FINAL EXAMINATION QUESTIONS AND ANSWERS.

(Michaelmas Term, 1867.)

COMMON LAW.

I. In how many days after verdict is a plaintiff or a defendant entitled to execution?

ANS. Within fourteen days from the verdict, unless the judge orders speedy execution, or it is delayed by order. (15 & 16 Vict. c. 76, s. 120; R. G. H. T. 1853, r. 55; Com. Law Pract. 186; 5 Exam. Chron. 59, and references.)

II. In a town cause where issue has been joined in (for instance) Hilary Term, and the plaintiff has neglected to bring on the cause to be tried, what course should the defendant take in order to get rid of the action, and after what delay can he do so?

ANS. If the plaintiff neglects to bring the cause on for trial in or before the following (Easter) Term, or during the vacation after it, the defendant may give him twenty days' notice to bring it on at the first sittings following the expiration of such notice. If the plaintiff makes default the defendant may suggest that the plaintiff has failed to proceed to trial (which suggestion is not traversable, but only liable to be set aside if untrue), and sign judgment for his costs. (15 & 16 Vict. c. 76, s. 101; Com. Law Pract. 151-153; 5 Exam. Chron. 213, 214, and references.)

III. What evidence is necessary for the plaintiff to be prepared with on the trial of an action for goods sold and delivered, when the only plea is " never indebted ?" ANS. Proof of the contract and the sale and delivery of the goods, and also the value and fairness of the price charged and sought to be recovered. (Roscoe's Evid. 355, 9th ed.)

IV. Under what circumstances is proof of execution of a deed dispensed with?

ANS. When the deed is thirty years old, provided it comes from the proper custody. (5 Exam. Chron. 58, where twenty years are, by mistake, as seen by the references, mentioned. (1 Exam. Chron. 103, 104; 2 id. 23; 4 id. 30, 53; ante, p. 56.)

V. What is a writ of sequestrari facias, and how is it obtained? ANS. It is a writ of execution, directed to the bishop of the diocese, where the defendant in an action is a clergyman, requiring him to sequester the profits of the living to satisfy the judgment creditor's claim. It is obtained where the sheriff returns, to an

ordinary fi. fa., nulla bona, and that the defendant is a beneficed clerk having no lay fee. (See Com. Law Pract, 248, 249.)

VI. When does a bill of exceptions lie; and when and how is it tendered?

ANS. A bill of exceptions lies where a judge on the trial of a cause, either in his direction or decision, makes a mistake in matter of law, such as admitting or refusing evidence, or a challenge, or the like. It must be tendered in some shape at the trial before the verdict is given. It is afterwards formally drawn by counsel of the party tendering it, and settled by the counsel on the other side; it is then sealed by the judge. (See Com. Law Pract. 190, 191.)

VII. State the nature and effect of a plea puis darrein continuance ! ANS. Where any matter of defence arises after plea and before verdict, the defendant may, within eight days after the matter of it arose, avail himself of it by plea termed puis darrein continuance. It must be verified by affidavit. When pleaded, the defendant waives all his former pleas, and the case stands in the same state as if no other plea had been put in, and the plaintiff on confessing it (if there is no other defendant) is entitled to his costs. (See Pract. Com. Law, 166, 167; R. G. H. T. 1853, r. 23.)

VIII. To what extent is a plea of payment into court an admission?

ANS. On the common indebitatus counts the plea admits that the sum paid in is due to the plaintiff by virtue of some contract of the nature declared on, but it does not admit the defendant's liability on any particular contract, and the plaintiff must therefore prove the particular contract if he seeks to recover more; but where the declaration contains a special count only, the defendant impliedly admits the contract declared on and the breach. In actions of tort, where the declaration is general and unspecific, the plea admits a cause of action, but not the cause of action sued for. (Arch. Prac. p. 1286, 9th ed.; Stevenson v. Berwick, 1 Q. B. 154. See Com. Law Pract. 134-137; 6 Exam. Chron. 131.)

IX. When is a new assignment necessary? Give an example. ANS. A new assignment is necessary where the plaintiff complains of one of several trespasses in a form so general that the declaration is applicable to any of them, and a trespass in respect of which the action is not brought is justified by the defendant, or where the defendant, having pleaded a justification of the trespass complained of, the plaintiff maintains that there has been an excess beyond what the circumstances justified; for example, if a defendant, in answer to an alleged trespass on the plaintiff's close, asserts, firstly, a right of way; and, secondly, a right of common, and the plaintiff complains of something not justified by either plea, he must new assign, and he must state that he proceeds for causes of action

different from those justified. (See Com. Law Pract. 143, 144; Williams' Plead, 136-143; Roscoe's Evid. 570, 9th ed.)

X. How far is the law as to the form and requisites of a guarantee under the Statutes of Fraud altered by the Mercantile Law Amendment Act, 1856?

ANS. By the latter Act the consideration need not now appear in writing, although one must still be proved at the trial. (19 & 20 Vict. c. 97; see Princ. Com. Law, 152, 153; 5 Exam. Chron. 5; ante, pp. 52 and references.)

XI. What is enacted by the Act to amend the law of part

nership (28 & 29 Vict. c. 86) as to the effect of loans to persons employed in trade at interest varying with the profits? ANS. That the advance of money by way of loan to a person engaged or about to engage in any trade or undertaking upon a contract in writing (mark this) with such person, that the lender shall receive a rate of interest varying with the profits, or shall receive a share of the profits arising from carrying on such trade or undertaking, shall not of itself constitute the lender a partner with the person or the persons carrying on such trade or undertaking, or render him responsible as such. But in case of bankruptcy, &c., the lender cannot recover any portion of such loan until other creditors have been paid in full. There are other provisions as to servants and agents and annuitants.

XII. In what respect is the law relating to choses in action altered by an Act of last session?

ANS. By 30 & 31 Vict. c. 144, s. 1, it is provided that assignees of a life policy of assurance may sue thereon in their own names after written notice of the assignment has been given to the assurance company. The Act contains provisions as to the form and mode of making the assignment.

XIII. What remedies has the purchaser of goods against the seller for the breach of an express warranty?

ANS. The purchaser may refuse in certain cases to accept the goods, or he may either use the breach of the warranty in reduction of the vendor's claim for compensation, or he may bring an action against him. If the purchaser has received a specific chattel he cannot return it and recover the price as money paid on a consideration that has failed; but this principle does not apply to manufactured goods which have never been completely accepted, for if the purchaser has done nothing more than give the article a fair trial he may, on discovering the defect, return it. (1 Exam. Chron. 140, 141, 222; 5 id. 7.)

XIV. What is the extent of an attorney's lien on property of his client in his hands, and on a fund paid into Court in an action brought for his client by his attorney?

ANS. An attorney has a lien on the papers of his client in his hands till a general balance due to him for costs is paid. He has also a lien upon all moneys of his client which come into his hands in due course of business. So he has a lien upon money or costs awarded or ordered to be paid to his client in a cause; this, however, is a mere claim to the equitable interference of the Court. By 23 & 24 Vict. c. 127, s. 8, a solicitor may be declared entitled to a lien on property recovered, &c. (See Com. Law Pract. 50-52, 256; 1 Leg. Reas. 137.)

XV. When does the wife's contract bind the husband, and when not?

ANS. The wife's contract binds her husband only when entered into by his authority, either express or implied. Thus the husband is, prima facie, liable for contracts entered into by his wife for necessaries supplied to herself and family; whilst with respect to other contracts she is not to be regarded as his agent unless circumstances showing an authority from him be expressly proved, such as wrongfully turning out of house without means of support. (5 Exam. Chron. 5, and references; ante, p. 52, and references; see fully 5 Exam. Chron. 261-266; 6 id., 75, 222.)

CONVEYANCING.

I. What is the estate of a "parson

" in the Church lands, and

by what tenure does he hold them? Distinguish between a

rector and a vicar.

ANS. A parson has during his life the freehold in himself of the parsonage house, the glebe, the tithes, and other dues. The vicar has only such portion of the glebe or lands belonging to the parsonage, and a particular share of the tithes, and with which the vicarage has been endowed. The tenure by which the parson holds his lands is Frankalmoign. The distinction between a parson," that is, a rector, and a "vicar," arises out of the above circumstances, and were understood historically. (See F. Bk. 71, 72.)

II. Explain the phrase "chose in action." What kind of property has a husband in his wife's choses in action?

ANS. A chose in action is the right of bringing an action, coupled with the subject-matter of that right; as shown in F. Bk. (p. 18 ), it is not confined to a debt. The husband is entitled to the wife's choses in action if he reduces them into possession, that is, obtains payment or recovers judgment, or obtains a decree; otherwise they survive to the wife; if he survive her he will be entitled, but he must take out administration to recover them. (F. Bk. 203; 8 W. R. 429; 5 Exam. Chron. 122, 123; 6 id. 134.)

III. Distinguish between probate duty, legacy duty, and succession duty.

ANS. Probate duty is payable in respect of all assets that may come to the executor's hands. Legacy duty is payable on all the deceased's personal estate remaining after payment of his debts. Succession duty is payable on all real and leasehold property to which any one becomes entitled on the death of another, and on other property which is not liable to legacy duty. (ante, p. 84.)

IV. A. dies intestate and unmarried, leaving a mother, two
brothers both under age, and one adult sister.
Who is en-
titled to a grant of letters of administration to A.'s effects,
and in what proportion is A.'s personal estate divided among
his next of kin ?

ANS. The mother, being nearest of kin, is entitled to administration; the personal estate is distributed in equal shares amongst the mother, brothers, and sister. The mother's right is by statute (1 Jac. 1, c. 17, s. 7), it being provided that if after the death of a father any of his children shall die intestate, without wife or children, in the lifetime of the mother, every brother and sister (and representatives) shall have an equal share with her. (See Burton's Comp. pl. 1409, where the intestate leaves a wife. Though the

statute mentioned in this answer did not mention the case of a wife, yet it was decided upon the intention that if an intestate leave a wife, as well as brothers and sisters and a mother, one moiety is to be divided among the latter. (2 P. Will. 344; Burt. Comp. pl. 1409.)

V. B. dies intestate, leaving a mother, wife, two daughters, and two grandsons (the only children of his deceased only son) him surviving. Who will be entitled to his freeholds of inheritance and leaseholds for years, and in what proportions? ANS. The eldest grandson will be entitled to the freeholds of inheritance (assuming that they were not gavelkind or Borough English), subject to the dower, if any, of B.'s wife. The leaseholds for years will be divided-one-third to the wife, two-ninths each to the two daughters, and one-ninth each to the grandsons.

VI. Freeholds of inheritance are devised unto and to the use of A. and his heirs, but if he shall die without issue living at the time of his decease to A.'s sisters in fee. What estates do A. and his sisters take respectively in such freeholds ?

ANS. A. takes a fee simple, subject to an executory devise over to his sisters, on his dying without issue, living at his death. The law on this subject, where the failure of issue referred to a general failure of issue, is fully stated in 6 Exam. Chron., 61, 62, with a view to future candidates understanding the matter. As to where the expressions did not manifestly refer to a general failure, see Burton's Comp. pl. 665; 16 Jur. 1128.