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jurisdiction, within the 128th section of the first county court act, or that no plaint could have been entered in the county court, or that the action had been removed by certiorari, he should be entitled to his costs as in other cases.

Now, it will be observed that under section 12 the judge at the trial had a more extensive jurisdiction than the court or a judge at chambers, for he could certify for costs, if he thought there was sufficient cause for bringing the action in the superior courts. If he refused to certify, the plaintiff could still apply to the court or a judge at chambers for an order for his costs under the 13th section. The power of the judge at the trial was a discretionary one. He alone could judge and determine as to the sufficiency of the reasons for giving costs. The court or a judge at chambers could only give costs if the plaintiff brought himself within one of the three categories mentioned in the section; but if he did so, the judge was obliged to make the order. It was on this use of the word " may" in this section that the controversy arose as to whether it was discretionary or not to give costs. It was finally held that " may meant "shall." In Jones v. Harrison (6 Ex. 328) there was the decision of the Exchequer that the word "may" was discretionary. In a note to the same case will be found the decision of the Common Pleas, in M'Dougall v. Paterson, that "may" gave the power, and that the power being given, and the circumstances in which that power was to be exercised being prescribed, there was no discretion but to exercise it. The Court of Exchequer subsequently adopted the decision of the Common Pleas, and held that in cases within the 128th section of the first county court act, and the 11th and 13th sections of the Extension Act, it was obligatory on a judge to give costs. Asplin v. Blackman, 7 Ex. 386.

Having thus deprived the court or a judge at chambers of a discretion in refusing costs, let us now see in what cases they are obliged to make an order, giving them to the plaintiff.

Section 12 of the Extension Act gave the judge at the trial power to give costs, where there were "sufficient reasons," in his opinion, for bringing the action in the superior courts. Section 13 prescribed the particular circumstances in which costs were to be ordered by the court or a judge at chambers. The distinction between the powers of a judge at the trial, and of the court or a judge at chambers, was no sooner made apparent than it was removed. This was effected, not by any alteration of sect. 12, or of the powers of the judge at the trial, which remain as they were, but by the repeal of section 13, as to the powers of the court or a judge at chambers. This was effected by the statute 15 & 16 Vict. c. 54, s. 4, which is now the enactment to which we must in all cases refer.

The first observation to be made on this enactment is, that by the use of the "imperative" word "shall," instead of the permissive word, "may," the question just mentioned as having been raised on the Extension Act is avoided, and the discretion of the court or of the judge at chambers is excluded, except in that instance in which a discretion is necessarily and expressly given. It is on this section, of course, that an order for costs will be made in all cases of a judgment by default; for the 30th sect. of the new statute provides that no costs shall be recovered unless an order is made for them, which order can only be made under the powers to do so, conferred by the above-mentioned section, with reference to the sections of all the other county court

acts. Could we exclude altogether from consideration the previous enactments relating to the county courts, unquestionably under section 30 of the new statute, costs might, if anything so absurd can be imagined, be ordered on a Monday and refused on a Tuesday, tossed for on Wednesday, and given or refused on the other days of the week, according as it rained or the sun shone. But the 3rd section of the new act expressly provides that it and all the previous statutes are to be read and construed as one act, and according to the well-known rule of interpretation, effect must be given to every part of this parliamentary one act." How such effect could be given to the words of section 4 of the 15 & 16 Vict. c. 54, above referred to, "whether there be a verdict in such action or not," without interpreting section 30 of the new statute merely to exclude the exception of section 11 of the Extension Act of judgment by default, it is difficult to see, although many learned correspondents of the legal periodicals have arrived at this conclusion.

66

Proceeding, therefore, on the theory that full effect will be given to section 4 of the 15 & 16 Vict. c. 54, in all cases, including those in which there is judgment by default, the lecturer took up the cases provided for by that section in detail, beginning with the last case provided for, as that was the more convenient course, and as that case constituted the only case in which a discretion was given to the court or a judge at chambers.

An order, then, may be made entitling the plaintiff to judgment for his costs of suit :

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1. Where there was sufficient reason for bringing the action in the superior court, it is laid down in Palmer v. Richards (6 Ex. 335) that the court will not interfere with the exercise of a judge's discretion. When a jurisdiction is to be exercised by the court or a judge at chambers, you may appeal from the judge to the court; but to interfere with the discretion of a judge is practically to take away that discretion altogether. Palmer v. Richards was one of the cases arising out of the questions whether the word may" gave a discretion, and the court refused on the ground just stated to interfere with the discretion of the judge, exercised in accordance with the previous decision of the court. It is said in the 'Reports," and in some text-books, that Palmer v. Richards is overruled by Asplin v. Blackman, in which case the Exchequer adopted the interpretation of the other courts. But this does not appear from the report of the judgment, and we may still consider that Palmer v. Richards is not overruled, and that in the exercise of a discretion vested in a judge, there is no appeal from his decision to the court.

It need scarcely be added that there can be no appeal against the mode in which a judge's discretion is exercised at the trial, under section 12 of the Extension Act, which is still untouched, and which gives the judge at the trial power to order for “sufficient reasons." The sheriff may, under this section, certify as a "presiding officer," but he invariably refuses to do so, leaving the plaintiff to go to a judge at chambers.

2 Reports of Practice Cases, 175); and it was held that a mere counter affidavit, that no difficult questions of law could arise, afforded no ground for quashing the writ when issued. (Hodges v. Lawrence, 17 Jur. 421; Ex.) But there is a great difference between making an affidavit for a certiorari, that difficult questions are likely to arise, and satisfying a judge after a trial that difficult questions of law have arisen. If the simplest case be made to appear sufficiently intricate, a pleader of any experience will easily concoct a long list of questions of law, to be laid before the judge, in order to get a certiorari. When the cause has been tried, all the ingenuity of all the pleaders in the Temple cannot distort the facts; so that, in truth, whether he shall sue in the superior court or not, in cases where he can only hope to make out "sufficient reasons for so doing, becomes a question for the discretion of the plaintiff's attorney, in solving which he must exercise his own judgment, and rely upon his own experience.

2. The plaintiff will obtain an order for his costs where the action is removed from the county court by certiorari.

The reasons for giving costs in this case is so very obvious that we will pass at once to the

3. Third case, viz., actions for which no plaint could have been entered in the county court.

Now, construing the word "could" in its plain, ordinary, grammatical meaning, there are many actions which a plaintiff "can" bring in a county court, if he chooses to run the risk of an objection to the jurisdiction, or if he is foolish enough to calculate on the defendant consenting to waive that objection. This word "could" has consequently been so far controlled, in the legal interpretation which has been put upon it, that it may be laid down that the plaintiff, in order to his being deprived of costs, not only might, but must, have sued in the county court. You will find this result brought out in an able examination of the question by Mr. Justice Maule, in Woodhams v. Newman (6 C. B. 654). Under this head, therefore, we must consider what actions may, and what may not, be brought in the county court. It is not necessary to do more than allude to the cases which are expressly excepted from its cognizance, unless with the consent of the defendant. These (which comprise actions for libel or slander, malicious prosecution, or seduction) do not come within the category of cases which not only might, but must, have been brought in the county court. The cases in which the plaintiff can be deprived of costs are those in which the superior courts have a concurrent jurisdiction with the county courts. Those in which there is such a concurrent jurisdiction, but where there are also other circumstances intervening, which will be mentioned hereafter, constitute the exceptions enumerated in section 128 of the original county court act.

This concurrent jurisdiction is created by section 58 of the original county court act, coupled with the first section of the Extension Act, and, putting both together, it appears that " any debt, damage, or demand, whether on balance of account or otherwise," may be sued for in the county court.

But with reference to these debts, damages, or demands, it was provided that they should not extend SO as to include any action of ejectment, which is a demand of possession, or any suit in which the title to any hereditaments, or to any tolls or purchases, should be in question, or in which the validity of any devise, bequest, or limitation might be dis

477

puted, or to the other actions before alluded toslander, libel, seduction, &c.

Observe here that, while slander, libel, and other actions are expressly excepted, it is enacted that the debt, damages, or demand shall not extend to any action where title "shall come in question. It will not be enough that title might have come in question; the title itself must be bona fide in question. (Lilley v. Harvey, 5 D. and L. 649.) Suppose an action of trespass to realty in the superior courts, and the plaintiff to plead not possessed, so as to put the plaintiff on the proof of title, this will not of itself entitle the plaintiff to costs, if he recovers less than £5. Therefore, where the trespass appeared to be a distress by executors, who had been in possession a day and a night, and no question in fact arose as to their title-for the plaintiff as tenant was estopped from disputing the landlord's title it was held, that as no title came in question, the jurisdiction of the county court was not ousted, and the plaintiff was not entitled to costs (Latham v. Spedding, 2 L. M. and P. 302).

But, on the other hand, the use of the word "hereditaments" does not control the word "title," so as to confine it to a title to a freehold, the term "hereditament" being a phrase to express that which is to be inherited by an heir; and consequently, it does not include chattels real. The "title to any hereditament," used in the provision of the county court act, has been extended to include a term of years (Chew v. Holroyd, 8 Ex. Rep. 249), and in such cases, therefore, where title is in dispute, the jurisdiction is ousted, and the plaintiff may safely sue in the superior court.

The proviso in the county court act uses the words, "title to corporeal or incorporeal hereditaments, toll, fair, market, or franchise;" it does not include a custom, which is not a toll, fair, market, or franchise, or an incorporeal hereditament. A custom exists for the benefit of those using or requiring to use it for the time. It does not pass to an heir; it cannot be conveyed; it is merely a collateral enjoyment annexed to a possession or an occupation. Therefore, where the plaintiff, the owner of a wharf on the Thames, sued the owner of the adjoining wharf for overlapping his wharf by his barges, and the defendant pleaded a custom in the river, that wharfingers may for a reasonable time overlap their neighbours' wharves while unloading at their own, it was held that this custom was not within the proviso, and that the plaintiff, who recovered forty shillings damages, was not entitled to his costs (Davis v. Walton, 8 Ex. 153).

There has been no decision as to the precise meaning of the subsequent words of the proviso, excluding from the county court jurisdiction cases in which the validity of any devise, bequest, or limitation under any will or settlement may be disputed, In the former case, jurisdiction is excluded where title shall be in question. Here it is excluded where the validity of a devise, bequest, &c., "may" be in question. Where the validity may be questioned, the plaintiff would seem to be entitled to sue in the superior court, but not otherwise, as it has been held that a claim to arrears of an annuity charged by a will on real estate, is not necessarily within the proviso, the validity of the will not being necessarily in dispute (Longbottom v, Longbottom, 8 Ex. 203).

The court held, that in that case the claim was a debt, but as there were legal difficulties, they issued a certiorari; so that this would, no doubt, be considered a case in which "sufficient reason existed for bringing the action in a superior court.

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We have now disposed of the proviso which excludes, in those cases which are comprised in it, the jurisdiction of the county court, and come to the words conferring that jurisdiction itself" debts, damages, and demands, whether on balance of account or otherwise." This latter phrase, "whether on balance of account or otherwise," being the only words calling for comment, since the interpretation formerly put upon them can no longer be applied to one set of cases those in which a set-off exists. The 19 & 20 Vic. c. 108, s. 24, enacts that where the debt or demand claimed consists of a balance, arising after an admitted set-off, claimed or recoverable by the defendant from the plaintiff, the court shall have jurisdiction to try such action.

Sir William Blackstone, in his chapter on Pleading, in the 3rd vol. of the "Commentaries," classes the plea of tender and set-off in the same category as pleas admitting the existence of a cause of action at the time at the suing out of the writ. In the former plea the defendant may be supposed to say, "True, I owe the money, but I offered it, and you would not take it; it is your own fault, therefore, that you brought an action, and you must pay the cost of it." The plea of set-off, again, merely says, "Pay me, and I will pay you." Both pleas admit the right of action. The plea of payment is different from either. In it the defendant says, that the plaintiff's claim was satisfied before action, and had consequently ceased to exist. Therefore, where a plaintiff sued in the superior court, and his claim was reduced by a payment below £20, it was held that he was deprived of costs, because, in truth, he had not at the time of action brought a claim for £20 (Turner v. Berry, 5 Ex. 858).

This case was decided on the 129th section of the first county court act, but the principle laid down quite applies to cases under the 15 & 16 Vict. c. 54,

s. 4.

On a

On the other hand, where the plaintiff sued for a sum exceeding £20, but which was reduced by a set-off to less than £20, it was held that the plaintiff was entitled to recover his costs (Woodhams v. Newman, 6 C. B. 654). The reason is obvious. The plaintiff had a just claim for more than £20: he had no assurance that the set-off would be pleaded; and he could not know but that it might be made the subject of a separate action; for a defendant is not bound to plead a set-off. The statute permitting the plea to be pleaded only enables a defendant to do so; it does not make it compulsory on him; and when that plea is pleaded it is generally with a view to have the necessity of a separate action. similar ground, where the plaintiff sued for more than £20, but recovered less in consequence of a tender having been successfully pleaded, the plaintiff was held entitled to his costs (Cross v. Seaman, 10 C. B. 884). The late Chief Justice Jervis, delivering the judgment of the Court, said "I think there ought to be no rule. Tender and set-off are not like payment. The plaintiff cannot know that the defendant will set up his tender or his set-off." So that in these cases, whatever might be the amount recovered by the verdict, the plaintiff formerly was entitled to his costs if the claim exceeded £20. It is in cases of set-off only, and not in cases of tender, that the law would appear to have been altered by the section of the recent statute which has been

read.

The effect of the decision in Woodhams v. Newman, which was the case as to set-off, was practically to give the superior courts exclusive jurisdiction in all

actions arising out of mutual credits and accounts, where the gross claim exceeded £20. The new statute in the section expressly confers this jurisdiction on the county courts in the case of claims reduced by set-off. Giving effect by the rule of interpretation to this lecture, we cannot but arrive at the conclusion that the gross amount of the verdict (in set-off cases, as in cases of payment) irrespective of the amount claimed by the writ, will constitute henceforth the datum on which costs will be given or refused.

One other observation may be made that this reduction of a claim by set-off will probably be confined to those cases where the set-off arises to the defendant in the same right as the cause of action accrues against him. Thus in an action by an administrator for money which has become due to him qua administrator the defendant will probably not be allowed to consider a debt due to himself from the intestate as capable of being set off against the plaintiff's claim. See on this subject the cases collected in Watts v. Rees, 9 Ex. 696; 10 Ex. 410.

We now come to three classes of cases in which the plaintiff is entitled to his costs, viz., those "debts, damages, and demands," in which, although there is a concurrrent jurisdiction with the county courts, there are other circumstances which justify the plaintiff in bringing the action in the superior courts. These constitute the cases of section 128 of the original County Court Act.

5. Fifthly, therefore in cases where "the plaintiff dwells more than twenty miles from the defendant" he may sue in the superior court. The plaintiff may dwell within twenty miles of the defendant's place of business; to recover his costs he must dwell more than twenty miles from the defendant's place of abode, the word dwell in the section being applicable to both parties (Peterson v. Davis, 6 C. B. 235); consequently the plaintiff is not bound to sue in the county court because he, the plaintiff, carries on business within twenty miles of the defendant, unless he also dwells within that distance (Shiels v. Rait, 7 C. B. 116); and if he dwells at two places, one less and one more than twenty miles from the defendant, he may sue in the superior court, because it cannot be said that he does not dwell more than twenty miles from the defendant (Macdougall v. Paterson, 21 L. J. 27; C. P.). A corporation dwells where it carries on its business (Taylor v. Crowland Gas Company, 11 Ex. 1).

These are the four cases, out of many others, which have put a judicial interpretation on the two words "dwells more;" and this piece of legislation has given rise to a most reprehensible practice in cases of small loans-that of indorsing the bills taken for This the amount to parties resident at a distance. practice, indeed, it was which gave rise to section thirty of the new statute, an enactment passed, no doubt, to protect poor people from the oppression of the pettifoggers who bring discredit on the profession, but which will in many cases produce great injustice on the honest plaintiff resorting to the speediest and most effectual method of recovering the money, without which he may be unable to carry on his business or to support his family.

6. Sixthly, the plaintiff may safely sue in the superior court "where the cause of action did not arise wholly or in some material point, within the jurisdiction of the county court within which the defendant dwells or carries on his business at the time of action brought." If, therefore, you have dealings with a man, either at his house or place of business, to an amount less than £20, in the district

of his local court, you must sue him there, one of the chief objects in the establishment of the county courts by our Saxon ancestors, as well as by the recent statutes, being to bring justice home to every man's door.

We have seen already what the word "dwells " means. It was thought that the words "carries on his business" would include everything except "dwelling," and consequently "every body." But a strict interpretation was soon put upon these words also. Thus a clerk going daily to a place of business, when he is employed, does not " carry on his business" there within the meaning of the act (Buckley v. Hann, 5 Ex. 43). The defendant must have a fixed place of business of his own (Rolfe v. Learmouth, 13 Q. B. 196). This is law everywhere, except in the City of London, which has county court statutes of its own. The City Extension Act applies to a defendant "who has employment" in the City; and it also deprives plaintiffs of costs where less than £50 is recovered in action of contract. But no notice need be taken of that particular enactment, because it was practically repealed in the first case at the Guildhall, in which a certificate was applied for, the judge, when his attention was called to the enactment, justly considering, apparently, that the insertion of £50 instead of £20 was very like a trick by the City draftsmen, and not unlike a deception practised on the Legislature. It were well if these things were oftener called by their right names.

Carrying on business seems to mean "trading," not "trading" as technically understood with reference to bankruptcy; but as buying, selling, and dealing generally. A clerk of the Privy Council, for instance, does not "carry on business at the Privy Council (Sangster v. Kay, 5 Ex. 386).

This dwelling or carrying on business must be by all the parties where there are more than one; for although no plea in abatement for non-joinder of a co-defendant in actions of contract is allowed in the county court, and although, therefore, the plaintiff may, by suing in that court, pounce upon any single defendant he chooses to select, he is not bound to do so; he is, on the other hand, entitled to bring all the defendants into court, and make them all answerable for his debt. The non-joinder of a coplaintiff, again, is a ground of nonsuit; so that, in the county court, all the plaintiffs ought to sue. If, therefore, there be more than one plaintiff or defendant, they must, in order that the plaintiff's be deprived of costs, be both or all resident within the jurisdiction of the court in which the cause of action arose. If any one of them is not so, the action may safely be brought in the superior court (Hickie v. Salamo, 8 Ex. 59; Robertson v. Gunning, L. M. and P. 424).

ness

So much for the "dwelling or carrying on busi" in the county court district. Besides one or other of these circumstances, it is required, in order to entitle the plaintiff to costs, that the cause of action should not have arisen "wholly or in some material part" in the district. The Court of Common Pleas has considered that the material part must pervade the whole of the cause of action, in order to compel the plaintiff to sue in the county court, as if all the goods, the price of which was claimed, were valued and delivered in one district (Dodd v. Wigley, 7 C. B. 106). The Court of Exchequer, on the other hand, held that one cause of action-that is, the cause of one action arising in the district-the plaintiff must sue for his whole claim there (Wood v. Perry, 3 Ex. 442).

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The ordering and delivering of goods within the jurisdiction constitute a cause of action arising wholly within it. But the plaintiff is not justified in suing in the superior court merely because the delivery took place out of the district, if something material was done within it; for in this case the cause of action has arisen there in a material part. Thus, signing the contract for the goods themselves is a material part of the cause of action (Norman v. Marchant, 21 L. J. 256, Ex). So the acceptance of a bill is a material cause of action (Roff v. Miller, 19 L. J. 278, C. P.). So is the indorsement, and of course the drawing (Heath v. Long, 19 L. J. 325, Q. B.).

Those cases in the books on section 60 of the original county court act must not be confounded with those occurring on section 128, which are now under review. Section 60 of the first statute enables the judge, and section 15 of the new statute enables the registrar, to issue summonses against defendants residing out of the jurisdiction, where the cause of action arose within it. Cause of action here means whole cause of action (Hernaman v. Smith, 10 Ex. 659). This arising of the whole cause of action is required to give jurisdiction where the defendant does not reside within the district. The 128th section again says that where the cause of action does not wholly or in some material point arise within the jurisdiction, the plaintiff may sue in the superior court. The two sets of cases are very apt to be mixed up by the student, and to create a confusion.

7. Seventhly, where any officer of the county court shall be a party (except in interpleader claims, to which he is always made a party just as is the sheriff in the superior courts), the plaintiff'may sue in the superior courts. But the suit must be by or against an officer of the county court. A plaintiff, therefore, who sues as administrator of an officer of the county court, or who sues the defendant as administrator of such an officer, is not entitled to his costs if he sues in the superior court in an action which might have been brought in the county court (Robieson v. Rees, 19 L. J. 145, Q. B.). The Statute of Gloucester gives the plaintiff costs in all cases; those which deprive him of this right must of course be strictly interpreted.

These are the seven different cases in which the plaintiff in the superior court may obtain judgment for his costs when he recovers, whether by verdict or judgment by default, less than £20 in an action of contract, or £5 in an action of tort.

We have gladly availed ourselves of the opportunity which has thus presented itself of placing the whole law on this point before our readers.

QUESTIONS AT THE EXAMINATION.

Michaelmas Term, 1856.

I. PRELIMINARY.

1. Where, and with whom, did you serve your clerkship?

2. State the particular branch or branches of the law to which you have principally applied yourself during your clerkship?

3. Mention some of the principal law books which you have read and studied.

4. Have you attended any, and what, law lectures?

II. COMMON AND STATUTE LAW AND PRACTICE OF THE COURTS.

5. What is the meaning of a local and a transitory action? What actions are local and what transitory?

6. What is the difference between a simple contract and specialty debt?

7. What is the first step to be taken in an action of trover?

8. What is the material difference between an action of detinue and trover?

9. Is a civil action maintainable in any case in which the cause of action constitutes an indictable offence?

10. If the acceptor of a bill of exchange refuse payment of it when due, is any, and what, step necessary before suing the drawer or indorser?

11. If an action be brought upon a bill of exchange to which there is a defence, state the steps necessary to be taken under the "Bills of Exchange Act, 1855," in order to let in the defence.

12. Where an executor is sued for a debt owing by his testator, and the plea is plene administravit only, and the plaintiff cannot disprove the plea, but there is other personal estate to be got in, what course should the plaintiff take?

13 Where a married women is sued as a feme sole, and she pleads coverture as an answer and succeeds, what costs is she entitled to?

14. How is advantage to be taken of a cause of defence arising after action brought?

15. When an action of contract is brought against one only of several partners, what step ought the defendant to take?

16. In what cases may a defendant compel a plaintiff to give security for costs, and what is the mode of proceeding?

17. If a plaintiff delay his proceedings in an action for a considerable, and what space of time, is it necessary that he should give any, and what, notice before taking further proceedings?

18. Will a tender be good, if clogged with any, and what, conditions?

19. Can a plaintiff be non-suited against his will, and in what respect is his situation better by a nonsuit than by a verdict for the defendant?

III. CONVEYANCING.

20. Conveyance of fee simple estates unto and to the use of A. and B. their heirs and assigns, as to the estates of B. and his heirs in trust for A. and his heirs. Can A. or B., and which of them, if either, devise the legal estate?

21. Conveyance of fee simple estates to A. and the heirs of his body by B. his wife. B. dies without issue leaving A. surviving her. What, after B.'s death, is the nature of A.'s estate?

22. A. dies possessed of leasehold estates making a will appointing two executors. Can one of the executors make a valid assignment so as to pass the legal estate in the entirety without the coexecutor joining?

23. A., having two sons, dies intestate, seised of estates of the respective tenures of fee-simple (or frank-fee), gavel kind, and borough English. To which of his issue do the estates respectively descend?

24. A person, seised of estates in fee-simple, and of copyholds of inheritance, dies intestate, leaving no heir. Who will become entitled to the respective estates? and what is the technical term used to denote the transmission?

25. Estates limited to A. and his assigns for his life, and after his death, to the heirs male of his body. What estate does A. take? Is there any, and what, leading rule or authority on the subject? 26. An estate is conveyed to such uses as A. shall by deed appoint, and in default of appointment to other uses. A. appoints the estate to C.

and his heirs, in trust for D. and his heirs. In whom, under such appointment, does the legal estate vest?

27. What are the technical names of each part of a deed, being a conveyance of fee-simple estates from a vendor to a purchaser?

28. State concisely the meaning of the following terms; 1st, Intercommon; 2nd, Freebench; 3rd, Jointure; 4th, Hereditament; 5th, Advowson; 6th Common of Estovers.

29. Mortgage to A. for £1000, then to B. for £800; A. sells his charge to C., a stranger, for £700. Is C. entitled, as against B., to the whole debt of £1000, or only to the £700 he paid?

30. A. mortgages freehold estates to B. with powers of sale, and dies. B. then exercises his powers of sale, and after retaining his principal interest and costs, there is a surplus. To whom will the surplus belong-viz., to the heir, or to the personal representative of the mortgagor ?

31. A term of years is vested in A. who dies intestate, and administration of his effects is granted to two persons. Will an assignment of the term by one of the administrators pass the legal estate in the entirety, or in a moiety only?

32. Estate is mortgaged first to A.- -then to B. then to C.; B. and C. both having notice of A.'s Mortgage, but neither B. nor C. having notice of each other's mortage. Can C. by any, and what, means acquire a priority over B?

33. Estate is mortgaged to A. in fee; he enters as mortgagee, and then dies leaving a widow. Is she dowable of this estate?

34. Can a lord "approve" part of the waste lands of his manor, and if so, under what law, and to what extent and subject to what restrictions, any?

if

IV. EQUITY AND PRACTICE OF THE COURTS.

35. What are the principal matters in which courts of equity have jurisdiction and power to grant relief?

36. In which of such matters have they exclusive jurisdiction, and in which concurrent with other courts?

37. What is an injunction? state some of the cases in which it may be granted before decree, when exparte, and when otherwise.

38, What is a plaintiff to do after bill filed to obtain an injunction immediately?

39. Can a creditor be enjoined from proceeding to recover his debt at law after a bill has been filed to administer, and at what stage of the action at law? and if so, how is he to recover his debt?

40. When an order for an injunction has been pronounced, what is the course to take to render it immediately effectual: and what is to be done if the defendant does not submit? State the steps to be taken thereupon by the plaintiff.

41. Enumerate the equity judges in their order and rank, and describe the constitution of the courts of appeal, including the highest in the realm, and the mode of giving judgment in each.

42. How is evidence taken in equity, and who are