mortgagee, had the legal estate in these hereditaments vested in him in fee simple. That legal estate he conveyed to the defendant in fee; and it is now vested in him, subject only to the uses to bar dower. Then, as regards the equitable estate in the hereditaments, the whole of that was vested in T. F. Stephens, either in his character of heir-at-law, or in his character of legal personal representative; and all and all that beneficial interest in the hereditaments was conveyed to and is now vested in the defendant. In that state of circumstances the defendant says he is now ready to convey all the legal estate and all the beneficial interest in this property to the plaintiff. I confess I am at a loss to discover what more the plaintiff can require. If new trustees of the testator were to be appointed, what estates must the Court say (if it did say) were vested in them; and what estates would they have to convey? Absolutely nothing. They might, indeed, confirm the sale; but the heir at law is as much bound in equity to perform the trusts attaching to the real estate as new trustees would be if such were appointed. I find, moreover, that the Lords Justices, when an application was made to them to appoint new trustees under this will, declined to do so; not meaning, as I understand it, to decide the points now raised by the plaintiff, but simply on the ground that, as the legal estate and the equitable interest in the hereditaments were both united together in one person, the new trustees could have nothing to do with them, and such an order as was then asked for would, if made, have only created expense without affording security. What is meant by a good title is, I apprehend, that the person who takes it will not only possess all the rights and powers which flow from, and are incident to, the possession of the legal estate, but will also be safe from being evicted or disturbed by any one who may have any right or beneficial interest to or in the property. But that is the position of the defendant, and one to which he is able and willing to introduce the plaintiff. It is impossible, so far as I can see, to suggest any one who is now or can hereafter come into existence who will disturb his possession, either at law or in equity. I am, therefore, of opinion that he would not be in any respect more safe in his possession of these hereditaments, or possess a more marketable commodity, if the Court were to confer on some indifferent persons the title of trustees, and order them to confirm a transaction in which they have not and in truth cannot have any interest or even any active duty to perform. I am of opinion, therefore, that the defendant can, under the circumstances of this case as it now stands, make a good title to the property, and I shall make a declaration to that effect." (Austin v. Martin, 4 Law Tim. Rep, 817.)

EXAMINATION QUESTIONS AND ANSWERS.

(MICHAELMAS TERM, 1861.)

COMMON LAW.

I. STATE the names of the Superior Courts of Law at Westminster, and shortly define their several jurisdictions.

ANS.-The Superior Courts of Law at Westminster are the Queen's Bench, Common Pleas, and Exchequer. Originally they possessed different jurisdictions; but now, so far as concerns personal actions, they have concurrent jurisdiction. The Queen's Bench has jurisdiction in criminal matters; also a superintending power over inferior tribunals, and it superintends all civil corporations by means of the writs of quo warranto and mandamus. The Common Pleas has exclusive jurisdiction in proceedings for dower, or freebench, and quære impedit; also with the examination of married women concerning their assurances, and in the registration of judgments, crown debts, annuities, &c. It hears appeals from the decisions of revising barristers, and has jurisdiction over railway and canal companies withholding reasonable facilities. The Exchequer has the exclusive management of revenue matters (Com. Law, Pract. pp. 1, 2; F. Bk. 359, 360; 3 Steph. Com., 386, 396, 4th ed.).

II. State the different steps that are taken by a plaintiff in a common law action, in an ordinary case, from writ of summons to judgment inclusive.

ANS.-A plaintiff who has issued and served his writ, may, in default of appearance within eight days, if the writ be specially endorsed, sign final judgment; if not so endorsed he files a declaration if defendant appears the plaintiff delivers his declaration; if the defendant does not plead thereto within eight days or an extended time, the plaintiff signs judgment; if the defendant pleads the plaintiff either joins issue or puts in his answer to defendant's plea, which is called a replication, beyond which the pleadings rarely go, though they may and must do so until the joinder of issue. The plaintiff then delivers the issue with notice of trial; sets down the cause, and enters the record; subpoenas his witnesses, delivers his briefs, after which the cause is tried. After trial the successful party signs judgment, taxes his costs, and issues

execution, if necessary (F. Bk. Ch. 35; 3 Steph. Com. 553, 669, 4th ed.).

III. Within what time, after the service of the writ, must the appearance by the defendant ordinarily be entered, and what is the difference if the defendant be sued upon a bill of exchange or promissory note under the Bills of Exchange

Act?

ANS-A defendant, ordinarily, must appear within eight days after service of the writ of summons, inclusive of the day of service. In an action under the Bills of Exchange Act (see F. Bk. 212, 264, 358) the defendant has twelve days to appear, but leave to do so must be first obtained (F. Bk. 264; 3 Steph. Com. 558, 561, 4th ed.).

IV. What is a bill of exchange, and state the relations of drawer and endorsee, acceptor and holder, as amongst each other?

ANS.-A bill of exchange is a written request or order for the payment of a certain sum of money unconditionally; the person making this request or order is called the drawer; the person to whom it is addressed the drawee; if he accept it, the acceptor; the person in whose favour it is made, the payee; the person passing it to another, called the indorsee, the indorser. The acceptor is primarily liable, and is the principal, all the other parties being, in a certain sense, sureties for him, liable only on his default. But though all the other parties are, in respect of the acceptor, merely sureties, they are not such as between themselves, but each prior party is a principal in respect of each subsequent party (2 Steph. Com. 111, 125; F. Bk. 210, 212).

V. In a written contract, not under seal, is it necessary that the consideration be entered on the face of the contract stated? Are there exceptions, and, if so, what are they?

ANS.-In written contracts, not under seal, and not being bills or notes, the consideration must be expressed, except (by 19 and 20 Vic. c. 97, s. 3) in the case of a guarantee (3 Steph. Com. 55, n., 58, 4th ed.; F. Bk. 207, 211).

VI. What is a guarantee? Explain its effect and what is necessary in point of form to make it valid.

ANS.-A guarantee is where one undertakes to do something for another, who is liable to perform the matter; more explicitly, it is the promise to answer for the payment of some debt, or the perform

ance of some duty, in case of the failure of another person who is himself, in the first instance, liable to such payment or performance. The agreement to guarantee must be in writing, signed by the party to be charged therewith, or by some other person authorised. Formerly the consideration must have been expressed; but by the 19 & 20 Vic. c. 97, s. 3, no guarantee is invalid, by reason only that the consideration does not appear in the writing, or by necessary implication from a written document (2 Steph. Com. 103, 104, 4th ed.).

VII. Explain the distinction between local and transitory actions, and what is the meaning of the technical word "venue."

ANS. An action is said to be local when the cause of it necessarily refers to some particular locality, such as actions for injuries to real property. An action is said to be transitory where the cause of action might have happened anywhere, as actions on personal contracts, for injuries to personal property, or to the person. Certain actions are, by particular statutes, local, which would otherwise be transitory. The venue is a statement in the margin of the declaration of the county in which the action is to be tried, and from which the jurors, who are to try the issues of fact raised in it, are to be summoned (3 Steph. Com. 451, 452, 4th ed.; F. Bk. 266, 267).

VIII. What is the proper remedy at common law to recover

lands?

ANS. The proper remedy at common law for the recovery of lands is by ejectment, the proceedings in which action have been much modified by the C. L. P. Act, 1852 (F. Bk. 253, 254). Certain statutory remedies have been given; thus, by 11 Geo. 2, c. 19 (Oke, 946), there is a summary proceeding before justices of the peace for restoring to landlords possession of premises which a tenant has deserted; and by 19 & 20 Vic. c. 108, s. 50, in the County Courts premises let at a rent not exceeding £50 per annum; and by 1 & 2 Vic. c. 74, before justices in petty sessions premises let at a rent not exceeding £20 per annum may, if held over, be summarily recoverable by landlords (See Oke's Syn. 945, 947, 7th ed.; 3 Steph. Com. 683, 693, 4th ed.).

IX. What constitutes the issue in an action of ejectment? ANS-The issue is made up without any pleadings by merely setting forth the writ, the appearance (and any notice limiting the defence), and directing the sheriff to summon a jury (3 Steph. Com. 688, 4th ed.; Com. Law Pract. 262).

X. If a debtor reside out of the jurisdiction, state the steps that must be taken to get judgment against him.

ANS.-The debtor may be either a British subject or a foreigner, and this requires attention. By the C. L. P. Act, 1852, s. 18, if a defendant, a British subject, is residing out of the jurisdiction (elsewhere than in Scotland or Ireland), the plaintiff may issue a writ of summons in a certain form, bearing an indorsement, that it is for service out of the jurisdiction. The time for appearance is regulated by the distance from England. On the Court or Judge being satisfied by affidavit that there is a cause of action which arose within the jurisdiction, or in respect of breach of contract made within the jurisdiction, and that the writ was personally served upon the defendant, or that reasonable efforts have been made to effect personal service upon the defendant, and that it came to his knowledge, and either that the defendant wilfully neglects to appear to such writ, or that he is living out of the jurisdiction of the said Courts, in order to defeat and delay his creditors, they or he may direct from time to time that the plaintiff may proceed in the action in such manner as to such Court or Judge may seem fit. The plaintiff must, before obtaining judgment, prove the amount of the debt or damages claimed by him in such action, either before a jury upon a writ of inquiry, or before one of the Masters of the Court. By s. 19 of the same Act, if the defendant be a foreigner, the like proceedings may be had; but a different form of writ is necessary, and, in lieu of serving a copy of the writ, a notice thereof must be served (Com. Law. Pract. 65, 69; F. Bk. 263, 264).

XI. What is meant by the term privity of contract, and in what cases may the assignee of the lessor sue the assignee of the lessee?

ANS. The terms privity of contract and privity of estate are used chiefly in reference to leases; by privity of contract is meant the connection between the parties which is created by the contract itself, and which subsists for ever between lessor and lessee; whilst by the term privity of estate is meant the connection which arises out of the position of the parties subsequently to the execution of the lease, &c., as lessor and assignee of lessee. The assignee of the lessor may sue the assignee of the lessee upon all covenants, which touch and concern the thing demised; but not collateral covenants (See Spencer's Case, Smith's Lead. Cas. 28; Webb v. Russell, 3 Term Rep. 402; Selw. N. P. 502, 11th ed.; Com. Law. Princ. 277, 283).