has by fraud or mistake bought a different thing to what he intended, or where there is a great mistake in the price. (9) If the estate bought be of a different tenure. (10) If material terms have been omitted in a contract, or there has been a variation of it by parol. (11) When the contract is founded on imposition, undue influence, or the like. (12) Where the defendant would be immediately involved in litigation. (13) Where it would be morally wrong or inequitable to enforce the contract: (Smith's Man. Eq. 220, 231, et seq., 10th edit.; Hallilay's Digest, 339, 7th edit.)

Q.-Will courts of equity decree specific performance of contracts in cases where damages at law would amount to a complete compensation for the breach of such contracts ?

A.-No; see preceding answer.

Q.-State the essential requisites in contracts or agreements which are required in order to obtain specific performance in a court of equity.(a)

A. The requisites are that the contract be in writing (with three exceptions) signed by the party to be charged; made between parties able and willing to contract; for a valuable consideration, which must not be illegal or immoral; the terms clear and definite; and a contract for the breach of which damages would not compensate: (Smith's Man. Eq. tit. 2, c. 8; Hallilay's Digest, 339, 7th edit.)

Q.-Mention any cases where equity will decree specific performance of a parol contract relating to land notwithstanding the 4th section of the Statute of Frauds.(a)

A.-Equity will do so in the following cases-(1) when the agreement is set out in the bill, admitted by the defendant's answer, and he does not set up the statute as a defence; (2) when the defendant prevented the contract from being reduced into writing by fraud; (3) when the contract has been partially performed: (Smith's Man. Eq. 248, 10th edit.; Hallilay's Digest, 339, 7th edit.)

Q.-What redress is there in equity against a party who has contracted to do a thing; and not done it; and in what cases will equity refuse to interfere ?

A. If the case comes under the class pointed out by the two preceding answers, equity may enforce specific performance of the contract; and may also by the 21 & 22 Vict. c. 27, award damages either in addition to, or in substitution for, specific performance. But before damages can be granted, the plaintiff must establish by proper evidence his right to specific performance (Smith's Man. Eq. 248, 10th edit; Hallilay's Digest, 339 and note, 7th edit.)

Q.-Will equity decree specific performance of a contract to buy or sell stock or goods?(b)

A.-Not as a general rule, as damages obtained by an action at law would compensate either party for the breach of the contract by the other (Smith's Man. Eq. 220, 10th edit.; Hallilay's Digest, 341, 344, 7th edit.)

Q.-Define champerty and maintenance respectively.

A.-Champerty is a bargain between a plaintiff or defendant in a cause and another person who has no interest in the subject matter in dispute, to divide the property sued for between them if they prevail at law, in consideration of another person carrying on the suit at his own expense. Maintenance is merely assisting either plaintiff or defendant with money

to prosecute or defend a suit : (Smith's Man. 236, 10th edit.; Hallilay's Digest, 345, 7th edit.)

Q.-Can the assignee of a policy of insurance who has not given notice of his assignment, hold as against the trustee under a bankruptcy?

A.-No; for it is a rule that when an assignment is made, everything must be done towards the obtaining the quasi possession that the subject admits of, in order to prevent payment to the assignor, or the rights of a trustee in bankruptcy from attaching; and notice of such assignment to the insurance office is essential to complete the assignee's title: (Smith's Man. Eq. 244, 10th edit.)

OF ACCOUNT.

Q.-Into what divisions are accounts classed?

A.-Into open, stated, and settled accounts: (Smith's Man. Eq. 257, 10th edit.) Q.-Define an

account."

open account," and distinguish it from a "stated

A.-An " open account" is one of which the balance is not struck, or which is not accepted by both parties. It differs from a "stated account" inasmuch as the latter is accepted by both parties, either in express terms or by necessary implication: (Smith's Man. Eq. 257, 10th edit.)

Q.-Define the legal relation between a banker and his customer; and state whether a bill for an account will lie by the customer against the banker.

A.—It is not that of principal and agent, or of trustee and cestui que trust, but of debtor and creditor only; and a bill for an account will not lie by the customer against his banker: (Haynes' Eq. 241.)

Q. Can a principal file a bill against his agent, or an agent against his principal ?

A. The principal may file a bill against his agent (Haynes' Eq. 242), unless the matter could be fairly tried at law (Smith's Man. Eq. 257, 10th edit.); but an agent cannot file a bill against his principal: (Haynes' Eq. 242; Hallilay's Digest, 346, 7th edit.)

Q.-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? (a).

A. The debtor has the first right to appropriate the payments at the time of making them; and, if he does not do so, the creditor then has the right. If neither does so, the law implies an appropriation of the payments to the items of debt in order of their date: (Smith's Man. Eq. 260, 10th edit.; Hallilay's Digest, 22, 7th edit.)

ADMINISTRATION.

Q.-Describe the three kinds of administration suits.

A. They are (1) creditors' suits; (2) legatees' suits; (3) suits by parties interested in the residuary, real, and personal estate: (Haynes' Eq. 107.)

Q-State the several proceedings which may be adopted by a creditor who finds it necessary to resort to a court of equity to enforce the payment of a debt due from his deceased debtor.

(a) Twice.

A.-The creditor may enforce payment of his debt either by filing a bill or taking out a summons for such purpose: (Smith's Man. Eq. 262, 10th edit.; Hallilay's Digest, 347, 7th edit.)

Q.-If after a decree to account has been made in a creditor's suit against an executor, other creditors take proceedings at law against the executor, what is the proper course of proceeding by the executor?

A. The executor should at once apply to the Court of Equity by which the decree was made, for an injunction to restrain any of the creditors from taking any proceedings against him except under the direction of the court: (Smith's Man. Eq. 262, 10th edit.; Hallilay's Digest, 348, 7th edit.)

Q.-Explain the difference between legal and equitable assets.

A.-Legal assets comprise property which creditors can make available in a court of law for the payment of their debts, and which assets have devolved upon the executor or administrator by virtue of his office. Equitable assets are such as the creditors can only make available by the aid of a court of equity: (Smith's Man. 264, 10th edit.; Hallilay's Digest, 349, 7th edit.)

Q. How are each administered amongst creditors?

A.—Legal assets, even in equity, are (subject to the 32 & 33 Vict. c. 46) administered according to their legal priorities; while equitable assets, with the exception of antecedent liens and charges in rem, are administered pari passu: (Smith's Man. Eq. 264, 10th edit.; Hallilay's Digest, 349, 7th edit.)

Q.-In what order of administration are assets now generally applied in payment of debts ?

A.-1. The general personal estate. 2. Any estate particularly devised for the payment of debts. 3. Estates descended. 4. Estates devised to particular devisees, but charged with the payment of debts. 5. General legacies. 6. Residuary devises, and specific legacies and devises. 7. Property over which a testator has a general power, and appoints by will (Smith's Man. Eq. 266, 10th edit.; Hallilay's Digest, 349, 7th edit.)

Q.-If a deceased's personal estate is not sufficient to pay his debts and legacies, what is the order of payment between each of those classes, and between general and residuary legacies ?

:

A. The debts must first be paid in full before the legatees receive anything; for it is presumed that the testator means to be just before he is generous. Specific legatees are also preferred to residuary legatees as the latter only take the residue after satisfying all the charges on the personal estate (Smith's Man. Eq. 277, 10th edit.)

Q. What is meant by marshalling assets? And for whose benefit will such marshalling be enforced? (a)

A.—It is so arranging (or marshalling) the various effects or funds of a deceased debtor, who has several creditors or claimants on his effects, that all shall be paid and satisfied, if this arrangement can be carried out without injustice to any creditor or claimant. This plan is adopted in favour of a creditor of an inferior rank, of legatees, portionists, the heir at law, or devisee (Smith's Man. Eq. 280, 10th edit.; Hallilay's Digest, 350, 7th edit.)

OF MORTGAGES.

Q.-State some of the circumstances which have been considered by

(a) Twice.

the Court as evidence that a deed purporting to be an absolute conveyance for value was intended merely by way of security.

A.-(1.) Where the money paid by the grantee was grossly inadequate for the absolute purchase of the estate. (2) If the grantee was not let into immediate possession of the estate. (3) Or if he accounted for the rents to the grantor, or only retained an amount equivalent to interest. (4) Or if the expense of preparing the deed of conveyance was borne by the grantor: (Smith's Man. Eq. 290, 10th edit.; Hallilay's Digest, 359, 7th edit.)

Q. Can a mortgagee stipulate in the mortgage deed that if the interest be not regularly paid it shall be converted into principal ?

A.-No; the interest must first become due, and then, as between mortgagor and mortgagee, it may be by writing agreed that this shall be done: (Smith's Man. Eq. 294, 10th edit.)

Q.-Under what circumstances, and by what method can a mortgagee convert interest into principal so as to affect the mortgaged estate, and what will be the effect of such conversion on subsequent incumbrances of which the mortgagee had notice?

A. The first part of the question is answered above. In any case the interest cannot be turned into principal to the prejudice of a subsequent incumbrance of which the mortgagee had notice at the time of making such agreement: (Smith's Man. Eq. 294, 10th edit.)

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

A. The mortgagee must present the nominee of the mortgagor, even though the mortgage deed contains a covenant that the mortgagee shall present. The remedy of the mortgagee is by filing a bill in equity, and if he wishes to realise his security praying a sale of the advowson : (Smith's Man. Eq. 296, 10th edit.; Hallilay's Digest, 178, 7th edit.)

Q.-When can a right of "tacking" mortgages be exercised?

A.-When a third mortgagee has lent his money without notice of a second, he may buy the first legal mortgage and tack, as it is called, his third mortgage to the first, and so postpone the second: (Smith's Man. Eq. 298, 10th edit.; Hallilay's Digest, 211, 7th edit.)

Q.-What are the remedies of a mortgagee to obtain repayment of his mortgage money?

A. The mortgagee may exercise his power of sale, bring ejectment, file his bill of foreclosure, or sue on the covenant contained in the mortgage deed (Smith's Man. Eq. 308, 10th edit.; Hallilay's Digest, 361, 7th edit.) Q.-Under what circumstances, and by what length of time will a mortgagor be barred of his equity of redemption?

A. The mortgagor's right will be barred where the mortgagee is in possession of the property for 20 years, during which time no acknowledgment has been made by the mortgagee of the mortgagor's title or of his right of redemption: (Smith's Man. Eq. 309, 10th edit.; Hallilay's Digest, 362, 7th edit.)

Q.-Suppose a mortgagor mortgages Blackacre to A. to secure 1000%., and subsequently mortgages Whiteacre to him to secure 20007., can the mortgagor, against the will of A., the mortgagee, redeem either mortgage?

(a) Twice.

A.-No; he must redeem both or neither: (Smith's Man. Eq. 311, 10th edit.; Hallilay's Digest, 214, 364, 7th edit.)

Q.-If a mortgagee becomes absolute owner of the equity of redemption of the mortgaged estate, what is the effect upon the mortgage debt, i.e., does the equitable merge into the legal estate, or is the mortgage still kept alive as an incumbrance on the estate distinct from the ownership?

A.-In such a case the equitable estate will merge in the legal, unless it was apparently the intention of the mortgagee, or it is manifestly for his interest to keep the incumbrance alive: (Smith's Man. Eq. 325, 10th edit.)

Q.—What is an equitable mortgage, and how can it be created?

A.-An equitable mortgage is one that can be enforced in a Court of Equity only. It may be created by the means set out in the next answer: (Smith's Man. Eq. 326, 10th edit.; Hallilay's Digest, 208, 360, 10th edit.)

Q. How is an equitable mortgage created? And in what cases is an equitable mortgagee entitled to priority over a subsequent legal mortgagee?(a)

A. By a deposit of title deeds, with or without a memorandum of deposit; or by a written memorandum showing the debtor's intention to make his lands a security for the debt. An equitable mortgagee by the deposit of title deeds will have priority over a subsequent legal mortgagee with notice of such equitable mortgage; but not otherwise: (Smith's Man. Eq. 326, 10th edit.; Hallilay's Digest, 208, 360, 7th edit.)

Q.-Suppose annuitants to be scheduled to a trust deed, but not to be made parties to the deed, do not such annuitants acquire a lien upon the trust estate ?

A.-No, it is necessary that they should be made parties to the deed before they acquire any lien: (Smith's Man. Eq. 334, 10th edit.)

APPORTIONMENT AND CONTRIBUTION.

Q.—A tenant for life pays off incumbrances on the estate and does not take a transfer of the security; what are the rights of his representatives with reference to the amount paid off?

A. His representatives will stand in the place of the incumbrancers notwithstanding there is no assignment of the mortgages to the tenant for life; for otherwise it would be making him pay the debts of another: (Smith's Man. Eq. 337, 10th edit.; Hallilay's Digest, 366, 7th edit.)

Q.—On what principle is the right and duty of contribution between sureties founded?

A.-On principles of natural justice; not on mutual contract, express or implied: (Smith's Man. 9, 340, 10th edit.; Hallilay's Digest, 366, 7th edit.)

PARTNERSHIP.

Q. How is a partnership dissolved in ordinary cases?

A. By death; by act of the parties; by bankruptcy of all or any of the partners; by effluxion of time, &c.: (Smith's Man. Eq. 344, 10th edit.; Hallilay's Digest, 367, 7th edit.)

Q.-In what cases will courts of equity dissolve a partnership before the expiration of the term fixed by the articles of partnership?

(a) Twice.