except as a dwelling-house, not to assign without leave, to surrender at the end of the term, for lessor to enter and view the premises and give notice of repairs, which are to be done accordingly. Then follows a proviso for re-entry on non-payment of rent for twenty-one days, or breach of covenants. Afterwards there is a covenant by lessor for quiet enjoyment on payment of rent and performance of

covenants.

VIII. Distinguish between "privity of contract" and "privity of estate."

ANS.-Privity of contract is that relationship which subsists between two or more contracting parties in respect of a contract entered into between them, as lessor and lessee; whilst privity of estate subsists between a contracting party and the assignee of the other, as between lessor and assignee of the lessee. (1 Exam. Chron. 224; 2 id. 5, 6, 117.)

IX. What difference is there between the liability of the lessee and the liability of the lessee's assignee in regard to breaches of covenant?

ANS.-The lessee is liable to the original lessor during the continuance of the lease, and after assignment, on all the covenants contained in it, whilst the lessee's assignee is liable to the original lessor only so long as he remains assignee, and then only on such covenants as run with the land. Of course it is understood that as on assignment the assignee covenants to pay the rent and perform the covenants. his liability practically is more extensive than here indicated. (See 1 Smith's Lead. Cas. 43.)

X. What is an equitable mortgage?

ANS.-An equitable mortgage is an interest which is valid in equity only, and is created either by a written instrument or by a deposit of deeds with or without writing. In the case of a writing, it should be stamped as a mortgage. By the Land Registry Act, s. 63 (25 & 26 Vict. c. 53), as regards registered lands, no equitable mortgage or lien is to be created by a deposit of title deeds; but the land certificate may (sec. 73) be deposited for such purpose. (See further, 2 Exam. Chron. 33, 254; 3rd ed. 61; F. Bk.149; 26 Law Journ. Ch. 18; 12 Week Rep. 38.)

XI. A mortgagee in fee dies intestate, in whom do the estate and money vest?

ANS.-The estate of the mortgagee vests in his heir at law, and the mortgage money in his administrator. The heir at law is, however, but a trustee, and must join the administrator in the reconveyance to convey the legal estate to the mortgagor whenever he redeems the

mortgage. (See 2 Exam. Chron. 143; Burt. Comp. Pl. 1478; Exam. Quest., H. T., 1860, No. V., p. 85.)

XII. On a sale of lands what expenses are usually borne by the vendor, and what by the purchaser?

ANS.-The vendor bears the expenses incurred in making out the abstract of title and answering the requisitions made by the purchaser, and in the absence of conditions to the contrary, of the production of deeds, which are in the hands of third parties away from London and the property and the vendor's residence; also of attested copies of documents not handed over, and of a covenant to produce: these matters are, however, usually provided for. The vendor also bears the expense of obtaining the concurrence of the necessary parties and all the incidental costs attendant upon the execution of the purchase deed. The purchaser bears the expense of investigating the title, examining the deeds, making the searches, the preparation of the purchase deed, the stamp, parchment, and enrolment.

XIII. If a man seised in fee of land contract with another for the sale of it, and both parties die before the sale is completed, does the contract continue in force? and what is the consequence as regards the title to the land, and as regards the title to the purchase money?

ANS.-The death even of both parties does not affect the contract (assuming it to have been binding on the deceased persons), but it continues in force notwithstanding. On the vendor's death the

purchase money will go to his executor or administrator, and form part of his assets, whilst his heir or devisee must convey the legal estate. On the purchaser's death his heir or devisee is entitled to a conveyance of the property, and may require the purchase money to be paid by the executor or administrator. (Dart's Vend. 174, 3rd ed.; 1 White and Tud. Lead. Cas. 534; 2 Exam. Chron. 142.)

XIV. State the date and some of the provisions of the Statute of Frauds.

ANS.-The statute is the 29 Chas. 2, c. 3. It was passed in the year 1677. (Selw. N. P., 1840, 11th ed.) The provisions of ss. 4, 6, & 17, with a reference to common law remedies chiefly, have been mentioned in Answer IV., div. Common Law. By ss. 1 & 2, all leases, estates, interests of freehold in messuages, &c., not put in writing and signed by the parties so making the same, or their agents thereunto lawfully authorised by writing, shall have the force and effect of leases at will only, with an exception of leases not exceeding three years from the making, and on which a rent of twothirds, at least, of the improved value is reserved. Assignments of leases, estates, or interests, &c., not being copyhold, must be in

writing and signed. All declarations of trusts, or assignments thereof, must be in writing, and signed by the party. Estates pur autre vie are made chargeable with debts in the hands of the heir, or if no special occupant are made, assets in the hands of the executor or administrator. Leaseholds not bound by judgments until writ of execution was in the hands of the sheriff. The above enactments have been repealed or modified, in some respects, by several Acts; as by the 1 Vict. c. 26, as to estates pur autre vie ; by the 8 & 9 Vict. c. 106, as to leases for more than three years and assignments, which are required to be by deed; and by 19 & 20 Vict. c. 96 (3 Law Chron. 88-92), extending the protection against executions to dealings, without notice of the writ having been delivered to the sheriff.

XV. Are there any cases in which the interest of a devisee or legatee does not lapse by their death in the lifetime of the testator, and give instances?

ANS-By the 1 Vict. c. 26, s. 132, where any devisee for an estate tail, or an estate in quasi entail, dies in the lifetime of the testator leaving issue who would inherit under such entail living at the decease of the testator, the devise is not to lapse, but to take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention appears by the will. So (s. 33) where a child or other issue of the testator, to whom any real or personal estate is given for any estate or interest not determinable at or before the death of such person, dies in the lifetime of the testator, leaving issue at the testator's decease, such devise or bequest is not to lapse, but to go in the same way as if such devisee or legatee had survived the testator, unless a contrary intention appear in the will. Therefore, a devise of lands to a child or grandchild and the heirs of the body, if the child or grandchild dies, leaving a child who survives the testator, his child will be entitled to inherit the lands as issue in tail. On a bequest of a sum of money to a son or grandson of the testator, who dies in his lifetime, leaving issue surviving him, the money will form part of the personal estate of the son or grandson, and not lapse. The Act does not substitute for the pre-deceased devisee or legatee the issue whose existence is the event or condition which excludes the lapse, but renders the subject of the gift the absolute property of the pre-deceased devisee or legatee, and therefore disposable by his will, not withstanding his death before the death of the testator. (Browell's Real Prop. Stats. 215, note; 8 Jur. 77.)

EQUITY.

I. How can a Court of Equity interfere with respect to a will obtained by a fraud?

ANS.-This question was asked in last term (ante, p. 139). We may observe that Just. Story (1 Eq. Jurispr. pl. 440) considers it an anomaly that Courts of Equity do not give relief in the cases of fraud in obtaining a will, which, if an old will, was referred to a Court of Law, and if of personal property, to the Ecclesiastical Court; but since the Act establishing the Court of Probate, and abolishing the jurisdiction of the Ecclesiastical Courts in testamentary matters (F. Bk. 228), the proper remedy is exclusively vested in the Probate Court. But where the fraud does not go to the whole will, but only to some particular clause, or where the fraud is in unduly obtaining the consent of the next of kin to the Probate, Courts of Equity lay hold of these circumstances to declare the executor a trustee for the next of kin. (Story, pl. 440; Mitf. Eq. Plead. 257; Middleton v. Sherburn, 4 You. & C. 358; 10 Jur. 698; Allen v. McPherson, 11 Jur. 787, where Ld. Lyndhurst said, "It was formerly considered that fraud in obtaining a will might be investigated and redressed in a Court of Equity; but that doctrine has long since been overruled."

II. In what cases will a Court of Equity set aside a sale for inadequacy of price?

ANS.—In the case of dealings with expectant heirs and remaindermen, or with persons who are in a helpless condition, and have not had independent legal advice. (Baker v. Monk, 10 Law Tim. Rep., N. S., 87; affirmed on appeal.)

valid.

III. What are the requisites necessary to render a condition in restraint of trade valid?

ANS.-A condition (for value) not to carry on a trade in a particular place or with particular individuals, or for a limited time, is In other words, a partial restraint of trade is good, if supported by consideration, and the restraint be only a reasonable one; but nothing can make a total restraint of trade good. (See fully Com. Law Princ. 205-211, where the cases are cited and explained.)

IV. In what cases will the Court allow interest on a legacy payable at a future time when interest is not given by the will?

ANS.-The general rule is that legacies carry interest only from the period when they become payable; but when a legacy is given in satisfaction of debts, or by a father or person standing in loco parentis as a provision for an infant, and no maintenance or interest

is given, though the legacy be payable at a future day, the legatee has an immediate right to interest. (11 Jarm. Convey. 773, 774, by Sweet; 1 Madd. Ch. Prac. 502.)

V. If two persons advance a sum of money by way of mortgage, and take a mortgage to themselves as joint tenants, and one of them dies, what are the rights of the survivor as to the mortgage debt and the securities?

ANS.-Courts of Equity lean against joint-tenancies, and therefore, if two persons advance a sum of money by way of mortgage, and take a mortgage to them jointly, and one of them dies, his representatives are entitled to his proportion. And though the legal estate will vest in the survivor, he can only give a valid discharge for his share of the money, and the representatives of the other mortgagee must join, unless, indeed, there be, as there should be, a statement or provision that the money was advanced out of a joint fund, or that the receipt of the survivor alone shall suffice. (2 Davison's Convey. 537, 2nd ed.; Matson v. Dennis, 10 Law Tim., N. S., 391, of which a notice will be given under title "SUMMARY OF DECISIONS."

VI. Is there any, and if any what, difference between the rule of law and the rule of equity with respect to a debt due from an executor to a testator whose will appoints him executor?

ANS.-Where a person appoints a debtor his executor, this operates at law as a release of the debt; but in equity the executor is converted into a trustee of the debt for the parties interested in the estate. (F. Bk. 231; 2 Spence's Eq. 296, 297; 2 Will Execut. 1185, 5th ed.; Toller's Execut. 347; 3 Bacon's Abr. 432, 7th ed.; Roper's Legacies, 1070, 4th ed.)

VII.-When will a Court of Equity grant relief in the case of a defective execution of a power?

ANS.-A similar question was asked last term (ante, p. 141, No. XII.) Whilst no relief is granted in the case of a non-execution, it will be granted in case of a defective execution where the defect is not of the very essence of the power, and the defective execution is in favour of a charity, or of a purchaser, or an intended husband, or a wife, or legitimate child. (1 Story's Eq. Jurispr. 170, et seq.) The party asking relief must stand upon some equity inferior to that of the party against whom he asks it: if the equities are equal, equity is passive. (Sugd. Pow. chap. 6, s. 8.)

VIII. When will a Court of Equity grant relief in the case of the non-execution of a power?

ANS.-Equity does not relieve in case of the non-execution of a power (as contradistinguished from a trust), for that would be depriving the donee of his right of discretion in regard to the exercise