The conclusion of this offer, and the circumstances attending his final acceptance of it, highly conduce to a due appreciation of the strength of mind and independent spirit of Lord Langdale. We, therefore, give them a little in detail.

In the letter containing the offer was the following passage: Considering the general state of parties, and considering also the great pending legal questions, it is evident that we shall require your aid and support in Parliament, but whether in the House of Lords or Commons may be left for further consideration. only wish to be informed whether you would be unwilling to accept a peerage if it should be thought expedient for the present arrangement, or on general grounds," &c.

The answer was as follows: "I have the honour to acknowledge the receipt of your Lordship's letter of the 25th inst., which reached me at a late hour last night. If I were to act on the impulse of the moment, I should at once gratefully express my willingness to undertake everything which your Lordship suggests, for reasons, and under circumstances so flattering to me, and so gratifying to my feelings; but I have not been accustomed to consider legal reforms in reference to possession of office by myself, and I hesitate from a distrust which I feel of my ability to perform the duties which would be required of me in a manner which I think adequate to their importance. May I hope that I am not taking too great a liberty in asking the indulgence of a little time for reflection. I shall be in town on Saturday night, and shall be anxious to wait on your Lordship when you may appoint," &c.

་

He soon afterwards said that the subject must be considered further, from which I understood it was necessary to consult his colleagues. Late in the evening of the same day I received the following note from Lord Melbourne: Downing-street, Jan. 11, 1836. My dear Sir,-We should lament Campbell's resignation and consider it a great loss, but we cannot now draw back. We are therefore determined, at all hazards, to proceed with our arrangement, and if you are ready to undertake the Rolls, we are ready to give it, under the understanding you so clearly expressed to me this morning. We can hardly dispense with your assistance in the House of Lords, but you must not consider yourself bound to give support politically," &e.

The following extract from the answer is characteristic: "I beg leave to thank you most sincerely for the early information which you have been kind enough to give me. If the peerage can be dispensed with, or even postponed, I shall feel great additional gratitude but if required, and notwithstanding the reluctance and misgiving which I cannot satisfactorily overcome, I consent to accept it on the terms of perfect political independence which your Lordship so liberally (and if I may presume to say so), so properly sanctions and approves."

fully appreciate your motives, and I think you | the plaintiff as the inner wall of the back
are perfectly right.'
portion of his house. This state of things as now
existing arose thus: By a deed dated the 2nd
Sept. 1859 the plaintiff purchased and had duly
conveyed to him the fee simple of the house, of
which he is still the owner. By a deed dated
the 13th May 1863 the plaintiff purchased
and had conveyed to him the fee simple of
the house, of which the defemdant is now the
owner. The plaintiff's house, when he bought it,
was a single house, one room deep. The defen-
dant's house, when the plaintiff bought it, was
and still is a double house two rooms deep, and
as the properties then stood the main wall of the
defendant's house extended at the back beyond
the line of the main wall of the plaintiff's house
by the depth of the second room. During the
period of the plaintiff's ownership of both pro-
perties, he converted his single house into a
double one by building rooms at the back so as to
range in a line with the defendant's house, and
for that purpose used the main wall of the defen-
dant's house as the inner wall on that side of the
new building, and timbers of the roof of the new
building were laid into the main wall of the
defendant's house; and thus, during the plaintiff's
ownership of the two properties, this part of the
defendant's main wall was permanently appro-
priated to the use of the house now owned by
the plaintiff as became necessary for its con-
tinuous enjoyment as if it were a partition wall.
In the two houses, while the properties were thus
held and enjoyed, the plaintiff, by deed dated the
13th June 1867, sold and conveyed to the defen-
dant the house now owned by him by the same
description by which it had been conveyed to the
plaintiff by the deed of 13th May, 1863, accom-
panied by a plan indorsed, which showed that the
site of the whole of the main wall in question was
conveyed to the defendant. This deed did not
contain any reservation in favour of the plaintiff
of any right to the user of the waste for any purpose.
A few months ago, the defendant having occasion
to make some alterations in the cellar of his house,
pulled down a part of the bottom of this wall; and
the effect of this was to cause part of the wall to
give way on the ground and upper floors of the
newly added part of the plaintiff's house, and
some damage was the necessary consequence.
This has been partly repaired by the defendant,
but not to the extent required by the plaintiff,
and the question now arises whether the plaintiff,
having conveyed the house and the main wall to
the defendant without having reserved any right
to himself, can insist as against the defendant
upon the right to the continued user and enjoy-
ment of the wall for the purposes to which he has
devoted it during his ownership of both proper.
ties. It was alleged by the defendant, and
I assume truly as a matter of fact, that
until the wall fell away in consequence of his
operations in his cellar he did not know that the
wall had been made use of by the plaintiff for the
purpose of the additions he made to his original
house. But it was apparent from the mode in
which, by the masonry, the added portion had been
built, that the existing wall had been made use of
as the inner wall of those portions from the
ground to the roof, and the nature and extent of
the case could have been ascertained upon a
careful inspection by a person conversant with
such matters. The rule as to what is an apparent
easement is thus stated in Gale on Easements
(4 edit. p. 89), and was approved by the Court
of Exchequer in Pyer v. Carter (1 H. & N. 922).
The question of right as thus raised between
these parties is one which has been the subject
in recent times of conflicting judicial opinions-a
conflict which, however, I conceive has been com.
pletely set at rest by the decision of the present
Lords Justices in January of this year, in the case
of Watts v. Kilson (L. Rep. 6 Ch. App. 166.) In
that case all the authorities were fully cited, and
the authority of the old case of Nicholas v. Cham-
berlain (Cro. Jac. 121), recognised and acted upon.
The cases in which conflicting opinions have been
expressed are carefully collated and stated in the
edition of Gale before referred to, in the notes
from p. 91 to p. 95. The question which has per-
plexed judges seems to have been whether, where
the owner of the two tenements sells and conveys
the servient tenement without an express reserva-
tion of the servitude, retaining himself the domi-
nant tenement, he would not, when claiming the
benefit of the servitude, be derogating from his
own grant. But the law as now established
seems to be that where the owner of two tenements

Sir John Campbell gave way. The appointment of Bickersteth as Master of the Rolls was made; he took the title of Baron Langdale of Langdale, in the county of Westmoreland. The congratulations of friends and admirers were voluminous. In answer to one from his old master Jockey Bell, In reply to this Lord Melbourne made an ap- who only survived for a few weeks afterwards, he pointment to receive him, and the result of the says, Be assured that no congratulations on this interview is thus given by Mr. Bickersteth in his occasion can be more gratifying to me than yours. diary: "He told me that Pepys had agreed to take It was you who first directed me to the sources of the office of Chancellor, although he wished to post-professional knowledge, you solved the difficulties pone the time. I then said that upon considera- which occurred to me in my early practice, you tion I had so far come to a resolution that if the whose prevailing advice overcame the reluctance Mastership of the Rolls were offered to me alone, I felt to step within the Bar; you therefore are I should venture to accept it, but that I could not intimately associated with every part of my profeel disposed to take a seat in either House; that gress, and I will endeavour not to disappoint your I was on principle opposed to the union of judicial expectations. Certainly I can never forget the and political offices in the same person. I thought kindness which I have always received from you. it wrong, and fit to be altered in the case of the In the midst, however, of the congratulations Chancellor. To make the union in the case of which I receive from you and other friends, I Master of the Rolls, was, for the present at least, confess that for the present the feeling of responto increase the evil instead of removing it. I sibility outweighs every other consideration in my thought it quite clear that the Master of the Rolls own mind, and that I cannot yet feel so well satisought not to be a member of the House of Com-fied as I could wish to be, that I have not undermons-if active, he would act inconsistently with taken a task too great for my ability." his judicial character; if inactive, he might Lord Langdale took his seat in the Rolls Court neglect the interest both of his constituents and on the 19th Jan. 1836, and presided over his court others. There was much less objection on public for the space of fifteen years. grounds to the House of Lords; there was less to do-less squabble and heat-but still the judicial office was sufficient to occupy the whole of any man's time, and there would be an union, though less close, of the judicial and political offices, and on private grounds I had strong objections. I had no adequate fortune to warrant me in taking an hereditary peerage. He then said that the King was very much pleased with the arrangements, and willing to make me a peer directly. At the close he said, 'Your view is to consent to take the judicial office by itself, but not connected with a seat in either House?'

....

said, Exactly so,' Lord M. replied, 'I must take a little time to consider of it and let you know.' I then said, "Supposing that this subject may now be closed, I beg to return my thanks.' I then withdrew, thinking the whole matter at an end."

Of course it was advisable that Bickersteth should consult with his more intimate friends upon the result of this interview, and his intention to refuse the peerage offered to him.

They were strongly averse to this reservation, particularly the late Mr. Sutton Sharpe, who offered such arguments to persuade him to accept the peerage, as altered his determination in that respect. The negotiation was thereupon reopened with Lord Melbourne, who requested a second interview to discuss the subject.

The entry in the diary is as follows: "I waited upon Lord Melbourne. He began by asking whether my views had in any respect altered. I said they had; that on consideration, although my personal objections to the peerage had in no respect diminished, yet my difficulties might perhaps give way if I could be persuaded that by means of it I should be able to render any useful assistance towards law reform, and if I could be entirely free in politics. . . . This is a subject on which there should be no ambiguity. There is nothing more hateful or mischievous than a political judge, influenced by party feelings. In my opinion, he should be wholly free from any party ties, and if I, being a judge, am also to be in Parliament, it can only be on the clearest understanding that I am to be free from any party ties ;-to put it strongly, as free under your administration as if I had received my judicial appointment from your opponents. To this after a silence of a few minutes, Lord Melbourne said, with gravity and dignity, 'I understand you, and

We purpose giving a few remarks on his character as an advocate and judge, with a few anec. dotes with reference to it.

(To be continued.)

COUNTY COURTS.

BRADFORD COUNTY COURT.
Nov. 7, 14, and 21.

(Before W. T. S. DANIEL, Q.C., Judge.)

MILNER v. HILL.

Continuous and apparent easements.-Effect of
permanent alteration by owner during possession
and ownership of properties afterwards sepa-
rated. Where the owner of two tenements makes
permanent alterations which operate as a burden
upon one for the benefit of the other, upon sub-
sequent alteration, each property passes as it is
burdened or benefited, and no express grant or
reservation is requisite in either case. Watts v.
Kelson (L. Rep. 6 Ch. App. 166), treated as
settling the law, and affirming the rule as laid
down in Gale on Easements (4th edit., p. 89).
Berry for plaintiff.

Tarry for defendant.

His HONOUR.-This action is brought to recover the sum of 21. for damages done by the defendant to a house in the plaintiff's occupa tion, and of which he was owner, by partially pulling down and injuring a mesne or partition wall. Upon opening the plaintiff's case on 7th inst. it appeared that the real question between the parties involved one of right to the wall alleged to be damaged. And it being suggested on behalf of both parties that a view would assist in the consideration of the matter and save expense in the production of evidence, I consented to have a view, and the case stood over for that purpose; and accordingly, on the 14th Nov., being attended by the solicitors of the respective parties and by the parties themselves, I viewed the properties, and had the particular subject-matter of the present complaint pointed out to me. The two houses now owned and occupied by the plaintiff and defendant respectively are contiguous to each other, and the wall, which is the subject of the present dispute, is the main wall of he defendant's house, but is also used by

during his ownership executes apparent works of a permanent character upon either or both of his tenements, whereby a servitude is fixed upon one for the benefit of the other, and he afterwards sells both or either of the tenements without express mention of the burden or benefit of the servitude, the property passes to the buyer as it is, with the character which the owner, in the exercise of his right of property, has impressed upon it. If the conveyance is of the property upon which the servitude has been fixed it passes with the burden; if of the property for

officers of the court to annex to the summons to be DURING the hearing of the case it appeared that proper particulars had not been furnished to the served on the defendant. In reference to this his Honour said: "I have had very great reason to complain, so have other judges, that satisfactory particulars are not given to the officers of the court with regard to the sums sued for. The impute anything-it is a lax method; and undefendant is taken by surprise. I do not fortunately the officers of the court have no power to compel other particulars to be given that system. In all cases, especially those above items to be sued for, or I will either dismiss the 40s., I shall insist upon the plaintiff furnishing the case, or adjourn it for that purpose and allow the defendant his costs. In the same action, on his he found a notice that interest would be charged Honour perusing one of the plaintiff's statements, Samuell said he contended that the plaintiff had on "overdue" accounts. On this point his Honour said:"Those who are thus charged with interest pondence on the subject, on the 18th May the a residence in Liverpool. After further corresare not liable. At common law no interest is re-commissioners gave the plaintiff notice that he coverable; and by statute, interest is only recoverable where notice is given in writing and on bills of exchange or promissory notes."

Registration refused.

PETERBOROUGH COUNTY COURT.
Aug. 14 and Nov. 20.

(Before FRAS. ELLIS MCTAGGART, Esq., Judge.)
Re WYCHE and BRYAN.
Partnership-Creation of tenancy-The Bank-
ruptcy Act 1869.

to Mr. Parr to be called upon to discharge one of bound, certify the grounds of refusal to the court,
the duties of citizenship which the Legislature and thus you will have a simple and easy mode of
imposed upon him; but the Legislature having getting my decision reversed should the learned
said that should be one of his duties of citizen-judge of this court think it erroneous and order
ship, it was not for Mr. Parr to set himself up the resolutions to be registered.
against the law. The two defendants, who were
charged with having maliciously done grievous
wrong to Mr. Parr, were innocent and harmless
persons, and could not have the slightest feeling
of malice towards him, as they had not seen him
before that day. So far as the appointment of
Mr. Parr was concerned, their functions were
purely ministerial. The machinery of the Act was
cumbrous, and he admitted that less antiquated
machinery might be found. That was fair sub-
ject for discussion, but not in that court. The
assessors had to nominate the collectors, and, only
two names being returned, the commissioners had
no choice but to elect them. The commissioners
did not make the selection; it was the assessors.
The assessors for the previous year were Mr.
John Haddock, shipbroker and merchant, Liver-
pool, who served in the same capacity last year as
it was said Mr. Parr should serve this; and asso-
ciated with him was Mr. Barton, who had got
himself in as one of the assessors, and nominated
Samuel-Mr. Haddock says he would not do it
again for 501.

himself as one of the collectors.

Russell said that when the plaintiff was fined 201., even assuming that it was an inequitable order, the conclusion of the commissioners was to be taken as final. If they had done that which the law said should he conclusive, even supposing the order was inequitable, how could that be actionable which they had a legal right to do? Although the present case might serve a useful purpose in an agitation for getting a reform of the law, it was clear that no case could be made out in that His HONOUR said that in substance the court was asked to review the decision of the commissioners, and he wished Mr. Samuell to show where it had power to do that.

court.

Samuell said his contention was that the com

missioners had acted altogether outside the Act, and, having done that, they had rendered themselves amenable to that court for any wrong they

had done.

His HONOUR said it was the assessors who had done wrong if wrong had been done. The commissioners had no alternative but to appoint the two persons whose names were presented to them. He was of opinion that the court had no jurisdiction to entertain the application, and the case was dismissed.

Russell at first suggested that costs should be given, but afterwards said he would not press

for them.

BANKRUPTCY LAW.

HALIFAX BANKRUPTCY COURT.
Saturday, Nov. 25.

(Before Mr. Registrar RANKIN.)
Re WILLIAM JOHN HUGHES (in liquidation).
Special resolutions require majority in number of
creditors-Votes of creditors for sums not exceed
ing 101. not to be reckoned in number-No credi-
tor for 101. present at meeting-Registration of
resolutions refused.

AT a meeting under this petition for liquidation by arrangement, only three creditors attended. The debts for which they proved were of the respective amounts of 12s. 6d., 61. 6s. 3d., and 4l. 13s. only. It appeared that the debtor had several other creditors whose respective debts exceeded 107., but they had their remedies against sureties, and declined to attend or prove under this petition. The three small creditors above mentioned assented to and duly signed resolutions for liquidation by arrangement, for appointment of trustee without security, and at certain remuneration, and for the discharge of the debtor.

England, solicitor, now presented these resolutions for registration.

The REGISTRAR.-These are special resolutions. See Bankruptcy Act 1869, sect. 125, paragraphs 1 and 9. See also Rule 278. Special resolutions require the votes of a majority in number as well as three-fourths in value of the creditors as sembled. Now the Act of 1869, sect. 125, paragraph 14, enacts that in calculating the majority on a special resolution, creditors whose debts amount to sums not exceeding 107. shall not be reckoned in the majority in number. In this case not one creditor was present who would be accordingly entitled to be reckoned in number, consequently I consider that these resolutions cannot be said to have been carried by a majority in number, and that the requirements of the Act and rules have not been complied with. As far as I am aware this case has not occurred before, either in this or any other court, and I have not certainly seen any decision to guide me. I must decline registering the resolutions, but I shall, as in duty

A CASE was submitted for the opinion of his
Honour in the matter of Thomas Wyche and
Henry Thomas Bryan, of Crowland, millers and
corn merchants, bankrupts. In 1861 Wyche and
Bryan entered into partnership for fourteen years,
and articles of partnership were executed. At
that time Wyche was the freeholder of a steam
mill and four acres of land in Crowland, subject
to a mortgage thereon, and one of the provisions
of the articles of partnership was that the business
should be carried on upon the mill and premises.
The articles provided that the stock and effects of
Wyche should be taken by the partnership at
a valuation, and that the sum of 2101. should be
allowed and paid out of the partnership property
to Wyche, his heirs, or assigns, half-yearly in
every year for the rent of the mill. No formal
demise of the mill and land was made to the part-
nership, but they continued to hold upon the
terms as to rent specified in the articles of part-
nership, and the mortgagee was no party to the
arrangement for the use of the mill. In 1865
Wyche and his mortgagee granted and assigned
the mill and premises to Messrs. Robert Appleby
and Wm. Pyke by way of transfer of mortgage
for securing 2000l. and interest, but there was no
attornment in the deed by the mortgagor to the
new mortgagee. This sum of 2000l. still remained
unpaid. On the 28th April 1870, a petition was
filed by Mr. Chas. Wylie against Messrs. Wyche
and Bryan, and on this petition they were, on the
14th May following, adjudicated bankrupts, and
Mr. J. F. Arnold was appointed trustee of the
estate. On the 9th April 1870 Thos. Wyche insti-
tuted proceedings for liquidation in bankruptcy in
respect of his private estate. A meeting of his
creditors was duly held on the 29th of that month,
and liquidation was determined on: Mr. William
Wyche, brother of the debtor, was appointed
trustee. This trustee claimed arrears of rent
in respect of the mill and premises to the
amount of 7001. and upwards; on examination of
Wyche and the partnership books, it appeared
that a general running account had been kept
upon the understanding that Wyche should, for
the purposes of a private trade which he carried
on, take goods from the mill and set them off
against the rent. The account had never been
made up nor any rent credited, except an account
made just before the liquidation, and therein
Wyche appeared to be indebted to the partner-
ship in a very large sum. Then for the first time
the arrears of rent then due were carried to ac-
count, and showed a balance in favour of Wyche
for 7001. or thereabouts, which was now claimed
against the joint estate by Wyche's trustee and
also by his mortgagees. The opinion of the court
was desired on the following questions: 1. Whether
the provision in the articles of partnership by
which the firm were to be charged 2101. per annum
for the use of the mill, &c., created a rent with
its usual incidents, there being neither demise nor
attornment? 2. If the court should be of opinion
that the said clause did create a rent with its
usual incidents, then is the whole balance appear-
ing on the current account between the partner-
ship and Thomas Wyche to be treated as rent in
arrear, i.e., 7001., and, if so, who is entitled to such
rent-the trustee of Wyche's separate estate, or
the mortgagees, under their notice given under the
circumstances appearing after the act of bank-
ruptcy? 3. If the court shall be of opinion that
Wyche's trustee was the person in whom the claim
to the rent was at the date of the liquidation
vested, can he participate in dividend out of the
joint estate in respect of such rent until the joint
creditors have been paid in full, and is he entitled
to any preferential payment to the extent of one
year's rent under the statute? 4. If the court
shall be of opinion that Wyche's mortgagees are
the persons in whom such claim was and is
vested, are they entitled to the preferential pay-
ment of one year's rent, and are they entitled to
prove on the partnership estate for the balance ?
Palmer, barrister (instructed by Messrs Deacon.
and Wilkins), appeared for the trustee of the
joint estate.

Atter, of Stamford, represented the trustee of
the private estate.

Calthrop attended on behalf of the surviving mortgagee (Mr. Appleby).

The whole of the afternoon was occupied in hearing the arguments, and the following authorities were cited: (Bankruptcy Act 1869, ss. 34 &

104; Woodfall, Book 2, c. 9; Evans v. Elliott, 8 L. J. 51, Q.B.; Clowes v. Hughes, 39 L. J., N. S., 62, Ex.; Ex parte Hesham, 1 Rose, 146; Ex parte St. Barbe, 11 Ves., jun., 413; Ex parte Castell, 2 G. & J. 124; Bedford v. Button, 4 L. J., N. S., 97, C. P.: Cox v. Bent, 5 Bing. 185; Vincent v. Godson, 24 L. J. 121, Ch.; Ex parte Plant, 2 Dea. & Ch. 160; Richardson v. Bank of England, 4 Myl. & C. 165; Ex parte Living, 2 Mont. & Ayr. 223; Ex parte Carr, 6 Jur. 588; Hungerford v. Clay, 9 Mod. 1; Franklinski v. Ball, 34 L. J. 153, Ch.; Lindley on Partnership Property.) Objection was taken, but afterwards waived, to Mr. William Wyche being heard upon the ground that his appointment was invalid, the separate estate being vested in the trustee of the joint estate.

Nov. 20. His HONOUR gave judgment as follows: I am of opinion that the provisions in the deed of partnership between Wyche and Bryan, for a half-yearly payment to Wyche in consideration of the occupation of his mill by the firm for the purposes of its business, do not create a rent for which the party entitled to it can dis train under sect. 34 of the Bankruptcy Act 1869. That section must, in my opinion, be taken as intending to give a right of distress in those cases only where the rent is one for which, if bankruptcy had not intervened, the party would have had a right at common law to sue or distrain; as recognising the common law privileges of distress, and allowing it to prevail, notwithstanding the bankruptcy of the tenant, but curtailing the extent to which that privilege is available if exercised after the bankruptcy. There is nothing to indicate an intention to extend the class of persons by whom, or the subject matter in respect of which, the privilege is exercisable. On this view of the section, therefore, it becomes important to see whether the ordinary common law relations of landlord and tenant are created by the provisions of the deed. The deed provides that the business of Wyche and Bryan is to be carried on upon a the private estates certain mill and premises, of Wyche, and " that the annual sum of 2101. shall be allowed and paid out of the partnership property to the said T. Wyche, his heirs or assigns, in equal half-yearly payments, on the 11th Oct. and the 6th April in every year, for the rent of the said mill and premises; and that all rates and taxes (landlord's property tax only excepted) in respect thereof, shall be paid out of the said partWhat property" means apnership property." pears further on. "That the clear profits arising from the said business" "shall be divided equally between the said partners twice in every year, viz., on the 11th Oct. and the 6th April in every year, and that all losses happening in the course of the said business shall be borne by them respectively in the 'That as well the said rent of like proportions." 2101. and other outgoings, and the costs of keeping the said mill and all the machinery thereof in good and substantial repair," and of insuring the mill and partnership stock, and of paying clerks, porters, and servants, "and all other expenses which may be incurred by the said partners respectively in the course of the said business, shall be paid and borne out of the profits of the said business, and in case the same shall be insufficient for that purpose, then by the said partners in equal shares." The effect of this airangement appears to me to be as follows:-If, at each halfyearly striking of an account, the gross profits were sufficient to pay this so-called rent, and all other outgoings and current expenses, Wyche would get 105l., and his share of the net profits, if any. If the gross profits were insufficient, or if there were none at all, Wyche would have to pay, out of his own pocket, half of what was necessary to make up the deficiency, Bryan paying the other half. If, therefore, the amount so paid by Wyche equalled the amount (1057.) credited to him for rent, he would, practically, receive none; if the amount so paid by him exceeded 105l., he would not only receive no rent, but make a loss besides. There is this difficulty, at the outset, in treating this contract as a demise, that it is a demise (if it can be called so at all) by a partner to his firm, for partnership purposes, without the intervention of a trustee. It is, no doubt possible (though by no means easy), without such intervention, to frame an agreement directly between partners, so as to enable the one to sue the other upon it, by taking care not only to exclude the party sued from all share in what is sought to be recovered from him, but to exclude the party suing from all obligation to contribute towards his own pay ment. But here, if the state of the partnership funds were such as to make them liable for this so-called rent, Wyche would have, in fact, to sue himself jointly with Bryan, and to recover out of funds which were their joint property, or to distrain upon property belonging jointly to both. on premises occupied by both jointly. It is impossible to hold that a tenancy, in the ordinary and com mon law sense of the term, is created by such an agreement as this. But, independently of this objection, the contract, in my opinion, lacks that certainty which is the essence of a demise. It depends upon the state of the partnership funds,

at each half-yearly account, not only whether Wyche is to get all, or part, or none of this rent, but whether the partnership funds are to be liable for it at all; whether what he gets, if he gets anything, is to come wholly from those funds, or partly from them and partly from Bryan individually. Not only the amount to be paid, but the parties by whom it is payable, and the proportions in which is to be paid by each, are liable to vary with the state of the business each half-year. A fluctuating arrangement of this kind, even if not an arrangement between partners, could not, in my opinion, create a demise in the ordinary legal sense of the word. For these reasons, I am of opinion that Wyche's claim is an equitable one merely, between himself and his partner; one which would not vest in any mortgagee of Wyche's; and one, therefore, which, according to my view of sect. 34, is not enforceable by him or his mortgagee, wholly or in part, under that section. I am of opinion that the trustee of the joint estate of Wyche and Bryan is the person in whom the claim for this 7001. is vested; not as rent, but as a partnership item of account. The bankruptcy of Wyche and Bryan, which relates back to the proceedings in liquidation in March 1870, vested both the joint and the separate estate of each partner in the trustee under that bankruptcy. The subsequent proceedings in liquidation taken by Wyche separately, in April 1870, became, as was admitted upon the argument, inoperative and void. It will be the duty of the trustee under the bankruptcy of the firm to carry this claim to the credit of Wyche's separate estate; which will not, however, be entitled to receive a dividend out of the joint estate in respect of what may be due under this claim until the other joint creditors have been paid in full. The rule upon this point is clear. There is an exception where the partner's claim upon the firm is for a debt contracted by the firm with him in the course of a separate trading. But it is not sufficient that there should merely be such separate trading. The debt itself must have been contracted solely and strictly in the course of that trading: (Ex parte Williams, 3 M. D. & D. 433.) The claim here is for the balance of the rent (purely a partnership item of account), after setting off the debt due in respect of the separate trading and does not, therefore, fall within the exception to the rule.

Notice of appeal was given.

CORRESPONDENCE OF THE

PROFESSION.

NOTE.-This department of the LAW TIMES being open to free discussion on all professional topics, the Editor is not responsible for any opinions or statements contained in it.

payable, and that then the duty (ad valorem) must
be upon the amount mentioned in the conveyance
or transfer (be that amount more or less than the
sum for which the land or other property was first
sold). It will be noticed that this foot note is not
addressed (at least I think not) to the seller, for
it says, "the consideration money set forth in a
transfer may differ from that which the first seller
will receive," and if addressed to the seller there
should have been added the following ridiculous
and astounding words, namely, "therefore the
seller, if called upon, will be bound to sign a
transfer acknowledging the receipt of money he
knows will never be paid to him." No; it is only
addressed (as I venture to suggest) to the last
purchaser intimating to him that Government re-
quires that his conveyance or transfer shall bear
an ad valorem stamp sufficient to cover the pur-
chase money mentioned in such conveyance. The
Act quoted is a mere fiscal (and very proper)
arrangement of Government, and in no way sug-
gests or controls the mode of conveyance. Sup-
pose I sell my dwelling-house to A. for 1500l. to
be paid in a month, and in less than a fortnight
he has the good fortune to find a party (B.) who
will give him 1700l. for it, how surprised I should
be if, when the conveyance was presented to me,
to find that it stated "that in consideration of
1700l. paid to me by B., I conveyed to him the
premises." I should, of course, refuse to sign it,
and say that I have not sold the property to B. for
17007. but to A. for 1500l., and I will only give a
receipt for 15001., and will not convey to B. un-
less A. requests me to do so; and how truly laugh-
able it would be to be told that the Act of Parlia
ment referred to in the foot note compelled me
to give the receipt. And this reminds me that
the Act of Parliament quoted was passed in
1815, long before railways were known, and
was repealed in 1870 (but a similar clause
is very properly inserted in the new Stamp
Act). We have no such foot note to our Bir-
mingham transfers (indeed we have no foot notes
at all) and I know there is none to the Manchester
transfers, but we have on our transfers "Printed
by Alex Day, New-street, Birmingham," which I
think is about as binding on a seller of railway
stock to sign a receipt for a larger sum than he is
to receive, as the Liverpool foot note is. I pity
the unfortunate defendant in the case referred to,
and hope that some higher court will reverse the
judgment, as I can picture to myself that much
fraud may be committed on the authority of this
foot note and decision. I will mention only one
instance, suppose two or three stock-brokers in
Liverpool having a particular stock to sell, put a
much larger sum in the transfers than the real
selling price, they would thereby create a fictitious
value of that stock, and would know how to avail
themselves of the circumstance. In conclusion I
would ask how is it possible that any Act of
Parliament, or any dictum of any stock exchange
(or both together) can bind me to sign a deliberate
and wilful untruth?

AN ATTORNEY.

The following is a form of transfer:
Coupon for £

TRANSFER

No.

Stock forwarded to the Company's Office.

In consideration of the Sum of
by

said Transferee

called the

TO HOLD unto the said Transferee

TRANSFERS OF RAILWAY STOCK.-I have read with some surprise the report of the action Case v. McClellan, tried in the Common Pleas on the 24th Nov. last, in which, as I understand it, it was ruled that a footnote at the end of an ordinary transfer of railway stock (used in Liverpool) is part of the transfer, and that such foot note is binding on a seller of railway stock, because it is the usual form adopted by the Liverpool Stock Exchange, and that the operation of such foot note is to compel a seller to sign a receipt for a larger sum of money than he is to receive. I have obtained a Liverpool transfer form, and therefore am able to give the words of the foot note, which are as follows: "N.B. The consideration money set forth in a transfer may differ from that which the first seller will receive owing to sub-sale of the original buyer; and the Stamp Act requires that in such cases the consideration money paid by the sub-purchaser shall be the one inserted in the deed as regulating the ad valorem duty. The following is the clause in question: And where any Signed, sealed, and delivered, person having contracted for the purchase of any lands or other property, but not having obtained a conveyance thereof shall contract to sell to any other person, and the same shall in consequence be conveyed immediately to the sub-purchaser; the principal or only deed or instrument of conveyance shall be charged with the said ad valorem duty in respect of the purchase or consideration money therein mentioned to be paid, or agreed to be paid. by the sub-purchaser (55 Geo. 3, c. 184, Address, and

6

p. 1570)." I cannot think that such a foot note is part of the transfer, or that it is binding on a seller; but for the present I will assume both these points, and confine my remarks to the other point-namely, that a seller is bound by the wording of that foot note to execute a transfer, wherein he knowingly acknowledges to receive a larger sum of money than he is going to receive. Now, we lawyers all know that to a sale of "Land or other property," no stamp duty is attached, and that A. may sell to B. for 1000l., and B. to C. for 12007., and C. to D. for 14001., and so on, and incur no stamp duty beyond the ordinary agreement stamp (6.), and that it is only when a sale is completed by an actual conveyance of the land or other property, that stamp duty is

paid to

the several conditions on which
held the
same immediately before the execution hereof; and
the said Transferee
do hereby agree
to accept and take the said
, subject to the
conditions aforesaid.
AS WITNESS Our Hands and Seals this
day of
in the Year of Our Lord One Thousand
Eight Hundred and Seventy

money paid by the Sub-purchaser shall be the one in-
serted in the deed, as regulating the ad valorem Duty;
the following is the Clause in question :-
"And where any Person having contracted for the
purchase of any Lands or other Property, but not
having obtained a conveyance thereof, shall contract to
sell to any other Person, and the same shall, in con--
sequence, be conveyed immediately to the Sub-purchaser
the principal or only deed or Instrument of Conveyance
spect of the Purchase or Consideration-money herein
shall be charged with the said ad valorem Duty in re-
mentioned, to be paid, or agreed to be paid, by the Sub-
purchaser (55 Geo. 3, c. 184, p. 1570.)

FINAL EXAMINATIONS.-Allow me through the medium of your paper to draw attention to what (if true) seems like injustice to us and a perversion of the law. I have been informed that the questions for the final examination, which are prepared by a committee of solicitors, are got up by such points occurring to them in practice as need some members of the committee, jotting down searching up. Now, Sir, all the articled clerks, like myself, to whom I have spoken (and they are to us that, after having spent five years in study not many) agree with me in saying that it is unjust and a not inconsiderable amount of money, all of which has as yet yielded no profit, we should be subject to an examination which by hardly any amount of study one can hope to pass. We are willing to pass (if necessary) a stiff examination, but let it be one of general practice and principles, from which alone we may hope for some good, and for which we are advised to read and have read; and it does not seem the proper end of an examination to trip up the students by some "nick," as one expressed himself but yesterday. without actual practice can answer questions of It scarcely can be expected that young men nicety to puzzle old experienced practitioners. We none of us wish the standard lowered, but we do hope the examination will be conducted fairly towards us. AN ARTICLED CLERK.

66

THE STAMP ACT.-I should be much obliged by your inserting this letter in your next issue. Sect. 60 of the Stamp Act (33 & 34 Vict. c. 97) expressly states that every person not being a duly certificated attorney," &c., who shall draw or prepare, either directly or indirectly, any instrument (save such as are excepted by the Act), relating to real or personal estate, or any proceedings in law or equity for or in expectation of any fee, &c., shall forfeit 501. The section is somewhat ambiguous. What is meant by the words in italics? Would, for instance, a person drawing and preparing an apprenticeship indenture, either with or without a premium, under seal be liable to above penalty? It is, by the way, important that this should be generally known, as many masters bind their own apprentices on stamped forms supplied by the stamp distributors, or employ attor neys' clerks, agents, and accountants to draw up indentures of apprenticeship, which of course is work belonging solely to solicitors.

OBSERVANDA

COUNTY COURT JUDGES.-Those most able to form an opinion on the merits and ability of County Court Judges, are those regularly practishereinafter called the said Transfereeing before the courts, and those are the attorneys. do hereby bargain, sell, assign, and transfer to the There is a class of men at the Bar who receive of and in the undertaking generally through interest, appointments as revising barristers. These gentleman then get on Exe- the list for County Court Judgeships. They are cutors, Administrators, and Assigns, subject to usually what are called "briefless barristers," and have merely a theoretical and superficial knowledge, and I undertake to say that they make the very worst judges, for they are full of crotchets and theory, and give the most extraordinary decisions. I have had a large practice as an advocate and have seen a good deal of this. I heard some time ago, from a member of the Bar, that on the Lord Chancellor's list of appointments for County Court Judgships were the names of twenty-five Q. Cs., so there can be no dearth of good men! Why are fewer appointed? Mr. Homersham Cox has shown himself in an unfavourable light, judging from reports, but why need he have been appointed? If so many good names remain, why are not the best and most practical men on the list chosen? Judicial appointments should be conscientiously made; if the reverse, it inflicts a grievous hardship on the suitors, to say nothing of the Profession. AN ATTORNEY.

by the above-named
in the Presence of)

Witness's
Signature,
Address, and

Profession.

Signed, sealed, and delivered,

by the above-named
in the Presence of)

Witness's
Signature,
Profession.

PUBLIC PROSECUTORS AND SANITARY ACTS CONSOLIDATION BILL.-The present Government have neither been so fortunate in their legislation or in their administration as to induce us to repose entire confidence in their manipulation of legal measures. Therefore it is that I venture once more to bring under the notice of the Profession the need of a Public Prosecutors' Bill, feeling assured that we may wait till the Greek Kalends, if we are to wait for a satisfactory and successful Government measure. Now, the legal Profession is represented as to both branches very efficiently in Parliament, and surely those who represent it, whether they sit on the right or left of the Speaker

and what is the practice in case of the death of the upon his university career early in the present before the full courts in Dublin have, on the other

advowson, assuming for instance, that at the time of that time, says the author of the "Bench and the practitioners in Ireland, that the new statute