INTERMEDIATE EXAMINATION.

(Hilary Term, 1868).

COMMON LAW.

[The questions are taken from and consequently the answers in this division will be found in Chitty on Contracts.]

I. What are the requisites to a deed?

ANS. A writing on paper or parchment, a signature, or at least a seal, and delivery, and competent parties and lawful object. (F. Bk. 165; L. R. 1, 2 B. 416.)

II. What is a sufficient delivery of a deed to complete it?

ANS. An act of delivery without words, or words without an act are sufficient. (F Bk. 166, 167; 12 Sol. Journ. 194; 11 W. R. 1068.)

III. To what contracts is the doctrine of Estoppel applicable? ANS. To contracts by deed or by record. (7 Law Tim. Rep., N. S., 707, 796.)

IV. What is the distinction between good and valuable consideration in cases of deeds or grants?

ANS. Valuable consideration means money or money's worth, including a marriage; a good consideration is one founded on natural love and affection, as a provision for a wife or children after marriage. (F. Bk. 167; 8 Law Tim. Rep., N. S., 525; 7 Sol. Journ. 184; 11 V. R. 709.)

V. Is the giving up a suit brought to try a question respecting which the law is doubtful, a good consideration to support a simple contract?

ANS. If the plaintiff made the claim bona fide it is, although in fact the defendant was not liable. (Per Kindersley V. C. in Keenan v. Handley, 11 Jur. Dig., N. S., p. 4; F. Bk. 266; Com. Law Princ. 133, 134.)

VI. Is the moral obligation to pay a demand sufficient consideration to support a simple contract?

ANS. Moral obligation is no consideration except where it is founded on an obligation originally enforceable at law. (F. Bk. 206, as explained in the reference 3 Law Chron. 138, 12 W. R. 55.) VII. Can the terms of a bill of exchange be contradicted or varied by parol evidence?

ANS. No; the rule being that written instruments cannot be varied by parol. (F. Bk. 169, 10; Com. Law Princ. 11; Law Rep. 1 C. P. 238.)

VOL, VIII.

CONVEYANCING.

[The questions in this division are taken from, and consequently answers thereto will be found in Williams on Real Property.]

I. Can a lease of a house be granted by parol, or by writing, not under seal for two years at a rack rent, and does it make any difference if a premium be taken in lieu of half the rack rent?

ANS. It may be made by parol or by writing not under seal if the rent reserved be equal to two-thirds of a rack rent. A premium is not rent, and if in consideration of it the actual rent reserved is not equal to two-thirds of a rack rent, deed is necessary under the 8 & 9 Vict. c. 106, s. 3. (Com. Law Princ. 158; F. Bk. 134, 172; 11 W. R. 707.)

II. Can a freehold estate vested in a married woman be sold and conveyed to a purchaser, and if so, how?

ANS. It may be sold and conveyed by husband and wife by means of a deed acknowledged under [the Act 3 & 4 Wm. 4, c. 74. (F Bk. 111; 1 Exam. Chron. 130; 3rd. 147, &c.

III. A. B. and C. die intestate, each seised in fee of a freehold estate. A. leaves two daughters of age, and an infant son B. leaves two sons and a wife; C. leaves three daughters. What interest do the several children of A, B, and C, and the wife of B., take in their respective freehold estates? ANS. The estates descend thus:-A.'s to his infant son; B.'s to his eldest son, subject to the dower of B.'s wife; C.'s to his daughters as coparceners; and the children entitled take the fee, the wife a life estate only, and it is assumed that her dower has not been barred.

IV. How may a Will be revoked?

ANS. By destruction or cancellation with intention to revoke, by a subsequent duly executed will or codicil, inconsistent with the original will, or by marriage alone. (F. Bk. 190, 191; L. R. 3 Eq. 347; 7 Law Tim., N. S., 801.)

V. If A. mortgage his freehold estate to B. in fee to secure £5,000 and B. dies intestate after the day fixed for repayment of the money, leaving C. his heir at law, and D. administrator to his personal estate, in whom does B.'s interest. in the mortgaged estate and the £5,000 vest?

ANS. The legal estate goes to C, but the right to the money vests in D, upon trust for the next of kin. (4 Exam. Chron. 166, 306, 307; 2 ed. 143, 225.)

VI. Can a rent charge be created by a writing not under seal, or by a will?

ANS. A will is the only writing not under seal by which a rent charge can be created. (F. Bk. 143, 144, 147; 5 Exam. Chron. 194; Burton's Comp. s. 1110); formerly, indeed, when partitions ought have been made without deed, a rent charge for owelty might have been granted without deed. And so of a rent to a widow for her dower. (Burton's Comp. s. 1122; Litt. s. 252; Co. Litt. 34b, 169b.)

VII. What is the difference between a joint tenancy, and a tenancy in common?

The

ANS. A joint tenancy is where each owner is seised of the whole property. A tenancy in common is where each is seised of an undivided moiety of the property. In other words, joint tenants have one freehold, whilst tenants in common have several freeholds. right of survivorship is an incident of the former but not of the latter. (Litt. s. 288; Co. Litt. 186a; Burton's Comp. ss. 35-38; F. Bk. 154, 155; 5 Exam. Chron. 124; 7 id. 80, and references there.)

EQUITY.

[The questions in this division are founded on Smith's Manual of Equity, and answers will be found in that work.]

I. In what cases, and as a consequence of what general maxim of equity, will the court regard land as money, and money as land?

ANS. In cases where a conversion is directed, or a binding contract for sale has been entered into. The maxim is that equity looks upon that as done which ought to be done. (Smith, 24-27, 17th ed.; 1 Leg. Reas. Why, 6, 68, 69.)

II. If property in controversy be situate beyond the jurisdiction of the court, will the court under any, and what circumstances, and by what means, afford relief?

ANS. The court will entertain a suit relating to property out of the jurisdiction when the party against whom relief is sought is within the jurisdiction: the court in such a case acts in personam. (Smith, 29; 1 Leg. Reas. Why, 29.)

III. For what reason is a purchase from an executor of the personal property of a testator, though such property may, while in the hands of the executor, be affected by a trust, generally valid? and will such purchase in any, and what, case be set aside?

ANS. Because the debts are to be paid out of the personal property, and the executor must often sell to pay them, and great inconvenience would be caused by requiring a purchaser to inquire whether really necessary or not to sell. But if a purchaser knows that the executor is acting improperly in selling, the transaction may be set aside. (Smith, 93, 204; 1 Leg. Reas. Why, 93.)

IV. State the rule of law as between debtor and creditor, as to the appropriation of payments made by the former to the latter, and what appropriation does the law imply in the absence of any express act on the part of either debtor or creditor?

ANS. The debtor making a payment has the primary right to appropriate it in such manner as he thinks fit. If he neglects, the creditor may do so. If neither does so by an express act the law appropriates the payments to the items of liability in the order of their date. (Smith, 251, 252; 1 Leg. Reas. Why, 121.)

V. Explain the distinction between champerty and maintenance; will the court as a general rule uphold assignments which involve either; and what, if any, are the exceptions to the rule?

ANS. Champerty is a corrupt agreement for division of the subjectmatter in litigation, between parties having no lawful interest therein. Maintenance is when a person improperly assists either party with money, &c., to prosecute or defend litigation in which he has no lawful interest. Assignments involving either are as a rule bad, but maintenance is allowed in the case of father and son, master and servant, husband of an heiress, &c. (Smith, 69, 227, 228; 1 Leg. Reas. Why, 107, 108.)

VI. Where an advowson is mortgaged, and the living becomes vacant prior to foreclosure, is the mortgagor or mortgagee entitled to present, and what remedy has either against the other, in equity, in respect to the presentation?

ANS. In equity the mortgagor is entitled to present, and he can compel the mortgagee to do any act necessary for the purpose, the mortgage being, in equity, a mere security for the moneys thereby secured, and no ulterior purpose can be accomplished thereby. (Smith, 286; 1 Leg. Reas. Why, 135.)

VII. If a wife obtain a judicial separation from her husband, under the statute 20 & 21 Vic. c. 85, in what character is she to be regarded as respects her property? and in case of subsequent cohabitation, what, in the absence of agreement, will be her rights in respect of her property?

ANS. She is regarded as a feme sole with respect to property which she may acquire, &c., so long as the judicial separation is in force; and upon subsequent cohabitation with the husband her property is held to her separate use, subject to any agreement made between them when separate. The 21 & 22 Vic. c. 108, extends the provision to property in remainder, &c. (Smith 426, 427; 1 Leg. Reas. Why, 204, 205.)

FINAL EXAMINATION QUESTIONS AND ANSWERS.

(Hilary Term, 1868.)

COMMON LAW.

I. If an agent has signed a contract in his principal's name without authority, and the principal afterwards ratifies the transaction, is the principal bound by the agent's signature? ANS. He is, for in such case the maxim "Omnis ratihabitio retrotrahitur et mandato priori æquiparatur" applies; and the subsequent assent or recognition by the party for whom the agent professed to act being equivalent to a previous authority. (See Com. Law Princ. 46.)

II. Can a contract between certain master manufactureis, whereby they mutually bind themselves to close their works at the will of a majority, be enforced? State the reason. ANS. The contract cannot be enforced, being against public policy, and it is in restraint of trade, as to which see Com. Law Princ. 198, 204, et seq.

III. If A. has covenanted to do one of two things, and the per

formance of one of them is rendered impossible by the act of God, is A. discharged from liability to do the other? ANS. No, for the rule that the performance of a contract is excused if it is rendered impossible by the act of God does not apply. (Chit. Contr. 646.)

IV. Under an agreement to perform one of two things, in whom does the right of electing which shall be done rest? ANS. In the promisor, unless there is a stipulation to the contrary, the rule being that in case an election be given of two several things, always he who is the first agent and ought to do the first act shall have the election. (Chit. Contr. 640.)

V. What is the distinction between a condition precedent and a condition subsequent ?

ANS. Conditions precedent (whether in deeds passing estates or covenanting, or in agreements not under seal,) are such as must be performed before the estate or liability contingent on it can take place. When the effect of the condition is either to enlarge or defeat an estate or liability already created, or the operation of an event which has taken place, it is called a condition subsequent. On these subjects the reader having the work is referred to Com. Law Princ. pp. 259-265.

VI. Is it necessary that a condition to be operative in a deed should be in the deed itself?

ANS. A condition may be contained in a subsequent deed executed