A DIGEST OF THE FINAL EXAMINATION QUESTIONS AND ANSWERS. PRINCIPLES OF LAW AND PROCEDURE. IN MATTERS AS ADMINISTERED UNDER THE USUAL JURISDICTION OF THE QUEEN'S BENCH DIVISION OF THE HIGH COURT OF JUSTICE. OF THE COMMON AND STATUTE LAW. Question.-Give some explanation of the words "Common and Statute Law." Answer. The term "Common Law" is generally used to distinguish that part of our law which obtains its force from immemorial usage or custom, termed the lex non scripta; also to distinguish that department of law which was till recently administered in the Superior Courts of Common Law at Westminster. The statute law is termed the lex scripta, embracing the express enactments of our Parliament: (see Holth. L. D. 2nd edit.; 1 St. C. Intr. s. 3.) Q.-State some of the leading Acts of Parliament relating to common law passed during the last five years. 42 Vict. c. 11 (Bankers' Books Evidence Act). 42 & 43 Vict. c. 76 (Joint Stock Companies Amendment Act). 43 & 44 Vict. c. 41 (Burials Act). c. 42 (Employers' Liability Act). c. 47 (Ground Game Act). 44 & 45 Vict. c. 44 (Solicitors' Remuneration Act). c. 75 (Married Women's Property Act). B Q.-Suppose a statute passed repealing a former Act, and such statute becomes itself repealed, does the former Act become revived? A.-Formerly, in such a case, the former Act would have been revived; but now it is provided, by the 13 & 14 Vict. c. 21, that where any Act repealing in whole or in part any former Act is itself repealed, such last repeal shall not revive the Act or provisions before repealed, unless words be added for that purpose: (ss. 5, 6.) THE LAW OF CONTRACTS. 1. Of the various Descriptions and Requisites, and General Nature of Ordinary Contracts. Q. How many and what descriptions of contracts are there? Give shortly a definition of each. A.-Contracts are of three descriptions-1. Contracts of record; 2. Specialties; 3. Simple contracts. Contracts of record consist of judgments, recognisances and statutes staple. Contracts under seal or specialties, such as deeds or bonds, are instruments which must not only be in writing but sealed by the party bound thereby, and delivered by him to or for the benefit of the person to whom the liability is incurred. Simple contracts not only include such as are verbal, but also all those which, although reduced into writing, have not been sealed and delivered: (Chit. Cont. pp. 2, 3, and 4, 11th edit.) Q. What evidence is required to support an action on a contract by matter of record? A. It is generally proved by production of the record itself: (Chit. Cont. 2, 11th edit.) Q.-What is a bond? Describe a common money bond. A.-A bond is a deed whereby a person binds or obliges himself, his heirs, executors, and administrators, to do any act within a certain time. There is usually also added what is termed a condition, which is simply a statement that on the person bound doing the act the bond shall become void. A common money bond acknowledges that the obligor is bound to the obligee in double the amount of the debt. The condition states that on payment of the sum really due, with interest, on a certain day the bond is to become void: (2 St. C. 106, 8th edit.) Q.-Define a simple contract; and mention briefly what are its chief requirements irrespective of statute law. A. A simple contract is an agreement, either in writing not under seal, or verbal, to do or not to do some act. Irrespective of statute law it requires (1) the mutual assent of two or more persons able to contract; (2) a valuable consideration, which must not be illegal or immoral; (3) something to be done or omitted which is the subject of the contract: (2 St. C. 53, 8th edit.; Chit. Cont. 8, 11th edit.) Q. What is the difference between simple contract and specialty debts? (a) A.-Simple contract debts are such as arise by writing, not under seal, or by mere oral evidence. Specialty debts are such as have become due by instrument under seal. Again, the former are not valid unless founded on a sufficient consideration, and do not, when in writing (with the exception of bills and notes), import a consideration; but the latter are binding on the parties executing, although there be no consideration for making them. So simple contract debts are statute barred after six years, specialty debts not until twenty years: (2 St. C. ch. v., and see infrà.) Q.-Has a specialty debt any priority over a simple contract debt in the respective events of the bankruptcy or the death, leaving an insolvent estate, of the debtor? A. In the event of bankruptcy of the debtor a specialty debt has no priority over a simple contract debt. In the administration of legal assets, however, a specialty debt formerly had priority over a simple contract debt. But with respect to the administration of the estates of persons dying on and after 1st January, 1870, they now rank equally: (32 & 33 Vict. c. 46; Will. P. P. 120, 128, 10th edit.) (b) Q.-What is an executory contract? A.-One that is to be executed at a future time, as, if A. and B. agree to change horses next week; in such case the right only vests, the property not being in possession, but in action only: (2 St. C. 57, 8th edit.) Q.-A. contracts with B. to do something on a future day, but before that day arrives states his intent not to do it; can B. sue A. before the day for the performance of the contract, or must he wait till after that day? A.-If A. expressly renounces the contract, B. may treat this as a breach, and may sue A. at once: (see Hochster v. De la Tour, 2 E. & B. 678; Chit. Cont. 664, 11th edit. (c) Q.-What is an express, and what an implied contract? And give an instance of each. A. An express contract is one in which the terms of the agreement are openly expressed or uttered at the time of the making thereof, while an implied contract is one which rests merely on construction of law, and where there is strictly speaking no agreement of the parties to the terms by which they are bound. An instance of an express contract is an agreement in writing or verbally to employ a servant or clerk to do certain work at certain wages, whilst an implied one arises if I employ a person to do any work for me without an agreement as to payment, the law (a) This question has also been asked in the Conveyancing Division. (b) By 38 & 39 Vict. c. 77, s. 10, the rules of bankruptcy are now to prevail in the administration of estates of deceased persons dying after the passing of that Act, so far as regards proof of debts and valuation of annuities and liabilities. (e) It was decided in Frost v. Knight (26 L. T. Rep. N. S. 77), reversing a judgment of the Exchequer, that in such a case an action may be maintained upon a breach of promise of marriage before the time for performance arrives. there implying that I undertake to pay him a reasonable sum: (see Chit. Cont., 11th edit., chap. 1, ss. 1 and 2). Q. 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? A.-Privity of contract is that connection of relationship which exists between two or more contracting parties. It exists between lessor and lessee; but not between lessor and an assignee of the term; for here there is only a privity of estate. The assignee of the lessor may sue the assignee of the lessee on all the covenants running with the land, if there be any breach of such covenants by the latter while he remains in possession: (see Spencer's case, 1 Sm. L. C.) Q.-How are contracts divided with reference to evidence? A. This question is somewhat ambiguously framed. Contracts with respect to evidence may be said to be divided into contracts in writing and contracts not in writing, and as to contracts in writing, those which are under seal and those not under seal. It is a rule that parol evidence cannot be received to contradict, vary, add to, or subtract from the terms of a valid written instrument. Also that a deed cannot be altered, or the liability created by it lessened or discharged by simple contract: (see Add. Cont. 388, &c., 4th edit.) Q.-Distinguish between a patent and a latent ambiguity in a written instrument. State the effect of each as regards parol evidence to explain the ambiguity. Illustrate your answer by an instance in each case. A.-A patent ambiguity is where the doubt arises upon the face of the instrument itself, as in case of a blank. Latent where the doubt is introduced by the existence of a fact not apparent upon the face of the deed, as a devise or grant of the "manor of A.," the party having two manors of that name. Parol evidence is admissible to explain a latent ambiguity, but not a patent one: (Chit. Cont. 104, 11th edit.) Q.-Explain the meaning of the word "consideration" when applied to contracts. What contracts are called nudum pactum? Is there any difference as to the liability on the latter species of contract when entered into by deed and by instrument under seal? A. The consideration of a contract is the price or motive of the contract. Considerations are divided into (1) good, as natural love and affection, and (2) valuable, as money or marriage. The former will support a deed, which imports a consideration, but not a simple contract, as that requires a valuable consideration to give it force, and if this be wanting it is termed nudum pactum, upon which no action lies, the maxim being Ex nudo pacto non oritur actio: (a) (see Chit. Cont. 17 et seq., 11th edit.) Q.-Translate and give an instance of the maxim "Ex turpi causâ non oritur actio." A.-"No action arises out of an unlawful agreement." The rule (a) Valuable considerations are divided into four: (1) do ut des, (2) facio ut facias, (2) facio ut des, (4) do ut facias; and as to time they are: (a) executed, (b) executory, (c) concurrent, and (d) continuing. expressed by this well-known maxim applies not only where the contract is expressly illegal, but wherever it is opposed to public policy or founded on an immoral consideration. A leading case is Collins v. Blantern, where a bond given for the suppression of a prosecution was held void: (Broom's Legal Maxims, 5th edit. 732; 2 Sm. L. C. 8th edit. 547.) Q.--A. obstructs a highway so as to cause special inconvenience to B., and B. promises A. to pay him 51. for removing the obstruction. Give the short reason for deciding whether this promise is binding or not. A. The promise is not binding for the reason that there is no valid consideration for it, A. being bound to remove the obstruction without being paid for doing so. Q.-For what debts is an infant liable? Does it make any difference if he is residing under the parental roof? A.-He is liable for necessaries suitable to his station in life, supplied to him without fraudulent intention on the part of a tradesman: (Ryder v. Wombwell, L. Rep. 4 Ex. 32.) At least, this is so if the infant is an orphan or residing at a distance from his parents, and is not provided with necessaries under their superintendence. But an infant living under the parental roof cannot in general be made responsible for the payment of the price of clothes or other real necessaries of life: (Chit. Cont. 139 et seq., 11th edit.) Q-State the common law liability of infants on contracts made by them, and how it has been recently limited by statute. A.—An infant at common law is liable only on contracts for necessaries ; his other contracts were voidable and might be confirmed on coming of age. But by 37 & 38 Vict. c. 62, all contracts by infants for money or goods other than necessaries, and all accounts stated are absolutely void where formerly voidable, and cannot be ratified after full age. Q.-What are "necessaries," and does the court take into consideration the position of the parties? A.—Parke, B., in Peters v. Fleming (6 M. & W. 46), says: "From the earliest time down to the present the word 'necessaries' is not confined in its strict sense to such articles as are necessary to the support of life, but is extended to articles fit to maintain the particular person in the state, degree, and station in life in which he is. It is for the court to say whether the things supplied are primâ facie necessaries. In case of an infant, board, lodging, clothes, medicine, and education are necessaries." Q.-Is a father liable for any debts contracted by his infant son? A. He is not liable to pay for goods, whether necessaries or not, furnished to his infant son, without some proof of a contract on his part, express or implied: (Chit. Cont. 150, 11th edit.) The general duty of a parent to maintain his infant child only lasts so long as the child is unable to work. And this liability arises under the poor-law system: (Steph. Lush. Pr. 40, n.) Q-Is there any liability imposed by the common law on a parent to provide for the maintenance and education of his child? A.-Parents may be compelled to provide their legitimate children, of |