payer who is so cantankerous as to object to a deduction from his income on account of an illegal payment in advance.

THE PARTNERSHIP BILL.

Ir is stated that the Board of Trade and the promoters of the Partnerships (No. 2) Bill have come to an agreement as to that measure, and that it will be proceeded with without delay. As it contains new provisions of great commercial importance, it may be desirable briefly to indicate their purport, leaving detailed criticism until it is seen whether there is any reasonable prospect of the Bill becoming law this session.

Parts 1 to 3 of the measure are devoted to a consolidation of the existing law of private partnerships, and afford little scope for observation beyond the points to which attention is drawn in the memorandum accompanying the Bill. It may be desirable, however, to notice some few of these. The definition of partnership in clause 6 is "the relation which subsists between persons who have agreed to share the profits of a business carried on by all or any of them on behalf of all of them." It will be remembered that in Pooley v. Driver (25 W. R. 162) the Master of the Rolls pointed out that Kents' definition of a partnership as "the contract of two or more competent persons to place their money, effects, labour, and skill, or some or all of them, in lawful commerce or business, and to divide the profit or bear the loss in certain proportions," was incomplete, inasmuch as it did not include a dormant partner without any such contribution, as, for instance, the widow of a deceased partner. The present definition is intended to meet this criticism, but we are not clear that the words 66 on behalf of all of them" are sufficiently definite to exclude from partnership the case of a mere sharer in the profits.

Bovill's Act is to be repealed, but re-enacted in clauses 11 to 15. We cannot help thinking that it is a mistake to retain without change the provisions of that very unsatisfactory Act. Why, for instance, should the words "the advance of money, by way of loan," under which it has been held that the money must not be advanced for the purposes of the business, but as a personal loan to the trader (Pooley v. Driver, 25 W. R. 164; Ex parte Delhasse, 26 W. R. 341), be retained? As a matter of fact, the money is always borrowed for the purposes of a business, and it is absurd that provisions in the agreement as to the loan contemplating the actual state of facts should render the statutory provision nugatory. Again, in clause 15, the words "shall not be entitled to recover anything in respect of his loan are retained, under which it was held in Ex parte Sheil (25 W. R. 420) that a mortgagee who had stipulated for a share of profits in lieu of interest could obtain payment of his debt before the other creditors in case of the borrower's bankruptcy, because the right of the mortgagee is not to "recover" the money, but to keep the estate until it is paid.

In clause 38, it is proposed to adopt the view that "where land has become partnership property, it shall be treated, as between the partners (including the representatives of a deceased partner), and also as between the heirs of a deceased partner and his executors and administrators, as personal and not real estate, unless a contrary intention appears either by express agreement or by the conduct of the partners." This is certainly the result of the later authorities, which, however, since Phillips v, Phillips (1 My. & K. 649), have been decisions of courts of first instance, but we have never felt very clear as to the reasonableness of this unqualified doctrine. Clause 44 proposes to make a notice in writing of retirement sufficient to determine a partnership at will where the partnership has been originally constituted by deed. It has never been decided (see 1 Lindley, 221), that a partnership constituted by deed can only be dissolved by

deed, but in Doe v. Miles (4 Camp. 373) the question was raised, but Lord Ellenborough presumed that as the partners had all signed a notice advertising a dissolution, such dissolution had been effected with all due solemnity.

Clause 58 proposes to provide that, "after a dissolution, every partner in the dissolved firm, or his representatives, may, in the absence of any agreement to the contrary, restrain any other partner, or his representative, from carrying on the same business under the firm name until the affairs of the firm have been wound up and the partnership property disposed of." This clause is stated to have been framed in accordance with the opinion expressed in Lindley (vol. 2, p. 862); but since that opinion was published, the case of Levy v. Walker (27 W. R. 370) has been decided, and, possibly, Mr. Justice Lindley might now see cause to modify his opinion.

The fourth part of the Bill is that to which special attention should be directed. It proposes to introduce limited partnerships corresponding to the Société en Commandite, and the special partnerships authorized by statute in most of the United States. The system proposed to be adopted may be shortly described as follows:-A limited partnership may be formed for a fixed term, consisting of one or more general partners and one or more limited partners. The firm name must not contain the name of any limited partner, and the partnership must be regis. tered under the Act, otherwise every partner therein will be deemed to be a general partner. This registration is to be effected by sending by post or delivering to the registrar a statement in writing giving the firm name, the nature of the business, the place or places of the business; the full name, usual residence, and other occupation, if any, of each partner; the term for which the partnership is entered into; a statement that the partnership is limited, and the description of every limited partner as such; the sum contributed or to be contributed by each limited partner, and whether paid or to be paid in cash, or how otherwise, and the amount already paid up in respect of such contribution, and the date or dates at which the residue, if any, is payable. This statement is to be signed by each partner in the presence of a witness. The limited partner's liability for the debts and obligations of the firm will be limited to the amount which he has contributed or undertaken to contribute to the partnership property; he will not be liable to be made bankrupt in respect of the dealings or liabilities of the partnership, and he may, with the consent of the general partners, deal with the firm, and exercise upon his own account any business competing or interfering with the business of the firm. His consent will be necessary to the admission of new general partners. On the other hand, he will have no right to take part in the management of the partnership business except as agent or servant of the firm, and he will have no authority to bind the firm except by acts done in the course of such agency or service. He will not be entitled to a voice or vote in the decision of matters relating to the ordinary course of the partnership business, and his death will not dissolve the partnership as between the surviving or continuing partners. If he makes default in payment of his contribution to the partnership property, he will be liable to be sued for it by the general partners; he will not be able during the continuance of the partnership to draw out any part of his contribution, and if at any time during the partnership the capital is diminished below the amount contributed by the limited partner or partners, any limited partner receiving interest or profits on his share, is to be liable as a general partner for all partnership debts contracted in the time during which the partnership capital has been so

diminished.

It is obvious that if these provisions are passed into law, and are at all generally acted upon, the result will be something like a commercial revolution. It does not fall within our province to discuss the considera

tions of commercial convenience by which the question of the adoption or rejection of this Bill must be decided, but unless we are greatly mistaken it will afford a considerable opportunity for fraud.

RETRACTATION OF EXECUTOR'S ASSENT TO LEGACY.

THE contention of counsel in Ballard v. Marsden (L. R. 14 Ch. D. 374), that "an assent to a legacy once given cannot be retracted by the executors, but is positive for all purposes," draws attention to the unreasonableness of some of the old unqualified rules relating to an executor's assent to a legacy. Wentworth lays it down that, "if the executor do once declare his assent that the legatee shall have his legacy, he may then enter into it or take it, notwithstanding the executor's countermand or revocation of his assent after." (Office of Executor, 415.) Lord Hardwicke, in Mead v. Lord Orrery (3 Atk. at p. 238), speaks of specific legatees as having a specific lien on the assets for their specific part after the executor has assented. And in Doe v. Guy (3 East. at p. 124) Lord Ellenborough says that, "according to the doctrine laid down in the cases of Paramour v. Yardley (Plow. 539), and Young v. Holmes (1 Stra. 73), and in 4 Co. 28b, the assent of the executor once given to a specific legacy vests the interest at law irrevocably." There is, indeed, no doubt that at law the title to anything specifically bequeathed vests upon the assent of the executor absolutely in the legatee, so as to enable him to bring an action of ejectment for a leasehold (Doe v. Young, 3 East. 120), or trover for goods specifically bequeathed (Williams v. Lee, 3 Atk. 223). But the surprising thing is that equity should have turned such a deaf ear to the woes of the imprudent but honest executor. No doubt where the legatee has sold his specific legacy to a bona fide purchaser on the strength of the executor's assent, it would be unjust that such purchaser should be prejudiced by the revocation of such assent (see Chamberlain v. Chamberlain, Ch. Cas. 256). But suppose an executor assents to a legacy under the impression, for which there exist reasonable grounds, that the assets are sufficient to answer all demands upon them, but unknown debts are unexpectedly claimed; a deficiency arises, and the executor, thereupon, withdraws his assent, surely anyone would admit that it would be reasonable that the executor should be at liberty to do so. But, so far as we know, there is no higher direct authority than Roper (p. 855) for the proposition that he will be permitted to

do so.

not

The analogy of the rules relating to refunding legacies which have been actually paid over would, however, seem to show that, whenever the point comes to be formally decided, Roper's dictum must be affirmed. The general rule as to payment of legacies is not only that a legacy once paid cannot be recovered by the executor, but that where an executor voluntarily pays one cr more legacies, he is presumed to have received sufficient assets to discharge all the rest; and, although the fact be otherwise, evidence will be admitted to that effect. In such cases, therefore, the executor will be under the necessity of making up the deficiency out of his own moneys, since a court of equity will not (with the exception to be presently mentioned) permit him to institute proceedings against any of the legatees so paid to oblige them to refund (see Orr v. Kaines, 2 Ves. sen. 194; Newman Barton, 2 Vern. 205), "For it being the executor's own folly to make such payments before the amount of the estate could be ascertained, or his negligence in not acquainting himself with its amount, when that information might have been obtained, neither of these grounds entitles him to the interference of a court of equity to be relieved against his acts and assents to the legacies" (1 Roper on Legacies, 456). It is to be observed, however, that Raymond, C.J., in his opinion in

V.

Edwards v. Freeman (2 P. Wms. at p. 446), enters a protest against this doctrine. He says that "if an executor pays a legacy on the supposition that there are assets to pay all the other legacies, and there happens a deficiency, the court will make the legatee who is paid his full legacy refund." And in Davis v. Davis (8 Vin. Abr., "Devise," 423, pl. 35), it is stated that where an executor filed a bill against a legatee to refund a legacy voluntarily paid to him by the executor, the assets not being sufficient to pay the testator's debts, the court ordered the legatee to refund. But the general rule seems to be as it is laid down by Roper. An exception has, however, been admitted where the payment of the legacy by the executor was not voluntary, but the legatee had recovered his legacy by decree. In this case the legatee must refund on a deficiency of assets (Newman v. Barton, 2 Vern. 205). And it appears that in case a debt of which the executor was unaware (i.e., it is presumed unaware, although reasonable inquiry had been made) come to light after the assent has been given, equity will lend its help to the executor to compel the legatees to refund. Thus in Nelthrop v. Hill Biscoe (Ch. Cas. 135), it was said, and admitted by the court, that "if executors pay out the assets in legacies, and afterwards debts appear, and they be forced to pay them, of which they had no notice here might force the legatees to refund." before the legacies paid, the executors, by a Bill And in Atkins

objected that this court [King's Bench] cannot compel a v. Hill (1 Cowp. at p. 287), Lord Mansfield said, "It is legatee to refund if debts should appear. In that case he would be liable to refund whether he gave security or ground." It appears that the same principle must apply not, for it would be the case of payment upon a mistaken to the executor's assent, where the legacy has not been handed over to the legatee.

Ballard v. Marsden was whether executors, after setting The question which Mr. Justice Fry had to decide in part of such assets in respect of a debt due from the apart assets to meet a trust legacy, could retain any legatee to the testator's estate. The legacy was given to the executors upon trust to invest and pay the income to a lady for her life. They invested a sum in East India Stock to meet the legacy, and their solicitors wrote a letter to the lady admitting that the stock was appropriated to this purpose. It is not easy to see how they could have more conclusively divested themselves of the office of executors quâ this sum of stock and accepted the office of trustees. court, as Lord Selborne said in In re Batchelor (L. R. The general law of the 16 Eq., at p. 483), is that a legatee, who is also a debtor to the testator's estate, cannot (unless an intention that he should do so is manifested by the will) claim payment of his legacy without paying the debt, and therefore that the executors may in such a case retain the debt out of the legacy when payable. But the question in Ballard v. Marsden was a very different one; and with submission, we should have thought that, in that case, instead of raising any question as to the effect of assent, it would have been sufficient to say that, by accepting the trust, with knowledge of the existence of the claim which subsequently ripened into a debt to the testator (see the judgment, p. 377), the executors must be taken to have abandoned their right to set off or retain the debt (see the judgment in Stammers v. Elliott, 16 W. R., at p. 490).

There should be added to the list of names of gentlemen who passed the last final examination the name of Mr. Alban Walmsley.

We are requested to state that Dr. Cassionatti, a distinguished Greek advocate, lately president of the Parliament of Greece, is now in London for the purpose of studying our judicial system. We do not doubt that every assistance will be rendered him by the officers of the various courts.

Recent Decisions.

STALE DEMANDS.

(In re Rutherford, Brown v. Rutherford, C.A., 28 W. R. 802.) Independently of the Statute of Limitations, the courts, from a very early period, held that after the lapse of twenty years a bond must be presumed to have been paid; and in Duffield v. Creed (5 Esp. 52), Lord Ellenborough extended the same presumption to a promissory note. In the present case the plaintiff claimed to be allowed to prove in an administration action for principal and interest on a promissory note indorsed with a note of payment of interest in 1858, since which time there was no evidence of any interest having been paid. The note was made payable three months after demand, and it was contended that there was no evidence of demand having been made, and the Statute of Limitations only ran after demand made. But the court met this contention with a two-fold answer:

first, the demand was a stale one; and next (following Bamfield v. Tupper, 7 Ex. 27, where Parke, B., said that payment of interest was an acknowledgment that the debt was due, and an act from which a promise might be implied to pay the debt), they held that the indorsement of payment of interest was evidence of demand made for payment of the note.

A correspondent writes :-" It appears from the report of proceedings of the Metropolitan Board of Works that communications have passed between them and the Commissioners of Sewers of the City of London with reference to a proposed improvement in Breams'-buildings, the effect of which would be to continue Carey-street across Chancery-lane, and immediately north of the Record Office, into Fetter-lane. Without doubt such an improvement would be a relief to the extensive heavy traffic which now passes along Carey-street and down Chancerylane into Fleet-street; but unless Carey-street is continued across Fetter-lane so as to lead the traffic down into Farringdon-street, it will not be likely to induce carmen to abstain from turning their horses' heads down Chancery-lane instead of proceeding to Fetter-lane. I recognize this proposed improvement as part of a scheme more than thirty years old which, in addition to prolongation of Carey-street in an easterly direction, comprised the opening of Great Turnstile as a roadway for vehicles, and a continuation of Carey-street towards the west, and joining Drury-lane opposite the end of Long Acre. It may be questioned whether it would be advisable to invite extra heavy traffic past the Royal Courts of Justice, as it would probably come in such quantities as to create noise and confusion where quiet is essentially necessary. What portions of this ancient scheme it is intended to carry out I am not informed; its incubation took place about the time the site for the New Law Courts was originally proposed to be where it now is, and evidently with a view to facilitate access to the new buildings. If the new streets are brought into existence, they will inevitably attract the vehicular traffic, and may perhaps cause great inconvenience; if they are not formed complaints will be made of the difficulty of access from the north to the Royal Courts of Justice; and this little nut is one which it must be left to the Metropolitan Board of Works to crack."

Attorney-General Ward, says the Albany Law Journal, has given an opinion that telegraph poles are to be assessed as real estate. He says: "It is entirely clear to my mind that these telegraph structures are 'articles erected upon and affixed to the land,' so as to create an interest therein, and are, to the extent of the value thereof, land of the telegraph company erecting them, and as such liable to taxation. And it is the duty of the assessors of the several towns and wards of this State to assess the same as land to the value thereof, so far as any of their lines extend through their respective assessment districts."

General Correspondence.

CALL OF SOLICITORS TO THE BAR.

[To the Editor of the Solicitors' Journal.] Sir, Your readers have, doubtless, perused with much interest the report contained in the columns of your issue of the 24th inst. of the proceedings at the last annual meeting of the Incorporated Law Society. The subject of the call of solicitors to the bar was, apparently, the one topic of abiding attraction, and I notice that when gentlemen of probably a more prosaic mental constitution, and with, perhaps, a keener eye to the main chance, sought to divert the discussion towards the question of solicitors' remuneration, their efforts were invariably futile. Amongst the gentlemen whose minds were agitated on the score of remuneration was Mr. Proudfoot, and he had, also, something to say on the call of solicitors to the bar. Now, with Mr. Proudfoot's views I cannot say that the subject has, at any time, any great on remuneration I am not, at present, concerned; indeed, attraction for me, convinced as I am that a good lawyer, worthy of his hire, will get it. But I have read, with much regret, Mr. Proudfoot's views on the question of the call of solicitors to the bar; and, with your permission, I desire to make a comment or two thereon.

"The rules," Mr. Proudfoot is reported to have said, "at the present moment, were as good as rules could be, and if a gentleman desired to go from that branch of the profession to the other, it was quite right that he should take a little time in order that he might prepare himself for the different sphere which he was desirous to enter; and if he was a young man it was quite proper he should have three years, if necessary, in order to prepare himself and make himself perfect for the position he was going to take."

A contented mind is a continual feast, and all must envy Mr. Proudfoot that complacent satisfaction with the things that be which enables him to delare the rules which fetter the able and ambitious solicitor as good as rules can be.

If Mr. Proudfoot will go one step further and declare that a solicitor has no right to be either able or ambitious, I might feel constrained to admit the excellence of the rules in question; but my observation having taught me that, even among solicitors, ability and am bition are to be found, I must dissent from Mr. Proudfoot's conclusion. In enunciating the propositions contained in the latter portion of the part of his speech I have quoted, Mr. Proudfoot appears to have lost sight of what the advocates for a removal of the present restrictions on solicitors are entitled to lay down as a postulate. I mean that it may be taken for granted that only the more able and accomplished of the solicitors will, at any time, seek to be called to the bar; and the supposition that they require any time "to prepare for the different sphere they are desirous to enter," is based upon a most amazing ignorance of the relative acquirements of the good solicitor and the average

barrister. I could introduce to Mr. Proudfoot solicitors who are accomplished lawyers, ready and eloquent advo cates, and perfect gentlemen-men who have the pick of all worth having in both contentious and non-conten. tious business-but whom the jealous benchers would declare not fit to take professional rank with those immaculate youths whose tenure of a junior brief at quarter sessions is a period of agony to the unfortunate solicitors suffering silently in the well in front. As for Mr. Proudfoot's assertion, that "not one solicitor out of a hundred wished to avail himself of the admission to the bar," I am not prepared to contradict it, having as little knowledge of the percentage in question on which to base a contradiction to such statement as, in all probability, Mr. Proudfoot had on which to make it. But when Mr. Proudfoot asserts that when that solitary one did get to

[To the Editor of the Solicitors' Journal.] Sir, I have read with some interest your report of the discussion at the annual meeting of the Incorporated Law Society, which I was unable to attend, upon Mr. G. R. Dodd's proposal to establish scholarships, and I regret that his resolutions were not carried. In my opinion his arguments were not satisfactorily answered by the president and others, and, in fact, were unanswerable. I trust that Mr. Dodd will not allow the subject to drop, and that, should he again bring it forward, he will be better supported than he was on this occasion. J. W. S.

11, Queen Victoria-street, London, July 28.

COSTS

AND

TAXATION APPORTIONMENT CLAIM COUNTER-CLAIM DISMISSED WITH COSTS-ORD. 19, R. 3.—In a case of Mason v. Brentim, before the Court of Appeal on the 21st inst., the question arose how the costs of a claim and counter-claim ought to be taxed, both having been dismissed with costs. The taxing master taxed the costs of the claim at £350, and the extra costs occasioned by the counter-claim at £10 103. The plaintiff objected to the taxation, on the ground that those items in the defendants' bill of cost which did not relate exclusively to the claim or to the counter-claim, but were common to both, ought to have been apportioned between the two. The taxing master held that the principle of taxation was settled by the decision of Fry, J., in Saner v. Bilton (27 W. R. 472, L. R. 11 Ch. D. 416, 23 SOLICITORS' JOURNAL, 426), and he overruled the objection. Malins, V.C., affirmed the taxing master's decision, and the Court of Appeal (JESSEL, M.R., and JAMES and BRETT, L.JJ.) took the same view. JESSEL, M.R., said that he entirely agreed with the decision of Fry, J., in Saner v. Bilton, and the reasons which he had given for it. And JAMES, L.J., said that it must be understood that the rule there laid down was the established rule of the court.

Cases of the Week.

CHAMPERTY-TRUSTEE IN BANKRUPTCY-SALE OF BANKRUPT'S RIGHT OF ACTION-BANKRUPTCY ACT, 1869, ss. 4, 17, 25.—In a case of Secar v. Lawson, before the Court of Appeal on the 21st inst., the question arose whether a trustee in bankruptcy is empowered by section 25 of the Bankruptcy Act, 1869, to sell, as part of the bankrupt's property, a right of action to recover property which had been vested in the bankrupt. The plaintiff, who was the trustee in bankruptcy of one Webster, claimed by the writ in the action to have it declared that a deed, which purported to be an absolute conveyance of certain property by the bankrupt to the defendant, ought to stand only as a security for money advanced by the defendant to the bankrupt, and that the plaintiff might redeem the property on that footing. After the issue of the writ the plaintiff executed a deed by which, in consideration of £2,000 paid to him by one Chatterton, he assigned to Chatterton his right to the property, the subject of the action. Chatterton then obtained an order of course, under ord. 50, r. 3, that he should be at liberty to carry on and prosecute the action and the proceedings therein in like manner as the same might have been carried on and prosecuted by the plaintiff if he had not assigned his interest. The defend. ant applied to Bacon, V.C., to discharge the order, on the ground that the assignment to Chatterton was really an assignment of nothing but a right of action, and that it was void on the ground of champerty. Bacon, V.C., held that the right to bring the action had vested in the trustee as part of the bankrupt's property, by virtue of sections 4 and 17 of the Bankruptcy Act, and that consequently the trustee was empowered to sell it by section 25, which empowers the trustee "to sell all the property of the bankrupt." His lordship, therefore, refused to discharge the order. This decision was affirmed by the Court of Appeal (JESSEL, M.R., and JAMES and BRETT, L.JJ.). JESSEL, M.R., said that, assuming what he did not mean to decide, that the bankrupt himself could not have lawfully made the assignment, it was clear that the right to bring the action passed to the trustee by virtue of sections 4 and 17. It was impossible that the right could remain in the bankrupt. And then section 25 gave the trustee power to sell all the property of the bankrupt. The word "property" must have the same meaning in both sections. If the trustee got the right of action, why should he not realize it for the benefit of the creditors of the bankrupt? He might not have sufficient funds to carry on the action himself. The words of section 25 were plain. JAMES, L.J., said it was intended that the trustee should be able to sell whatever vested in him as property of the bankrupt, and his lordship thought that the trustee could even sell a right of action in relation to property of the bankrupt which the bankrupt himself would not have bad.-SOLICITORS, G. S. & H. Brandon; Minet, Smith, &

Harvie.

LEASE OF BANKRUPT-ASSIGNMENT BY TRUSTEE TO EQUITABLE MORTGAGEE-INDEMNITY-DISCLAIMER-BANKRUPTCY ACT, 1869, s. 23.-In a case of Ex parte Buxton, before the Court of Appeal on the 22nd inst., the question arose whether an equitable mortgagee by deposit of a lease from a bankrupt is bound, on taking an assignment of the lease from the trustee in the bankruptcy, to indemnify the trustee against liability on the covenants of the lease. The bankrupt had deposited the lease of his shop with the appellant to secure the repayment of an advance. There was a memorandum accompanying the deposit, but, at the commencement of the bankruptcy, no assignment of the lease had been executed to the mortgagee. The trustee in the bankruptcy applied to the court for leave to disclaim the lease, and served notice of his application on the lessor and on the mortgagee. The mortgagee desired to have the lease assigned to him, and the lessor was willing to accept him as a tenant. The trustee was willing to assign to the mortgagee, but insisted that the mortgagee ought to indemnify him against liability under the lease, and in particular that he ought to pay a quarter's rent for the property which was actually due. The mortgagee objected to do this. The registrar made a simple order giving the trustee leave to disclaim the lease. The mortgagee appealed, and at his instance the Court of Appeal granted an injunction restraining the trustee from executing a disclaimer pending the appeal. Before the Court of Appeal it was contended that the trustee of a bankrupt who assigns property of which the bankrupt is a lessee is not entitled to any indemnity from the assignee, because he takes the lease only by operation of law; and his liability on the covenants ceases when he assigns the lease, reliance being placed on Wilkins v. Fry (1 Mer. 244), and a statement in Davidson's Conveyancing, 2nd ed., vol. 1, p. 477. The court (JAMES, BRETT, and COTTON, L.JJ.) held that the trustee was entitled to an indemnity. JAMES L.J., said that if the equitable mortgagee intercepts the trustee's statutory right of disclaimer, he must take the property, like any other person, on the usual terms-i.e., he must covenant to indemnify the trustee against liability under the lease. The trustee would not get the benefit of a disclaimer; he would assign the lease as a continuing lessee. And as he would have to retain a liability which he would otherwise have got rid of, the assignee must indemnify him against the consequences of his retaining the lease up to the date of the assignment. He must, therefore, pay the quarter's rent.-SOLICITORS, Winter & Co.; Goldberg & Langdon; Deane, Chubb, & Co.

the trustee ought to have been served, and the court (JAMES, BRETT, and COTTON, L.JJ.) held that the objection was well founded, inasmuch as the adjudication, when made, inured to the benefit of all the bankrupt's creditors. And the hearing of the appeal was adjourned to enable the appellant to serve the trustee. The trustee was then served. He appeared by counsel on the adjourned hearing, and the objection was raised on his behalf that the notice of appeal had been served upon him more than twenty-one days after the refusal of the application to annul. It was urged on behalf of the appellant that the petitioning creditor was really the essential person to be served, and it was asked that, at any rate, the court would extend the time for appealing. But the court held that the objection was a fatal one, and they refused to extend the time, and dismissed the appeal altogether.-SOLICITORS, H. Aird ; Lumley & Lumley; Gush & Phillips.

EXTRADITION ARREST - DISCHARGE-RE-ARREST ON PROCESS FOR CONTEMPT OF COURT-EXTRADITION ACT, 1870 (33 & 34 VICT. c. 52), s. 19.—In a case of Pooley v. Whetham, before the Court of Appeal on the 23rd inst., a question arose upon the construction of section 19 of the Extradition Act, 1870, which provides that when a person accused or convicted of any crime, which, if committed in England, would be one of the crimes described in the first schedule to the Act, is surrendered by a foreign State, "such person shall not, until he has been restored or had an opportunity of returning to such foreign State, be triable or tried for any offence committed prior to the surrender, in any part of her Majesty's dominions, other than such of the said crimes as may be proved by the facts on which the surrender is grounded." On the 3rd of September, 1879, an order was made in the action directing the plaintiff to give up possession of a certain railway to a receiver who had been appointed by the court. This order was served on the plaintiff personally, but he did not obey it, and on the 20th of September a writ of attachment was issued against him for his contempt. On the 22nd of October he was adjudicated a bankrupt, and he soon afterwards left England. On the 1st of June, 1880, he was arrested in Paris, and was brought over to England under the Extradition Act, under a warrant issued upon the application of the trustee in the bankruptcy, on the allegation that he had committed a crime against the bankruptcy law (one of the crimes mentioned in the first schedule to the Extradition Act) in not having delivered over to the trustee the books and papers in his custody or control relating to his estate. The plaintiff was then lodged in gaol. The magistrate by whom the charge was heard dismissed it, and the plaintiff was released. He was then arrested again under the attachment, and lodged in Holloway Gaol. He applied to be discharged, on the ground that by section 19 he was privileged from arrest for an offence committed before his surrender under the Extradition Act, until he had had an opportunity of returning to France. Bacon, V.C., refused to discharge him, and this decision was affirmed by the Court of Appeal (JAMES, BRETT, and COTTON, L.JJ.), on the ground that the section applies only to criminal offences against the State for which a man could be tried, and that it does not apply to a mere civil process to enforce obedience to the order of the court on behalf of a private person.-SOLICI TORS, Harper, Broad, & Battcock; Newman, Stretton, & Hilliard.

LOCAL BOARD OF HEALTH-EXPENSES OF SEWERING AND PAVING-CHARGE ON LAND-LIMITATION OF TIME FOR RECOVERING-11 & 12 VICT. c. 43, s. 11-11 & 12 VICT. c. 63, ss. 69, 129-21 & 22 VICT, c. 98, s. 62.-In a case of The Tottenham Local Board v. Rowell, before the Court of Appeal on the 24th inst., the question arcse whether the charge on land, which is created by section 62 of the Act 21 & 22 Vict. c. 98, in favour of a local board, for the expenses of sewering and paving which the owner of the land is liable to pay under section 69 of the Act 11 & 12 Vict. c. 63, can be enforced after the expiration of the period of six months, which is limited for the recovery of the expenses by summary proceedings by section 11 of the Act 11 & 12 Vict. c. 43, Malins, V.C., held (28 W. R. 409) that the charge could not be enforced when the board had not taken summary proceedings to recover the expenses within the six months. The Court of Appeal (James, Brett, and COTTON, L.JJ.) reversed

this decision, holding that by section 62, the charge was inposed on the land as soon as the expenses were incurred by the board, and there was no limitation in the Act of the time within which it could be enforced. The charge was not subsidiary to the summary remedy, but was a distinct remedy.-SOLICITORS, Heath & Parker; Peckham, Maitland, & Peckham.

ADMIRALTY ACTION-TRIAL BY JUDGE WITH NAUTICAL ASSESSORS-FVIDENCE OF EXPERTS-ADMISSIBILITY.—In a case of The Sir Robert Peel, before the Court of Appeal on the 26th inst., the question arose whether, on the trial of an admiralty action before the judge of the Admiralty Division, assisted by nautical assessors, the evidence of nautical experts is admissible on the question of the proper management of a ship under given circumstances. Sir R. Phillimore had rejected such evidence, and the Court of Appeal (JAMES, BRETT, and COTTON, L.JJ.) held that he was right in so doing, and that the decision of Dr. Lushington in the case of The Ann and Mary (2 W. Rob. 196) ought to be followed. BRETT, L.J., said that in this respect the practice of the Admiralty Division was differ. ent from that of the other courts. In other courts questions of nautical skill and science as to the management and movement of ships might be proved by the evidence of experts, but the Admiralty Court was instructed in such matters by nautical assessors, upon whose opinion and advice the judge acted. It might be a different thing if the judge was sitting without assessors, and the rale only applied to evidence as to the management of ships, for the court had always received skilled evidence as to the loading of ships, which was a matter before the commencement of the navigation.-SOLICITORS, W. A. Crump & Son; Lowless & Co.

POWER OF APPOINTMENT-COVENANT TO EXERCISS IN A PARTICULAR WAY-VALIDITY OF EXERCISE.-In a case of Falmer v. Locke, before the Court of Appeal, on the 27th inst., a question arose as to the validity of the exercise of a will gave the residue of his property to trustees upon trust power of appointment among children. A testator by his as to one-third part thereof, after the decease of the survivor of his son and his son's wife, for such of the son's children as the son should by will appoint. The son entered into a bond with one of his own sons by which he bound himself to appoint to that son the sum of £5,000 at the least, and by his will he appointed £5,000 to him. It was contended that this exercise of the power was invalid, because the donee's discretion was fettered by the bond which he had entered into. Jessel, M.R., contrary to his own opinion, but following a decision of Kindersley, V.C., in Coffin v. Cooper (2 Dr. & S. 365), held that there had been a good execution of the power. Kindersley, V.C., had himself decided contrary to the inclination of his own opinion in deference to prior authorities. The Court of Appeal (JAMES, BRETT, and COTTON, L.JJ.) affirmed the decision. JAMES, L.J., and BRETT, L.J., thought that a bond or covenant by a donee of such a power to exercise it in a particular way would be void, and that the exercise of the power would be good. COTTON, L.J., would express no opinion whether the bond or covenant would be void, but was of opinion that, if it were not, still the exercise of the power would be good. -SOLICITORS, Burne & Hunt; Last & Sons.

PRACTICE NOTICE OF TRIAL BEFORE OFFICIAL REFERES -JURISDICTION-JUDICATURE ACT, 1873, ss. 56, 57-RULES OF COURT, 1875, ORD. 36, RR. 2, 3.-In a case of Braginton v. Yates, before the Master of the Rolls on the 23rd inst., the plaintiff had given notice of trial of the action under ord. 36, rr. 2, 3, before an official referee, and the defendants now moved that notwithstanding the notice the action might be heard before the judge, and that the notice might be set aside as irregular. For the motion it was contended, on the authority of Longman v. Est (26 W. R. 183), that as the court had no power under sections 56 and 57 of the Judicature Act to direct the trial of an action before an official referee, a fortiori no notice of trial could be given in that way. The plaintiff relied on the express provisions of ord. 36, rr. 2, 3, which were to be taken as part of the Act. JESSEL, M.R., said he was