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on, and on what terms will the other be stayed? IX. How far is a decree made on the hearing of a cause binding, or how can it be made binding against a defendant who is abroad and does not appear? X.. State generally in what cases relief can be obtained by summons before a judge at chambers. XI. Specify the different modes in which a subpoena to appear and answer [abolished] may be served, so as to enable a suit to proceed. XII. State shortly to what cases the act of 19 & 20 Vic. c. 120, so far as it authorises the grant of leases of settled estates, is applicable, and what is the general nature of the relief it affords? XIII. In what cases can a defendant in a suit in Chancery refuse to produce deeds, papers, or writings relating to the matters in question in the cause? XIV. What is the course of proceeding for transferring or paying trust funds into the Court of Chancery under the Trustees' Relief Act? To what cases does it apply, and to whom must notice be given? XV. What is the course of proceeding, on the part of persons beneficially entitled to the funds referred to in the last question, to enable them to get out the funds, and on whom must notice be served?


I. Describe the persons liable to the bankrupt laws. II. How is an adjudication of bankruptcy obtained, and who is able to apply for it? III. What facts have to be proved in order to obtain an adjudication of bankruptcy? IV. Is there any, and what, rule as to the parties whose evidence or depositions are necessary to prove the several requisite facts? V. If a creditor holds a security for his debt, in what, if any, cases must he relinquish or surrender it, before being allowed to prove his debt? VI. What stamps and office fees are payable in bankruptcy proceedings? VII. Before whom should affidavits sworn abroad, to be used in our Courts of Bankruptcy, be made? VIII. Can debts owing by one partner alone be proved under a petition for adjudication against two partners, and what rights and powers will a creditor so proving obtain? IX. In whom is now vested the power of granting a certificate of conformity? X. At what stage of the bankruptcy proceedings can a certificate of conformity be obtained? XI. Is there any, and what, mode of arrangement or proceeding, without a bankruptcy, by which a trader can obtain a discharge from debts owing to dissentient creditors? XII. Mention the principal statutes that have affected or altered the laws relating to bankrupts during the last forty years, and the general effect of each, and also the principal statutes now in force relating to bankrupts? XIII. Mention the statute and sections of it relating to private arrange

ments between traders and creditors? XIV. How does a joint stock company become liable to be proceeded against as bankrupts, and under what statutes? XV. What, if any, peculiar consequences ensue to a member of the House of Commons who is declared bankrupt, and in what cases, or at what time, and under what statutes?


I. Define embezzlement, and state in what respect it differs from larceny properly so called. II. Must the object for which a conspiracy was entered into be effected before an indictment for conspiracy can be sustained? III. Is an attempt to commit a statutable felony an offence, and of what character? IV. What is simony, and what are its consequences as respects the patron and clerk? V. Is a constable justified in arresting a person without a warrant, whom he reasonably suspects to have committed a felony? VI. In what way or ways can the invalidity of an indictment be taken advantage of, and before what court? VII. Enumerate some of the offences declared by the Bankrupt Law Consolidation Act, 1849, and the punishments awarded to them. VIII. Is there any general appeal from the decisions of justices in petty sessions, in any, and what cases? IX. State some of the offences over which Courts of Quarter Sessions have and have not jurisdiction? X. Can depositions in a criminal case, taken before magistrates, be used in evidence on the trial of the prisoner, under any, and what circumstances? XI. If a trustee fraudulently appropriates trust moneys, is he criminally responsible, and if so, at common law or by statute? XII. If a man draws a bill of exchange on a fictitious person, and accepts the bill in the name of such person, is that an offence, and if so, of what character? XIII. State the difference between the offence of stealing, and that of obtaining goods or money by false pretences. XIV. If a man publishes a libel, state the different modes of proceeding against him by the party libelled? XV. Under what circumstances are criminal informations granted, and by what court, and what advantage, if any, has this proceeding over that by indictment?

EXAMINATION ANSWERS. (Hilary Term, 1858.)

COMMON LAW (ante, p. 309).

I. Steps in a contested action.-The following are the proceedings of a plaintiff in a defended cause, assuming it not to be commenced under the Bills of Exchange Summary Remedy Act; the plaintiff

issues the writ of summons, indorses it properly, and causes defendant to be served therewith, or if not served, applies for an order to proceed as if service had been effected; on the defendant's appearing, the plaintiff declares and delivers particulars of his demand if the writ was not specially indorsed; on the defendant pleading, the plaintiff replies; delivers an issue with notice of trial; notices to admit and produce documentary evidence; the nisi prius record and entry of cause for trial; subpoenas for witnesses and serving them; obtaining special jury and view, if necessary; the trial; moving afterwards for nonsuit, or new trial; signing judgment, taxing costs and issuing execution. There may also be an arrest of the defendant if he be about to leave the country, which will bring with it the subject of bail, as well putting in as justifying. Interrogatories for the examination of either party to the action may be delivered and must be answered within ten days by affidavit. So either party to the suit may obtain an order for the inspection of documents in the possession of the other party. And an injunction may be applied for in proper


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II. Secondary evidence.-There are no degrees of secondary evidence: an ordinary copy, or even oral evidence of the contents of a deed may be relied on though the party have an attested copy in his possession (First Book, 273; 1 L. C. 328; Doe v. Ross, 4 Jur. 321).

III. Entries of deceased person.-Where entries are made by a disinterested person in the course of discharging a professional or official duty, they are in general admissible in evidence after the death of the party making them. This principle extends to contemporaneous entries by a deceased shopman, clerk, or servant, in his employer's books in the ordinary course of business, such as of the delivery of goods, of the service of notices, &c. (Doe v. Turford, 3 B. and Adol. 890; Furness v. Cope, 5 Bing. 114; see Chambers v. Bernasconi, 1 C. M. and R. 568).

IV. Set off.-In order to be set off, there must be mutual debts between the parties, or if either party sue or be sued as representative between the testator or intestate and the other party. The debt to be set off must be a liquidated one (see 1 Law Chron. 23, 302; 3 Id. 223; Mardale v. Thelluson, 28 Law Tim. Rep. 160; Blakesley v. Smallwood, 15 L. J. Q. B. 111; Gordon v. Ellis, 15 Id. C. P. 178; Key, Exam. Com. L. 110-112).

V. Money paid into court, costs.-Where the plaintiff takes out of court a particular sum paid in by the defendant, and proceeds to recover more but fails, he will be entitled to the costs of the cause in respect of the part of his claim for which

the money was paid in, up to the time of its being paid in, but the successful defendant will be entitled to the costs of the cause in respect of his defence commencing with "Instructions for Plea" (R. G. Hil. Term, 1853, pl. 12).

VI. Notice to admit.-Besides seeking for the production of any documents in the possession of his opponent, or giving a notice to produce, an attorney should, with respect to documents in his passession, or that of his client, or of a third party, give the opposite attorney notice to admit the documents, and calling on him to admit or refuse to admit them on the trial. If this be omitted, the party for whom the attorney acts will not be allowed the costs of proof, unless the giving the notice would have cost more than the adducing of the evidence (R. G. H. T. 1853, pl. 29, 30; Key, Exam. Com. L. 118; First Book, 272, 273).

VII. Issues.-Issue is the end of the pleadings; for when the pleadings are brought to a point which is affirmed on the one side and denied on the other, the parties are said to be at issue. An issue must, therefore, consist of an affirmative and a negative, upon which a trial may be had, and the court give judgment. Issues are of two kinds: upon matter of law, or upon matter of fact. An issue joined upon matter of law is to be determined by the judges; and this is called a demurrer. Issues of fact are tried by a jury, except where, by the C. L. P. Act, 1854, s. 1, the parties to the cause agree to have them tried by the court or any judge thereof (1 L. C. 157, 328). It may be added, that by the C. L. P. Act, 1852, ss. 42-48, questions of fact and of law may be raised and determined without pleadings (1 L. C. 313, 328; 1 Jur. N. S. 49).

VIII. Not guilty.-In actions of tort, the plea of not guilty operates as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant (Plead, Rules, Hil. Term, 1853, pl. 16).

IX. Surviving executor dying intestate.-Where a surviving executor dies intestate, the administrator of the latter does not represent the original testator, and cannot therefore sue for outstanding debts of the original testator; there must be an administration de bonis non (1 L. C. 105; Taller, 68, 118, 4th ed.).

X. Lien-Statute of Limitations.-The statutes of limitation as to personal actions (unlike those relating to real property) do not extinguish the right, but only bar the remedy. It follows from this rule, that a party having a lien on goods or title deeds as a security for a debt does not lose his lien by reason of the statute of limitations having run against the debt. It is true the party cannot actively recover the money, but there is nothing to prevent his obtaining

payment through the medium of his lien (see Higgins v. Scott, 2 Barn. and Adol. 413).

XI. Wives deserted by husbands.-By the 20 & 21 Vic. c. 85, a wife deserted by her husband may apply in London to a police-magistrate, or in the country to justices in petty sessions, for protection; and after she has proved the fact of desertion without reasonable cause, and also that she is maintaining herself by her own industry or property, she may obtain an order by which her earnings and property, acquired since the desertion began, will be protected from her husband, and all creditors and other. persons claiming under him. If the husband, or any person claiming under him, in defiance of such an order, seizes on any portion of the property secured by it, the wrongdoer will be liable, not only to restore the specific property, but also to pay double the value by way of damages. The husband, or any person claiming 'under him, may, however, apply to the court, or to the magistrate or justices by whom the order was made, to discharge it; but whilst it is in force the wife is to be exactly in the same position with regard to property as if she had obtained a judicial separation.

XII. Compulsory references-Attesting witnesses· Injunctions. By the C. L. P. Act, 1854, ss. 3-17, power is given to the court, or a judge, before trial -on being satisfied that the matter in dispute consists wholly of accounts-either to decide the matter summarily, or to refer it to arbitration, reserving any special point of law or question of fact for the court or a jury; and, generally, powers are given to arbitrators to state a special case. The presiding judge at the trial of any case involving matters of account may refer the same to an arbitrator, an officer of the court, or a county court judge (First Book, 237 ; ante, pp. 27, 93). By s. 26 of the act, it is not necessary to prove by the attesting witnesses any document to the validity of which attestation is not requisite; where the document requires witnesses, they must be called, or their absence accounted for (Roden v. R., 4 Q. B. R. 626; 1 L. C. 158, 453; First Book, 272). By the C. L. P. Act, 1854, ss. 79-82, in cases of breach of contract or other injury, where an action is pending, the plaintiff may claim a writ of injunction against the repetition or continuance of such breach of contract, or other injury, or the committal of any breach of contract or injury of a like kind arising out of the same contract, or relating to the same property or right. On the writ and copy a notice is indorsed that, in default of appearance, the plaintiff may, besides proceeding to judgment and execution for damages and costs, apply for and obtain such injunction. The writ may be applied for at any stage of the cause at which it becomes necessary. An action may be brought

solely for an injunction, as well as be joined with a claim for damages or other redress (1 L. C. 162).

XIII. Statute of frauds.-In cases within the 4th section of the Statute of Frauds (except as to guarantees), the consideration must appear on the face of the agreement: not, indeed, in express terms, for it is sufficient if the agreement is so framed that it may be inferred from it that the consideration alleged by the party setting it up was the consideration upon which it was given (Selw. N. P. 846, 11th edit.; Walford, 1441; Raikes v. Todd, 8 Ad. and El, 846). By the 19 & 20 Vic. c. 97, s. 3, no consideration need be stated on the face of a guarantee (3 L. C. 88, 129, 210, 212).

XIV. Pleas, leave. By the C. L. P. Act, 1852, s. 84, a defendant may plead the following pleas together, as of course, and without leave: non assumpsit, or nunquam indebitátus, tender as to part, Statute of Limitations, set-off, bankruptcy of defendant, discharge under Insolvent Act, plene administravit, plene administravit præter, infancy, coverture, payment, accord and satisfaction, release, not guilty; denial that the property, an injury to which is complained of, is the plaintiff's; leave and license, son assault demesne (Williams' Plead. 126, 127).

XV. Short notice of trial.-Ry R. G. H. T., 1853, pl. 35, the expression "short notice of trial" is, in all cases, to be taken to mean four days.

CONVEYANCING (ante, p. 310).

I. Tenancy in fee simple.-According to Littleton (s. 1), tenant in fee simple is he who hath lands or tenements to hold to him and his heirs for ever.

II. Chattel real.-An estate in lands which is limited to a certain number of years, or other determinate time not amounting to a freehold, is a chattel real (Burt. pl. 18).

III. Estates tail, general, tail male, and special tail male.-The following is a limitation in tail general: to A. and the heirs of his body begotten; tail male, to A. and the heirs male of his body begotten; special tail male, to A. and the heirs male of his body on Mary his now wife to be begotten (2 Bl. Com. 113; Burt. Comp. 244; Doe v. Angell, 10 Jur. 705, 709; Key, Conveyanc. 31, 32).

IV. Covenants, sale, mortgage.-In the case of a sale in fee simple, the vendor covenants for title as against his own acts, and if his title is derived through a testator, settlor or ancestor, against their acts; whilst a mortgagor covenants absolutely for title (5 Jarm. Conv. by Sweet, 545, 555; Sudg. Vend. ch. 9, s. 4; Key, Conv. 78, 155).

V. Execution of will.-The requisites to the due execution of a will (except as to the wills of soldiers and mariners on service relating to personalty (2 Law Stud. Mag. N. S. 48) are prescribed by sec. 9

of the 7 Will. 4, and 1 Vic. c. 26, and the 15 & 16 Vic. c. 24-namely, that the will must be in writing, and be signed at or near the foot or end thereof (see 1 Chron. p. 266; Re Rait, 14 Jur. 627), by the testator, or by some other person in his presence and by his direction; and such signature must be made or acknowledged by the testator, in the presence of two or more witnesses present at the same time; and such witnesses must attest and subscribe (and not formally acknowledge a previous signature, 13 Jur. 712) the will in the presence of the testator (and it is prudent that they should do so in each others' presence), but no form of attestation is necessary, though it is usual for probate purposes to have one stating that all the requisites of the statute have been complied with (1 Steph. Com. 553, 554, 1st edit.; p. 569, 2nd edit.; 27 Law Mag. 306–309).

VI. Legacy to charity.-Where a testator entitled to real and personal estate desires to leave a legacy to an hospital or other charitable institution, he should direct the legacy to be paid out of his pure personal estate (Robinson v. Geldart, 3 Mac. and G. 735; Tudor's R. Prop. 237; 1 L. C. 261, 262).

VII. Appointment to uses.—— -On an appointment of lands, under a power, to B., to the use of C. in trust for D., B. has the legal estate and D. the beneficial interest: the appointment being the mere limitation of a use cannot be executed by the statute, as that would be to allow a use upon a use (Key, Conv. pp. 123, 124; Hay. Conv. 37, 53, 74, 5th edit.).

VIII. Allotment under Inclosure Act-Tille.-We do not perceive anything in the acts relating to the inclosure of common field lands to take the case out of the ordinary rule, and, therefore, the allottee, in the absence of a stipulation to the contrary, must abstract and verify a full title of sixty years, though much beyond the date of the award, the rule being that upon the sale of lands allotted under an Inclosure Act, the abstract down to the award must be that of the title to the lands in respect of which the allotment was made (Sugd. Vend. 439, 11th edit.; King v. Moody, 2 Sim. and Stu. 572; Mayor v. Ward, 5 Hare, 604; 3 David. Conv. 58, 1st edit.; Dart, 104, 188, 3rd edit.).

IX. Identity of lands purchased.-Before the purchaser accepts a conveyance and pays his purchase money, he ought to require evidence that the fifteen acres of land to which a title is shown are the same as those he contracted to purchase.

X. Renouncing executor, and death testate of survivor.-Supposing this case not to be affected by the 20 & 21 Vic. c. 77, s. 79, it would be necessary to ascertain that C., the renouncing executor, did not survive B., the proving executor; for if he did, the executor of B. would not represent the original

testator (Re Collett, 3 Jur. N. S. 72; 3 L. C. 304). We find on referring back to pp. 11, 66, that we made a mistake in answering this question, and most unaccountably persisted in it when our attention was called thereto by a correspondent, but the real fact is that we misunderstood the question, as will be seen by the authorities quoted at p. 67, which confirm our correspondent, to whom we owe an apology. We are surprised no others of our intelligent readers drew attention to the subject. The 20 & 21 Vic. c. 77 (the Probate Court Act) enacts (s. 79) that it any person, after the commencement of the act, renounces probate of the will of which he is executor, his rights in respect of the executorship shall wholly cease, and the representation to the deceased and the administration of his effects shall go, devolve, and be committed as if such person had not been appointed executor (First Book, 229).

XI. Assignment of chose in action.-An assignment of a chose in action passes nothing at law, but in equity it is effectual, so as to give all the rights of the assignor to the assignee, making the trustee or debtor of the former to be the trustee or debtor of the latter as between the parties the transaction is complete by the mere assignment, but as, to third persons purchasing for value without notice, it is the notice to the trustee or debtor which completes the transaction and gives priority (Beavan v. Oxford, 2 Jur. N. S. 121; 5 Week. Rep. 275; 3 L. C. 141, explaining the case of Watts v. Porter; 1 L. C. 93; 2 Id. 75-78.

XII. Specific performance, no writing.-Specific performance of an unwritten contract for the purchase of land, where the defendant has taken possession of the land under the terms of the agreement will be enforced, this amounting to part performance. So also where the defendant by his answer admits a binding contract and does not claim the benefit of the Statute of Frauds (1 L. C. 438, 439; Dart, 656, 662, 3rd edit.; Dale v. Hamilton, 5 Ha. 381; Ridgway v. Wharton, 3 De G. M. and G. 677).

XIII. Remainder and reversion.-A remainder is an estate limited to commence after the determination of a particular estate, previously limited by the same deed or instrument out of the same subject of property; or, as Lord Coke defines a remainder, it is " a remnant of an estate in lands or tenements expectant on a particular estate, created together with the same at one time" (1 Inst. 143). In defining a remainder, Noy, in his Maxims, describes it to be "the residue of an estate at the time appointed over, and that must be grounded on some particular estate." And it should seem, a remainder may be limited by one of two deeds made at the same time, and operating as part of the

same assurance (see further, Burton's Comp. pl. 21). For the information of students it may be remarked that the word " remainder " is not a term of art-i.e., the use of it is not at all necessary, nor, indeed, usually employed in the creation of an estate. An estate in reversion is where any estate is derived by grant or otherwise, out of a larger one, leaving in the original owner an ulterior estate immediately expectant on that which is so derived; the latter interest is called the particular estate (as being only a small part or particular of the original one), and the ulterior interest, the reversion. Thus, upon the creation by the owner of the fee, of any estate in tail, for life, or for years, the residue undisposed of is described as the reversion expectant upon the particular estate in tail, for life, or years so created (Burton's Comp. pl. 28, 29, 30).

XIV. Statute of Frauds.-The Statute of Frauds was passed in the twenty-ninth year of Charles II. It provides that no verbal promise shall be sufficient to ground an action upon,-1, where a personal representative contracts to answer damages out of his own estate; 2, where a person guarantees the debt, &c., of another; an agreement in consideration of marriage; contracts for the sale of any interest in lands and leases for the term of more than three years from the making (which latter must, by the 8 & 9 Vic. c. 106, be by deed); an agreement not to be performed within a year (First Book, 206; 3 L. C. 46, 90; Dobson v. C., 5 W. R. 512).

XV. Rule in Shelley's case.—An estate is limited to A. for life, remainder to his heirs (or heirs of the body); the remainder, by the rule in Shelley's case, is executed in A., and his heirs take by descent and not by purchase (Fearne, 28-208; 1 Prest. Est. 263-418; Watk. Conv. by White, 106-110; Key, Conv. 26; 3 L. C. 10; First Book, 150).

EQUITY (ante, p. 310).

I. Infants, protection of-Where infants have property within the jurisdiction of a court of equity, the court, on a bill being filed for their control and protection, make them wards of court, whereby an infant is placed under the more immediate protection of the court, which then takes the direction of his estate, and appoints a guardian for his person only. Practically the court acts only where the infant has property, but the Lord Chancellor has said that the cases in which the Court of Chancery interferes on behalf of infants are not confined to those in which there is property (Re Spence, 2 Phill. 247; S. C. 11 Jur. 399; 16 Law Journ. N. S. Chanc. 309; 2 Fonbl. Treat. Eq. b. 2, pt. 2, c. 2, s. 1; 2 Steph. Com. 342, 1st edit.; p. 290, 2nd edit.; 1 Hamm. Eq. Dig. 682; Princ. Eq. 391).

II. Infant suing.-An infant sues in equity by his

next friend. The next friend must sign a written authority to the solicitor for using his name, which must be filed with the bill (15 & 16 Vic. c. 86, s. 1—6; 2 L. C. 345, 373). The next friend is liable for the costs of the suit.

III. Evidence.-The parties to a suit may file affidavits or examine witnesses orally, or may take both courses (Order of 13th Jan. 1855; 1 L. C. 337, 338; 2 Id. 196). A person who is an affidavit witness may be cross-examined within one month after the closing of the evidence; whilst witnesses orally examined must be cross-examined within that period (5th Ord. of 13 Jan. 1855; 1 L. C. 337; First Book, 287, 288; 15 & 16 Vic. c. 86, s. 38; Evans v. Coventry, 27 Law Tim. Rep. 39; Clarke v. Lawe, 2 Jur. N. S. 228; 2 L. C. 372).

IV. Non-appearance by defendant.—If a defendant cannot be served with a copy of the bill (the subpœna is abolished) the plaintiff either applies to the court to direct substituted service, or to treat him as having absconded to avoid process in the latter case the court orders the defendant to appear at a certain day, a copy of which order is inserted in the London Gazette, and then, if the defendant does not appear, the court may direct an appearance to be entered for the defendant, and the bill, in default of answer, may be taken pro confesso (First Book, 284; 31st and 79th Ord. May, 1845; 1 L. C. 92, 307; 3 Id. 128; Reed v. B., 5 Week. Rep. 793).

V. Patents, protection, &c.-In patent cases, courts of equity interpose to prevent an infringement of the patentee's rights where the patent has been established at law, or is not disputed; and even where it has not been established at law, they will in many cases direct the defendant to keep an account of his profits pending the proceedings at law (Lester v. Eastwood, 26 Law Tim. Rep. 4; 2 L. C. 159, 232; 1 Id. 136). After the right is determined or the patent is submitted to, a court of equity will grant an injunction, and as consequent thereon, an account of the profits made by the defendant (Smith v. London, &c., Co., 23 L. J. Ch. 562; 2 L. C. 232). The bill of the patentee usually prays for both an injunction and an account of the profits.

VI. Contract-Specific performance. Where a purchaser of real estate refuses to perform his contract, the vendor may take proceedings in equity to compel him to specifically perform his agreement by completing the purchase. At law the vendor could' obtain damages only (Benson v. P., 2 Jur. N. S. 425; First Book, 258, 281; 1 L. C. 317; Burt. Comp. pl. 1582).

VII. Specific performance refused.-Specific performance of a contract for sale will be refused where there is a personal incapacity to contract on the part of the defendant; where the contract has been

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