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EXAMINATION QUESTIONS AND ANSWERS.

(1 Law Chron. 63-65), actions upon bills of exchange or promissory
notes, commenced within six months after the same become due and
payable, may be by writ of summons, in the special form contained
in the Schedule to the Act, whereby the time given for appearance is
twelve days-being more than in ordinary actions ;-and on filing
affidavit of service, or an order for leave to proceed, &c., in case of
non-appearance, the plaintiff may at once sign final judgment, and
issue execution immediately. Leave of a Judge is required for
appearance, which the Judge may give within twelve days of service,
on the defendant paying into Court the sum indorsed on the writ,
or furnishing affidavits satisfactory to the Judge, disclosing a legal
or equitable defence on the merits, or such facts as would make it
necessary for the plaintiff to prove he gave consideration, or such
other facts as the Judge may deem sufficient to support the applica-
tion, on such terms as to security or otherwise as to the Judge may
seem fit. The holder of the bill or note has the extraordinary privi-
lege of issuing one summons against all or any of the parties to it,
though all subsequent proceedings must be separate. (See 1 Exam.
Chron. 121, 161; 2 Id. 4, 14, 277; ante, p. 1.)

XV. What is an interpleader?

ANS.-There is an interpleader at law and also in equity, where alone it formerly could be had. It is where a person is sued for the recovery of money or goods wherein he has no interest, and which are also claimed of him by some third person; such party at law may, by 1 & 2 Wm. 4, c. 58 (in actions of assumpsit, debt, detinue and trover), after declaration and before plea, apply to the Court or Judge, on affidavit shewing that he does not claim any interest in the subject-matter of the suit, but that such right is claimed by, or supposed to belong to, some third party, who has sued, or is expected to sue, for the same, and denying collusion with such third party, and offering to bring into Court, or to pay or dispose of the subjectmatter of the action, in such manner as the Court or any Judge thereof may direct. The Court or Judge may make rules and orders calling upon such third party to appear and to state the nature and particulars of his claim, and maintain or relinquish his claim, and upon such rule or order may order such third party to make himself defendant in the same or some other action, or to proceed to trial on feigned issues, or with the consent of the plaintiff and such Interpleader under this third party (see infra), may dispose of the merits of the claim, and determine the same in a summary manner. Act is also given to the sheriff, on a claim being inade to property seized in execution. By the 23 & 24 Vict. c. 126, s. 12, an interpleader may be granted though the titles of the claimants have not

a common origin, but are adverse to and independent of one another. By s. 13, where a third person claims goods seized in execution as security for a debt, the Judge may order them to be sold and direct the application of proceeds; and by s. 14 may decide summarily, at request of either party, where, from the smallness of the amount in dispute, or of the value of the goods seized, it appears desirable to do so. (See 1 Exam. Chron. 125, 163; 2 Id. 15, 21, 76, 202; Com. Law Pract. 282-290, for further information on this frequentlyrepeated question.)

CONVEYANCING.

I. A. mortgages real estate to B., without delivery of the title deeds; subsequently A. mortgages the same estate to C., without giving him notice of the first mortgage; which of the two mortgagees is entitled to priority, and state your reasons?

ANS. According to the authorities (see them stated in Dart's Vend. 546, 547, 3rd ed.) A. is entitled to priority, as the mere fact of a purchaser or mortgagee not having possession of the title deeds will not, in the absence of other circumstances indicative of fraud, affect his legal title as against subsequent purchasers or incumbrancers. The true principle deducible from the authorities seems to be that mere indiscretion or inactivity is insufficient to postpone a purchaser or mortgagee, who has the legal estate; there must, to have this effect, be an intent to facilitate a fraud, or a wilful indifference to a fraud, which there was good reason to suspect was about to be committed; and the omission to make any enquiry respecting the deeds, is, in itself, evidence of this wilful and fraudulent indifference; but where the contest lies between parties having mere equities, cæteris paribus, negligence or indiscretion in the one, will give the other a better claim on the assistance of the Court. (Waldron v. Sloper, 1 Dru. 193, 200; Finch v. Shaw, 19 Beav. 500; Fisher's Mortg. 459-463.)

II. Land devised for sale to pay debts is sold, and the debts being paid in full out of the purchase money, there is a surplus to whom does such surplus belong, when there has been no disposition made of it by the testator's will? ANS.-Conversion takes place only for the purposes indicated by a testator, and beyond this equity will not imply an intention to convert. Therefore, where real estate is directed to be sold for certain purposes, so much of the real estate, or the produce thereof, as is not effectually disposed of by the will at the testator's death, from silence, or the inefficacy of the will itself, or from subsequent lapse, results

to the heir, unless the testator has sufficiently declared his intention that the produce of the real estate should be deemed personalty, whether such purposes take effect or not. The heir will in the case put have the benefit of the surplus as so much real estate undisposed of. (Smith's Eq. Jur. p. 146, et seq., 6th ed.; 2 Story's Eq. Jurispr. pp. 86-89, 2nd ed.)

III. What is the difference between a mortgage in fee and a mortgage for a term, say 1000 years, and what advantage has one over another?

ANS. The former is a freehold, the latter only a chattel interest. At law, a mortgage in fee is an absolute conveyance to a man and his heirs, subject to an agreement for a reconveyance on a certain event; and the mortgagee having the legal estate in fee vested in him by the conveyance, with power to dispose thereof, the only interest remaining in the mortgagor is the equity of redemption. And on a sale the mortgagee in fee can dispose of the whole fee simple, whilst in the case of a demise for a term he cannot; but in the former case the legal estate and the money vest in different representatives, whilst in the latter they both vest in the same representative.

IV. What is the difference between an estate tail in possesssion and an estate tail in remainder, and what does the term "possession" signify?

ANS.-An estate tail in possession is where there is no preceding estate for life in existence created by the same deed. An estate tail in remainder, is where such a life interest exists. The tenant in tail in possession can by himself bar his estate tail, but the tenant in tail in remainder must obtain the consent of the protector to bar the remainders over. The term "possession signifies that the tenant in tail is entitled to the present enjoyment of the estate, although not actually in the enjoyment thereof.

V. Give an instance of an estate of freehold of inheritance, and of a freehold not of inheritance.

ANS.-An estate in fee simple, or in fee tail, is an estate of freehold of inheritance, the tenant being not only entitled to enjoy the land for his own life, but after his death, without having disposed of it, it is cast by the law upon the persons who successively represent him, according to an established order of descent. An estate of freehold not of inheritance, is an estate for life only,—such as an estate for one's own life, or pur autre vie, or dower, curtesy. (F. Bk. 121, 125.)

VI. Can real estates be settled by an infant on marriage, and if so, how, and by whom?

ANS.-By 18 and 19 Vict. c. 43, every infant, not under twenty if a male and not under seventeen if a female, may, with the sanction of the Court of Chancery, make a valid and binding settlement of his or her real (or personal) estate on marriage, whether in possession, reversion, remainder or expectancy, except where the contrary is expressly declared. The application to the Court is by petition, without suit, presented by the infant or his or her guardian. If the infant die under age, any settlement made under a power of appointment, or by disentailing assurance, becomes void. (F. Bk. ÏÏl; 2 Exam. Chron. 143.)

VII. What are the indispensable requisites for the execution of a will?

ANS.-By the 1 Vict. c. 26 a will must be signed at the foot or end thereof, which by the 15 and 16 Vict. c. 24 is liberally construed, by the testator, or by some person in his presence and by his directions; and the 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 the will in the presence of the testator, but no form of attestation shall be necessary: it is however usual to attest the will in a form showing a compliance with the statutory requisites, otherwise probate of the will will not be granted without affidavit of one of the attesting witnesses that the will was in reality properly executed. (See, as to this oftrepeated question, 1 Exam. Chron. 27, 119, 285, 286; F. Bk. 188, 190, 226.)

VIII. Land is devised to a son A. for life, and after his death, to a daughter B. for her life, and after the decease of both to the heirs of the body of A. A. has an only son, who is, of course, heir apparent, and also daughters; he wishes the estate to go to his daughters and not to his son. Can he by any and what means effect this without the consent of his son?

ANS.-AS A. takes an estate tail under the rule in Shelley's case (2 Exam. Chron. 117; F. Bk. 150), he consequently can bar the entail without his son's consent by deed executed under the 3 and 4 Wm. 4, c. 74, and so grant or devise the land to his daughters. The intervening estate to B. is not, of course, destroyed, but continues to subsist.

IX. When do trust estates pass by will?

ANS.-Trust estates will, of course, pass by an express devise of them, and they may even without mention, for it is a general rule that trust estates pass under a general devise, unless a contrary intention appears, which may be by the property being subjected to the payment of debts, legacies, annuities, or any other species of charge, or the will containing limitations to unascertained classes of persons or provisions to which it cannot be supposed that the testator intended to subject property, not beneficially his own, such as uses in strict settlement, or executory limitations, or a clause of accruer among tenants in common, or a trust for sale, or for a charity, or for the separate use of a married woman. (See 2 Exam. Chron. 145, 228.)

X. Should the vendor's solicitor investigate the title previously to preparing the contract for sale, and what advantage would result therefrom to his client?

ANS. The vendor's solicitor should investigate the title previous to preparing the contract for sale, in order, if necessary, to guard against objections being taken, to stipulate with what deed the title should commence, and preclude the purchaser from requiring any earlier title; also to prevent the purchaser requiring the production of deeds not in the vendor's possession, and to throw the costs of all attested copies and covenants to produce on the purchaser; in fact, to provide for all such matters as, if not mentioned, would throw an improper burthen on the vendor. (See 2 Exam. Chron. 145, 224.)

XI. A., by will, devises his estate to B., and his trust estates to
C., and afterwards contracts for the sale of the estate to D.
The testator dies before the completion of the purchase, who
must convey to the purchaser?

ANS. This question is one of some novelty and no little difficulty. On the one hand, the vendor being a trustee for the purchaser from the date of the contract, the devisee of the testator's estate would appear to take the legal estate (merely) under the devisee; but, on the other hand, the effect of the contract being to make the devised estate a trust estate, it would appear to pass to the devisee of the trust estates; this latter, taking into consideration the 7 Wm. 4 and 1 Vict. c. 26, s. 24, whereby a will is, with reference to the real and personal estates comprised therein, to speak and take effect as if it had been executed immediately before the death of the testator, is, we think, the better opinion, and therefore C., the devisee of the trust estates, would be the proper party to convey the merely legal estate, the executors joining to give a valid receipt for the purchase money. We have assumed that the contract for sale was one binding on the testator, that is, one enforcible.

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