had had due notice of the dishonour-that means due, as far as he was concerned. It does not mean the ordinary notice, because it is quite certain that it was not given." Mr. Justice Bailey said :— "He considered the promise by the defendant, either as an acknowledgment that he had had due notice of the dishonour, or that without such notice he was the proper person to pay the note as the party for whose use it was drawn." The following decision was come to on the authority of the above case: -The action was one by an indorsee awainst an indorser of a bill of exchange, and it was held that evidence that the defendant had allowed judgment to go by default in an action by a subsequent indorsee on the same bill, dispensed with the necessity of giving evidence of notice of dishonour (Rabey v. Gilbert, 9 Week. Rep. 386.)

SOLICITOR'S LIEN FOR COSTS.-Change of solicitors on the ground of embarrassment.-Where a solicitor fairly carries on a suit, and there is no proof of misconduct or refusal on his part to proceed, although he becomes embarrassed and is changed, before final decree, that does not disentitle him to his lien for costs (re Smith, 9 Week. Rep., 396).

PRACTICE.-Investment-23 & 24 Vic. c. 38-General order, Feb. 1, 1861, ante p. 47-East India stock or bank stock costs.-Upon the application of the settlor, who was tenant for life under the settlement, with a power in certain events of revoking the trusts, the Court sanctioned a transfer of the settled funds from consols to East India Stock or bank stock, but refused to charge the costs of the application upon the capital (The Equitable Assurance Co. v. Fuller, 9 Week. Rep., 400).

MOOT POINT.

No. 19. Succession-duty.—A. B. dies in 1859 intestate seised in fee simple of real estate which devolves upon his infant child a few weeks old, as his heir-at-law. This child dies a month after his father's death. Is any succession duty payable on the child's succession to the property, as his father's heir-at-law? The point was raised in Attorney-General v. Haller, 2 Hurlston and Norman, Exchequer Reports, p. 368, and there decided in favour of the Crown; but I cannot think that this decision is sound law, and I should feel much obliged if any of your correspondents could refer me to a more recent case in which the point has been discussed.

EXAMINATION QUESTIONS AND ANSWERS.

(TRINITY TERM, 1861.)

COMMON LAW.

I-On non-payment of a bill of exchange by the acceptor, to whom, and how soon, should notice of the dishonour be given by an indorsee, in order to preserve the liability of any, and what, other person or persons?

ANS.-When the acceptor of a bill refuses payment, notice of such refusal must be given to any other party to the bill, to whom the holder intends to have recourse. The notice must be given by the holder to parties who reside in the place where the presentment was made by the expiration of the day following the refusal, to other parties by the post of that, or, if there be no post, on that of the next post day. Each party to whom notice is given, however, has a day for giving notice to prior parties to the bill. No notice need be given to the acceptor (Smith's Mer. Law, 6th ed., 252 et seq.; Com. L. Princ., 118-125; F. Bk., 211; Rosc. Evid., 268, 9th ed.).

II. Within what period after a bill of exchange becomes due must an action on it under the recent Bills of Exchange Act be commenced? How does a defendant obtain power to defend such an action? And state some of the grounds on which leave to defend is granted.

ANS.-All actions upon bills of exchange or promissory notes brought under the Bills of Exchange Act, 18 & 19 Vic., c. 67, s. 1, must be commenced within six months after the same shall have be become due and payable. A judge at Chambers, upon application within the period of twelve days after service of writ, will give leave to appear to such writ, and to defend the action on the defendant paying into court the sum endorsed on the writ, or upon affidavits satisfactory to the judge, disclosing a legal or equitable defence, or such facts as would make it incumbent on the holder to prove consideration, or such other facts as the judge may deem sufficient to support the application, and on such terms as to security or otherwise as to the judge may seem fit (Com. L. Pract., 69-74; F. Bk., 212-264-358; 2 L. C., 63-65).

III.-Is there any, and, if any, what, mode in which a creditor

for goods sold and delivered can make his debt carry interest?

ANS. Formerly, interest was not payable on debts for goods sold and delivered, unless expressly agreed on, or unless a promise could be implied from the usage of trade or other circumstances. But by the 3 & 4 Wm. IV., c. 42, ss. 28, 29, interest is recoverable on all debts payable by virtue of any written instrument at a certain time from the time when such debts were payable, or, if payable otherwise, then from the time when demand of payment (4 El. & Bl. 1) shall have been made in writing, so as such demand give notice to the debtor that interest will be claimed from the date of such demand until the time of payment (Rosc. Evid., 396, 9th ed.; 1 Law Tim. R., N. S., 471 ; see 17 and 18 v. c. 90, as to the rate of interest now the usury laws are abolished .F. Bk., 209; 2 L. C. 279-283-371).

IV. What is the meaning of a set-off? and mention instances in which debts or demands may and may not be set off against each other.

ANS.-A set-off arises where there are mutual debts between the plaintiff and the defendant, or if either party sue or be sued as executor or administrator, where there are mutual debts between the testator or intestate and either party (Com. L. Pract. 132-133; L. C. 23-24-302; 3 Id. 223). The ordinary case is where a plaintiff is suing for a debt or other liquidated demand, and the defendant has a right of action for debt against the plaintiff, this debt can be pleaded by way of set-off by such defendant as a defence to the action. To give a right of set-off the debts must be mutual (4 L. C., 401), the subject of set-off must be a legal and not a mere equitable debt; it must not be a claim sounding merely in damages, even though on a guarantee (17 Jur., 125; 4 L. C., 198-312); and the debt must be actually due and payable at the commencement of the action. A joint debt cannot be set-off against a separate debt, and vice versa (see further Com. L. Pract. 132-133; and as to setoff in case of a surviving partner, see 15 L. J. C. P., 178; 2 L. C., 190).

V. Can either a foreigner or British subject residing out of the jurisdiction of the English Courts, be sued in a common law action in England; and, if so, is it or is it not necessary that the cause of action should have arisen within the jurisdiction of the English Court?

ANS. By the C. L. P. Act, 1852, s. 18, in case a defendant, being a British subject, is residing out of the jurisdiction (except in Scotland or Ireland), the plaintiff may issue a writ of summons in the form in the Act given, bearing an endorsement purporting that such writ is for service out of the jurisdiction; and the time for appearance to such writ is regulated by the distance from

England of the place where the defendant is residing; the court or judge must be satisfied by affidavit that there is a cause of action which arose within the jurisdiction, and in addition that the writ was personally served upon the defendant, or that reasonable efforts were made to effect personal service thereof upon the defendant, and that it came to his knowledge, and either that the defendant wilfully neglects to appear to such writ, or that he is living out of the jurisdiction of the said court in order to defeat and delay his creditors, and such court or judge may then direct from time to time that the plaintiff shall be at liberty to proceed in the action in such manner and subject to such conditions as to such court or judge may seem fit, having regard to the time allowed for the defendant to appear being reasonable, and to the other circumstances of the case. And it is provided that the plaintiff shall, before judgment, prove the amount of the debt or damages claimed by him in such action, either before a jury upon a writ of inquiry, or before one of the masters of the courts. By s. 19, the like proceedings may be taken against a foreigner residing out of the jurisdiction, save that a different form of writ of summons is issued, and notice of such writ is served on the defendant, and not a copy thereof (see further Com. L. Pract., 65-69; F. Bk., 263-264; 3 L. C., 386).

VI. To maintain an action for the price of goods sold but not delivered, is it necessary that the contract should be in writing? and if it is so necessary under some circumstances only, state under what circumstances.

ANS. In the case of such an action if the price of the goods exceed £10, and there be no part payment, the contract must be in writing and signed by the defendant; the plaintiff's signature is not material, for by the 17th scc. of the Statute of Frauds, 29 Car. 2, c. 3, no contract for the sale of any goods, wares, or merchandise, for the price of £10 or upwards, is good, except the buyer accept part of the goods sold and actually receive the same, or give something in earnest to bind the bargain or in part payment, or some note or memorandum of the same bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorised. The 9 Geo. 4, c. 14, s. 7, has substituted "value" for the word "price" in the older Act (Com. L. Pract. 173-189; F. Bk., 207; 3 L. C., 320; 25 L. J. C. P., 257).

VII.-Against whom should an action be brought for a debt contracted by a married woman before her marriage, and would the husband be under any liability for such debt in the event of the death of the married woman before any action is brought?

ANS. For a debt contracted by a married woman prior to her marriage, the action, during the coverture, must be brought against the husband and wife jointly, for during the marriage he is liable jointly with her upon all her contracts made dum sola, but he cannot be sued alone, even upon a subsequent express promise by himself, unless there be some new consideration for the same. In the case of the wife's death in the husband's lifetime, before any action is brought, his responsibility in the character of husband is absolutely destroyed, but still he is liable as administrator of his wife in the event of his administering to choses in action belonging to her, and not reduced into possession by him during the coverture (Chitty's Contr., pp. 149-150, 6th ed.; Com. Dig. Baron & Feme, V. ; Com. L. Princ., 94; Selw., N. P., 289-290, 11th ed.).

VIII.-Within what respective periods must actions on specialties and simple contracts respectively be brought, to avoid being barred by statutes of limitation?

ANS.-An action to recover a simple contract must be brought within six years from the time the cause of action accrued ; and to recover a debt on specialty within twenty years from the accruing of the cause of action, except in the cases of persons under disability, as infants, feme coverts, persons non compos mentis, or if defendant is beyond seas (Selw., N. P., 142-538, 11th ed.; F. Bk., 268269; 3 L. C., 89–91; 4 Id., 268; 19 & 20 Vic., c. 97, s. 10). IX.-What steps must be taken to enable you to proceed with an

action against a defendant residing within the jurisdiction of the court, who keeps out of the way, and avoids service of the writ?

ANS. By the first C. L. P. Act s. 17, the plaintiff may apply, from time to time, on affidavit, to the court out of which the writ of summons issues, or to a judge, and in case it appear to such court or jury that reasonable efforts have been made to effect personal service, and either that the writ has come to the knowledge of the defendant, or that he wilfully evades service of the same, and has not appeared thereto, such court or judge may order that the plaintiff be at liberty to proceed as if personal service had been effected, subject to such conditions as to the court or judge may seem fit (Com. L. Pract., 63-64; 22 L. J. C. P., 6).

X.-State the number of days required for ordinary notice of trial and short notice of trial respectively.

ANS. By the C. L. P. Act, 1852, s. 97, ten days' notice of trial or inquiry shall be given and shall be sufficient in all cases, whether at Bar or Nisi Prius, in town or country, unless otherwise ordered by