, as applied to the 
 conduct of a monarch, or to the conduct of a sovereign 
 member in its collegiate and sovereign capacity. 
 
 Of the Rights of Nations in time of Peace. 
 
 Q. — State the immunities to which a public minister 
 at a Foreign Court is entitled under general Inter- 
 national Law. 
 
 Q. — "What is meant by the alternat in diplomatic 
 intercourse ? 
 
 Q. — What is the general rule of International Law 
 as to the extent of a nation's jurisdiction over adjoining 
 seas ? What privileges in excess of those conferred 
 by the General International Law is Great Britain 
 allowed to have obtained by prescription ? 
 
 Q. — What do you conceive to be the rule of general 
 International Law, as to the right of a nation possessing 
 the upper water of a navigable river, to have unre- 
 stricted passage to its mouth. Illustrate your answer, 
 by reference to the Rhine, and the St. Lawrence. 
 
 Q. — What is the existing state of public law as 
 to the navigation of the river Mississipi ? What prin- 
 ciples of International Law apply to the question ? 
 
 Q. — What is the extent of the international right of 
 innocent passage on rivers ? Illustrate your answer by 
 examples. 
 
 Q. — To what extent docs the doctrine that the sea 
 and the sea-shore (mare et per hoc litora maris) survive 
 in the public law of modern times ?
 
 366 
 
 Q,. — What are the King's Chambers, and what sort 
 of jurisdiction does Great Britain assert over them? 
 What amount of jurisdiction does the Hovering Act 
 assume ? 
 
 Q. — What was the Consolato del Mare ? Where is 
 it supposed to have originated, and what have been its 
 effects upon modern International Law ? 
 
 Q. — In Confederated States, where does the power 
 of alienating portions of the national territory reside? 
 
 Q,. — Give an account of the attempt made by the 
 Russian government in 1821, to constitute part of the 
 North Pacific Ocean as a mare clatmcm. Of what 
 principle of public law was the proposed arrangement 
 subversive ? 
 
 Q,. — Apart from special usage, what are the limits of 
 the jurisdiction exercised by independent nations, 
 over the portion of the ocean in the vicinity of their 
 territory. 
 
 Of the Riglits of Belligerents. 
 
 Q. — What are Droits of Admiralty ; and what is the 
 existing practice of the English government in regard 
 to them ? 
 
 Q. — Give a brief analysis of the course of reasoning 
 in virtue of which enemy's goods came to be considered 
 subjects of occupancy. In what is it inconsistent with 
 the maturer theory of the Jus Gentium ? 
 
 Q. — Under what circumstances was the adprehensio 
 of the immoveable property of an enemy deemed to be 
 completed in Eoman law so as to divest the rights of 
 the original owner ? At what moment do the rights 
 of the owner of a captured vessel pass to the captor 
 according to the modern law of war ? 
 
 Q. — Describe the origin and developement of the 
 fiction of Postliminium. How far is Postliminium, and 
 how many Pes Postliminii are recognized in modem 
 civil law ? In what manner is the doctrine of 
 neutralizing the operation of Postliminy known to have 
 affected the acts of Consrress of Yienna ?
 
 367 
 
 Q,. — Define the Riglit of Search. "Why is it an 
 inevitable consequence of the theory of -warfare? 
 What rules has it been proposed to engraft on the law 
 of war with the view of rendering the right un- 
 necessary ? 
 
 Q,. — How far was the right of search trenched upon 
 in the manifesto issued by Catherine the II. of Russia 
 in 1780? By what states were the principles of the 
 Russian declaration adopted ; and to what extent does 
 their assent bind them at the present time ? 
 
 Q. — "What is meant by the Right of Asylum in 
 neutral ports ? Is the right absolute or conditional ? 
 
 Q. — To what extent is there a conflict of doctrine 
 between the courts of England and the United States 
 •as to the right of a belligerent to confiscate debts owing 
 to the subjects of the enemy ? Which opinion do you 
 consider to be most in accordance with the General 
 International Law ? 
 
 Q. — Describe the nature and legal results of a i-ansom 
 bill. Does English law observe any peculiar rules on 
 this subject? 
 
 Q,. — Where a treaty contemplating an offensive 
 alliance has been entered into, is the obligation to 
 render assistance absolutely imperative when the casus 
 foederis arises ? 
 
 Q. — What effect has the commencement of hostilities 
 on obligations subsisting — 1. Between the belligerent 
 states; 2. Between the one state and subjects of the 
 other belligerent state ; 3. Between the subjects of one 
 belligerent and the subjects of the other. 
 
 Q. — What is the rule of the General International 
 Law with respect to debts due to an enemy previously 
 to the commencement of hostilities, and what has been 
 the actual practice of nations in modern times on this 
 point? 
 
 Q. — What are the courts which have jurisdiction to 
 declare maritime captures lawful prize ? If the 
 adjudication be favourable to the captor, from what 
 period does his title commence ? 
 
 Q- — Under what circumstances will the capture of
 
 368 
 
 an enemy effected beyond the territorial Jinis dominii 
 of a neutral be valid ? 
 
 Of the Rights and Duties of Neutrals. 
 
 Q,. — Give the history of the EngKsh Foreign Enlist- 
 ment Act, and state the effect of its provisions. State 
 the circumstances of the case of the Alexandra. 
 
 Q,. — State the circumstances of the case of the Ma/ria, 
 and the principal points of the judgment of Lord 
 Stowell. 
 
 Q. — To what extent does the maritime jurisdiction 
 of a neutral prohibit belligerents from capture ? 
 
 Q. — What were the principles of the armed neutrality 
 of 1780? • 
 
 Q,. — To what extent can the subject of a belligerent 
 power acquire the privileges of a neutral by residence 
 abroad or otherwise ? 
 
 Q. — A British subject purchases goods from an 
 enemy in a hostile port, which is not blockaded, and 
 ships them in a neutral bottom for carriage to England. 
 Would an insurance on the cargo be valid under the 
 General International Law ? Would it be valid under 
 the practice of the late war with Russia ? Give 
 reasons for your answer, and state whether you con- 
 sider there is anything in her Majesty's declaration, 
 issued at the commencement of hostilities, which would 
 enable the vendor of the cargo to sue for the purchase- 
 money in an English court of law. 
 
 Q. — Enumerate the acts of assistance afforded by a 
 neutral ship to a belligerent which International Law 
 condemns as illegal. 
 
 Q. — In what respect is the English Order of Council 
 of 1795 considered by Mr. "WTieaton to diverge from 
 the current practice on the subject of contraband of 
 war? What was the practice during the late war 
 with Russia as respects the point in question ? 
 
 Q. — According to the existing doctrine of Inter- 
 national Law, what description of supplies may be 
 considered contraband of war? Under what circum-
 
 369 
 
 stances may contraband be carried without incurring 
 the penalty of confiscation ? 
 
 Q. — State briefly the conditions which must be 
 satisfied in order that a blockade must be so completely 
 established as to afiect the rights of neutrals. If the 
 blockading squadron be temporarily absent, will the 
 blockade be necessarily suspended ? 
 
 Q. — How far do you consider that foreign traders 
 are entitled to the immunities of neutrals in a civil war 
 between difi'erent sections of the same community ? 
 y2» Q- — Discuss the maxims "free ships, free goods;" 
 " enemy's ships, enemy's goods." To what extent 
 have these maxims been adopted or modified by the 
 principal nations of Europe and America ? 
 
 Q. — What conditions are essential to constitute a 
 \aolation of blockade ? 
 
 Of Truces, Passports, and Treaties of Feace. 
 
 Q. — What is the difi'erence between a Treaty and a 
 Transitory Convention ? 
 
 Q. — What are the peculiar rules applied under 
 International Law to the interpretation of conventions 
 for the suspension of hostilities ? 
 
 Q. — What is the eff'ect of a treaty of peace on claims 
 founded on debts contracted or Lajuries inflicted pre- 
 viously to the war ? 
 
 Q. — AVhcn, on the conclusion of peace, thiags are 
 stipulated to be restored to one of the late belligerents, 
 in what state must they be restored ? 
 
 Q. — What exceptions are there to the rule of Inter- 
 national Law that the obligations of treaties are 
 permanently extinguished by the breaking out of 
 hostilities between the high contracting parties ? 
 
 Q. — What exceptions are there to the rule that the 
 power competent to bind a nation by treaty is also 
 competent to alienate the public domain by treaty ? 
 
 Q. — What is the rule of International Law as to 
 trading with the enemy, and how far do you consider 
 this rule to have been modified in the practice of the 
 belligerents in the late war with Eussia ?
 
 370 
 
 Offences against the Laio of Nations. 
 
 Q. — What are the limits of the jurisdiction which 
 commonwealths exercise over the pubKc and private 
 vessels of their subjects while on the high seas ? 
 
 Q,. — "What limitations are there to the principle that 
 the slave trade is piracy ? 
 
 QUESTIONS ON PRIVATE INTERNATIONAL 
 LAW. 
 
 Nature of Private International Law. 
 
 Q,. — What is a personal, and what is a real statute ? 
 State the principal tests given by the best jurists for 
 distinguishing between them, and say which of the 
 criteria you consider to be most satisfactory. In what 
 consists the importance of the distinction between the 
 classes of statutes ? 
 
 Bankruptcy and Insolvency. 
 
 Q,. — "What do you believe to be the rule of General 
 International Law as to the effect in foreign countries 
 of — 1. A certificate of discharge obtained by a bank- 
 rupt in the country of which he is a subject; 2. Of an 
 order or decree vesting the property of such bankrupt 
 in his syndics or assignees. 
 
 Contracts. 
 
 Q. — How far must the external form of a contract 
 be regulated by the lex loci contractus ? 
 
 Q. — When an action is brought on a contract in a 
 country which is not the locus contractus, and a set-off 
 which is admissible by the lex loci contractus has arisen 
 in the country where proceedings are instituted, can 
 the set-off bo enforced?
 
 371 
 
 Q. — In considering whether the remedy on a contract 
 is barred by a statute of limitation, is the prescription 
 established by the lex fori, or that established by the 
 lex loci contractus to be regarded ? 
 
 Q. — Define a real contract, and state whether there 
 is any class of innominate contracts which satisfies 
 the definition ? 
 
 Q. — In protesting a dishonoured bill of exchange 
 which has been drawn under our jurisdiction, and has 
 been made payable under another, and in giving notice 
 of dishonour to the persons liable, ought the protest 
 and notice to be according to the forms of the place in 
 which the bill is drawn, or according to the forms of 
 the place in which it is made payable ? Give reasons 
 for your answer. 
 
 Q. — "When a contract is made in our country respect- 
 ing immoveable property, situate in another, ought 
 the forms of the contract to follow the lex loci contractus 
 pr the lex loci rei sitae ? Is the doctrine of M. FoeHx, 
 on this point sustainable ? 
 
 Q. — Do you consider there is any fixed rule of 
 private International Law respecting the mode of 
 proving foreign contracts? If so, what is it? Is 
 there any difference in the mode of proving foreign 
 Wills of Personalty ? On what ground is the difference, 
 if it exists, to be explained ? 
 
 Q. — Distinguish between the parts of a contractual 
 obligation which in the case of a foreign contract are 
 respectively regulated by the lex fori, the lex domicilii, 
 and by the lex loci contractus. 
 
 Q,. — In dealing with foreign contracts, what difi'erence 
 does private International Law establish between the 
 form of the contract, and the extrinsic e'V'idence by 
 which the contract is proved ? 
 
 Domicile. 
 
 Q. — Enumerate the circumstances which in the view 
 adopted by English tribunals constitute a given person 
 the subject of a given state. How far is the English
 
 372 
 
 doctrine identical with that generally received by the 
 comity of nations, and how far is it consistent with the 
 principles which are propounded by Bentham as 
 grounds of the relations between Sovereign and subject ? 
 
 Q. — What is prima facie the legal position in regard 
 to domicile : 1. Of a widow; 2. Of a minor; 3. Of a 
 married man whose residence and place of business are 
 separate; 4. Of a person m itinere; 5. Of an 
 ambassador ; 6. Of a bastard. 
 
 Q. — What is the meaning and scope of the maxim : 
 " Natural domicile reverts easily." 
 
 Foreign Laivs. 
 
 Q. — What is the usual mode of authenticating foreign 
 laws ? If the construction of a foreign statute has to 
 be determined, is it a question of law or of fact ? 
 
 Q. — Define in general terms the character of the 
 laws which, by the comity of nations, are allowed to 
 operate extra-territorially. 
 
 Q. — As a general rule, what force is allowed under 
 the comity of nations to the Exceptio Rei Judicata^ 
 when founded on a foreign judgment in rem ? 
 
 Q. — When a valid sentence of conviction or acquittal 
 has been pronounced, what indirect effects may it have 
 in states other than that in which the trial took place, 
 and other than that to which the supposed offender 
 owes allegiance ? 
 
 Q. — State briefly the exceptions to the general rule, 
 that laws of a Sovereign state, applicable to the civH 
 condition and personal capacity of its citizens, operate 
 upon them even when resident in a foreign country. 
 
 Q. — What are the limits imposed by International 
 Law on the judicial power of a state over foreigners 
 resident within its territory ? 
 
 Q. — What is the rule of English law as to the 
 jurisdiction of English courts in the disputes of 
 foreigners ? Does any other rule prevail elsewhere ? 
 
 Marriage. 
 Q. — Give a brief sketch of the state of the
 
 373 
 
 authorities for and against the position that an 
 illegitimate person, who by the subsequent marriage 
 of his parents, becomes legitimated as heir by the law 
 of his domicile, ought to be deemed such as to the 
 inheritance of land in all countries. — Story's Conflict of 
 Laws. 
 
 Q. — "What is the rule of the Fi'ench code in respect 
 of marriages contracted by French subjects in foreign 
 countries in conformity with the law of those countries, 
 but not in accordance with French law ? Does the 
 rule in question agree or conilict with the general 
 International Law. 
 
 Q. — To what extent have the English judges 
 admitted the competence of the Scottish consistorial 
 courts to dissolve marriages contracted in England ? 
 What is the doctrine on this subject which has the 
 largest consensus of jurists in its favour? 
 
 Q,. — What is the general I'ule of Private Inter- 
 national Law as to the circumstances which are to 
 determine matrimonial domicile ? 
 
 Q. — When there is a marriage between parties in a 
 foreign country, and an express contract respecting 
 their rights and property, present and future, will the 
 contract, by the comity of nations, be held binding 
 everywhere ? Will it be held to affect all kinds of 
 property ? 
 
 Q. — \Vhen persons are married in a foreign country, 
 and there is no express contract as to their rights or 
 property, what law determines their rights to property, 
 real or personal, which belonged to them before the 
 marriage ? What to property which has accrued 
 subsequently ? 
 
 Succession to Property according to International Law. 
 
 Q. — What are the rules of Private International Law 
 respecting the execution of the wills of personal 
 property in foreign countries, and respecting the 
 authority of foreign executors ?
 
 n 
 
 374 
 
 Q. — "WTiat rules govern the distribution of the pro- 
 perty of an intestate who dies in a foreign country? 
 
 Q. — f nder what circumstances do states recognise 
 foreign rules of intestate succession ? 
 
 Q. — What conclusions have been respectively arrived 
 at by Cujacius, Hubeius, and Bouillenois with reference 
 to the operation of a will executed with the formalities 
 demanded by the lex domicilii of the testator on 
 immoveable property, situate in a country whose laws 
 prescribe testamentary solemnities of a different 
 description ? State whether you consider the views of 
 those jurists to be reconcileable, and compare them 
 with the doctrines of the English law. 
 
 Q. — By what agency is the property of an intestate 
 who dies abroad distributed ?
 
 JURISPRUDENCE.
 
 377 
 
 OUTLINE OF JURISPRUDENCE. 
 
 By the late Mr. Austin (The Province of Jurisprudence 
 Determined) the term Jurisprudence is confined to law 
 as it is. Law as it ourjld to he, he defines as The Science 
 of Legislation. But if " the science of jiu'isprudence 
 (or simply and briefly, jimspnidence) is concerned 
 with positive laws, or with laws strictly so called, 
 considered icithoiit regard to their goodness or badness,''^ 
 according to the definition of that distinguished thinker, 
 of what advantage is the science ? Mr. Austin, 
 however, admits in another part of his work, " that 
 the sciences of jurisprudence and legislation are con- 
 nected by numerous and indissoluble ties." 
 
 In a work fJtiriqjrudence, Murray), published 
 last year, (18G3), Mr. Phillips define jurisprudence 
 as " the science which teaches us to analyse and classify 
 the rules of justice ;" and if so, jurisprudence is 
 equivalent to law as it ought to he. The same author 
 excludes the idea " that jurisprudence teaches us, or 
 can possibly teach us what the rules of justice are." 
 If there is any distinction between jurisprudence and 
 legislation, it appears to be that the former determines 
 the principles which oxight to he common to all laws, 
 while the latter is confined to the determination of the 
 system of laws suited for each particular country. A 
 complete system of jurisprudence appears to comprise : 
 
 1 . The nature of Law. 
 
 2. The standard of Law. 
 
 3. The sources of Law. 
 
 4. The subject-matter of Law. 
 
 5. The object of Law. 
 
 The nature of law has given rise to numerous dis-
 
 378 
 
 cussions. By many writers law is defined as a command 
 from a superior to an inferior, but if this definition is 
 to prevail the existence of International Law is ignored, 
 nations being regarded as equals; or if not ignored. 
 International Law must be defined according to Mr. 
 Austin, as International Morality. Besides a large 
 portion of law derives its force from custom, and not 
 from any command of a superior. Mr. Austin, how- 
 ever, is of an opposite opinion. According to him, 
 custom only becomes law " when it is adopted as such 
 by the court of justice, and when the judicial decisions 
 fashioned upon it are enforced by the power of the 
 State." If however, this opinion is to prevail, "the 
 conclusion," as Professor Foster justly remarks, 
 (Elements of Jurisprudence) " is inevitable, that a 
 defendant may be cast in damages in a court of law, 
 only because he has not complied with requisitions 
 which at the time they were made upon him, it was 
 not legal to demand." The same author defines law as 
 that course of human conduct ivhich is morally enforceable 
 hy public authority. This 'definition does not however 
 include the Divine Law, which is the command of a 
 superior to an inferior being, and must be obeyed 
 without hesitation. The term Lato is however used in 
 various senses. Every one feels that the meaning is 
 quite different in the expressions: " The laws of God;^' 
 " the laws of nature," " and the laws of the land." 
 Yet, the difference of meaning few can assign. Law 
 in its most general sense is a cause of uniformity of 
 event. If the uniformity be in natural phenomena, the 
 cause of it is a law of nature, if it be in human 
 conduct, the cause is a moral law, or a positive law. 
 A moral or positive law may be further defined as a 
 rule enforced by a sanction. The sanction is that which 
 gives effect to the rule. The sanctions of moral law 
 are the rewards and punishments of a future state, and 
 " which God will award to every one according to his 
 works." The sanction of positive law is the punish- 
 ment or coercion by which it is enforced by the superior 
 power in a state. The moral law therefore embraces
 
 379 
 
 all human actions ; positive law, only such as are 
 enforceable by governments. 
 
 Here the qiiestion arises, what are the acts enforced 
 by the Divine or moral sanction ? and what are those 
 enforceable by the positive sanction? The determination 
 of the former belongs to the sciences of Theology and 
 Ethics ; that of the latter is the proper province of 
 jurisprudence. "Whatever is in accordance with the 
 laws of morality is right, whatever is in accordance 
 with the positive law is just, and the great question 
 of the science of morals and jurisprudence is the 
 determination of what is right ; and what is just. 
 
 Although, as we have seen, the quality of the 
 subject-matter of jurisprudence is, according to the 
 opinion of Mr. Austin, no part of that science; still 
 that author admits that, " As the nature of the index 
 to the tacit commands of the Deity is an all-important 
 object of the science of legislation, it is a fit and 
 important object of the kindred science of juris- 
 prudence." These tacit commands of the Deity are 
 only employed when the Divine Law is silent. In 
 Christian countries this Divine Law is called Revelation. 
 The Christian dispensation does not, however, contain 
 any system of rules out of which a body of law can be 
 formed, and consequently these tacit commands of the 
 Deity must be deduced from theories which are con- 
 sidered to be most in accordance with the revealed 
 character of God. These theories or standards have 
 generally been considered to be two : General UtiHty, 
 and the Moral Sense. The former theory rests on the 
 revealed and unrevealcd principle that God designs the 
 happiness of his creatures, and has for its object " the 
 greatest happiness of the greatest number." — Bentham. 
 Mr. Austin adopts this theory, but he admits that 
 titility is in some degree a matter of taste, and is also 
 determined by the age in which men live. The moral 
 sense, as is well stated by Professor Foster, " simply 
 appoints conscience high arbitrcr without cither assum- 
 ing that he is necessarily right or providing a rule for 
 his guidance. Besides there are numerous acts which
 
 380 
 
 are right, but which are not rightly enforceable. Justice, 
 Mr. Austin regards as equivalent to general utility. 
 
 If these be according to the admissions of supporters, 
 the defects of the existing theories which attempt to 
 discover the tacit commands of the Deity, the promotion 
 of peace may possibly be a theory which may be less 
 liable to objection. " Peace on Earth " was and is one 
 of the main objects of the Christian religion, and 
 therefore the promotion of peace is a theory which may 
 be applied to every law. Thus a law which punishes 
 persons committing assaults is good because it tends to 
 promote peace. So a law (like that which prevails in 
 several parts of Europe) prohibiting a man from 
 marrying unless he is in circumstances to maintain a wife 
 is good, because its tendency is to promote peace among 
 married people. On the other hand, a law (unhappily 
 prevalent in England) which allows a woman divorced 
 from her husband on the ground of adultery to marry 
 the adulterer is had, because its indirect tendency is to 
 promote discord among married people. 
 
 Again, a law which allows of priorities among 
 creditors merely because some of their securities had a 
 seal affixed to them while others had none is had, 
 because it tends to promote discord. To extend the 
 theory further, a body of law consisting mostly of 
 custom and judicial decisions is had, because it tends 
 to promote disputes, but a code of icritten laws is good, 
 because its tendency is to promote peace. 
 The sources of law are — 
 
 Customs, 
 
 Statutes, 
 
 Opinions of Jurisconsults, 
 
 Judicial Decisions. 
 The subject-matter of law has given rise to much 
 discussion. By several jurists it has been divided into 
 the Law of Persons and the Law of Things. A better 
 division is that of Mr. Udny (Harmony of Laws, 1858) 
 into — 
 
 " Rights, 
 
 Transfer of Rights, 
 
 Prevention and Remedy of "Wrongs."
 
 381 
 
 Rights are divided into personal rights and property 
 rights. 
 
 Under the head of transfer of rights may be included 
 every mode of acquisition of rights, either by operation 
 of law, by act of party, or by combination of both 
 modes. 
 
 The prevention and remedies for wrongs are civU or 
 criminal. The difference between civil and ciiminal 
 wrongs is in the remedy and not in the offence. 
 
 The ohject of law is security of personal rights and 
 property rights. To obtain this secuiity there must be 
 a government. Under this department of jurisprudence 
 the nature of government, the distinctions in govern- 
 ment, and the powers of government should be defined. 
 
 International Law, like Municipal Law, may be 
 divided into " Rights, Transfer of Eights, and Pre- 
 vention and Remedy of Wrongs." 
 
 In concluding this brief outline or rather abstract of 
 the principles on which a complete system of juiispru- 
 dence may be formed, we are glad to observe that 
 several eminent jurists, who have studied the nature of 
 English law, are agreed that it is capable of scientific 
 reduction. If in suggesting that t\ie promotion of peace 
 theory should be the standard of law, one step nearer 
 that desirable object has been attained, one difficulty 
 wiU have been removed. There is no man, however 
 deficient in intelligence he may be, but must know 
 •whether any act done by him tends to promote peace 
 or not. The untutored savage, who lies in wait to 
 plunder the solitary' traveller, shows, by Ipng in wait, 
 that he knows the act he is about to commit is not one 
 which will promote peace. 
 
 Possibly there may be objections to the promotion of 
 peace theory, but at any rate, it is applicable to all 
 countries whether Christian or not. The theorj^, when 
 carried into practice, will, however, be found to be 
 identical Avith the principles of Christianity, and thus 
 having the concurrent testimony of revelation, and of 
 human nature in its favour, a sure foundation will have 
 been laid on which the superstructure of law may bo 
 built.
 
 382 
 
 BOOKS OF REFERENCE ON JURISPRUDENCE. 
 
 ^Austin's Province of Jurisprudence Determined. 
 
 Bentham's Principes de Legislation par Dumont (Taylor 
 and Francis, 1858). 
 ^Encyclopaedia Metropolitana, Article on " Law." 
 
 Lindley's Introduction to the Study of Jurisprudence 
 (translated from Thibaut). 
 
 Mackintosh's Law of Nature and Nations. 
 IMaine's Ancient Law. 
 
 Montesquieu. Esprit des Lois. 
 
 Whewell's Elements of Morality and Polity.
 
 383 
 
 QUESTIONS ON JTJEISPRUDENCE. 
 
 General Nature of Jurisprudence. 
 
 Q. — Give the various definitions of Jurisprudence 
 adopted by the principal legal writers. To what does 
 Austin limit the province of Juiisprudence ? 
 
 Laivs. 
 
 Q. — ^Mention some of the principal definitions or 
 conceptions of Natural Law, which have obtained 
 general currency. Have any of these exercised any 
 appreciable influence upon legislation, or upon the 
 interpretation of positive law ? 
 
 Q. — Placing religious and economical considerations 
 aside, what arguments suggest themselves to you and 
 against the class of laws which impose penalties direct 
 or indii'ect on the taking of excessive interest ? 
 
 Q. — On what ground does Montesquieu deny the 
 authenticity of the estaUisscments de St. Loxds ? Do 
 you consider them sufficient ? On the assumption that 
 the Establissements are authentic, in what respect is 
 the theory of Montesqmeu weakened ? 
 
 Q. — Do you consider that the system of negative 
 probation was indigenous among the tribes of Middle 
 Germany, or that it is traceable to any provisions of 
 the Eoman law ? Give reasons for your answer, and 
 state whether negative proofs survive in any part of 
 any contemporaiy Code. 
 
 Q. — In what relation does the juristical theory of 
 Grotius stand to those of Puffendorf, Bodin, and 
 Montesquieu ?
 
 384 
 
 Q. — Assuming that the ideas represented by the 
 terms law, right, duty, and sanction are connected 
 together, explain the nature of their connection : first, 
 according to the theory of Grotius, or Whewell ; and 
 secondly, according to the system of Bentham and 
 Austin. 
 
 Q. — Give some instances of the reciprocal action of 
 law on morals, and of morals on law. Does the existence 
 of the reciprocal action lend support to either of the 
 conflicting theories indicated in the preceding question ? 
 
 Q. — In what respect are laws properly distinguishable 
 from laws falling under the following descriptions : 
 International Laws, Laws of Honour, Laws of the 
 Physical World, Moral Laws ? 
 
 Q,. — With what meaning, and under what circum- 
 stances did the term " Equity" first make its 
 appearance in the phraseology of Jurisprudence ? What 
 are the objections to the popular English definition of 
 Equity ? 
 
 Q. — Explain the fact that in the infancy of legal 
 system, the law of Delict or Tort is of much greater 
 practical importance than it is in the maturity of 
 jurisprudence. 
 
 Q. — Explain the distinction drawn by most foreign 
 jurists between the two departments of public law styled 
 respectively Jus Publicum Constitutivum f StaatsrecM, 
 Droit Public ConstitutifJ and Jus Publicum Adminis- 
 trativum f RegienmgsrecM, Droit Public Aclministvatif). 
 What is the pecuKarity of our institutions, which puts 
 this distinction out of sight ? 
 
 Q,. — Explain and illustrate the difference between 
 the grammatical and logical interjn'etation of law. 
 
 Q. — Describe as briefly as possible the theory pro- 
 pounded by Montesquieu concerning the origin of civil 
 procedure in Southern Europe. What views do you 
 suppose they are that are indirectly combated in the 
 28th book of the Esprit ties Lois. To which of the 
 opposing theories has modern legislation lent support ? 
 
 Q,. — What was the ancient and what is the modern 
 meaning of an " Imperfect Law ?"
 
 385 
 
 Q. — Whence arises the importance of analyzing the 
 conceptions implied in political superiority and political 
 inferiority ? 
 
 Q. — What are the main arguments which have been 
 advanced in favour of, and against the codification of 
 the law ? 
 
 Q. — Enumerate and describe the sanctions of Bentham. 
 To which of these sanctions does Austin object, and 
 on what grounds ? 
 
 Q,. — Define " Principles of Legislation." Define and 
 classify, with respect to each other. Jurisprudence, 
 Ethics, Principles of Legislation, Positive Morality, 
 and Positive Law ? 
 
 Q. — In what position must the author of a rule stand 
 to the persons on whom it is imposed in order that it 
 may be a true law ? 
 
 Persons. 
 
 Q. — What rules concerning the distribution of 
 profit and loss among sharers in a joint undertaking, 
 does Grotius state to be deducible from the nature of 
 the contract ? 
 
 Q,. — What was the nature of the mistake committed 
 by Blackstone, in speaking of the rights "of persons, 
 and the rights of things" ? 
 
 Q. — What are the tests given by Mr. Austin for 
 distinguishing an independent political society ? 
 
 Rights and Duties. 
 
 Q. — Give a brief summary of the arguments of 
 Wamkonig {Doctrina Juris Philosophica) on the 
 obligatory force of Nude Pacts. Is the view of such 
 pacts taken by the Roman Law altogether at variance 
 ^^^\Xh. the conclusions of M. Warnkonig ? 
 
 Q. — Mention the opinions on the subject of synal- 
 lagmatic agreements which Grotius combats, and the 
 agreements by which he refutes them. In stating the 
 positions of Grotius, distinguish those which depend on 
 a
 
 386 
 
 his peculiar theory of obligation from those which do 
 not. 
 
 Q,.— Enumerate the essential ingredients of a con- 
 tract, and state which of them is vitiated in each of the 
 following cases: — 1. When the contractor is deficient 
 in intellectual capacity ; 2. When he is under duress j 
 3. When the object of the contract is illegal. 
 
 Q,. — What do modem civilians mean by the essentials, 
 the naturals, and the accidentals of a legal transaction ? 
 
 Q,. — Where there are alternative legal duties, and 
 the object of the right on which they depend is 
 destroyed, what are the principles of general jurispru- 
 dence which apply ? 
 
 Q. — What are the rules of general jurisprudence 
 respecting the fulfilment of conditions ? 
 
 Q,. — To what principle does Grotius propose to resort 
 for the purpose of solving questions as to the obligatory 
 force of agreements entered into under mistake ? 
 
 Q. — Explain the dictum of Thibaut's, that "the 
 object of rights and duties is neither a person nor a 
 thing, and can only be a transaction or event." 
 
 Q. — What is the difference of opinion between jurists 
 as to the proper mode of calculating discount ? Which 
 mode is practically followed in commercial transactions 
 in England ? 
 
 Q. — In what particulars do servitudes differ from 
 liabilities created by contract ? 
 
 Q,. — In Mr. Austin's Analysis of a Law, what is the 
 place assigned to rights ? 
 
 Q. — Define a sanction and a (legal) duti/. What is 
 the sanction of the Statute of Frauds ? Has every duty 
 a right corresponding to it ? 
 
 Thinffs. 
 
 Q. — What distinct meanings do you conceive to be 
 conveyed in the ordinary usage of the word possession ? 
 What are the significations of the term denominated by 
 Savigny ? Explain the meaning and scope of Savigny's 
 dictum, " AU property is founded on adverse possession 
 ripened by prescription."
 
 387 
 
 Q. — "Wliat considerations are urged by the jurists 
 who have embarked in the controversy whether in the 
 essential classification of jurisprudence, servitude 
 should be ranked as dominion or with oblif,^ations. 
 Which side is taken by Pothier, which by Triplong, 
 which by Austin ? 
 
 Q,. — Distinguish between natural, ci^^I, and simple 
 possession. What was the anomaly in the expression 
 of the Roman lawyers concerning possession to which 
 Savigny addressed himself, and what is the explanation 
 of it which he offered ? 
 
 Q. — Define dominion. In what is the Roman con- 
 ception of ownership distinguished from that of English 
 real property law ? 
 
 Q. — Describe the modes of acquiring dominion known 
 as occupancy, specification, accession, and usucapion, 
 and state what conditions must be satisfied in order 
 that in each case dominion may be completely acquired. 
 
 Q. — What definitions does Thibaut give of outlays, 
 appurtenances, civil produce, natural produce, and 
 compensation. 
 
 Q. — State briefly the rules which Grotius has pro- 
 pounded for determining the obligations of a bond fide 
 possessor in reference to mesne profits. What difierence 
 is there on the subject of mesne profits between the 
 English and Roman law ? What are the observations 
 of Mr. Hallam on this conflict of the two systems ? 
 
 Q. — What is the true distinction between the law of 
 persons and the law of things ? Wliat is the relation 
 of the law of actions to the other departments of the 
 law? 
 
 Q. — In what manner does Roman law allow posses- 
 sion to be gained or lost ? 
 
 Q. — What practical importance in Roman law belongs 
 to the question in what cla^s of rights servitudes should 
 he placed ? 
 
 Q. — Occupatio rei nullim pro acquirendi domini causa 
 haheri potest singulorum tantum dominio in untversum 
 admissio. Warnkonig, Dodrina Juris Philosophica. 
 Give reasons in support of your opinion. How does it
 
 388 
 
 affect the popular theory of the part played by occu- 
 pancy in the occupation of individual property ? 
 
 Q,. — Define prescription considered as a term of 
 general jurisprudence. Is any true prescription re- 
 cognised by English law ? 
 
 Q. — Nemo sibi ipse causam possessionis mutare potest. 
 On ne pent pas prescrire contre son titre en ce sens que V 
 on ne pent se changer d soi meme la came et le principe de 
 sa possession (Code Napoleon 24.) Explain carefully 
 the import of these maxims. Under what circumstances 
 could a derivate, dependent, or permissive possession 
 become adverse in the sense of the Roman law ? 
 
 Q,. — Define occupancy. In what objects, in ancient 
 and modem times, were the rights of dominium acquired 
 by occupancy. 
 
 Q,. — State and explain the aphorism of Savigny upon 
 the origin of property. 
 w Q,. — Illustrate from the Roman and Continental 
 System of Law, that the law of personalty tends to 
 annihilate the law of realty.
 
 ROMAN AND CIVIL LAW.
 
 391 
 
 OUTLINE OF EOMAN LAW. 
 
 Of Law in General. 
 
 Law (Jm) is the science of what is just and good. 
 Jurisprudence (JurisprudentiaJ is the acquaintance with 
 divine and human affairs, and skill in what is just and 
 unjust. Law is either public or private. 
 
 Public law regards the interests of the state, and 
 private law, those of individuals. 
 
 Private law is divided into the law of nature (jus 
 naturae) the law of nations (jus gentium) and the civil 
 law (jus civile). 
 
 The law of nature is the dictate of nature to man in 
 common with all other animals. 
 
 The law of nations (jus gentium) is the law inculcated 
 by natural reason on mankind, and common to all 
 nations. 
 
 The civil law is that in. force in any state, and was 
 either written or un-written. 
 
 Of Persons. 
 
 WPerson (persona) m its strict sense is any being 
 capable of having rights and performing duties. 
 
 The signification of the word has, however, been much 
 extended, so that whatever is' considered subject to 
 laws is regarded as a person. Thus there are persons 
 physical and moral, although the latter are more 
 properly called juridical or artificial. 
 
 The word persona often signifies only capacity, as 
 that any one is subject to certain laws, and capable of
 
 392 
 
 certain duties. Thus, one individual may have in himself 
 several capacities, the duties and rights of which are 
 various. 
 
 Of the capacity of persons in general. 
 
 Capacity (status) is natural or civil. Natural, or 
 common capacity, was that of every human being not a 
 monster. An unborn child was regarded as if bom 
 in regard to every benefit appertaining to him. 
 
 For civil capacity there were several requisites : (1) 
 freedom; (2) citizenship ; (3) membership in a family. 
 
 Freemen were either freeborn (ingenui) or freedmen 
 (libertini). 
 
 Freemen were divided into citizens andaliens(peregini). 
 
 Membership in a family was the position of any one 
 who was himself independent, but might possess other 
 persons in his own power. Agnation with a particular 
 family was also included in the expression membership 
 in a family. 
 
 "Whoever was not subject to the power of another (in 
 alterius potestate) was independent (sui juris) although 
 sometimes called pater familias. "Whoever was subject 
 to the power of another was alieni juris, as a child or 
 a slave. The power of an independent person was 
 threefold. 1, The power of masters over their slaves, 
 and the paternal power over children and grandchildren; 
 2, Manus, or the power of a husband over a wife. (The 
 ancient modes of marriage were '^ confa/rreatio,''^ a 
 religious ceremony in which none but those to whom 
 the JUS sacrum was open could take part; " coemptio^^ 
 a fictitious sale, in which the wife was sold to the 
 husband; and "usus," cohabitation with the intention 
 of forming a marriage) ; 3, Mancipium, which was a 
 fictitious sale in a formal manner, as in emancipation or 
 adoption of any freeman. 
 
 The loss of capacity was called capitis deminutio and 
 was either the greatest (maxima) which was the loss of 
 liberty, and with it the other two capacities were 
 necessarily extinguished; 2, the middle, the loss of
 
 393 
 
 citizensTiip, and with it membership in a family, but 
 not freedom, was extinguished; 3, the least, which 
 included every change which befel a Roman citizen in 
 his membership in a family, and not affecting his 
 citizenship. Exidimatio was the dignity belonging to 
 any one in the full enjojrment of his capacity {status). 
 It might be lost, as by the greatest, or middle deminutio 
 capitis or impaired, bat so that the person would not 
 cease to be a Roman citizen. Persons whose existimatio 
 was thus impaired were designated infamous, if their 
 offence was of a grave character, base, if of a less 
 grave character. 
 
 Persons may also be considered in other relations. 
 In regard to sex, persons are either male or female. In 
 regard to age, persons are either of age {major es) or 
 under age {minor es). 
 
 At twenty-five a person became at age. 
 
 Puberity in males was considered to commence at 
 fourteen. Females are regarded fit for marriage at 
 twelve. Children until the age of seven, were called 
 infants (infantes). 
 
 Persons in regard to their faculties, are either sane or 
 insane. 
 
 Relationship between persons connected by ties of 
 blood, is called cognatio. 
 
 This relationship is direct and either ascending, as 
 from the descendant to the ancestors, or descending from 
 the ancestors to the descendant. 
 
 Persons descending from a common ancestor are with 
 regard to each other collaterals. 
 
 Nearness of cognation is counted by degrees. The 
 degree is found according to the rule : Whatever number 
 of generations is required to determine the cognation 
 between two particular individuals, in a similar degree, 
 are those persons related to each other. Thus, father 
 and son are in the first degree ; grandfather and grand- 
 son in the second degree; a brother's son and a paternal 
 uncle in the third degree ; and children of brothers are 
 in the fourth degree. Collaterals if descended from the 
 same parent, are called bilateral or unilateral, if they
 
 394 
 
 have only one common parent. Collaterals of the former 
 kind are commonly called german. If the common 
 ancestor is a father, unilaterals are called consanguinean, 
 but if a mother uterine. Ajfinity is the tie which takes 
 place in a marriage between the wife and the relations of 
 the husband. Among artificial persons are the state, the 
 treasury', corporations of every kind, religious institu- 
 tions, and lastly inheritances in abeyance. 
 
 II. 
 
 Of Things. 
 
 In general, whatever is not a person, but is the object 
 of a right is called in law a thing. 
 
 Thing in a particular sense is whatever, from its 
 nature, is capable of being property. 
 
 Things incorporeal are rights. 
 
 Things corporeal are moveable or immoveable. 
 
 Things moveable are those which can be moved from 
 place to place without injury to their substance or shape. 
 
 Things immoveable are those which from their nature 
 cannot be removed, or in contemplation of law have 
 become so. 
 
 Things are also divided into fungible and non-fungihle. 
 The former are those which are considered in regard 
 to quality and quantity. 
 
 Things non-fungible are those which have to be 
 regarded in species. Thus, com is a thing fungible, and 
 a painting a thing non-fungible. Things are either 
 simple consisting of similar particles in their nature 
 coherent, or compound, composed of parts united into 
 one, as a house or a ship. 
 
 Things are also divisible or indivisible, as an animal. 
 
 Things are either principal or accessory. The former 
 are those which exist independently of any other 
 things. 
 
 Whatever appertains to the principal thing or is 
 united to it, is called accessory. 
 
 Things in regard to ownership belong to nobody 
 inullius) or are owned {alioujus).
 
 395 
 
 Things belonging to one or several individuals, are 
 called private, to a corporation res universitatis ; to the 
 state, public. 
 
 Res extra commercium are those which cannot be the 
 property of anyone. Of this kind are (1) things of 
 divine right which are either sacrae, religiosae or 
 sanctae; (2) things of ptiblic right {res puhlici juris) and 
 among them are not only things common to the state 
 as theatres, stadia, but even things the use of which 
 is common to all mankind as the sea, the sea-shore and 
 flowing water. 
 
 III. 
 
 Rights over things. 
 
 Absolute ownership was called dominium and com- 
 prehended the right to possess, use and dispose of a 
 thing, as well as to prevent its alienation by others. 
 
 Possession was the detention by any person of any 
 corporeal thing, with the intention of retaining it for 
 himself. Freedom of property enabled an owner to 
 exercise all the rights incident to ownership, according 
 to the natiu-e of the property, but if the property was 
 subject to any rights in favour of another person, so 
 that the ownership was modified, the property was 
 said to serve another. Thus when the owner of property 
 was under an obligation to allotv or 7iot to do a particular 
 thing on his property, the person in whose favour the 
 obligation existed was said to have a servitude. If the 
 servitude was connected with land, it was called rural, 
 or urban, if relating to buildings. There were also 
 servitudes called personal, which were created for the 
 benefit of an individual only, and temiinated at his 
 death. Emphyteusis was the hire of land, at a rent 
 from year to year, or for a definite period, to cultivate 
 and improve, with liberty to the tenant to use the 
 land as his own, and to dispose of it without deteriora- 
 tion to the property. Superficies was the hire at a 
 rent of buildings on the surface of land, with the 
 same rights and obligations as emphyteusis.
 
 396 
 
 Pignus was a real right granted to a creditor for his 
 security. Of this right there were two kinds, one called 
 pignus when the thing, over which the right existed, 
 was delivered to the creditor ; and the other called 
 Jiypotheca when it was not so delivered. 
 
 One of these modes was called occupation from the 
 maxim: Res nxiUiuH cedit prima occupantis. Whoever 
 possessed himself of property which never had an 
 owner, with the intention of retaining it for himself, 
 acquired by occupation the property. 
 
 Accession was the right of the owner of property to 
 its increase by natural causes, agreeably to the maxim : 
 A thing accessory follows the ownership of the principal 
 thing. Tradition was the delivery of anything by the 
 true owner, with the intention of transferring it to the 
 person to whom it was delivered. 
 
 Donatio or gift was also a mode of acquiring property. 
 Of gifts there were two kinds, one inter vivos and the 
 other mortis causa. 
 
 The former was a gift when there was no prospect 
 of death, and could not be revoked by the donor 
 without cause. Delivery of the article, as in the case 
 of a sale, was also requisite. A donatio causd mortis 
 was a gift in expectation of death, in case the donor 
 should happen to die, but to be returned should the 
 recipient not survive the donor, or the latter should 
 revoke his gift. 
 
 Arrogation was the acquisition of the goods of one 
 sui juris by the person into whose family he was 
 adopted. 
 
 By testaments property might also be acquired. A 
 testament derived its name from the testimony of the 
 mind {testatio mentis) of a person regarding the 
 disposition he wished to be made after his death, of 
 his property. In ancient times there were two kinds 
 of wills, one used in times of peace called calatis 
 comiiiis; the other when going to battle, and called 
 procincttim. There was subsequently introduced a thii-d 
 kind of testament called per aes et libram because 
 made by emancipation, an imaginaiy sale in the presence
 
 397 
 
 of five witnesses, and the balance holder (all Roman 
 citizens above the age of fourteen) as well as of the 
 person called the purchaser. The two foi-mer kinds of 
 will fell into disuse, but the third per aes et libram 
 continued in part to exist, as in fact the same number 
 of persons (seven) was requii-ed to witness another 
 kind of will, introduced by the edict of the praetor. 
 The seals of the witnesses were also requisite, but the 
 imaginary sale femancipatio) was abolished. Imperial 
 constitutions afterwards requii-cd that the testament 
 should be made all at one time, in the presence of seven 
 witnesses, with the subscription of the witnesses and 
 their seals appended. Justinian also decreed as a 
 preventive against fraud, that the name of the heir 
 should be written in the hand of the testator or his 
 witnesses. All the witnesses might use the same seal. 
 Those incompetent to make wills were sons under 
 power, slaves, foreigners, persons under age, people 
 deaf and dumb, madmen, and prodigals under interdict. 
 A will might be wiitten on any material. A child 
 must have been either appointed heir or expressly 
 disinherited, or the testament would be inoperative. 
 Prior to the reign of Justinian, daughters might have 
 been disinherited inter caeteros. The institution of the 
 heir was another essential of a testament. Fidei 
 commissa were injunctions contained in a will to the 
 heir, to transfer to a person named, the whole or paii; 
 of the inheritance. 
 
 Codicils were any testamentary indication of a 
 testator, not operative as a will. 
 
 Where a person died leaving no will, or the will was 
 inoperative, he was said to die intestate, and the di-vision 
 of his property was then regulated by law. 
 
 Usucwpio was another mode of acquisition by which 
 a person obtained the property in a thing which he had 
 possessed as his own for a long period. By the civil 
 law it was declared that whoever in good faith had 
 acquii-ed by pui-chasc, gift, or other just cause, a thing 
 from one whom he believed to be the owner, although 
 not in reality should be entitled to it if moveahU,
 
 398 
 
 wherever it was situate after one year, and if immove- 
 able and. situate within Italy, after two years. By an 
 ordinance, however, of Justinian, the period of 
 usucapion for moveables was declared to be three years, 
 and for immoveables within the Eoman dominions, 
 the possession lo7igi temporis or the respective periods 
 of ten and twenty years, according as the parties were 
 or were not in the same province, were prescribed. 
 Preemen, things sacred or religious, fugitive slaves, 
 stolen articles, or things obtained by force could not be 
 the object of usucapion. 
 
 rv. 
 
 Riglits against Persons. 
 
 Rights against persons were usually termed obliga- 
 tions. An obligation was a legal tie, binding one to 
 the performance of any particular thing. Obligations 
 might aiise from contract, quasi contract, delict, and 
 quasi delict. Obligations by contract were Jfonned by 
 the tiling verbal, written, or by consent. The principal 
 contracts by the thing were mutuum and commodatum. 
 Mutuum was the loan of articles for an equivalent 
 to be given in things of the same natui-e and quality. 
 Thus a loan of oil, wine, and coins was tenned 
 mutuum. 
 
 Commodatum was the loan of a thing to be returned, 
 as a pictiu'e. An obligation by word of mouth was 
 contracted by means of a question and an answer, as 
 when we stipulate that anything shall be done or given 
 for us. Fonncrly, certain solemn words were required 
 to be used, but afterwards any words indicating consent 
 were sufficient. The mode of contract was termed 
 stipulatio. 
 
 An obligation in writing was an entry in tablets of 
 the names and other particulars of a contract. Thus, 
 if any one put down in his ledger that he had advanced 
 such a sum of money to another, [expensurn referre) this 
 entiy was an admissible proof of the fact. If the
 
 399 
 
 debtor also had made a corresponding entry in his 
 ledger facceptmn referre) the tallying of the two made 
 together what was called an ohligatio in literis, Sandars. 
 Ohligatiom hj consent were those in which the mere 
 consent of parties was sufficient, as in contracts of 
 sale femptio et venditioj; letting to hire (locatio et 
 conductioj ; partnership [societas) ; and an honorary 
 commission fmandatum.) Obligations quasi ex contractu 
 originated from various circumstances. Thus by or 
 against the manager of the affairs of an absent person, 
 between tutors and minors, joint owners, heirs, heirs 
 and legatees, and for money paid by mistake (under 
 certain circumstances), obligations quasi ex contractu 
 arose, there being no express contract. 
 
 Obligations from delict arose from theft, robbery, 
 damage, or injury. Theft was any fraudulent removal 
 of property with a view of gain. Robbery was the 
 forcible removal from another of property, with the 
 intent to gain. 
 
 Damage was any detriment to a person's goods, from 
 the fault or wi^ongful act of a freeman. The law of 
 Aquilius (Lex Aquilia) contained the regulations on 
 this subject. 
 
 Injury in a general sense was any illegal act. In a 
 more special sense, the word signified insult {contumelia) 
 and sometimes an unjust decision of a judge. 
 
 Obligations from quasi delict arose from wrongful acts, 
 which were not true delicts in the sense of Roman law. 
 Thus when things were thi'own down, or anything was 
 thrown down from a room, the occupant was liable, if 
 in their descent they injured or killed any person. 
 Persons who had placed anything above a highway 
 were liable if it fell and injured anyone. 
 
 For theft by any person in the service of a ship, the 
 master was liable. 
 
 Obligations were dissolved by the payment of what 
 is due or the delivery of anything else substituted, with 
 the consent of the creditor. Acceptilatio and novatio 
 were also modes of dissolving obligations. Obligations 
 formed by consent were dissolved by a mutual agreement 
 to the contrary.
 
 400 
 V. 
 
 Of Actions, 
 
 An Action was the right to take proceedings at law 
 for whatever might be due to a person. 
 
 Actions in regard to the origin were either moil or 
 honormry, according as they had been introduced by the 
 civil law, or the edicts of praetors. Praetorian was 
 accordingly a term by which honorary actions were 
 frequently designated. In regard to their subject, 
 actions were either real, personal, or mixed. Real 
 actions also called vindicationes were those by which 
 property or a right to a thing was claimed. 
 
 Mixed actions were those which partook of the nature 
 both of personal and real actions. 
 
 The object of actions was to recover a thing, a penalty, 
 or both. Actions which had to be decided according 
 to strict law, were called actiones stricti juris, while 
 those in which the judge naight determine according 
 to equity and good faith, were termed actiones bonae 
 Jidei. Actions which did not expire by length of time 
 were in the older Roman law, called perpetual, while 
 those which expired unless brought within a certain 
 time, were called temporary. In the more modem 
 Roman law, actions which were previously perpetual, 
 in general expired, unless brought within 30 years. 
 
 This rule was however subject to several exceptions. 
 
 Actions descend in general not only actively to heirs, 
 but also passively against heirs. Penal actions, with 
 the exception of " injuries" descend to, but not against 
 heirs, unless they had been benefited by the delict of 
 their ancestor. Actions partaking of the nature of 
 punishment do not descend to heirs, but only against 
 him. In the latter case, the cause of action could not 
 be a delict. A penal action, as well as an action 
 partaking of the value of punishment (vindicta) if 
 commenced by the ancestor, descended to and against 
 heirs. 
 
 The person against whom the action was brought
 
 401 
 
 (reus) could defend himself by an exception, fexceptio) 
 consisting of a denial of the facts; the allegation of 
 new facts, showing that the cause of action no longer 
 existed; and the allegation of the existence at the 
 date of the cause of action of circumstances, rendering 
 the action of the defendant unjust, as fraud, violence. 
 Strictly speaking, exceptions belonged to the formula 
 system of Roman law, and during that period an 
 action might be brought a second time for the same 
 cause of action. The person against whom the action 
 was brought, however, might defend himself, by an excep- 
 tion of rei judicatae, or the previous adjudication 
 of the cause. 
 
 Exceptions were also perpetual and peremptory, or 
 temporary and dilatory. The former were those which 
 for ever formed an obstacle to the success of the 
 demandant in an action, as the exceptions of fraud, 
 violence, or a compact not to sue. 
 
 Temporary and dilatory exceptions were those which 
 merely delayed for a time an action. Thus, if the 
 defendant in an action had made a compact not to take 
 proceedings for five years, the person sued might 
 defend himself by an exception to that effect. 
 
 Actions brought on behalf of others, by persons not 
 entitled to act as praetors, as women or sokliers, rfdght 
 also be defended by dilatory exceptions. Infamy was 
 another instance of a dilatory exception, but was 
 abolished by Justinian. 
 
 A repKcation was an additional allegation of the 
 demandant answering the exception of the defendant. 
 Thus, if a creditor agreed not to sue, and afterwards 
 an agreement was made to sue, the replication would 
 state the latter agreement, and so destroy the effect of 
 the exception. The replication might be avoided by a 
 duplication of the defendant. The duplicatioft of the 
 defendant might be repelled by the triplication of the 
 demandant ; and thus these mutual allegations of de- 
 mandant and defendant might continue according to 
 the requirements of the suit. Interdicts were formulae
 
 402 
 
 by whicli the praetor ordered or forbade anything to 
 be done. 
 
 The principal division of interdicts was into pro- 
 hibitory, restitutory, and exhibitory. 
 
 Prohibitory inderdicts, forbade something to be done. 
 
 Restitutory interdicts, ordered something to be 
 restored. 
 
 Exhilitory interdicts, ordered the production {exhi- 
 hitio) of a thing or a person. 
 
 A second division of interdicts, was into simple or 
 compound. Simple interdicts, were those in which one 
 person was demandant, and another defendant. Double 
 interdicts, were those in which each party was equally 
 demandant and defendant, as in the interdicts uti 
 possidetis and utrubi. 
 
 Groundless litigation was prevented by the infliction 
 of a pecuniary penalty, in some cases by the imposition 
 of an oath, and in others, by degradation to infamy. 
 
 In bringing any action, the first step to be taken 
 was the vocatio in Jus or the personal citation of the 
 defendant before the magistrate, who had the jurisdic- 
 tion. Permission from the praetor to summon ascendants, 
 or patrons, or the ascendants, or children by patrons 
 was required by children, and freedmen under a 
 penalty. 
 
 A judge was required to decide according to the 
 laws, the constitutions and custom.
 
 403 
 
 BOOKS OF REFERENCE ON ROMAN AND 
 CIVIL LAW. 
 
 Bowyer's Civil Law. 
 
 Colquhoun's Roman Civil Law. 
 
 Code Civil. 
 
 Cumin's Manual of Roman Law. 
 
 Digest. The last two titles, De Verhorum Significatione 
 
 and De ReguUs Juris. 
 Gains. Books 1 and 4. 
 Institutes of Justinian by Heineccius. 
 
 ,, ,, Ortolan's, or Sandar's Edition. 
 
 Mackeldii Systema Juris Romani Hodie Usitati. 
 Ortolan's Generalisation du Droit Romain. 
 Phillimore's Principles and Maxims of Jurisprudence. 
 
 ,, Introduction to the Study of Roman Law. 
 
 "Wamkonig's Institutiones Juris Romani Privati.
 
 404 
 
 QUESTIONS ON EOMAN AND CIVIL LAW. 
 
 History of Civil and Roman Law. 
 
 Q. — State the order of time in which, the different 
 portions of the Corpus Juris were compiled. What 
 branches of the older Roman Law enter into each 
 of them? By whom, and to what extent had the 
 experiment of Justinian been anticipated ? 
 
 Q. — Give a brief sketch of the attempt madfe in the 
 12th century to introduce Eoman law into England. 
 By what channels has Roman law made its way in- 
 directly into our system ? 
 
 Q. — Who were the Roman Jurisconsults, and what 
 was the nature of theii' influence on Roman law ? 
 
 Q. — What portion of Roman jurisprudence is con- 
 tained in the pandects ? What do you conceive to be 
 the principle which guided the compiler of the pandects 
 in the aiTangement of subjects ? 
 
 Q. — What were the policy and principal provisions 
 of the Lex Falcidia, of the Senatus Consultum Pega- 
 sianum, and of the Senatus Consultum Trehellianum f 
 What changes did Justinian introduce into the law 
 regulated by these statutes ? 
 
 Q. — What were the various modes by which legisla- 
 tion was effected by the law of Rome ? What was 
 the force of a Plehiscitum, and of a Senatus Consultum 
 at different periods of Roman history ? 
 
 Q. — What were the som-ces of Roman law posterior 
 to the time of Justinian ? 
 
 Q,. — What works of consolidation and codification of 
 the Roman law were in existence at the time when 
 Justinian came to the throne ?
 
 405 
 
 Q,. — Shortly describe the works of consolidation and 
 codification in the reign of Justinian, and state the 
 time occupied in the construction of each. 
 
 Q. — What mode was adopted to facilitate reference 
 to the different codes of Justinian ? Give the theory 
 of Blume, explaining the rapidity of the execution of 
 the digest. 
 
 Q. — Describe briefly the works of consolidation of 
 the French law anterior to the Code Napoleon. 
 
 Q. — Shortly explain the progress of the French law, 
 which resiilted in the Code Napoleon. 
 
 Nature of Roman and Civil Law. 
 
 Q. — Quod principi placuit Jiahet vigorem legis. Sine 
 scripto JUS venit quod usus approhmit. Explain the 
 meaning of these maxims. In what sense, and with 
 what limitations can they be accepted as principles of 
 general jurisprudence ? 
 
 Q. — Give a definition of the Law Natural. When 
 such an expression is employed, what assumptions are / 
 made with reference to the essential character of law ? 
 
 Q. — Explain carefully the nature of that portion of 
 their system which the Roman jurisconsults specifically 
 denominate Jus Civile. What was it in theory ? How 
 and through what organs was it developed in practice ? 
 
 Q. — Define Senatus Consultum. To what class of 
 doubts does Gains allude when he says, Senatus con- 
 sultum legis vicem ohtinet quamvis fuerit quaesitum ? 
 In what cases, and upon what persons were Senatus 
 Consulta absollitely binding in libera repuhlica. 
 
 Q. — What did the Roman jurisconsults understand 
 by a law of imperfect obligation ? K there be such a 
 law what is its relation to a law proper ? 
 
 Q. — Explain the nature of the Praetor's office, and ! 
 the relation in which he stood to the Jus Civile on the i 
 one hand, and to the Jus Honorarium on the other. I 
 Was there at Rome any conflict of jurisdictions ? / 
 
 Q. — What was the probable origin of the Praetor's ^ 
 Edictal Jurisdiction? Give a brief account of the 
 principles on which it was ultimately exercised.
 
 406 
 
 Q. — "WTiat form did the distinction between legal 
 and equitable rights assume in the older Roman law ? 
 Why was the importance which attached to this dis- 
 tinction in Roman jurisprudence inferior to that which 
 belongs to it in English law ? 
 
 Q,. — How ought the expression "jms gentium " to be 
 translated, and what relation did the system known 
 by this name bear to the rest of the Roman law ? 
 What is the Latin equivalent of " International Law ?" 
 
 Q. — What are the natm-e, requisites, legal force, 
 and proof of customs according to modem civil law ? 
 
 Q. — " Omne jus quo utimur vel ad personas pertinet, 
 vel ad res, vel ad acfiones.^' Is this distribution com- 
 plete ? What is the relation of the law of persons to 
 the law of things ? Ai^e there any portions of the law 
 which may be classed indifferently under either of 
 those departments ? 
 
 Q. — What do you consider to be the sanctions of 
 natural law ? 
 
 Q. — Define accurately the meaning of the expression 
 " Common Law," when used with reference to English 
 law, and state the various theories explaining its 
 source. Give the meanings attached to the term by 
 Continental jurists. 
 
 Maxims and Definitions. 
 
 Q. — Explain the meaning and application of the 
 following maxims and rules : 
 
 (1.) Proximus est cui nemo antecedit; sippremus est 
 quern nemo sequitur. 
 
 (2.) Nemo potest mutare suum consilium in aUerius 
 injuriam. 
 
 (^3.) Non solet deterior conditio fi,eri eorum qui litem 
 ' contestati sunt sed plerumque melior. 
 
 (4.) Rapienda occasio est quae praebet benignius res- 
 ponsum. 
 
 (5.) Fraudis interpretatio semper in jure civili non 
 ex eventu duntaxat sed ex consilio quoque desideratur. 
 
 Q. — Explain the following technical terms in
 
 407 
 
 Roman Law : Culpa Lata, Diligentia, Cmtodia, Casus, 
 Mora. 
 
 Q. — Explain the meaning of the following definitiona 
 and rules of Roman Law : 
 
 (a) Rei appellatione et causa et jura continentiir . 
 
 (b) In generall repetitione legatorum etlam datae 
 lihertatis continentur. 
 
 (c) Potest reliquorum appellutio et universos signl- 
 Jicare. 
 
 (d) Usura p)ecuniae quavi percipimus in fructu non 
 est quia non ex ipso corpore sed ex alia causa est, id est, 
 nova obligatione. 
 
 (e) Magna negligentia culpa est ; magna culpa dolus 
 est. 
 
 (f) Semper in ohscuris quod minimum est, sequiniur. 
 
 (g) Nuptias non concubitus sed consensus /"ac it. 
 
 (h) Ea quae raro accidiint non temere in agendis 
 negotiis computantur. 
 
 Q. — What is meant in modem Roman law by the 
 expression "legal transaction ?" 
 
 Q. — Define a Real Action, a Personal Action, a Litis 
 Contestatio, a Dilatory Plea, an action honae fidei, and a 
 popular action. 
 
 Q. — Explain the meaning and effect of the following 
 dicta and maxims : — 
 
 (a) Quae dubitationis tollendae causa contractibus 
 inseruntur, jus commune non laedunt. 
 
 (b) Dolus malus est petere quod statim. redditiirus es. 
 
 (c) In rutiis cacsis ea quae terrd non tenentur quaeque 
 opere structili tectoriore non continentur. 
 
 Q. — Explain and illustrate the following rules and 
 propositions : — 
 
 (a) Verbum " oportere " non ad facultatem judicis 
 pertinet, qui potest vel pluris vel minoris condemnare sed 
 ad veritatem retertiir 
 
 (b) Quoties aequitatem desiderii naturalis ratio aut 
 dubitatio juris meratur.justis decretis res temperandn est. 
 
 Q. — Explain the meaning and application of the 
 followinc; rules and texts : —
 
 408 
 
 (a) Oh hoc quodfurto pridem subtracta est abest et ea 
 res quae in rebus himianis non est. 
 
 (b) Si cum fundmn tibi darem, legem ita dixi " uti 
 optimus maximusque esset " et adjeci, jus fundi deterius 
 factum non esse per dominum praestabitur amplius 
 copraestabitur nihil. 
 
 Q. — Explain the meaning of the term '^ Impossibilis 
 conditio pro non scriptd hahetur." To what department 
 of Roman jurisprudence is it confined ? Does it obtain 
 in English law ? 
 
 Q,. — Explain the following definitions and rules : — 
 
 Litus publicum est quatenus qua maxime fluctus 
 exaestuat. Idem juris est in lacu nisi is totus privatus est. 
 
 Satisdationis appellatione interdum etiam repromissio 
 continetur, qua contentus fuit is cui satisdatio debetur. 
 
 Jura sanguinis nullo jure civili dirimi possunt. 
 
 Q. — Explain the meaning of the following technical 
 expressions : — " Res Nulliu^," " Res Religiosa," " In- 
 ventio,'' " Conditio casualis," " Temj)u^ Civile,'' "Deditio 
 Noxae Causa,'' " Traditio Brevi Manu." 
 
 Q,. — Give examples of the application of the maxims : 
 
 (1) Pro facto accipitur id in quo per alium morae sit 
 quominusfiat. 
 
 (2) Bona fides tantundem possidenti praestat quantum 
 Veritas quoties lex impedimento non est. 
 
 Q,. — Define Res Communes, Res C'iviliter Dividuae, 
 and Res Naturaiiter Dividuae. 
 
 Q. — State the meaning and application in English 
 and Roman law of the following maxims : — 
 
 ^^1) Cwn de fraude disputatur, non quid habeat actor 
 sed quid habere non pot.uerit considerandum est. 
 
 (2) Nemo plus juris ad alium trati^ferre potest quam 
 ipse haberet. 
 
 Q. — Give some of the principal applications of the 
 rule : 
 
 Commoda cujusque rei eum sequuntur qv£m sequuntiir 
 in commoda. 
 
 Q. — Explain the meaning of the following definitions 
 and maxims : — 
 
 (a) Nihil aliud sunt "jura praediorum," quampraedia
 
 409 
 
 qualiter $e liahentia, ut bonitas, salubritas, amplitudo. 
 
 (b) Culpa est immiscere se rei non ad se pertinenti. 
 
 (c) Cujiis jjer errorem dati repetitio est, ejus consulto 
 dati donatio est. 
 
 (d) Quod contra juris rationem receptum est, non est 
 producendum ad consequentia. 
 
 The Law of Persons. 
 
 Q. — At what period of life, and under what circuin- 
 Btances was a Roman citizen placed in the full exercise 
 of his rights? What were the disahilities which, 
 under Eoman law, would prevent usucapion, and 
 prescription from running. 
 
 Q. — Explain the meaning of Capitis deminutio, and 
 enumerate its forms, tracing them all to a common 
 origin. 
 
 Q. — In what respects did the legal position of an 
 enfranchised slave differ from the status of a free-born 
 citizen: (1) under the Roman law as remodelled by 
 Justinian; (2) under the Leges Junia, and OeJia Sentia? 
 
 Q. — What view did the Roman law take of the 
 condition of the unborn child ? 
 
 Q. — What advantage has the Prussian Code which 
 arranges the law of persons after the law of things ? 
 
 Q. — What are the leading principles which in Roman 
 law govern the legal relations of a corporation, and its 
 members ? "WTiat is a Zfniversitas Ordinata ? 
 
 Q. — Explain clearly the nature of the Agnatic 
 Relationship, and the meaning of the maxim : Mulier 
 finis est et caput familiae. What do you conceive 
 to be the tnic origin of the old rule of English law, 
 under which brothers of the half-blood did not inherit 
 real estate from each other ? 
 
 Q,. — What are the general presumptions of Roman 
 
 law, with regard to the predecease and survivorship 
 
 of persons, the exact time of whose death is not known? 
 
 r-,j Q. — G;am^{^Qt)^^MajusLathimvocaturqimm quicunque
 
 410 
 
 Romae niunus faciunt, non hi tantttm qui magistratum 
 gerunt, civitatem Romanum consequuntur." 
 
 Do you consider it defensible ? 
 
 Q,. — Describe the forms of Roman marriage existing 
 in the time of Gains, and the legal relation in which 
 the wife was placed by each of them to her husband. 
 Which foim of marriage is presupposed by the propo- 
 sition in the Digest respecting the dotal estate ? Give 
 reasons for your answer. 
 
 Q. — In what respects did the legal view of marriage 
 at Rome differ from that taken (1) by the canon 
 law ; (2) by the English law? What is the meaning of 
 the maxim " Coyisensus non concuhitus facit matri- 
 monium f 
 
 Q. — Can a man under Roman law contract a lawful 
 man-iage with (1) his wife's sister; (2) his first 
 cousin, or (3) his father's adopted daughter ? 
 
 Q. — Explain what is meant by a woman's passing in 
 manum viri, and state the legal results of the process. 
 How did these results differ from those of marriage as 
 regulated by the later Roman law ? 
 
 Q. — Explain the nature of the special protection 
 given by the Roman law to property settled on the 
 wife on marriage, as Bos. What was Dos Aestimata? 
 
 Q. — In what respects was the power of the husband 
 over the property of the wife, less extensive in Roman 
 than it is in English law ? What is the rule of Roman 
 law, as to Donations between husband and wife ? 
 
 Q. — Wliat classes of natural chikben did the Roman 
 law allow to be legitimated by the subsequent maniage 
 of the parents ? Assuming the child to be capable of 
 legitimation, would the subsequent marriage of the 
 parents legitimate it in all cases ? 
 
 Q,. — What change did Justinian effect in the law of 
 adoption ? To what extent does the Code Napoleon 
 recognize the adoptive connection ? 
 
 Q. — Enumerate cases in which the Pater familias 
 was liable on the contracts of his son under power. 
 
 Q,. — At what period of Roman law was the Legitimatio 
 per subsequens matrimonium introduced ?
 
 411 
 
 Q. — Give a brief sketch of the rights and duties of 
 the patron, relatively to the freedman, whom he had 
 enfranchised. What historical importance attaches to 
 this department of the Roman law? Explain the 
 meaning; of the tenn " Latinitasy 
 
 Q.. — In what respects are the fundamental principles 
 upon which depend the modem law of guardianship, 
 and the modern law of minority distinct from those on 
 which the corresponding departments of the Eoman 
 jurisprudence reposed? 
 
 Q. — Under what circumstances did a man under 
 Roman law become a slave by birth ? Didj the English 
 law of Villenage exhibit different rules, and if so, 
 were they such as to contribute to the extinction of 
 the system? 
 
 Q. — Explain the terms Tutor, Curator, Minor, 
 Pupillus. How did a Minor, and a Pupillus differ in 
 their power to contract ? 
 
 Q. — Explain clearly the character of the Roman 
 tutelage, and the meaning of such expressions as auctor 
 fieri, auctoritatem interiJonere. 
 
 Q. — Wliat was a Curator Prodigi ? Does this form 
 of C^^ra survive in any modern system of jurisprudence. 
 
 Q. — What were the special duties which a Tutor 
 had to discharge immediately on entering on the 
 tutelage of an mim\i piipiUus? 
 
 Q. — State briefly the duties of the Tutor in regard 
 to the property of the Pupillus, and mention any 
 particulars in which you conceive the English law 
 of trustee and cestui que trust to have been directly 
 borrowed from the Roman law governing the relations 
 of Tutor and Pupillus. 
 
 Q. — In what department of law was tutelage classed 
 and why ? What was the primitive signification of 
 the phrases "■ Auctor fieri, ''^ " Auctoritatem interponere,^^ 
 "Why would it have been incorrect to speak of the 
 Roman Cm-ator as "interposing his authority." 
 
 Q. — What is the dift'erence between the conceptions 
 of relationsliip involved respectively in cognation and 
 agnation ? How is the Roman law of Testaments
 
 412 
 
 affected by either of them ? "Which of them has 
 descended to modern jurisprudence ? 
 
 Q,. — What is the position of a debtor, under Roman 
 law, who makes a payment to a pupillus without the 
 authority of the tutor, or the sanction of a court ? 
 
 Q. — Explain the rule of the Eoman law " Utilitatem 
 pupillorum praetor sequitur non scriptorem tedamentiP 
 On what gi'ounds was this proposition defended, and 
 how was it reconciled with the received principles upon 
 which the law of testaments was administered. 
 
 Q,. — State the general rules for computing the degrees 
 of consanguinity. What are the modes of calculating 
 proximity of blood adopted respectively by the civil 
 and canon law? Which method does the law of 
 England follow ? 
 
 Q. — Under what disabilities were females placed by 
 the Eoman law of Justinian's day? Compare their 
 position with that of women under English law. 
 
 Q. — What validity had the acts done without the 
 concun-ence of any other person (1) by an Impubes sui 
 juris; (2) hj a. Ilinor sui juris ? 
 
 Q. — What were the obligations of a Roman father 
 to his child? Discuss the English and Eoman law 
 upon this liead. 
 
 Q. — What right had the father in the property of 
 his child by the Roman law at the time of Justinian ? 
 State briefly the English and French law upon this 
 point. 
 
 Q. — What was the Roman rule as to the degrees of 
 consanguinity or affinity within which maniage was 
 unlawful ? How far were adoptive connections a bar 
 to maniage ? 
 
 The Law of Things, 
 
 Q. — Of what natui'e was the theoretical distinction 
 between Praedia Italica, and Praedia Provincialia. 
 How did it practically affect the Roman law of pro- 
 perty during the middle period of its history ? 
 
 Q. — What criterion seems to have been tacitly
 
 413 
 
 adopted by the Roman jurisconsults for distinguishing 
 
 Res Communes from Res Sinf/ulorum ? "What are the 
 tests proposed for the like purpose by Grotius, Bentham, 
 and Whewell ? 
 
 Q. — Give a brief sketch of the order in which tlie 
 claims of pignoratitian creditors were marshalled. To 
 what extent was the tacking of incumbrances permitted 
 in Roman law ? 
 
 Q. — Enumerate the cases in wliich the Jus pignoris 
 arose through obligations not strictly created by the 
 contract of pledge ? When the jus pignoris attached 
 under the circumstances just indicated, in what con- 
 sisted the value of the rights which it conferred? 
 How is its place supplied in English law ? 
 
 Q,. — How did the Romans define a Donatio Mortis 
 causa ? In what respects were the rights and duties of 
 Donees Ilortis Causa identical with those of legatees ? 
 
 Q. — "What conditions must be satisfied under Roman 
 law in order that a title to property may be gained by 
 prescription? How did the English words "usui-p" 
 and "usiu'per" acquire their meaning. 
 
 Q. — What is the general doctrine of Roman law as 
 to the acquisition of property in Res Inexhausti Usus ? 
 Did the Roman law permit rights of property to be 
 acquired in the sea-shore ? 
 
 Q,. — When are things divisible and indivisible in the 
 sense of the Roman Law ? 
 
 Q. — On whom does the Roman Law impose the 
 obligation to keep a servient tenement in such a state 
 that the servitude can be fully enjoyed? What is the 
 general rule of English law on the point ? 
 
 Q. — Define things fungible, things aggregate, and 
 things accessory. What is the leading rule of Roman 
 Law concerning things principal, and things accessory? 
 Define and classify outlays, fruits, and appurtenances 
 according to Roman Law. 
 
 Q. — What is the difi'erence between the Roman and 
 Canon Laws as to the validity of the bona fides of the 
 person prescribing ?
 
 414 
 
 Q. — What changes in proprietorship are effected by 
 alluvion, commixtion, and specification? 
 
 Q,. — What rules are followed by the Law of England 
 in the case of a Specification ? 
 
 Q. — What are the principal obligations which the 
 Roman law imposes on a mortgagee when he proceeds 
 to realize his security ? 
 
 Q. — State by what operations of mind and body 
 possession is gained and lost in Eoman law. 
 
 Q. — What is the Eoman law on the subject of 
 buildings erected by A. with his own materials, and 
 bond fide on the land of B. ? In what points do the 
 rules on the subject conflict with the feudal principles? 
 
 Q,. — Enumerate and explain the conditions which 
 must concur in order that tlsucapion of an Immoveable 
 Thing may be effected ? 
 
 Enumerate the exception to the rule of Eoman law 
 that rights of action last thirty years. 
 
 Q. — What was the original meaning of Jus Accres- 
 cendi ? How is it that in modern law the Jus Accres- 
 cendi has come exclusively to be associated with 
 Survivorship ? 
 
 Q. — Distinguish aPraedial from a Personal Servitude, 
 and both of them from a Personal Obligation. 
 
 Q. — Explain briefly in what respects the position of 
 a person who hired a house from year to year under 
 Eoman law, woidd difi'er from that of a yearly tenant 
 under our system. 
 
 Q. — What are the requisites of a legal servitude ? 
 1/ -J Q. — State the principal rules of Eoman law con- 
 cerning the acquisition of right to wild animals, and 
 treasure trove. 
 
 Q. — Analyze carefully the signification attached by 
 the Eoman lawyers to the words Dominium and Ohli- 
 gatio. In what consists the scientific importance of 
 the distinction between them? When, and under 
 what circumstances did the expressions jus in re and 
 jus ad rem come into use ? To what objection are they 
 open ? Through what changes of meaning has the 
 term "obligation" passed?
 
 415 
 
 Q. — "What were impensae, and what facilities did 
 the Roman law give for their recovery ? 
 
 Q. — In what way has the feudal element in modern 
 jurisprudence affected the provisions of Eoman law in 
 respect of Res NuUkis. 
 
 Q,. — It is a maxim of Roman law that no man can 
 give a better title to property than he enjoys himself. 
 State how this rule can be reconciled with the principle 
 of Usucapion, and whether it obtains in English law. 
 
 Q,. — Is there any rule against perpetuities in Roman 
 law ? Give reasons for your answer. 
 
 Q. — What is the exact relation of the conception 
 indicated by a TTniversitas Juris to Jura ad rem and 
 to Jura in re ? 
 
 Q. — What is the distinction between affirmative and 
 negative servitudes ? 
 
 Q. — What is the meaning of the rule that servitudes 
 "neque ex tempore, neque ad tempus, neque suh conditione, 
 neque ad conditionem constitui possunt ?" How was it 
 practically evaded ? Is there any difficulty connected 
 with the subject of Roman servitudes which the rule 
 explains ? 
 
 Q. — What were the respective proprietary rights in 
 Roman law of persons enjoying the dominium directum, 
 and the dominium utile ? What are the principal 
 modifications of property sanctioned by Roman law, 
 which strike you as having exercised an influence on 
 feudal dependencies ? 
 
 Q. — Enumerate the objects comj)rised in the older 
 Roman law under the head of Res mancipi. Was this 
 department of Res nee mancipi co-extensive with the 
 entire residue of the subjects of property? Are there 
 any reasons for supposing that a distinction analogous 
 to that between Res mancipi and Res nee mancipi is 
 universally characteristic of law in its infancy ? What 
 was the in jure cessio, and for what purposes was it 
 resorted to ? 
 
 Q. — Give a definition of Occupancy. Is the defi- 
 nition of the Roman law at aU modified by Bracton ?
 
 416 
 
 To what extent has the principle of occupancy been 
 interfered with by the successive E^jglish game laws. 
 
 Q. — "What was the chief beneficial use which you 
 suppose to have been served by Usucapion at the era 
 of Gains ? 
 
 Q. — Why is it that the modes of acquisition by 
 commixtion and adjunction constitute a subject of 
 much greater importance in Roman than in English 
 law? 
 
 Q. — What is the difference between a rural and an 
 urban servitude ? 
 
 Q,. — What are the leading rules of Eoman law 
 which determine the consequences of ignorance or 
 mistake of law on the one hand, and those of ignorance 
 and mistakes of fact on the other? What is the 
 principle which is the basis of the distinction recog- 
 nized by these rules? Are those of English law 
 exactly identical ? 
 
 Q,. — Why, under Roman law, is a perpetual right 
 to take water from the cistern of another not a good 
 servitude ? 
 
 Q. — What particular estates "in land" did the 
 Romans recognize, and in what part of their system did 
 they class them ? 
 
 Q. — State the mutual rights and obligations, under 
 the Roman law, of mortgagor and mortgagee. What 
 rules of the English law of mortgage do you consider 
 to be derived from Roman law ? 
 
 Q,. — What is the chief difference between the Feudal 
 and the Roman conception of property in land, and 
 how did it arise ? 
 
 Q. — Define Emphyteusis. Briefly state the rights 
 and duties of the Emphyteuta and Bominus respectively. 
 What tenure has been referred to this mode of owner- 
 ship ? 
 
 Q. — ^What is Superficies ? and why, under the Roman 
 law, were Empliyteusis and Superficies classed by 
 themselves, as distinct forms of ownership ? 
 
 Q, — A., lona fide, purchases land of B., whom, at 
 the time of such purchase, he believes to be the true
 
 417 
 
 owner. C, the true owner, afterwards recovers the 
 land. Can C. recover from A. the value of the fruits 
 and crops gathered or consumed by A. while in pos- 
 session ? What is the English law upon this point ? 
 
 "Q. — A. enters into a valid contract of sale with B. 
 for the absolute purchase of a chattel, ascertained and 
 identified at the time of the sale, and the price is 
 agreed upon. Nothing further takes place. The chattel 
 is destroyed by inevitable causes. Upon whom, by the 
 Eoman law, does the loss fall ? State the English 
 and French law upon the same subject. 
 
 Q,. — Define "servitudes" by the Roman and French 
 law respectively, and "easement" by the English law. 
 
 Q,. — By what modes can servitudes be created or 
 extinguished by the Roman law ? 
 
 Q. — In a case, under the English law, the time of 
 prescription has begun to run, but the person against 
 whom the prescription is running goes abroad before 
 the full period of prescription has elapsed ? What 
 eifect is produced ? Give the Roman and French law 
 upon the same head. 
 
 Q. — What was the importance of the Roman dis- 
 tinction between Res extra commercium and Res in 
 commercio ? What was the effect of attempting »to 
 purchase or alienate an object belonging to the former 
 class ? 
 
 Q,. — What change did Justinian effect in the nature 
 of ownership, and what further alterations did this 
 change entail ? What was the office of tradition before 
 and after the change ? 
 
 Q,. — What was the Negotiorum gestio? In what 
 category was it ranged by the Roman Jurists? and in 
 what cases did it arise ? 
 
 Q. — What was implied in the Roman law by the 
 expression "Natural modes of acquiring property?" 
 Through what range of ideas came tradition to be 
 ranked amongst them ?
 
 418 
 
 TEANSFER OF EIGHTS. 
 
 Q. — Explain the phrases Saereditas JDelata, ITae- 
 reditas Adita, Testamentum Rwptum, Testamentum Des- 
 tituhim. 
 
 Q. — What was the Crction and Inventory, and what 
 was their relation to one another ? How is the office 
 which they discharge performed in England ? "What 
 is the state of the law of England on the subject of 
 Pro Haerede Gestio ? 
 
 Q,. — Who were necessary heirs ? For what purpose 
 was a slave of the testator occasionally named his heir? 
 In what did the practice originate ? 
 
 Q. — Under what circumstances did the Eoman law 
 make a codicil binding on the intestate heirs ? What 
 reasons are there for thinking that the older Eoman 
 law allowed no force to a codicil apart from the will 
 on which it depended ? 
 
 Q,. — What is a substitution? What was the object 
 aimed at by a Eoman testator in making substitutions, 
 and why did the scries of substituted heirs generally 
 end with a slave ? 
 
 Q. — State briefly the differences between English 
 and Eoman law in respect of the external and internal 
 formalities which they require for a valid exercise of 
 testamentary power. 
 
 Q. — What was the object of the Falcidian law with 
 respect to a legatum generis, a legatum nonmiis, a legatum 
 liber ationis ? 
 
 Q. — Give strict definitions of Testamenhim and Hae- 
 reditas. How far are the two conceptions dependent 
 on each other, and which of them belongs to Universal 
 Jurisprudence? Explain the meaning of Haereditas 
 acquisita. 
 
 Q. — What common principle connects the rules of 
 Eoman law regarding the formae internae or internal 
 solemnities of a will ? Nemo jJro 2>(irte testatus est and 
 pro parte infestatus potest mori. What is the force of 
 this maxim ? In what did the more ancient interpre- 
 tation of it differ from the construction adopted in the 
 jurisprudence of Justinian?
 
 419 
 
 Q. — Lucms Titius intestato moriturus cum habeat 
 uxorem, et ex ed filiatn emancipatam codicillis haec verba 
 inseruit. Pertinent hi codicilU ad uxorem filiam, primum 
 autem rogo, sic inter vos agatis ut me vivo egistis ; itaque 
 rogo ut quicquid aut reliquere, aut quod ipsae hahetis 
 commwie vohis sit; Jilia intestati patris honorum pos- 
 sessionem accepit. Quaeritur an aliqua pars haereditatis 
 Lucii Titii ex causa fidei commissi a Jilia matri dehe- 
 retur et quota ? State clearly the nature of the question 
 which is here propounded, and the principles upon 
 which you would base your answer. At what period 
 in Roman jurisprudence did such a codicil as is here 
 indicated become binding upon the heir ah intestato. 
 
 Q.. — "What were military wills, and in what respects / 
 did they differ from ordinary testaments ? I 
 
 Q. — What was the Possessio honorum? Explain its 
 effect, and cite examples in which it was allowed to 
 ameliorate the rigour of the Strictissimum jus. ■. 
 
 Q. — What was an inofficious testament ? At whose , 
 instance, and by what proceedings could it be set aside ? 
 
 Q,. — Under what circumstances does Eoman law 
 permit a bequest to be made of the following: — 1. 
 Things belonging to the heir; 2. Things belonging 
 neither to the testator nor to the heir ; 3. Things not 
 in existence ; 4. Things once belonging to tlie testator 
 but alienated by him before death. 
 
 Q. — Wliat reasons are there for supposing that the 
 the Querela Inojficiosi Testamenti and the Portio Legitima 
 were both of comparatively modern origin ? 
 
 Q. — What was there in the theory of testamentaiy I \ 
 succession which rendered the appointment of an heir>J 
 the most essential feature of a Roman will ? P^ 
 
 Q. — What is meant by the proposition that a pupillar 
 substitution involves a double will ? 
 
 Q,. — Is testamentary or intestate succession the more 
 ancient institution ? Support yonr answer by proof. 
 
 Q,. — State shortly the provisions of the Roman law 
 respecting the witnessing, signing, and sealing of wills ? 
 "WHiat was the original object of the formality of 
 sealins: ?
 
 420 
 
 *jL Q. — Wliat was the leading rule of Roman law 
 respecting illegal conditions in wills? Are you able 
 to state briefly why the difficulty in the recent case 
 of Egerton v. Brownlow could never have arisen under 
 Roman law? 
 
 Q,. — What fonnalities did the Roman law require to 
 be observed in opening a will ? 
 
 Q. — What is the gi-eat difference recognized by 
 Roman law between conditions in a Testament and 
 conditions in a contract ? What do you conceive to be 
 the ground of tliis distinction ? 
 
 Q. — Explain the expressions dies ceclit, dies venit ? 
 
 Q,. — What external solemnities does the modem civil 
 law require in a valid testament ? Can a codicil be 
 executed with fewer or different solemnities ? 
 
 Q. — By what sort of succession does a legatee 
 succeed ? 
 
 Q,. — What was the original distinction between a 
 legatum and Si fidei-commissum, and what were the chief 
 changes effected in the law of legacies when legacies 
 and fidei-commissa were assimilated. 
 
 Q. — Ai-e the following good or bad legacies under 
 Roman law : — 1 . To the person who shall come first to 
 the funeral ; 2. To that one among my agnatic relations 
 who shall first obtain the consulship ; 3. To Titius, in 
 case he has not been convicted of a criminal offence by 
 the period at which the legacy becomes payable ; 4. An 
 annuity to Seius to cease whenever he shall marry Caia. 
 
 Q,. — Set out the principal iiiles of Roman law on the 
 subject of ademption of legacies. In what respects are 
 the principles followed by English lawyers on this 
 subject simpler than those which obtained at Rome ? 
 
 Q. — What are the Roman expressions con^esponding 
 with the English phrases, " Pecuniaiy Legacy," 
 ; ** Demonstrative Legacy," " Specific Legacy." 
 
 Q. — When legacies abated to make up the Falcidian 
 portion, in what order did they abate ? 
 
 Q. — What are the Roman equivalents to the follow- 
 ing expressions : — General legacy, satisfaction of debt 
 by legacy.
 
 421 
 
 Q. — What was the position of a legatarms partiarnis 
 as regards his liability to contribute for the payment 
 of debts ? 
 
 Q,. — State concisely the more general rules of Roman 
 law regulating the vesting of legacies of which the 
 enjoyment is defeiTcd. 
 
 Q,. — Explain the maxim dies incertas conditioner facit 
 in Testamento. 
 
 Q. — What advantages were conferred by the 
 hypotheca, which Justinian gave to legatees ? What 
 was the difference in principle between a legacy or 
 singular fidei-commiss, and an aliquot share of the 
 inlicritance ? 
 
 Q. — What was the Legatum poenae nomine, and why 
 was it invalid ? 
 
 Q,. — What are the Roman equivalents to the follow- 
 ing expressions : — Condition precedent and condition 
 subseqi;ent. 
 
 Q. — Under what circumstances did the relation 
 between o. Fiduciary and Fidei- Commissary Heir first 
 begin to exist at Rome ? 
 
 Q. — How far does the relation of Fiduciary and 
 Fidei- Commissary legatee resemble that of ti'ustee and 
 cestui que trust under the English law? When 
 Justinian attached to legacies the quaKtics oi fidei- 
 commissa, in what did the importance of the change 
 consist ? 
 
 Q. — What measm-e of certainty did the Romans 
 apply to bequests ? 
 
 Q. — Explain the nile " tot asses haereditatem efficiunt 
 quot Testator remisit." 
 
 Q. — Under what circumstances, in the latest Roman 
 law, will an incomplete testamentary disposition affect 
 intestate heirs ? 
 
 Q. — Explain the phrases Quarta Falcidiana, Portia 
 Legitima, Quarta Pia. 
 
 Q,. — Wliat were the cases in which a testament, once 
 valid, became subsequently of no effect ? 
 
 Q. — What was the "Rule of Cato" on the subject 
 of Testamentary Dispositions?
 
 422 
 
 Q. — Define " Cessio in JureV What analogous 
 mode of conveyance formerly existed in the English 
 law? 
 
 Q. — Define '^ Traditio.''^ What were the essentials 
 requisite to give it validity? In what cases, by 
 English law, is simple tradition valid to transfer 
 property, and to what extent ? 
 
 Q,. — What were the principal modes of conveyance 
 of property inter vivos by the Eoman law anterior to 
 Justinian ? 
 
 Q. — What were the different classes of instituted 
 heirs ? What is meant by a substituted heir ? 
 
 Q,. — What securities has the legatee under Roman 
 law for the due payment of his legacy by the heir ? 
 
 Obligations. 
 
 Q. — Define an Obligation and a Contract, and explain 
 in what the modem meaning of obligation differs from 
 that which is found in the Corpus Juris. 
 
 Q. — Explain what is meant by saying that in Roman 
 law an obligation includes the right as well as the 
 duty. 
 
 Q,. — Under what circiunstances might interest be 
 stipulated for in Eoman law ? When it was not 
 stipulated for, in what cases was it due ? 
 
 Q. — Give a brief sketch of the doctrine of the 
 pandects as summed up by Muhlenbruch on the subject 
 of time. What distinction did the Roman law recognize 
 between ISTatiu-al Time and Civil Time. 
 
 (a) Proxinms est cui nemo antecedit ; supremus est 
 quern nemo sequitur. What class of questions is solved 
 by the application of this mle ? Do you consider it 
 defensible in principle ? 
 
 Q. — Define Convention and Consensus and describe 
 the manner and order in which the ideas expressed by 
 these tenns enter into the complete conception of a 
 contract. Reconcile with yom- definition of Consensus 
 with the word Consensual in the phi^ase Consensual 
 Contracts, and with those of Pactum and Comentio the
 
 423 
 
 expression Exceptio padi convcnti. "WTiat was the 
 natiu'c and efficacy of this hist exception ? 
 
 Q. — Define and give instances of a qtwsi contract, 
 and state which of the essential ingredients of a time 
 contract is wanting in it ? 
 
 Q. — What are the rights and duties of co-sureties 
 Tinder Roman Law — (1) hy the Jus Civile; (2) as 
 modified by imperial constitutions. 
 
 Q. — Explain the Stipulatio. In what cases was a 
 Stipulatio said to be inutilis ? and state the principal 
 causes of this result. 
 
 Q. — State whether, and to what extent, a Eoman 
 contract was invalidated by mistake ( 1 ) as to the nature 
 of the thing contracted to be done ; (2) as to the 
 contract itself; (3) as to the person of one of the 
 contracting parties. 
 
 Q. — What is the doctrine of the modem Roman 
 law on the subject of set-off? Does it differ in any 
 respect from that of the earlier jurisprudence. 
 
 Q. — What are the rights and duties of a Pawnee 
 under the civil law ? What were the grounds of the 
 unwillingness manifested by the later jurisconsults to 
 consider pledge a contract ? 
 
 Q,' — Define delay in the sense of Roman law, and 
 enumei'ate its principal consequences. i 
 
 Q,. — Mention any of the broader features of distinc- j 
 tion between the Roman law of Principal and Agent, 
 and the English law on the same subject. 
 . Q. — What was the Roman contract of Emphyteusis ? y 
 Why did the Roman jurisconsults consider it anoma- I' 
 lous ? A^liat is the historical interest wliich attaches 
 to it? 
 
 Q,. — Wliat is the Literal Contract of Modern Civil 
 Law ? What do you consider to be its counterpart in 
 English contract law ? 
 
 Q. — What is the Pactum Donationis ? Wliat con- 
 ditions does the Roman law prescribe for a valid 
 Donatio inter vivos ? 
 
 Q,. — In compromises of Roman law, what effect is 
 allowed (1) to mistakes of law; (2) mistakes of fact
 
 424 
 
 xmder wHcli the compromising parties laboured at the 
 time of agreeing to the compromise ? 
 
 Q. — "What is the nature of the conditions which are 
 indicated by the following epithets : — Casual, Potes- 
 tative, Suspensive, Eesolutive, Derisory, Affirmative, 
 I^egative. 
 
 Q. — What principle governs the four-fold classifica- 
 tion of contracts in Roman law ? 
 V Q. — What are the facts which, in later Eoman law, 
 could be made the foundation of actions ? 
 
 Q. — Define a Pollicitation, and state the circum- 
 stances, if any, under wliich it can become the ground 
 of an action. Is a pollicitation a necessary ingredient 
 in every contract ? 
 
 Q. — What did the old Eoman law, in all cases, 
 indicate by the adjunct " Quasi P'' 
 
 Q,. — What are the modes of discharging an obligation 
 known respectively as ' ' solution, acceptilation, nova- 
 tion, and consensus contraritis V 
 
 Q. — How far, in the more recent jurisprudence, did 
 the distinction between Pacts and Contracts cease to bo 
 important ? What were the Pacta Adjecta ? 
 
 Q. — How do conditions differ from modes in their 
 natm'e and their legal consequences ? 
 
 Q,. — What general rules does the modern civil law 
 lay down as to the effects of ignorance and mistake ? 
 
 Q,. — Wliat do yoii consider to be the principle which, 
 in Roman law, governs the rate of discount. 
 
 Q,. — What metaphor does the Eoman definition of an 
 obligation seem to involve, and are there any legal 
 consequences wliich appear to be connected with the 
 fundamental metaphor ? 
 
 Q. — What is meant in Eoman law by "eviction?" 
 When eviction is threatened, what are the duties of 
 the vendee ? And when it is effected, what are the 
 consequences to the vendor? 
 
 Q,. — On what principle would you defend the favour 
 shown in EngKsh Coiuis of Equity to purchasers for 
 valuable consideration? Is the Eoman law charac- 
 terized by any bias in the same direction ?
 
 425 
 
 Q. — What were the respective rights and diitiefs of 
 parties to the Roman contract of Societas, so far as they 
 ai'e set out in the Institutes ? 
 
 Q. — What is meant in the Civil Law by the phrase 
 " Singular Succession ?" 
 
 Q,. — State the clistinguishing characteristics of a tme 
 Universal Succession, and say whether there ai'e true 
 Universal Successions in English law. 
 
 Q. — What is a Societas Leonina ? 
 
 Q. — Are you able to account for the comparatively 
 small space which questions regarding the liability of 
 partners to third persons occupy in Eoman law ? 
 
 Q. — By what circumstances, and by what acts of 
 the partners is a partnership dissolved under Eoman 
 law? 
 
 Q. — What were the special obligations which the 
 Roman law imposed on Carriers and Innkeepers? 
 What is implied when these obligations are said to 
 gTow out of a Praetorian Pact? 
 
 Q. — Define Bolus and Culpa, and state briefly in 
 what cases it was necessary to make them good. 
 
 Q,. — Name any rules of the English law of mortgage 
 which are dii-ectly traceable to the Jus Pignoris of the 
 Romans ? 
 
 Q. — Describe the obligations of the parties to a con- 
 tract of locatio condicctio. In what would the legal 
 position of the bii'cr of land, under Roman law, differ 
 from that of a tenant for years among ourselves ? 
 
 Q. — Was the liability of partners for the debts of 
 the firm limited or unlimited under Roman law ? 
 
 Q. — What were the auxiliary conventions which it 
 was usual among the Romans to add to contracts of 
 sale ? 
 
 Q. — What peculiarity had the Real Contracts in 
 respect of the power of withdi-awal enjoyed by one or 
 both of the parties ? 
 
 Q. — What, in Roman law, is a Contract as dis- 
 tinguished from a Pact ? What were the fom* old forms 
 of contract, and wbat do you suppose to have been 
 their historical order ?
 
 426 
 
 Q. — What are the principal blemisTies -which, in 
 Eoman law, cause a stipulation to be ineffectual 
 (inutilis) ? 
 
 Q. — Define Bepositum. "What were the rights and 
 liabilities of the depositary and the creditor in the case 
 of Depositum and Pignus respectively with regard to 
 the thing which was the subject of the contract? 
 
 Q. — Define Mandatum. Trace historically the siic- 
 cessive forms of action by which the third person with 
 whom the mandatarius had dealt might be sued. 
 
 Q,. — Explain the distinction between the contract of 
 sale and exchange in the Eoman law. What important 
 differences as to the rights of the parties existed 
 between the two contracts ? Point out whether these 
 differences exist in the English and Erench law. 
 
 Q. — Trace out the historical development of the 
 Roman law of warranty against eviction. 
 
 Q. — State the provisions of the French law upon 
 the conditions which must have been fulfilled in order 
 to entitle the purchaser to recover against the vendor 
 in case of eviction from the thing sold, and contrast it 
 with the English law. 
 
 Q. — Are sales of property between husband and 
 wife valid by the Eoman, English, and French law 
 respectively ? Give the reason upon which the law of 
 each country is based. 
 
 Q. — Define the " socieUs civiles''^ and the " societes 
 commercialese^ of the French law. By what different 
 laws were they regulated ? ^Tiat is the co-relative in 
 the French law of the "societas universorum bonorwn" 
 of the Eoman law? 
 
 Q. — Enumerate and describe the various descriptions 
 of "societes commerciales," and show how each is 
 constituted, and the responsibility of the partners in 
 each. 
 
 Q. — What checks are provided by the French law 
 in order to insure the proper administration of the 
 partnership property in the societe en commandite ? 
 
 Q. — Explain the contracts of Commodatum and 
 Mutuiim. In what cases were the persons receiving a
 
 427 
 
 thing as a commodnUim or depoaitiim liable for loss 
 or damage ? Give instances mentioned in the Institutes 
 of the application of this rule. 
 
 Q. — Define Pignus and Sypotheca. "V^Tiat effect did 
 the loss '' fortuito casii'^ of the thing have upon the 
 remedies of the creditor and debtor respectively ? 
 
 Q. — How was the " verhorum ohligatW created? 
 Could it be entered into by an agent on behaK of a 
 principal ? How was it discharged ? 
 
 Q. — What were the conditions essential to the 
 validity of a sale by the Roman law ? 
 
 Q. — What were the conditions necessary to pass the 
 property in a thing sold by the Roman, French, and 
 EngUsh law respectively ? 
 
 Q.-:— What were the provisions of the first and third 
 heads of the Lex Aquila ? 
 
 Q. — What do Bentham and Austin lay down as 
 the two main essentials of a contract ? Are the views 
 of these authors identical with those of the Roman 
 Jiuists with reference to contracts? 
 
 Q,. — Define the Innominate Contracts, and explain 
 their rise and progress. Supposing an innominate 
 contract to have been made upon an executory con- 
 sideration, what remedies had the person with whom 
 the contract was made in case of its non-peiibnnance 
 by the promiser ? 
 
 Q. — Explain and enumerate the Consensual Contracts, 
 and explain the maxim '^Ex nudo facto non oritur 
 actio, ''^ and give its different meanings in the Roman 
 and English law. 
 
 Q. — Define OUigatio correalis,'^ " OhUgatio in soli- 
 dum," ^' Reus stiptdandi,'^ and " Hens promittendi." 
 What were the distinguishing characteristics of the 
 " OUigatio correalis V How was it created ? 
 
 Q,. — Gains promises to pay a sum of money to Seius, 
 Titius, and Sempronius. To what extent is Gains 
 liable to Seius, Titius, and Sempronius ? Wliat would 
 be the effect of a similar contract by the French and 
 English law ? 
 
 Q. — State the principal efi'ects produced by the
 
 428 
 
 '^ Obligation solidaire^^ with respect to the creditors 
 and debtors. 
 
 Q. — In what cases does "la Solidarite de plein droit" 
 take effect? 
 
 Q. — In what cases did error in respect of a matter 
 of fact render a contract voidable by the Eoman and 
 French law ? A., under a hand fide forgetfulness of 
 facts, pays money to B. which is not due. Has A. 
 any remedy by the Eoman, French, or English law? 
 
 Q. — ^Tiat are the doctrines of the Roman, French, 
 or English law with respect to the effect of en-or of 
 law upon a contract ? 
 
 Q. — Is "dolus mains" by the French or Roman law 
 a cause of invalidating a sale of an immoveable to a 
 bond fide purchaser without notice from the original 
 vendee ? 
 
 Q,. — Define " vietus." In what cases is it relieved 
 against by the Roman law ? Contrast it with the EugUsh 
 law of dui'ess. 
 
 Delicts. 
 
 Q. — Under what head of Roman law was a physician 
 liable td be sued for unskilful treatment of a patient ? 
 To what class of delicts did slander belong ? 
 
 Q,. — Under what head of delict would a Roman 
 have to seek for damages for a trespass, for an assault, 
 or for a libel ? 
 
 Q. — How would the Roman proceed under such 
 cu'cumstances as those under which an EngKsh litigant 
 woidd bring trover? 
 
 Q. — State the general rales of Roman law with 
 reference to cases in which the author of damage is 
 bound to pay for such damage. Define Culpa Lata, 
 Biligentia, and Custodia. 
 
 Q. — Give the English equivalents of the torts 
 included in the Roman "injuria.'''' What is the dif- 
 ference between injuria and damnum injuria datum? 
 
 Q. — What historical reason can you assign for the
 
 429 
 
 circumstance that ftirtum was a delict in the Roman 
 system ? 
 
 Q. — Define Furtiim. 
 
 Q. — What are the rules of Eoman law for deter- 
 mining the pgrson entitled to sue for theft. Compare 
 them with the analogous rules of the English law of 
 Larceny. 
 
 Q. — Under what circumstances was it a duty to 
 exhibit DiKgence ? What were the measures of dili- 
 gence ? 
 
 Q. — State concisely the general rule in which 
 English and Roman law agree respecting the degree 
 of care which a person is bound to bestow in cases 
 where negKgence may be imputed to him. 
 
 Q. — Describe the legal question which fonned the 
 subject of Cicero's argument in the Oration Pro 
 Caecind. Has the difficulty to which Cicero addi'essed 
 himself been pro\'ided against in any modem code ? 
 
 Actions under the Roman Late. 
 
 Q. — What is the special meaning of the terms 
 " Jurisdidio''^ and " Copiitio^^ in the Roman law of 
 Criminal Process? What were their counterparts in 
 the law of Civil Process ? 
 
 Q. — Explain the following expressions: " Actio ^ 
 stricti juris," "actio lonae fidei" " actio judiciaUs,'^ 
 "actio realis." 
 
 Q. — Analyze carefully the principle upon which the 
 distinction between real and personal actions depend. 
 
 Q. — For what pm-poses was the Interdict originally 
 introduced ? What were the principal uses which it 
 was ultimately made to serve ? 
 
 Q,. — In the Roman law of civil process, as consti- 
 tuted previously to the rcfonns of Justinian, what 
 class of remedies was allotted exclusively to the domi- 
 nus? In what consisted their superiority to the 
 analogous remedies provided for the possessor ? 
 
 Qi. — How was the Roman law enabled to dispense 
 with the fiction known in English jmisprudence as 
 *' Special Property"?
 
 . . 430 
 
 Q,. — By what stages did the Legis Actiones of the 
 ancient hiw of ci\T.l process pass into the procedure by 
 Formulas ? 
 
 Q,. — What is the great feature of difference between 
 English Common Law Pleading and the Formulaiy 
 Pleading of the Romans ? Illustrate your answer by 
 reference to the consequences in the two systems of 
 pleading. 
 
 Q. — State briefly the nature of the intentio and 
 condenmaUo. How came it that the condemnatio always 
 pointed to money damages. 
 
 Q. — Define an exception, and define the nature of 
 exceptions. 
 
 Q,. — Point out aecui'ately the difference between 
 Interdicts and Actions. What was the peculiar office 
 of the Interdict Uti Possidetis f 
 
 Q,. — What did the Uoman lawyers mean by a Fictio ? 
 What influence did the Fictiones exert on the Roman 
 law of Civil Procedui'e ? 
 
 Q. — Give a brief analysis of the Pleadings which 
 would be necessary under the Pormulary system in an 
 action to recover a portion of the debt payable by 
 instalments. 
 
 Q,. — What was the Restitutio in Integrum ? Mention 
 any points in which the rules of Roman law, having 
 reference to this remedy, appear to have affected the 
 jui'isprudence of the English Coiu't of Chancery. 
 
 Q. — Enumerate the facilities for recovering debts 
 which the Roman law allowed to the creditors of a 
 son engaged in trade. State more particularly the 
 character of the action de peculio et de in rem domini 
 verso. 
 
 Q. — Describe in general terms the nature of the 
 Zegis Actiones. 
 
 Q. — Wliat are the parts of a Formula? What was 
 the office of the Jttdex, and in what did the " Ordo 
 Judieiorum^ ' consist ? 
 
 Q. — What are the considerations which in your 
 view make for and against the doctrine, that the 
 English Common Law Pleading is derived from, or is a
 
 ^ 
 
 431 
 
 corruption of, the Fomiiilary system of the Romans. 
 
 Q. — Describe in general terms the conditions which 
 detemiined the admissibility of the Exceptio doli mali. 
 
 Q. — Explain the maxim: " /n hond fide judicis 
 exceptio mali continetiir.^^ 
 
 Q. — What is the meaning of the phrase Legis Actio. 
 
 Q. — What are the reasons for attributing a veiy liigh 
 antiquity to the procedure in the Legis Actio Sacramenti? 
 
 Q,. — What was a Plus Petitio ? What consequences 
 did it entail in Roman pleading, and why ? 
 
 Q. — In what manner were Interdicts moulded so as 
 to admit of litigated questions being tried by their 
 means? What object was obtained by so moulding 
 them? 
 
 Q. — How do you account for the disappearance of 
 the penalty of death from the Criminal Jm-isprudence 
 of the Republic ? In \-irtue of what authority did 
 Cicero direct the execution of the accomplices of 
 CatiHne ? What precedents had there been for the 
 exercise of this authority? 
 
 Q. — What was the natm-e of the title which the 
 plaintiff was bound under Roman law to establish; (1) 
 in a common real action ; (2) in a common personal 
 action; (3) in the actio exhibendi ; (4) in the actio 
 de peculio. 
 
 Q. — What was the Noxae Deditio of Slaves ? 
 
 Q. — What were the objects of the following Roman 
 actions : Actio Institoria, Actio Trihutoria. Actio de 
 Exhihendum, Condictio sine Causa? . 
 
 Q. — What is the difference between a Right in Rem \/ 
 and a Right in Personam, and the corresponding * 
 difference between an Actio in Rem and an Actio in 
 Personam ? 
 
 Q. — What were the object and efficacy of the 
 ^xceptio non numeratae 2fccwiiae ? ^ 3 Y 
 
 i'o / 
 
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