occasioning a total forfeiture of either lands or goods (or both) at the common law; and to which capital or other punishment may be superadded, according to the degree of guilt. It is said to be derived from two northern words: fee, or beneficiary estate; and lon, price or value (Key, Crim. Law, 15; 1 L. C. 441; 4 Bl. c. 5, note; F. Bk. 292).

IV. To what description of felonies does forfeiture of lands now attach also of goods and chattels ? and what is the lowest felony, and how is it punishable?

ANS. Besides treason, on attainder for murder all the felon's lands are forfeited, but for other felonies only the profits of the lands during his life; on conviction for any felony, the goods and chattels of the felon are forfeited (Key, Crim. Law, 120; F. Bk. 350, 351; 3 Bac. Abr. 738, 7th ed.; 4 Steph. Com. 483, 484, 4th ed.). The lowest kind of felony is simple larceny, and the punishment is, for a first offence, imprisonment with hard labour for two years, with whipping (4 Steph. Com. p. 89, 4th ed.).

V. How are misdemeanors generally punishable in the absence of express statutory enactment, and what is the chief distinction between them and felonies as to forfeiture?

ANS. Misdemeanors are punishable by fine or imprisonment, or both may be awarded. Felony occasions a total forfeiture of either lands or goods, or both, at the common law, whilst misdemeanor does not occasion any forfeiture (Key, Crim. Law, pp. 119, 120).

VI. Explain the process by which a person charged with felony is to be proceeded against; how is his arrest and committal to prison to be secured?

ANS. The offender is arrested, either by warrant or without, and carried before a justice of the peace, who examines the circumstances of the charge, and if it manifestly appear that a crime has been committed, the justice commits the offender to prison or allows him to give bail (4 Steph. Com., 4th ed.; F. Bk. 336, et seq.). An indictment is then framed, and being found by the grand jury, the accused is tried thereon.

VII. Who may prefer the indictment, what must it state, in whose name must it issue, and before what tribunal in the first instance brought?

ANS. An indictment is preferred in the name of the Queen, at the suit of any prosecutor. The indictment is presented to the grand jury, and if found by them the party stands indicted. The indictment must state a proper venue (usually only in the margin), the names and descriptions of the offender and of the prosecutor, and a statement of the offence. Usually there are other formal statements, such as value, place, formal conclusion; but defects in these respects are cured by 14 & 15 Vic. c. 100 (see F. Bk. 340, 341; Key, Crim. Law, 88).

EXAMINATION QUESTIONS AND ANSWERS.
HILARY TERM, 1861.-(CONCLUDED.)

VIII. Before whom, and by whom, must the witnesses in support of the indictment be sworn, and who cross-examines them?

ANS. The witnesses in support of the indictment are sworn in open court, in presence of the judge and jury; the counsel of the opposite party cross-examines them. The question does not in terms refer to the finding of the bill; but now the witnesses before the grand jury are sworn by the foreman, in the presence of the grand jury, thus dispensing with swearing in open court (19 & 20 Vic. c. 54; 3 L. C., 177).

IX. What offences are to be tried before the justices of the peace at sessions, and what are reserved for the higher courts? Mention some of the more important of the last-named, and where are the reserved cases enumerated.

ANS. The quarter sessions try small felonies and minor misdemeanors; but they are principally occupied in adjudicating on cases relating to game, highways, alehouses and licences for the same, bastard children, the settlements and provisions for the poor, servants' wages, apprentices, &c. (2 Steph. Com. 655, 4th ed.). By the 5 & 6 Vic. c. 38, the courts of quarter sessions cannot try for any felony which, being the first offence, is punishable with transportation for life, nor for misprision of treason, offences against the Government, blasphemy, and offences against religion; administering or taking unlawful oaths; perjury and subornation of perjury, &c. ; forgery; maliciously firing crops, &c.; bigamy or offences against the laws relating to marriage; abduction of women and girls; concealing births; offences against the bankrupt and insolvent laws; seditious, blasphemous, or defamatory libels; bribery; unlawful combinations and conspiracies with certain exceptions; stealing, destroying, or concealing records, wills, or written documents relating to real estate. There are other statutes making particular provisions (Key, Crim. Law, 5; F. Bk. 374).

X. What is meant by challenging a jury? How many peremptory challenges can a prisoner make, and how many the Crown? State the reason for the distinction.

ANS. Challenging a jury is taking an objection to the whole array, or to the separate polls of the jurors, either by the Crown or the prisoner. In cases of felony there is allowed to the prisoner (but not to the Crown) an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all, which is called a peremptory challenge. This does not extend to misdemeanors. The reasons are, that the prisoner should have a good

opinion of his jury, and that if obliged to assign a reason, which, if allowed, the prisoner might offend the juryman objected to. No person arraigned for murder or felony is admitted to make more peremptory challenges than twenty (4 Steph. Com. 488, 490, 4th ed.; Key, Crim. Law, 110).

XI. Distinguish murder from manslaughter, and burglary from larceny. Define the two last, and whence are the words derived?

ANS. Murder is felonious homicide, with malice aforethought. Manslaughter is the unlawful killing of another without express or implied malice aforethought. Burglary at common law is by night breaking and entering into a mansion-house, with intent to commit a felony. felony. Larceny, or theft, is the unlawful taking and carrying away of things personal, with intent to deprive the right. owner of the same, but not where it is a case of mixed larceny, done in the night time, which would constitute it a burglary, being in a mansion-house. Burglary is derived from burgi latrocinium, or nocturnal housebreaking; larceny, from latrocinium, or theft (Key, Crim. Law, 25-30; F. Bk. 317—321).

XVI. When are burglary, piracy, robbery, and arson, capital felonies, and when not?

ANS. When, in the perpetration of these offences, an attempt is made to murder or injure any person in his body, the offender is punishable capitally; otherwise not (F. Bk. 296, 318, 321; Key, Crim. Law, 117).

XVII. How can an attorney, who embezzles property deposited with him for a special purpose, be punished criminally? State the statute and the punishment.

ANS. By the 20 & 21 Vic. c. 54, attorneys may be criminally proceeded against for fraudulently dealing with the property intrusted to their care, and the offence is a misdemeanor, and subjects to a punishment of penal servitude for three years, or imprisonment for two years with or without hard labour or fine (4 L. C. 154, 156 ; F. Bk. 323, 324).

XIV. What is meant by the extradition of criminals? and how do the provisions of a treaty with a foreign state become the law? Give an instance.

ANS. By the extradition of criminals is meant that where any person having committed a crime in his own country, has fled into a foreign state, it is provided in a treaty between the two countries that the perpetrator of such crime shall be given up to his own Government. The provisions of such a treaty become law by an Act of Parliament. As if a man should commit a murder in the United States and then flee to Canada, he would be given up to the States (see Law Dict. 21; 6 & 7 Vic. c. 76; 8 & 9 Vic. c. 120).

XV. Is there any appeal from the decision of the justices on a summary conviction; if yes, what is it?

ANS. Formerly it was a rule that no appeal lay from the decision of justices of the peace on a summary conviction, unless it was expressly given by statute (Law Dict. 96; Oke's Syn. 206, n., 6th ed.). But the 20 & 21 Vic. c. 43, allows an appeal against any conviction or order of justices of the peace (including orders as to lunatics, revenue cases, orders in bastardy and factory cases), and also many other matters in special and petty sessions to one of the superior courts of common law (observe, not merely to the criminal jurisdiction Court the Queen's Bench; see Com. Law Answers, No. I.), upon the ground that it is erroneous in point of law (observe the latter word). The form of the appeal is by special case, which is stated and signed by the justices on application in writing, and security to prosecute being given within three days from their decision (see for full information, Law Dict., pp. 96-99, which is a treatise on the subject).

EXAMINATION STUDIES.

HILARY TERM, 1861.

WITH the exception of Hilary Terms, 1857-58, last term's examination was the most fatal that has taken place for very many years, and it must necessarily be a subject of some interest to endeavour to ascertain to what this result was due-a very superficial glance at the Questions will suffice to satisfy every reader that they were not of the ordinary kind, especially those in Conveyancing and Equity. The mere length of some of the questions made them appear more formidable than they really were, but after making all allowances on this score, it must be confessed that they were more than ordinarily difficult. Indeed, the Questions form a perfect contrast with those of the preceding term, those having been of a very simple character. It would almost seem as if the examiners had repented of their former laxity in this respect, and had determined to make amends at the expense of the Hilary Term candidates. Let it be a warning to all future candidates not to expect that one term's questions will form a precedent for another, and that because one set of candidates were favoured with easy questions the same will fall to the lot of the succeeding candidates. We may remark that some persons (it is almost unnecessary to observe that these are either candidates who were successful, or

who had before passed) have denied that last term's were particularly difficult, and they pretend that some previous terms were much more difficult, but we consider they are quite mistaken, and this is more evident when the published answers are examined, as they furnish many instances of erroneous or defective statements; we fear that, in our anxiety to get out the last number without much delay, we have overlooked two or three matters.

The object of the present article is to indicate some of the more important points involved in the questions, and to supply any defects which may have occurred in the published answers, so that articled clerks may become familiar with the matters, and be enabled on their examinations to furnish sufficient answers.

With respect to the division of Common Law, the questions are not of a very difficult character, if we except No. XII. (relating to Average), which is rather out of place in an examination, more especially as the text and other books by no means agree as to what constitutes particular average (see 5 Bac. Abr. 428, cited ante, p. 24). We have endeavoured elsewhere (Law Dict. 39, 40) to explain this subject, but as all may not have the work containing that explanation, and the subject is one of some difficulty, and one on which much misapprehension exists (see 2 Steph. C. 131, 132, 4th ed. for an instance), it will be useful to furnish some explanations from two standard works on the subject. In Abbott's Shipping (pp. 389, 4th ed.) it is said, speaking of the general contribution which is to be made by all parties towards a loss sustained by some for the benefit of all of them, "This contribution is sometimes called by the name of general average to distinguish it from special or particular average-a very incorrect expression, used to denote every kind of partial loss or damage happening either to the ship or cargo, from any cause whatever; and sometimes by the name of gross average, to distinguish it from customary average, mentioned in the bill of lading, which latter species is sometimes called petty average." At p. 352, after stating that by the bill of lading the master undertakes to deliver the goods upon the payment of freight, with primage and average accustomed, it is said: "The word average in this place denotes several petty charges, which are to be borne partly by the ship and partly by the cargo-such as the expense of towing, beaconage, &c. . . . . these, with us, depend entirely upon usage. this, and primage, are often commuted for a specific sum, or a certain per centage on the freight. Mr. Machlachlan (Shipping, p. 556) says: "General average denotes that contribution which is made by all who are parties to the same adventure towards a loss arising out of extraordinary sacrifices made, or extraordinary expenses incurred, by some of them for the common benefit of the ship and cargo. By this name it is distinguished from particular average, which, in