A.-It is that money directed to be laid out in the purchase of land, or land directed to be sold and turned into money, is generally regarded as that species of property into which it is directed to be converted; for it is a maxim that equity looks upon that as done which ought to be done : (Smith's Man. Eq. 24, 10th edit.; Hallilay's Digest, 316, 7th edit.)

Q.-In what cases, and as a consequence of what general maxim of equity, will the court regard land as money and money as land? A.-In the above cases and on the above maxim.

Q. 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?

Q.—Yes; it is a rule that although the property in controversy be out of, yet if the parties are or come within, the jurisdiction, the court will, so far as it can, give relief by proceeding against the parties, and not directly against the property: (Smith's Man. 29, 10th edit.; Hallilay's Digest, 404, 7th edit.)

Q.-By what law is the right to land or personal property governed? And state what governs the remedy on contracts, and by what law they are construed.

A.-The right to land is governed by the law of the country where it is situate, but the right to personal property follows the domicile. The remedy upon contracts must be that which is given by the law where the parties reside, but the contracts are generally construed according to the law of the place where they were made: (Smith's Man. Eq. 30, 10th edit.; Hallilay's Digest, 316, 7th edit.)

DIVISION OF EQUITY.

Q.-Under what general heads does Mr. Smith in his Manual treat the subject of equity?

A.-1. Remedial Equity, specifically so called. 2. Executive Equity. 3. Adjustive Equity. 4. Protective Equity, irrespective of disability. 5. Protective Equity, in favour of persons under disability: (Smith's Man. Eq. 33, 10th edit.)

OF ACCIDENT.

Q.-Define accident. Give examples in which courts of equity will give relief, and in which no relief will be granted.(a)

For

No

A.—Accident, as remedial in equity, is an unforeseen and injurious occurrence, not attributable to mistake, neglect, or misconduct. example where relief will be afforded in equity see next answer. relief will be granted where the accident arose from the gross neglect of the party seeking relief, or his agents: (Smith's Man. Eq. 36, 10th edit. ; Hallilay's Digest, 316, 7th edit.)

Q.-In what cases falling under the head of accident is relief afforded in equity?

A.-In such unforeseen and injurious occurrences as are not attributable to mistake, neglect, or misconduct; as if stock, directed by will to be set apart to answer an annuity, is reduced by Act of Parliament, equity will decree the deficiency to be made up against the residuary legatee: (Smith's Man. Eq. 36, 10th edit.; Hallilay's Digest, 316, 7th edit.)

Q.-What are the two classes of cases properly referable to the head "Accident"?

(a) Four.

A. They are (1) in cases of lost instruments, and (2) the defective execution of powers: (Haynes' Eq. 131, 132; Smith's Man. Eq. 41, 42, 10th edit.; Hallilay's Digest, 316, 7th edit.)

Q.-If an estate to be sold for a certain sum of money, and an annuity for the life of the vendor, and the vendor dies before the receipt of any part of the annuity, will equity grant his representatives any relief?

A.-No; for the vendor's death is not an "unforeseen," &c., occurrence. It might and ought to have been provided against by the vendor at the time of the contract: (Smith's Man. Eq. 37, 10th edit.; Hallilay's Digest, 317, 7th edit.)

Q.-Have courts of equity jurisdiction to give relief in the case of the destruction of a bill of exchange? State the distinction in this respect between the destruction and loss of a bill.

A.-Equity has no jurisdiction to grant relief on account of the destruction of a bill of exchange, because there was always a complete remedy at law in such a case. In the case of a lost bill, no relief will be granted in equity, unless there is an offer of indemnity in the bill, constituting a ground of jurisdiction: (Smith's Man. Eq. 41, 42, 10th edit. ; Hallilay's Digest, 317, 7th edit.)

Q.-Will a court of equity grant relief in the case of the non-execution of a power which is coupled with a trust?

A. It will; because the donee was under an equitable obligation to exercise it (Smith's Man. Eq. 43, 10th edit.; Hallilay's Digest, 318, 7th edit.)

:

Q.-Define mistake.(a)

OF MISTAKE.

A.-Mistake, as remediable in equity, is an act which would not have been done, or an omission which would not have occurred but from ignorance, forgetfulness, inadvertence, mental incompetence, surprise, misplaced confidence, or imposition: (Smith's Man. Eq. 45, 10th edit.)

Q.-In cases of mistake, upon what point do equity, common law, and Roman law agree

?

A. That while mistake as to law affords no ground of relief, mistake of fact does: (Haynes' Eq. 132.)

Q.-State what was decided in the case of Lansdown v. Lansdown, as to "mistake," as far as you recollect.

A.-It was decided that the bond and conveyance for carrying out the agreement between the son of a younger brother and his uncle, given under a mistake of law, that the uncle and not his nephew was heir, should be set aside, Lord King being reported to have said that "ignorance of law could not be pleaded as excuse of crimes, but this did not hold in civil cases.' This, however, is clearly not now law: (Haynes' Eq. 135.

Q.-Does mistake as to law afford ground of relief in equity?(b)

A.-Not as a rule, the maxim being Ignorantia legis non excusat; yet if the mistake is one of title arising from ignorance of a principle of law of such constant occurrence as to be understood by the community at large, the court presumes that the party making such mistake has been imposed upon in some way and grants relief: (Smith's Man. Eq. 45, 46, 10th edit.; Haynes' Eq. 132, et seq.; Hallilay's Digest, 317, 7th edit.) Q.-Does mistake as to facts afford ground of relief in equity ?(b)

A. Yes; but the mistake must be unilateral, the fact material, not doubtful, and one that could not be ascertained by using ordinary diligence, and of which the other party was under a legal obligation to inform the mistaken person: (see references supra.)

Q.—When will a court of equity relieve against the defective execution of a power; and on what principles ?(a)

A. In the absence of countervailing equity, relief will be granted where the defect is not of the very essence of the power, and the defective execution was occasioned by accident, and is in favour of a charity, purchasers, creditors, a wife, child, or intended husband: (Smith's Man. 42, 10th edit.; Hallilay's Digest, 318, 7th edit.)

OF ACTUAL FRAUD.

Q.-Define what actual fraud is, and mention cases in which equity will give relief, and state instances in which no relief will be granted. A.—Actual fraud is something said, done, or omitted by a person with a design of perpetrating what he must have known to be a positive fraud. Equity will set aside a deed or contract when entered into with infants, lunatics, persons excessively drunk or under extreme terror, &c. Also contracts in restraint of marriage or trade generally, those involving champerty, or maintenance, &c. But no relief will be granted by equity to set aside a will obtained by fraud, or to establish a will suppressed by fraud, because the proper remedy is exclusively in the Probate Court. And where proper relief could be had at law, as in cases of fraud in the sale of chattels personal, no relief will be given at equity: (Smith's Man. Eq. 55, 10th edit.; Hallilay's Digest, 319, 320, 7th edit.)

Q.-What different kinds of fraud are relieved against in equity, and distinguish between them.(b)

A.—The kinds of fraud relieved against in equity are two, viz., actual and constructive. Actual fraud is defined suprà, constructive fraud infrà. Actual fraud is subdivided into (1) those so named from the conduct of the guilty parties irrespective of any peculiarity in the condition of the injured parties (including misrepresentation, concealment, &c.); and (2) those so named chiefly from a consideration of the peculiar condition of the parties upon whom they are practised: (Smith's Man. Eq. tit. 1, c. 3 and 4, 10th edit.)

Q.-Can a court of equity interfere with respect to frauds in wills?

A.—Not if the fraud goes to the whole will; for then the proper remedy is exclusively in the Court of Probate. But it seems a court of equity has jurisdiction if the fraud only goes to some particular part of the will, &c. (Smith's Man. Eq. 55, 10th edit.; Hallilay's Digest, 320, 7th edit.)

Q.-What is misrepresentation, and when is it a ground of relief in equity?

A.-Misrepresentation is a representation, either by word or deed, and either wilfully or not, made by a person to another with a reasonable ground for supposing that he or a third person would act upon such representation, and he or such third person does act upon it and is misled thereby. But in order to obtain relief in equity, the misrepresentation must be made in the transaction which creates the contract, and must be material, not trifling, and injury must have arisen from it. The injured party

must also have exercised reasonable care, and if this party had not acted on the misrepresentation no relief will be granted: (Smith's Man. Eq. 57-59, 10th edit.)

Q.-If a vendor is ignorant of circumstances known to the purchaser which materially increase the value of his property, will equity set aside the contract at the suit of the vendor, and will it decree specific performance at the suit of the purchaser ?

A.-Equity will not set aside the contract at the suit of the vendor, because it was his business to know and sufficiently estimate the worth of his own property; nor will equity enforce such a contract at the suit of the purchaser, where he hurries the vendor into the agreement without giving him an opportunity of inquiry or advice: (Smith's Man. Eq. 60, 234, 10th edit.; Hallilay's Digest, 320, 7th edit.)

Q.-Will equity set aside a deed or contract for inadequacy of price? A.-Not as a general rule; but if the price is so inadequate as to shock the conscience, or if there be inadequacy and other suspicious circumstances, as if the vendor was not allowed sufficient time for deliberation, then equity will set the sale aside: (Smith's Man. Eq. 62, 10th edit. ; Hallilay's Digest, 321, 7th edit.)

Q. Where gifts or legacies are bestowed on persons on condition that they shall marry with the consent of parent, guardians, or other confidential persons, and such consent be refused from fraudulent, corrupt, or unconscientious motives, will a Court of Equity interfere, and, if so, with what object?

A.-Equity will interfere in such a case, as it will not suffer the manifest object of the condition to be defeated by the fraudulent, corrupt, or unconscientious refusal of the parties whose consent is required to the marriage (Smith's Man. Eq. 65, 10th edit.)

OF CONSTRUCTIVE FRAUD.

Q.-Define constructive frauds, and state between what parties, standing in a fiduciary relation, are contracts liable to be set aside. (a)

A.-Constructive frauds are acts or omissions which operate as virtual frauds on individuals, or injure the public interests, and are not referable to accident or mistake, and yet may have been done without any evil design. Contracts and gifts between trustee and cestui que trust, parent and child, guardian and ward, doctor and patient, solicitor and client, &c., are all liable to be set aside: (Smith's Man. Eq. 69, et seq., 10th edit.) Q.-State what contracts and conditions in restraint of trade are good and what are bad.

A.-Those in general restraint of trade are void, as tending to discourage industry, just competition and enterprise; but partial restraints are good: Smith's Man. Eq. 71, 10th edit.; Hallilay's Digest, 324, 7th edit.)

Q.-State some cases in which Equity will set aside contracts on the ground of undue influence.

A.-Equity will set aside contracts made between parent or person standing in loco parentis, or relative having influence, and child, unless entered into with scrupulously good faith, and are reasonable; guardian and ward, by quasi guardians or confidential advisers, or ministers of religion; solicitor and client; doctor and patient; secret contracts of agent with principal; trustee and cestui que trust; and the like: (b) Thrice.

(a) Twice.

(Smith's Man. Eq. 74, et seq. 10th edit.; Hallilay's Digest, 319, 7th edit.)

Q. When will a sale or purchase between solicitor and client be deemed good, and when void?

A.-For such a sale or purchase to be good, the relation between them (as solicitor and client) must be dissolved, and the onus of proving the fairness and propriety of the transaction will be thrown on the former, or he must show that the client had sufficient advice and assistance to relieve him from the pressure of such a relationship, and that no advantage has been taken by the solicitor of his professional position, otherwise the contract will be void: (Smith's Man. Eq. 76, 10th edit.; Hallilay's Digest, 401, 7th edit.)

Q.-State the circumstances under which a gift, sale, or lease made by a person just after attaining majority is good?

But

A.--As to contracts with strangers, the contract will come under the same rules as those enumerated ante, respecting persons of full age. if it be made with a relative, it will be set aside, unless the grantor or lessor made it deliberately and intentionally after having the fullest information on the subject, and independent and disinterested advice: (Smith's Man. Eq. 88, 10th edit.)

Q. When is a conveyance deemed voluntary and fraudulent against creditors and purchasers?

A.-A conveyance made without valuable consideration is deemed fraudulent against creditors to whom the grantor was indebted at the time; and also against bona fide purchasers for value, even with notice of the voluntary conveyance: (Smith's Man. Eq. 93, 94, 100-102, 10th edit.; Hallilay's Digest, 321, 323, 7th edit.)

Q.—When is a settlement said to be a fraud on a husband's marital rights? A.-When a woman, in contemplation of marriage, without the privity of her intended husband, makes a settlement to her separate use, or in favour of persons for whom she is under no moral obligation to provide, it is said to be a fraud on the husband's marital rights, and will be set aside in equity: (Smith's Man. Eq. 93, 10th edit.; Hallilay's Digest, 323, 7th edit).

Q. When will priority of registration in a register county give priority of right between purchasers or mortgagees?

A. Where a subsequent purchaser or mortgagee registers first and without notice of the prior conveyance, the subsequent mortgagee or purchaser would prevail over the first vendee or mortgagee: (Smith's Man. Eq. 97, 10th edit.; Hallilay's Digest, 264, 7th edit.)

OF LEGACIES AND PORTIONS.

Q. What course will courts of equity take to secure the ultimate payment of Legacies which are not payable until a future day?

A.-Equity will compel the executor to give security for the payment of such legacies, or (which is the modern and most appropriate practice) will order the fund to be paid into court, even if there is not any actual waste, or danger of waste: (Smith's Man. Eq. 110, 10th edit.)

Q-Where a specific legacy is given to one for life, and after his death to another, under what circumstances can the legatee in remainder obtain a decree for security from the tenant for life for the delivery over of the legacy, and in the absence of those circumstances, to what is the remainderman entitled, and for what purpose?