128 Questions at the Examination. A feoffment made to A. and his heirs to the use of B. and his heirs in trust for C. and his heirs; explain the operation of the Statute of Uses in the above limitation. When is real estate considered as personal, and personal as real? In what cases, and in favour of what persons, are bonds or covenants to resign a living legal? Explain the origin of copyholds, and by what Statute was the further creation of manors prohibited? What is the difference between a jointure and a dower, and how is the former constituted, and how does the latter arise ? Show the outline of an ordinary farming lease for seven years. Give the outline of an ordinary lease for 21 years of a private house in London. IV. EQUITY AND PRACTICE OF THE COURTS. A. contracts, in writing, to sell an estate to B., and afterwards refuses to convey. What remedy has B. in a Court of Equity? Will a Court of Equity, in any, and what cases, give any, and what relief, where a contract for sale of land has not been reduced to writing? State generally the practice in Equity in presenting, serving, and bringing to a hearing, a petition in a cause. State the different modes in which evidence may be given in support of a bill in Equity. In what cases will a Court of Equity grant an injunction, and what is the effect of an injunction? A. obtains a conveyance of an estate from B. by fraud, and A. sells and conveys the estate to C. Under what circumstances will a Court of Equity give B. any, and what, relief? Will a Court of Equity relieve against acts performed under mistaken notions of law? State the different modes of defence to a bill in Equity. By what summary process can a creditor of a deceased person procure the administration of his real and personal estate? come bankrupt, and liable to the Bankrupt Laws as such? Are there any, and if any, what cases in which property in the possession of the bankrupt, at the time of his bankruptcy, does not pass to his assignees? State instances. In what case, and under what circumstances, would an assignment, made by a trader, be an act of bankruptcy? State the cases, and the circumstances to be attended to when considering such a question. When an assignment, made by a trader, is held to be an act of bankruptcy, what will be the effect of it, and in what, if any, case will it be upheld? State the particular cases in which goods of the bankrupt, seized by one of his creditors under an execution, can be held by the creditor or sheriff? If a trader at the time of his bankruptcy be possessed of leasehold property, subject to a rent, what will be the consequence of the bankruptcy as regards the liabilities and rights under the lease? If the assignees desire to obtain for the bankrupt's estate the value of leasehold premises belonging to the bankrupt, what course should they pursue so as to attain that, and without making themselves liable as assignees of the lease? Are there any, and if any, what, cases in which payments or transfers made by a trader before the filing the petition for adjudication can be set aside, or the money or property recovered for the benefit of the estate? What steps are necessary in order to vest the trader's property in his assignees under the bankruptcy? Are there any means other than a bankruptcy by which a trader can get discharged from his debts? What are the consequences of a petitioning creditor compounding with the trader after filing the petition for adjudication on bankruptcy? Can a bankruptcy once opened be compromised, and the proceedings stayed by consent? State the instances and mode of pro Can a Court of Equity in a foreclosure suit ceeding. direct a sale of the mortgaged estates? If a bankrupt wishes to dispute the bankCan a Court of Equity in a bill by a mort-rutcy, within what time must he do so, and gagee for sale of the mortgaged estates decree what are the steps to be pursued? a foreclosure? A trustee has money in his hands for the benefit of a widow for life and afterwards of her children. By what summary proceedings may he effectually relieve himself of the trust? A Court of Equity will restrain a tenant for life, without impeachment of waste, from committing some kinds of waste. What are they? What is the nature and effect of a bill of interpleader? How may a decree of a Court of Equity for payment of money, and for conveying an estate respectively, be enforced? V. BANKRUPTCY, AND PRACTICE OF THE COURTS. By whom, or by what authority, is the certificate of conformity granted? At what stage of the proceedings can the certificate of conformity be obtained? What is a certiorari? State the different modes of proceeding in criminal cases. Define the offence of embezzlement. What description of persons are liable to be- ranto, and how is it obtained? Superior Courts: Rolls.—V. C. Kindersley.—V. C. Stuart. What is the highest Court of criminal judicature? By what mode can the proceedings under an indictment be stopped against the will of the prosecutor? Explain the nature of a writ of mandamus. Explain the nature of a writ of habeas corpus, and how it is to be obtained. How many witnesses are necessary to prove an offence, and is there any difference in this 129 respect in the nature of the offence to be proved? What is the effect of a pardon by the Crown? In what mode, and in what cases, may articles of the peace be exhibited ? Can a warrant for the apprehension of an offender be in any case executed on a Sunday? Can the attendance of a witness resident in Scotland or Ireland be compelled to attend a trial in England? RECENT DECISIONS IN THE SUPERIOR COURTS. Master of the Rolls. Held, that a railway company is not liable to the extra costs caused by the amendment of a petition for the payment of dividends on the purchase-money of lands taken. In this petition by the overseers of the above parish, for the payment of the dividends on the purchase-money for lands the rents of which were payable to the constable for the time being, and which were taken for the purposes of a railway company, and which had been paid into Court, it appeared that an order had been made, but that it had been amended by making the constable a party. The Master of the Rolls held, that the costs of such amendment were not payable by the company. Vice-Chancellor Kindersley. Wellesley v. Mornington. June 13, 1854. LEAVE TO MARRIED WOMAN TO SUE IN FORMA PAUPERIS, WITHOUT NEXT FRIEND. Vice-Chancellor Stuart. OF Dollond and another v. Johnson. June 7, 1854. Where creditors, the plaintiffs in a creditors'' In this creditors' suit for the administration of the estate of a Mr. Turner, it appeared that the plaintiffs had recovered a judgment against the defendant, his executor, in respect of asditor had afterwards also obtained judgment sets quando acciderint, and that another creagainst the defendant. The question now arose, whether the plaintiffs were entitled in priority to, or only to be paid rateably with, such other creditor. Wigram, Bird, and Faber for the several parties, citing Morrice v. Bank of England, 3 Swanst. 573. Cur, ad. vult. Leave was given to a married woman, living The Vice-Chancellor said, the right of priapart from her husband, to file in formâ ority claimed by the plaintiffs was said to acpauperis a bill in the nature of a supple- crue as the reward of their greater diligence in mental bill to remove trustees, on counsel obtaining judgment, but a still higher degree stating he had settled and signed the bill, of diligence would have been shown if judgwhere she could not obtain a next friend. ment had been obtained against the testator in THIS was an application on behalf of the his lifetime, and then as it was admitted all the Countess of Mornington, who was living apart judgment creditors would be paid rateably. from her husband, for leave to file in formá However, as the cases of Morrice v. Bank of pauperis a bill in the nature of a supplemental England, ubi suprà, and Abbis v. Winter, 3 bill to remove two trustess, one of whom was Swanst. 578, n., recognised this right of pri90 years of age, and the other an uncertificated ority as to judgments obtained against an exebankrupt; and also to restrain the sale of the cutor, and the plaintiffs had also been most trust property. There was the usual affidavit diligent in obtaining a decree on behalf of all that the plaintiff was not worth 57. besides her the creditors for the general administration, wearing apparel, &c., and that she could not their priority must be recognised, and their obtain a next friend, and also that she had a judgment debt be paid before the other right to sue. judgment creditors. Freeling, in support, stated he had settled and signed the bill. The Vice-Chancellor thereupon made the order as asked. Moss v. Harter. June 7, 1854. VOLUNTARY SETTLEMENT WITH POWER OF APPOINTMENT.-EFFECT OF WILL. By a voluntary settlement, a sum of money 130 Superior Courts: V C. Stuart-V. C. Wood.-Queen's Bench. was settled in trust for such persons, and in such manner as the settlor should by any deed or deeds, instrument or instruments in writing legally executed, direct or appoint, and in default, or in so far as any such appointment should not extend, in trust for the plaintiffs. The settlor afterwards, by will, bequeathed all his personal estates not otherwise effectually disposed of to trustees upon certain trusts: Held, that the will did not operate as an appointment, under the 7 W. 4, and 1 Vict. c. 26, s. 27, and that the plaintiff's were entitled. By a voluntary settlement, dated in March, 1848, Mr. Winter vested a sum of 1,500l. in trustees, in trust for such person or persons in such shares and manner as he should at any time, by any deed or deeds, instrument or instruments in writing, to be by him legally executed, direct or appoint; and in default of such direction or appointment, or in so far as any such direction or appointment (if incomplete) should not extend, in trust for the plaintiff's. It appeared that, by his will dated in August, 1852, he bequeathed, upon the trusts thereinmentioned, all his personal estate not otherwise effectually disposed of. The question now arose, whether the will operated as an appointment under the 7 Wm. 4, and 1 Vict. c. 26, s. 27, as a general disposition of the residuary personalty. Walker and J. V. Prior for the plaintiffs; Bacon and Selwyn for a party in the same interest; Malins and Osborne for the residuary legatees; Amphlett for the executors. The Vice-Chancellor said, that as the testator had intimated by his will his intention not to touch any part of his personalty otherwise disposed of, he showed his intention not to interfere with the disposition under the deed, and the plaintiffs were therefore entitled. COSTS. AFFIDAVIT Fallows v. Lord Dillon. June 7, 1854. CREDITORS' SUIT. FILED AFTER MASTER'S REPORT. In a creditors' suit against the defendant, who had assigned certain real property to trustees for the benefit of his creditors, the plaintiff, a party thereto, who had succeeded in such suit, was held entitled to his costs, although the trustees contended the suit was unnecessary. An affidavit filed on the plaintiff's behalf since the Master's report on the debts, was received on the ground that it stated circumstances with a view of guiding the judgment of the Court on the question of costs. Malins and Brown appeared for the plaintiff in this creditors' suit on behalf of himself and the other creditors of the defendant, who, it appeared had assigned certain real property to trustees for the benefit of his creditors, and which deed the plaintiff had executed. The Master had reported the amount of debts and the assets in the hands of the trustees and in Court were sufficient to discharge the same, and the question now arose as to the costs. Wigram, for the trustees, contrà, on the ground the suit was unnecessary; Jessel for the defendant. The Vice-Chancellor said, that as the plaintiff had succeeded, the costs must follow the result in accordance with the ordinary rule, and an objection was also disallowed to an affidavit filed on behalf of the plaintiff since the Master's report, on the ground that it stated circumstances with a view of guiding the judgment of the Court on the question of costs. Vice-Chancellor Wood. Gwatkin and others v. Campbell. June 7, 1854. ANT'S EVIDENCE AFTER EXAMINATION The plaintiff's examined a defendant in a suit, IN this suit by the trustees of the North Western Bank of India against the manager of their London branch, it appeared that they had examined the defendant as a witness, but proposed on the hearing to withdraw such evidence. Daniel and Craig, for the defendant, took an objection to their right so to withdraw such evidence, as it would throw on the defendant the necessity of using it as his own. Rolt and Moxon for the plaintiffs. Court of Queen's Bench. INDICTMENT FOR NUISANCE.-NEW TRIAL REFUSED. A new trial was refused of an indictment for a nuisance by the erection of embankments on the shores of the Menai Straits, whereby the navigation was obstructed, upon the defendant obtaining a general verdict under the direction of the Judge that he could only be convicted if such embankments constituted a material nuisance. This was a rule nisi granted on April 21 last, for a new trial of this indictment for a nuisance by the erection of three walls or embankments on the shores of the Menai Straits, whereby the navigation was obstructed. On the trial, before Williams, J., at the last Car narvonshire Assizes, it was admitted by the defendant, who was a fisherman, and had erected the walls for the preservation of cer tain oyster beds, that it would be better if the embankments were removed, whereupon it was left to the jury to say whether the em bankments constituted a material nuisance, upon which the defendant could only be convicted. The jury found a general verdict for the defendant, adding that, although the de Superior Courts: Queen's Bench.-Exchequer. fendant had created a nuisance, it was not one for which he could be indicted. Court of Exchequer. 131 Welsby and M'Intyre showed cause against Rodriguez v. Melhuish and another. June 3, the rule, which was supported by M. Lloyd. The Court said, that as this was a penal proceeding, and in which a very grave offence was charged against the prisoner, which would subject him to be punished with fine and imprisonment, a new trial could not be granted, and the rule must be discharged. Hughes v. Humphries. June 12, 1854. WEIGHTS AND MEASURES' ACT.-SALE OF WHEAT. "HOBBETT." The plaintiff had sold certain wheat to the defendant, described in the arrangement as a “hobbett," which consisted of 168 pounds avoirdupois: Held, that the contract was not illegal under the 5 & 6 Wm. 4, c. 63, and that the plaintiff was entitled to recover in an action for their value. THIS was an action brought to recover the value of certain wheat, which the plaintiff had sold to the defendant. It appeared on the trial before Williams, J., at the last Flintshire Assizes, that the sale was by measure (a "hobbett"), and the defendant accordingly pleaded the illegality of the contract, under the Weights and Measures' Act, 5 & 6 W. 4, c. 63, s. 11, as being by measure and not by imperial measure, and he obtained a verdict, subject to leave reserved. Welsby and Milward showed cause against the rule which had therefore been obtained; J. Brown and Coxon in support. The Court said, that the sale was a sale by weight of 168 pounds avoirdupois, of which a hobbett consisted, and was no infringement of the Statute. The rule would be made absolute. Bott v. Stancliffe and another. June 12, 1854. ACTION BY ENGINEER AGAINST OVERSEERS 6, 1854. VESSEL.-LIABILITY OF OWNER FOR ACCIDENT, ALTHOUGH PILOT ON BOARD. The owner of a vessel which was to sail on the 4th from the river Mersey, had moved her out of dock on the 2nd, and had taken on board a pilot, although under the Liverpool Pilot Act the obligation to take on board a pilot only applied to vessels outward bound : Held, that, under these circumstances, the owner was not exonerated from liability in respect of an accident arising from the mismanagement of the vessel. the pilot of a ship, for negligently managing THIS was an action against the owner and the same in the river Mersey, while in their joint possession and control, whereby the plaintiff's craft for raising anchors lost in the the vessel had taken on board a pilot, and that river, was sunk. It appeared that the owner of was engaged to raise it with his boat, but that upon one of the anchors being lost, the plaintiff while so engaged the ship sheered against it and caused the anchor to slip, whereby the boat was sunk. On the trial before Platt, B., at the last Liverpool Assizes, the jury found that the accident was caused by the mismanagement of the vessel, and found a verdict for the was, whether the owner or the pilot alone was plaintiff generally. The question now raised responsible, or whether jointly. Rules nisi had by both the defendants. been obtained on April 24 last, for a new trial Edwin James and Brett showed cause, on the ground that the pilot was on board as servant of the owner, the Liverpool Pilot Act only imposing the obligation on vessels outward bound. Knowles and Milward in support. The Court said, the questions were, whether the owner at the time of the accident was bound to have a pilot on board, and if so, whether the An engineer was employed by the overseers of accident was the exclusive fault of the pilot. a parish to make certain surveys upon an It appeared that the sailing day of the vessel appeal against a rate imposed on a railway was the 4th, and although she moved out of company, but which appeal was referred to dock on the 2nd, she was not ready for sea, and arbitration and the award was not made might have refused to take a pilot on board. therein until after the defendants had gone It would therefore be unnecessary to consider out of office: Held, that they were, never-whether the pilot was exclusively to blame, theless, liable in an action brought by the and the rule obtained by the owner must be engineer to recover for his services. discharged. THIS was a rule nisi for a new trial of this action, which was brought by the plaintiff, an engineer, against the overseers of the township of Kirkeaton, in Yorkshire, to recover for certain services rendered by him in taking surveys upon an appeal against the rate imposed on the Lancashire and Yorkshire Railway Company. It appeared that the appeal had been referred to arbitration, and that the award was not made until a few days after the defendants had gone out of office at Lady-day, 1852. On the trial the plaintiff obtained a verdict. Cowling showed cause; A. Hill in support. The Court said that the defendants were liable, and discharged the rule accordingly. Nicholl v. Grotz. June 6, 1854. ING ARTICLE SOLD. EVIDENCE. It appeared that the plaintiff had contracted in writing to sell to defendant a quantity of foreign refined rape oil warranted to correspond with the sample. The defendant refused to accept the oil tendered, although it corresponded with the sample, as it did not correspond with the description in the contract: Held, that evidence could not be admitted of a custom in respect of description, and that the defendant knew what 132 Superior Courts: Court of Exchequer. he was purchasing, whereby the terms of under the will, notwithstanding the deed by the contract would be varied. THIS was a motion for a rule nisi for the new trial of this action, which was brought to recover damages by reason of the defendant not accepting a quantity of rape oil pursuant to a contract in writing for the sale of foreign refined rape oil warranted to correspond with the sample. On the trial before Parke, B., it appeared that the oil tendered corresponded with the sample, but did not correspond with the description of foreign refined rape oil, as there was an admixture of hemp oil. The jury, under the direction of the Judge that the plaintiff could not recover if the oil did not correspond with the description, found for the defendant, but that there was a custom of the trade in reference to such description, and that the defendant knew he was not purchasing refined rape oil. Watson in support. The Court said, that the parties were bound by the written contract, and that the evidence as to the defendant's knowledge and of the custom could not be admitted to vary the terms, and the rule would therefore be refused. Banks v. Ollerton. May 1, 3; June 7, 1854. the defendant and his wife, and also whether the acknowledgment was sufficient and its validity could be disputed until the certificate had been taken off the file of the Court of Common Pleas ? Knowles for the plaintiff; Lee and Atherton for the defendant. Cur. ad. vult. The Court said, that although the rule of the Court of Common Pleas, which allowed one of the Commissioners to be a party interested, might prove to be bad as not warranted by the Statute, it was unnecessary to decide that question, as the sufficiency of the proceedings could not be questioned so long as they remained in the proper form on the records of that Court. It was requisite for that purpose to quash the certificate or to obtain its removal from the file, and the defendant was therefore entitled to judgment. Lake v. Plaxton. April 28; June 13, 1854. On the trial of an action by the agent of the lord of the manor of Wanstead, which was part of the Royal Forest of Waltham, to try the question whether the defendant, a commoner, was justified in breaking down certain fences on a portion which had been inclosed, the jury were directed in determining the question, whether there was sufficient common left after such inclosure, to leave out of consideration the power of the Crown to keep deer without stint in the forest, and a book of attachments kept by a former steward of the manor was rejected in evidence: Held, discharging a rule for a new trial, that the book was properly rejected, and that there was no misdirection. THIS action was brought by the plaintiff, as A deed creating a charge in favour of an attorney was acknowledged by a married woman, under the 3 & 4 Wm. 4, c. 74, before such attorney and his partner, and the certificate and affidavit of verification by such partner was duly filed in the Common Pleas : Held, that whether such acknowledgment was sufficient or not, it could not be questioned until either the certificate had been quashed or its removal obtained from the file of the Court of Common Pleas. THIS was a special case for the opinion of the Court, from which it appeared that the tes-agent of the lord of the manor of Wanstead, to tator by his will gave, subject to the life estate try the question whether the defendant, a comof his wife, two houses to his daughter and three moner, was justified in breaking down certain houses to the plaintiff, the daughter of another fences on a portion which had been inclosed. daughter, Anne, and directed that if either died It appeared on the trial before Cresswell, J., at without issue, the whole was to go to the sur. vivor, with a gift over as therein-mentioned, on the death of both without issue. It appeared that the daughter had married the defendant, and upon the death of the testator's widow they conveyed the whole estate, subject to the life estate of the plaintiff, to a trustee for uses, with a term of 1,000 years to secure a sum of 801. to Mr. John Lord, and after satisfaction thereof, to the use of themselves and the survivor of them. The defendant's wife acknowledged the deed, under the 3 & 4 Wm. 4, c. 74, before Mr. Lord and his partner, Mr. Woodcock, and the certificate and affidavit of verification by Mr. Woodcock was duly filed. The defendThe Court said, that the book had been proant's wife died before the plaintiff, who there-perly rejected, and on the other point (after upon brought this action to recover possession taking time to consider) also discharged the of one of the houses. The questions now rule. raised were, whether the plaintiff was entitled the last Chelmsford Assizes, that the manor was part of the Royal Forest of Waltham, in which the Crown had power of keeping deer without stint, and the jury was directed in determining whether there was sufficient common left after the inclosure in question, to leave out of consideration this power. A book of attachments kept by a former steward of the manor, was also rejected as evidence on behalf of the defendant. This rule had been obtained for a new trial, on the ground of misdirection and rejection of evidence. Sir F. Thesiger and Bovill showed cause; E. James, Bramwell and Rodwell in support. |