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disclosed, and shortly afterwards a second report was made, finding what was due to V. in respect of his own security, and of what he had paid to the first mortgagees, after allowing for the rents received by him. P., the mortgagor, not paying this, an order absolute for foreclosure was made, V. making the usual affidavit that he had received nothing towards payment of the sum found due. Between the second report and the making this affidavit, W. had gone on receiving rents. He was entitled to an undisputed third mortgage, given him by P., on the same property. P. twelve years afterwards filed a bill to impeach the order for foreclosure absolute as having been obtained by fraud: Held, that it was not the duty of W. when he became owner of the mortgages to disclose his interest, and make himself a party to the proceedings; and that, although the affidavit made by V. was in the circumstances irregular, the irregularity did not prove any fraudulent design on the part of W., as it was a doubtful question whether he was not entitled to retain the rents towards satisfaction of his third mortgage, which he claimed to do; and if he was so entitled, V.'s affidavit was substantially correct: Held, therefore (affirming the decree of Stuart, V. C.), that the decree for foreclosure absolute could not be set aside. sumstances under which costs should not follow the event considered. (Patch v. Ward, 13th, 14th, 16th December, 1867, L. R. 3 Chan. App. 203.)

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HIGHWAY-Indictment for non-repair-Costs of prosecution5 & 6 Wm. 4 c. 50, s. 95, Certiorari 5 W. & M. c. 11, ss. 2, 3.-The 5 & 6 Wm. 4, c. 50, s. 95, enacts that if, on the hearing of any such summons respecting the repair of any highway, the duty or obligation of such repairs is denied by the surveyor on behalf of the inhabitants of the parish, or by any other party charged therewith, it shall then be lawful for such justices, and they are hereby required to direct a bill of indictment to be preferred, and the necessary witnesses in support thereof to be subpoenaed, at the next assizes to be holden in and for the said county, or at the next general quarter sessions of the peace for the county, riding, division, or place wherein such highway shall be against the inhabitants of the parish, or the party to be named in such order for suffering and permitting the said highway to be out of repair, and the costs of such prosecution shall be directed by the judge of assize before whom the said indictment is tried, or by the justices at such quarter sessions, to be paid out of the rate made and levied in pursuance of this Act in the parish in which such highway shall be situate. Provided, nevertheless, that it shall be lawful for the party against whom such indictment shall be so preferred at the quarter sessions as aforesaid, to remove such indictment by certiorari or otherwise, into his Majesty's Court of King's Bench. Where an indictment, ordered by justices under 5 & 6 Wm. 4, c. 50 s. 95, to be preferred at the next assizes

against the inhabitants of a township, is removed by the defendants by certiorari into the Court of Queen's Bench, and is tried at nisi prius, and a verdict is found for the defendants, the presiding judge has no power under the above section to order the payment of the costs of the prosecution out of the highway rate, the section giving the power only to the judge of assize, that is, the judge sitting under the commission of oyer and terminer. Reg. v. Eardisland (3 E & B. 960; 23 L. J., M. Č. 145) dissented from. (The Queen v. the Inhabitants of the Township of Ipstones, 23 Jan., 1868, L. R. 3 Q. B. 216.)

HUSBAND AND WIFE-Wife's equity to a settlement-Form of settlement-Amount to be settled—Misconduct of husband.—It is often a point of great difficulty to say what proportion of a wife's fund in court will be settled on her. In the following case the Lord's Justices held that the Court will not settle the whole of a wife's fund upon her and her children unless the husband is insolvent or has been guilty of gross misconduct, such as adultery, cruelty, or desertion. In determining the proportion of the fund to be settled the Court is bound by no fixed rule, but will exercise a judicial discretion according to the circumstances of the case. The Court will

not interfere with the husband's ultimate right to the settled fund in default of children, in case of his surviving his wife. The order of the Master of the Rolls varied. (Re Suggit's Trusts, 21 Feb., 1868, L. R. 3 Chan. App. 215.)

PUBLIC COMPANIES-Act of 1862 (25 & 26 Vict. c. 89)Voluntary winding-up-Set-off in action for calls-List of contributories-Notice.-In an action by the liquidators of a limited company being voluntarily wound up under the Companies' Act, 1862, against a contributory for calls, the defendant may set off a debt due to him from the company. Secus, where a limited company is being wound up by the court, or under the supervision of the court. Grissel's Case (Law. Rep. 1 Chan. App. 528), distinguished. On an action for calls against a contributory of a limited company being voluntarily wound up, it is no defence that the defendant had no notice that his name was placed upon the list of contributories. (Brighton Arcade Co., Limited, v. Dowling, 23, 31 Jan., 1868; L. R. C. P. 175.)

PUBLIC COMPANIES Act of 1862, s. 79, clause 5-Impossibility of carrying on business-Winding-up.-The 5th head of section 79 of the Companies' Act, 1862, is restricted to matters ejusdem generis with the four previous heads, and does not authorise the court to wind up a solvent company against the wish of the majority of the shareholders, because the business has been carried on at a loss, and appears likely to continue a losing concern. Semble, nevertheless, that proof of impossibility of carrying on the contemplated business would justify a winding-up order, even in the absence of insolvency. (Re Suburban Hotel Co., 17, 27 June, 29 July, 1867; L. R. 2 Chan. App. 737.)

FINAL EXAMINATION QUESTIONS AND ANSWERS.

(Trinity Term, 1868.)

COMMON LAW.

I. When a writ of summons for a debt has been personally served on a defendant being a British subject resident abroad, what steps are necessary in order to obtain judgment and to ascertain the amount for which such judgment may be signed; what must the affidavit in support of the application

disclose ?

ANS. The plaintiff should apply to a judge for leave to proceed, which may be obtained on affidavit, stating that there is a cause of action, that it arose within the jurisdiction, or in respect of the breach of a contract made within the jurisdiction, and that the writ was served personally on the defendant, or reasonable efforts made to effect personal service, and that it came to his knowledge; and either that the defendant wilfully neglects to appear to such writ, or that he is living out of the jurisdiction of the Court in order to defeat and delay his creditors; thereupon the judge may give leave to proceed, subject to any terms he thinks fit to impose; if the defendant does not plead, the amount for which judgment must be signed must be ascertained either before the sheriff or by a Master. (Smith's Action at Law, p. 69, 9th ed.)

II. Explain the term stoppage in transitu, and give an instance. when it may be exercised by a vendor.

ANS. It is the right of an unpaid vendor to stop and retake goods on their way to the purchaser on the latter becoming bankrupt or insolvent. It may be exercised at any time whilst the goods are on their way to the vendee, when the vendor is aware that the purchaser cannot pay for them, and the latter has not assigned the goods for valuable consideration. (Chit. Contr. 81, et seq.)

III. When a document is admitted by the opposite party under the usual notice to admit saving all just exceptions, give an instance when such document would not be receivable in evidence.

ANS. If the document required attestation to its validity, it could not be received in evidence although admitted under the usual notice to admit. (Com. Law Princ. 15; Com. Law Pract. 157.) IV. What sort of annexation of a chattel to the freehold is necessary to constitute a fixture in its legal sense? In respect of what classes of fixtures may the right of removal still be exercised by a tenant?

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ANS. The chattel must be substantially and permanently affixed to the soil, so that the removal may occasion damage to the freehold. The tenant may remove all fixtures put up by himself for the purposes of trade or ornament, and by 14 & 15 Vict. c. 25, s. 3, a tenant who has erected any fixtures for purposes of trade or agriculture with the consent in writing of his landlord may give his landlord one month's notice of his intention to remove them, and if the landlord do not elect to take them at a price to be fixed by valuation the tenant may remove them.

V. State the principal irregularities in making a distress for rent in respect of which an action will lie.

ANS. Where the landlord improperly enters on the premises or proceeds to a sale without giving five days' notice, or where the distress is sold without having been properly appraised, or for less than the best price that could reasonably be obtained. (Woodfall's Land. and Ten. p. 750, 8th ed.)

VI. Under pleas of right of way for twenty and forty years under stat. 2 & 3 Wm. 4, c. 71, Lord Tenterden's Act, what facts are necessary to be proved besides the mere proof of user of the way for those periods?

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ANS. To support a plea of a right of way by user for twenty and forty years it must be proved that the user was as of right" and not by stealth or permission; and it must be a user as an easement over another person's land, and not as acts of ownership over land belonging to or in the occupation of the party himself. (Roscoe's Evid. 513, 9th ed.)

VII. What is the meaning of a garnishee order? What are the facts necessary to be stated in the affidavit on applying to a judge for such an order?

ANS. This question may be answered from the 17 & 18 Vict. c. 125, s. 61, enacting that a judge may, upon the ex parte application of any judgment creditor, upon affidavit of himself or his attorney stating that judgment has been recovered and that it is still unsatisfied, and the nature of the action, and that any other person is indebted to the judgment debtor and is within the jurisdiction, make an order (called a garnishee order) that all debts owing by such third person (to be called the garnishee) to the judgment debtor shall be attached to answer the judgment creditor's claim; and service of such order binds the debt in his hands and discharges him in case of payment to the judgment creditor. (See Com. Law Pract. 254-256.)

VIII. In what cases will an appeal lie under the Common Law Procedure Act, 1854, on the Court refusing a rule nisi for a new trial, or to enter a verdict or nonsuit, and on the

Court discharging or making such rules absolute when granted?

ANS. By the C. L. P. Act, 1854, ss. 34, 35, in all cases of rules to enter a verdict of nonsuit upon a point reserved at the trial, if the rule to show cause be refused, or granted and then discharged or made absolute, the party decided against may appeal to the Exchequer Chamber, and from thence to the Lords. And in cases of motions for a new trial upon the ground that the judge has not ruled according to law, if the rule to show cause be refused, or if granted be then discharged or made absolute, the party decided against may appeal, provided one of the judges dissent from the rule being refused, or when granted being discharged or made absolute, or provided the Court in its discretion think an appeal should be allowed; but where the application for a new trial is upon matter of discretion only, as on the ground that the verdict was against the weight of evidence or otherwise, no such appeal is allowed. (Se Com. Law Pract. 208-210.)

IX. When an action has been brought on a bill of exchange, how is a defendant prevented from setting up the loss of such bill as a defence?

ANS. By the C. L. P. Act, 1854, s. 87, in case of any action founded upon a bill of exchange or other negotiable instrument, it shall be lawful for the Court or judge to order that the loss of such instrument shall not be set up, provided an indemnity is given to the satisfaction of the Court or judge, or a Master, against the claims of any other person upon such negotiable instrument. (See Com. Law Princ. 127, 128; 12 Sol. Journ. 228.)

X. What protection has been given to defendants in actions for malicious prosecution, illegal arrest, libel, and other actions of tort by stat. 30 & 31 Vict. c. 142?

ANS. The defendant may make an affidavit that the plaintiff has no visible means of paying his costs should a verdict be found for him, and a judge of the Court in which the action is brought may order that unless the plaintiff do, within a limited time, give security for the defendant's costs, to be approved by a Master of the Court, or satisfy the judge that he has a cause of action fit to be prosecuted in the superior Court, all proceedings he stayed, or if the plaintiff is unwilling or unable to give such security, or to satisfy the judge as aforesaid, that the cause be remitted to a County Court. (7 Exam. Chron. 267, 270, 271.)

XI. In whose name and under what circumstances will an action lie against a person causing the death of another under stat. 9 & 10 Vict. c. 93 (Lord Campbell's Act), and for whose benefit may such action be brought?

ANS. Whenever the death of a person is caused by any wrongful

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