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This work is designed to serve as a reference manual for Patent Agents, with respect to the practice established under the Patents, Designs, and Trade Marks Acts; as a compendium of the Patent Laws for the use of Solicitors; and as a legal and commercial guide to inventors and manufacturers interested in Patent Rights. New Chapters on Copyright have been added. HORACE COX, Windsor House, Bream's-buildings, E.C. The Law and the Lawyers. THE selection of Lord HERSCHELL and Mr. Justice COLLINS as arbitrators on the Venezuela dispute must be highly gratifying to the common lawyers of England. It is unnecessary to say anything about their merits to the Legal Profession. One source of satisfaction to us lies in the obvious fact that authorities constituted for public purposes take note of the effective discharge of judicial duties, and give rewards of their own irrespective of the promotion awarded by the Government of the day. THERE are at present no arrears in the Crown Paper. This fact was mentioned with justifiable pride by Mr. Justice WRIGHT, who, sitting with Mr. Justice BRUCE, has brought about this most satisfactory state of things. MR. JUSTICE GRANTHAM has been engaged upon the North Wales Circuit from the 11th Jan. to the 30th Jan. in trying four prisoners, two of whom pleaded guilty, and four causes. If the six counties had been grouped into two, as is done at the Winter Circuit, the whole business would have lasted at the outside a week. REPORTS from the other circuits are nearly as bad. On the South-Eastern there has been serious work only at Norwich. No causes were entered for Chelmsford, and only one for Hertford. There were but three common juries at MaidAnd yet the localities are jealous of their assizes. stone. LAWYERS are not altogether favourites with the House of Commons. Apart, however, from party disputes, it is satisfactory to note that the seat at Walthamstow which Law held by a majority of 2300, Whiskey has lost by 279: We regret to observe that the authorities at Cambridge have been unable to award the Yorke prize, 1896, for an essay on "The Law on the Continent of Europe as to the Liability of Masters for Wrongs Committed by their Servants." ACCORDING to statistics just issued the work of the County Courts in 1895 shows decrease compared with that of 1894. The total amount claimed was £3,706,494, which was much more than in the previous year, but the amount recovered showed a decline, and only reached the sum of £1,681,962. The High Court actions remitted to the County Courts numbered 1186 actions of contract (1286 in 1894), 164 actions of tort (149 in 1894), 206 interpleader proceedings, and 517 employers' liability actions. Although there is a decrease in the numbers compared with 1894, it is very infinitesimal, and they are larger than those of any other previous year. LORD JUSTICE BARRY, in delivering judgment last week in a case before the High Court of Appeal in Ireland, involving difficult and complex questions with reference to the legality of bequests for masses, quoted a passage from an article written by the Most Rev. Dr. WALSH, Roman Catholic Archbishop of Dublin, with whose views on the legal aspects of this question the Lord Justice declared himself to be in absolute agreement, remarking that in Dr. WALSH's selection of his sacred calling a great legal luminary had been lost to the world at large. This incident must recall the fact that the principles of Equity Jurisprudence have an ecclesiastical origin. "The early ecclesiastical chancellors," writes Sir H. MAINE, "contributed to the jurisprudence of the Court of Chancery, which bears the name of Equity in England, from the Canon Law many of the principles which lie deepest in its structure." It is, perhaps, worthy of note that one of Archbishop WALSH's predecessors in the See of Dublin, the late Cardinal CULLEN, in the great action of O'Keeffe v. Cullen, in which he was defendant, was pronounced by the Irish Judicial Bench to be an unrivalled authority in the Canon Law. NOR is proficiency in legal lore confined exclusively to clerics of the Church of Rome. In the Anglican Communion the late Dr. CONNOP THIRLWALL, Bishop of St. David's, from 1840 till 1883, was for several years before his ordination a practising barrister at Lincoln's-inn; and Dr. TALBOT, the present Bishop of Rochester, was a lecturer in English law at Christ Church, Oxford. In Ireland, before the Disestablishment, the standard work in Ecclesiastical Law invariably quoted in the courts owed its authorship to a clergyman, the late Ven. EDWARD STOPFORD, LL.D., Archdeacon of Meath. THE death by his own hand of Mr. FAITHFULL MONIER WILLIAMS, Registrar of the Supreme Court of the West Indies, which has created so painful a sensation, reminds us that some brilliant careers on the Bench and at the Bar have been cut short by suicide. Thus, CHARLES YORKE, the second son of the first EARL of HARDWICKE, on being reproached for his acceptance of the Lord Chancellorship on the resignation in January 1770 of Lord CAMDEN, died under circumstances which point to suicide three days after his appointment and before his patent of peerage had passed the Great Seal. In 1818 Sir SAMUEL ROMILLY, in a fit of delirium following the death of his wife, committed suicide; while in our own time the tragic death of Mr. Justice WILLES was the clear result of overwork and undue mental strain. AMONGST a dozen notices of motion on the Order Book of the House of Commons, "for which no days have been fixed," is the following, in the name of Mr. EDWIN LAWRENCE: "That it is for the interest of the public with regard to the due administration of justice, that in all future appointments of judges a limit of age should be fixed for their compulsory retirement, and that it is desirable that the Government should forthwith, by legislation or otherwise, provide for this object." It will be observed (1) that the motion is not to have any retrospective operation; (2) that it is not confined to the judges of the Supreme Court; and (3) that it contemplates as possible provision for its object by other means than legislation; but, as to the last point, we do not see how the object of the motion, if carried, could be attained except by some statutory amendment of the existing Acts of Parliament bearing upon the appointment and retirement of judges: see especially sect. 14 of the Judicature Act 1873. AMONGST the twenty-three recommendations with which the elaborate report of the House of Commons Committee on Adulteration concludes, we find one to the effect that a person convicted of adulteration ought to be made liable, in the discretion of the convicting justices, to publish, at his own expense, the fact of his conviction. This was formerly the law under the Adulteration Act 1872, but the enactment carrying it out was repealed, and not re-enacted, by the Sale of Food and Drugs Act 1875. For a short time it was the law, in respect of a conviction for adulteration under the Licensing Act 1872, by a provision copied from a New Zealand statute, that a convicted publican should placard his own premises with the fact and details of his conviction, but this provision was repealed by the Licensing Act 1874, which left adulteration of intoxicating liquors to be dealt with under general adulteration law. Publication of convictions, however, may still legally take place in no less than four sets of cases: Convictions of adulteration under the Sale of Bread Act; convictions under the Adulteration of Seeds Acts; convictions of using false weights or measures in contravention of the Weights and Measures Acts; and convictions for selling unsound meat in the Metropolis in contravention of the Public Health (London) Act 1891. By sect. 47 (4) of that Act, on a second conviction, the convicting justices may order "that a notice of the facts be affixed in such form and manner, and for such period (not exceeding twenty-one days), as such court may order, to any premises occupied by" the convicted person, "and that the person do pay the costs of such affixing." THE Borough Funds Bill of Sir ALBERT ROLLIT, which is backed also by Sir JOHN LENG, Mr. BIGHAM, and Mr. WHITELEY, provides that one-twentieth in number of municipal or district council electors may challenge by a poll the resolution of the borough or district council to promote a Bill in Parliament at the expense of the borough or district funds. The poll is to be taken by voting papers, to be in the form in the schedule to the Bill, or to the like effect," and the voting to be secret voting. The second part of the first schedule to the Libraries Act 1892, which the Libraries Act 1893 and the Local Government Act 1894 have repealed except as to the metropolitan area, has apparently furnished a model for the form of voting paper. The electors will be able to vote, by placing a cross in the appropriate spot of the voting paper, either for or against a whole Bill, or for or against any part or parts of a Bill, or for or against any particular clause or clauses-e.g., either for or against a clause giving the local authority power to prohibit street processions on Sundays. Supplementary regulations as to the conduct of the poll may be made by the mayor or chairman of the council. It is material to point out that the Bill makes no provision for taking a poll on the question whether a Bill promoted by persons other than the governing bodies is to be opposed or not at the public expense, and repeals entirely the final proviso of sect. 4 of the Borough Funds Act 1872, which provides for a poll being taken on the question of opposing as well as on the question of promoting Bills, so that the governing bodies will be left far more free than they were on the question of opposing Bills at the general expense of the ratepayers. As a sample of a referendum, the Bill is one of great general interest. AN Agricultural Holdings Bill was mentioned amongst the Government Bills to be introduced in the present session "if time permits." The Agricultural Holdings Act 1883, which is now nearly fourteen years old, has long needed amendment in many important particulars, and it should also be borne in mind that the Allotments and Market Gardens Compensation for Crops Act 1887, the Tenants Compensation Act 1890, and the Market Gardeners Compensation Act 1895 have now to be read with it on points of substance, and that the Arbitration Act 1889 is supplementary to it on points of procedure. Amongst the amendments required are these: On the part of the tenant, the omission to give notice of claim in the required two months ought not to continue fatal; on the part of the landlord, the arbitrators ought to have jurisdiction to give judgment for him on a counter-claim overtopping the claim of the tenant; while, in the interest of both, the period of determination of a tenancy in cases of partial occupation continued after substantial tenancy ended-as where a "boosey" pasture is retainedought to be settled by statute law, and not left to be gathered from a study of the Portarlington case (61 L. T. Rep. 635), as compared with subsequent Scotch decisions. THE Income Tax Acts have long puzzled all lawyers who have been so unfortunate as to have to advise upon their meaning, and we are not surprised at Mr. HEALY'S endeavour to elicit from the CHANCELLOR of the EXCHEQUER some kind of undertaking that they should be codified. The CHANCELLOR of the EXCHEQUER, however, could give no undertaking of the kind, and referred to the failure last session of the attempt to consolidate that comparatively far smaller body of the statutes known as the House Tax Acts. We hope this attempt may shortly be renewed with better prospects of success. The only reason for its failure was that, rightly or wrongly, it had been introduced in the House of Lords, and, on objection being taken by means of a question in the House of Commons, it was decided by high authorities that the rule that all taxing bills must be first introduced in the House of Commons applies to consolidating as well as to originating measures. As for the Income Acts, an additional reason for their consolidation arises from the fact that Sir ROBERT in his great Act of 1842 borrowed by far the greater part of his phraseology from an Act of 1806 passed under the auspices of ADDINGTON. A evised classification was introduced by Mr. GLADSTONE in 1853, but the Act of 1842, though frequently amended, has been very little repealed. little repealed. As we have more than once had occasion to point out, the Revenue Acts which require consolidation most of all are those which deal with the Death Duties. The earliest of these, the Legacy Duty Act of 1796, is just one hundred years old. THE HOUSE OF COMMONS AND THE BENCH. APROPOS of Assize Commissioners sitting in the House of Commons, a contributor writes: Under the Judicature Act all the judges of the High Court are excluded from the House of Commons. Why should the temporary substitutes of these judges retain seats in that assembly? Judges (and their substitutes) should, to use the weighty words of Lord Brougham, be "rigorously excluded from all connection with legislation, with administrative duties, with politics, with party." While Lord Brougham laid great stress on the principle of keeping "the legislative and judicial functions quite separate," he insisted with a special vehemency on the exclusion of judges from the House of Commons. "You should not," he said, "allow a judge to be one day on the Bench, and the next to make his appearance on the hustings; the sort of conduct which a popular constituency expects is not becoming in a judge." "The purity of the Bench," writes Lord Brougham at the close of his life, "is guarded by the provisions disabling the judges from sitting in the House of Commons." It is the recorded opinion of Sir Samuel Romilly that a member of Parliament was sure to be all the worse member for being a judge, and a judge all the worse judge for being a member of Parliament. When Lord Langdale, a Master of the Rolls, was, between his constituents and others, and that there was less objection upon public grounds to his being a member of the House of Lords.' These statements, it is true, allude directly to judges, and can only be applied inferentially or by analogy to Commissioners of Assize. We have, however, been able to discover a weighty opinion with reference to the incompatibility of the office of Commissioner of Assize in the place of a judge with the holding of a seat in the House of Commons. On the 10th July 1876 a question was asked in the House of Commons with reference to the going of the late Mr. Serjeant Armstrong, a distinguished member of the Irish Bar, who was not at the time a member of the House of Commons, as a Judge of Assize. In answer to that question Sir Michael Hicks Beach, the present Chancellor of the Exchequer, who was then Chief Secretary for Ireland, said: "Any official action, Sir, in the nature of making or revoking an appointment such as that alluded to rests with the Lord Chancellor of Ireland (the Right Hon. J. T. Ball, LL.D.) rather than with myself, and his Lordship has therefore forwarded to me a statement which, with the permission of the House I will read: 'In Ireland there are three Queen's Serjeants who are always named in the ordinary commissions for the Assizes, together with the judges. The Queen's Counsel are not named in these commissions, and if one is sent as a judge, a special commission is issued for the purpose. When a judge does not go circuit, the proper person to take his place is a serjeant. If no serjeant goes, a Queen's Counsel is sent. The first serjeant is Serjeant Armstrong. The other two serjeants are in Parliament, and could not go as judges both on constitutional grounds, and because the payment they would receive might vacate their seats." " THE PREROGATIVE OF PARDON. THE recent Parliamentary debate, in which it was asserted or admitted by the First Lord of the Treasury that the great prerogative of pardon was exercisable by the Home Secretary, brought very strikingly before the attention of the public the primary fact on which constitutional lawyers so often insist, that the development of our institutions has been in the main a process by which in practice the prerogatives of the Crown have been transferred to Ministers responsible to Parliament, and through Parliament to the people at large. In the debate on the amendment to the Address instituted by Sir H. Howorth deprecating the release of the dynamite offenders, the "prerogative of pardon" was throughout eveu by the Home Secretary, who evidently spoke from official information, incorrectly designated as the "prerogative of mercy." The error in description to which we call attention is not one of a hypercritical or academic nature. At the present time there is no machinery known to the law for questioning the decision of a jury in a criminal case upon a matter of fact. However unsatisfactory such a verdict may be, whatever facts may be discovered after the trial which if known at the trial would have altered the result, no means are at present provided by law by which a verdict can be reversed. All that can be done is to apply in such a case to the Queen through the Secretary of State for the Home Department for a pardon for the person supposed to have been wrongly committed. The expression "pardon" under such circumstances, however inapplicable, is far less absurd than the expression "mercy." The prerogative of pardon is not absolute. The Sovereign, in whose name the Home Secretary acts, may, in general, pardon all offences which are offences merely against the Crown and the public, but to this there are several exceptions. Thus the committing of any man to prison out of the realm was made by the Habeas Corpus Act a præmunire unpardonable even by the King. Again, the King cannot pardon when private justice is principally concerned in the prosecution of offenders; and under the Act of Settlement it is enacted that no pardon under the Great Seal of England shall be pleadable to an impeachment by the Commons of England (12 & 13 Will. 3, c. 2). So too in many provisions of the Irish Penal Code it is enacted that penalties cannot be remitted even by the exercise of the prerogative of pardon by the Crown. PAYMENT INTO COURT “WITHOUT PREJUDICE." IN 1893 the Judges made a new rule placing fetters upon counsel with regard to communicating to juries the fact of money having been paid into court or (sic) the amount. This is Rule 22 of Order XXII. In an action for personal injuries, before Mr. Justice Kennedy recently, counsel for the plaintiff in opening to the jury stated that, months after the action was begun and after a medical examination of the plaintiff, the defendant paid money into court. The learned judge thereupon discharged the jury and empanelled another, from whom the fact was withheld. A few days later, in an action for wrongful dismissal before the Lord Chief Justice, he asked counsel why he did not mention that money was paid into court. Counsel referred to the rule. The learned judge said that, notwithstanding the rule, the jury should be told the fact, and they were. In another case as long ago as July 1896 (Mackenzie v. Harris), an action for libel, the plaintiff pleaded absence of malice or negligence and apology, and paid £100 into court by way of The Lord Chief Justice held that amends under the statute. the rule did not apply, and in summing-up informed the jury of the amount paid, and left them to decide whether or not it was sufficient. The best opinion is, that the rule is ultra vires. The notion that at whatever time the fact leaks out the jury must be discharged is hardly sensible; why the necessity for keeping the jury in the dark only occurred to the judges in 1893 is a mystery. If the disclosure works injustice, why did it not occur to anyone in the past centuries? The concealment may work injustice if the fact is a significant fact in the litigation. Judicial difference on the subject is a misfortune. We see no distinction between libel and any other action—certainly not if the amount be mentioned. But uniformity of practice is essential. The practice which prevails in Lord Russell's court ought to prevail in all other courts The only justification for this rule is a profound distrust of juries. It must have grown out of the belief that juries are prone to give a verdict against a person paying money into court and something more than the sum paid in. Also it must to a certain extent be based upon a conviction of the inability of judges to explain to a jury what a payment into ourt means. It cannot be said that ignorance and perversity have never carried juries away to base their verdict upon the amount paid in. On the other hand, it is a fair expression of a defendant's view of his own position, just as much as any act or document relied upon against him. The Lord Chief Justice's view seems to be the sound one. Tell the jury that the defendant denies his liability, but if he is liable that he says the plaintiff's damages are not more than, say, forty shillings, and let them say, if there is liability, is that enough. If juries cannot be trusted to this extent, they are slaves of prejudice, incompetent to form opinions upon serious questions, and should be removed from our judicial system. To retain the rule is to leave litigants at the mercy of mere inadvertence or accident. After days of hearing and much cost, the fact of payment into court is communicated somehow or other to the jury. Must they be discharged? If yes, what an absurd, what a pitiable, and really what a scandalous result. While the rule exists this is always possible. INTERNATIONAL ARBITRATION. THE fact that a General Arbitration Treaty was signed in Washington on the 11th Jan., by representatives of Great Britain and of the United States of America, is perhaps more interesting than epoch-making, though no lover of peace among nations will desire to minimise such importance as actually exists. The ratification of the treaty is a thing to be desired, for it will bring into effective operation a tribunal which will be able to deal rapidly and well with those minor questions in international law which necessarily arise from time to time, and which, whilst unsettled, are frequently a cause of international irritation. We therefore sincerely trust that the Senate will sce its way to ratify the treaty in its original form, and will not adopt the stultifying amendments now proposed by the Committee of Reference. To do so will rob the treaty of its essential value, and will render of little effect the earnest efforts of far-seeing statesmen. means It is, however, impossible to admit that the present treaty, even if it is ratified, will have introduced any new principle into international law, or that the radical ideas that have governed the relationship of nations during the past century will have undergone any modification whatever. Placing upon one side the arbitral procedure, which occupies the greater part of the treaty, we find that the principle laid down is that all questions in difference between the contracting parties which may fail to be adjusted by diplomatic negotiations are to be submitted to arbitration. Now what does this mean? Putting it at its highest value, it that for some period, short or long, it will not be necessary, as heretofore, for the two countries to enter into a special treaty for the purpose arbitration of submitting to a special question. The new treaty provides a continuing arbitral procedure for as so long, and in many cases, as the contracting parties elect to be bound by that procedure. Now, what is there new in this? How does it even touch the status quo ante? International arbitration is no new thing. The examples of time past have exhibited it to us in all its strength and in all its weakness. At the present day the jurist knows what to expect and what not to expect from the arbitrament of nations. Since 1794 there have been decided some twenty-five cases of importance, which have shown conclusively that arbitration is peculiarly adapted for settling disputes of a non-vital character, but that it has been incapable of quelling the passions that arise out of vast international issues or wideThe reason for this is, of course, spread hereditary hate. obvious. International law is not the dictate of a sovereign; it is not supported by any compulsory sanction, nor is it enforced by any inevitable penal results. It is a law, inasmuch as it represents the highest international morality of the time; but the punishment for breaking it is so remote, that it is frequently disregarded. There is no power that can compel a nation to accept the result of an arbitration, and, as a matter of fact, there is every reason to suppose that a nation vitally worsted in an arbitration would at once appeal to the supreme arbitrament of arms. Moreover, it has not always been the casethat nations have abided by the decision of arbitrators even in non-vital matters. It is impossible to forget that in 1831 the United States deliberately rejected the award given in the matter of the British-American Boundary. What happened then might possibly, though we confess its unlikelihood, happen again. Moreover, there is always the fear, in the case of the United States, that, in the event of an adverse monetary award, Congress would refuse to vote the necessary sum. We may, however, with some confidence assume that the solemn nature of a continuing treaty such as the present will assure the effective acceptance of awards in non-vital cases. It is not, we regret to say, possible to make any such assumption in cases where the dispute is of the highest degree of importance. One instance from history will show how little national passions heed either the morality of international principles or the binding force of solemn treaties. In Protocol 23 of the Treaty of Paris of 1856, the plenipotentiaries of the contracting powers expressed in the name of their respective governments, "The wish that States, between which any serious misunderstandings may arise, should, before appealing to arms, have recourse, as far as circumstances might allow, to the good offices of a friendly power." Did America seek here for any moral guidance in order to avert the fearful North and South war? It may be said that she was not a signatory to the Treaty of Paris. That is true, but she was not the less bound by the moral principle laid down by the most enlightened nations of Europe if her actions were to be judged from the European standpoint. But, if America refused to be bound by moral force, surely a signatory to the Treaty of Paris would have been bound by the force of the treaty. Yet it was not so, and within fourteen years after the treaty Prussia and France closed in the deadliest warfare. The truth is that, unless there is some compelling sanction behind a treaty, it has, when it clashes or is popularly supposed to clash with vital interests, no force that can withstand the desire for war. Moreover, jurists have ever held that it would be contrary to international justice, as Bynkershoek has put it, for third powers to compel nations to remain at peace. A third party has no more right to insist on peace than it has to precipitate war, though some writers have thought that possibly a third power capable of enforcing an award might find grounds for doing so. The present treaty has, as we have said, introduced no new principle into the administration of international law, and it is difficult to see how a tribunal under the treaty will be better able to deal with vital questions than arbitrators under other treaties. Indeed, the matter might be put to a very simple test: By what rules is it proposed that the arbitrating tribunal shall be governed? Is it to be governed by the ordinary rules of international law-the rules, for instance, of arbitral procedure laid down at the Hague in 1875 by the Institute of International Law? If so, it is not easy to see that the treaty has given us anything better than what exists already. But perhaps the tribunal is to be governed by special rules, or, as in the case of the Geneva Arbitration in 1871-2, by a subtle combination of special principles and normal international law. If so, all results based upon special rules or principles will be dismissed by third parties as decisions based nct upon international law but upon arbitrary creations of contracting parties. This introduction of arbitrary rules would render the construction of international law uncertain for the future and would do harm to the general principle of international arbitration. It is necessary therefore to assume that the Tribunal of Arbitration will always bind themselves by the normal rules of international law. If that is so, the treaty will on the whole bring about a more rapid method of settling non-vital disputes, and will also we do not doubt greatly increase the feeling of friendship between the two countries. More can hardly be said. The treaty is extremely useful, but it is not epoch-making. We might almost apply to it the words used by M. Lemoinne with reference to the Geneva Arbitration: "Il nous est malheureusement impossible de voir dans ce précédent l'ouverture et l'aurore d'une ère de paix et de bonne volonté parmi les homme ce n'est pas la création d'un nouveau Code International, ni une nouvelle religion." MORTGAGES: PAYMENT OFF. A SOLICITOR acting for a mortgagor who has given a notice to pay off the mortgage should be careful to follow up that notice with the proper steps to carry the matter to a satisfactory conclusion. It would seem the better course to send the mortgagee a draft of the reconveyance a reasonable time-say a week-before the day on which the money is to be repaid; and then to appoint a time to pay the amount. At any rate, 150 years ago the great Lord Chancellor of that day, Lord Hardwicke, decided that where, with the sum due, the mortgagor tenders for execution by the mortgagee a reconveyance containing covenants on the part of the mortgagee, the mortgagee is justified in refusing to take the principal and interest until he has had an opportunity of advising with his solicitor whether he may safely execute it: (Wiltshire v. Smith, 3 Atk. 89). Moreover, the mortgagor's solicitor must punctually observe to have the necessary sum ready, and to pay or tender it at some time during the day assigned in the notice to pay off, or during the hour fixed for repayment. For the late Vice-Chancellor Malin's decision making the consequences of default in payment significant now stands, and if the money be not paid at the time appointed, in strictness a new notice must be given or interest in lieu must be paid just as if the previous notice had not been given : (Bartlett v. Franklin, 17 L. T. Rep. 100; 15 W. R. 1077). If the mortgagor desire to pay the mortgage off immediately, or if his solicitor find he has not time to pursue the course suggested, and arrangements to meet the circumstances with the mortgagee fail, then the mortgagor's solicitor should give the mortgagee in the first case a short appointment to attend to repay, which would give the mortgagee a reasonable time to look up the deeds; and, in the second, an appointment on the day specified for payment off. The mortgagor's solicitor should accordingly attend to pay or tender the sum due, and to receive the title deeds; and he must subsequently get a draft reconveyance approved and the engrossment executed. It may be well, however, to remind a practitioner placed in such a position that, though when mortgages of equities of redemption and of equitable estates have been made by deed, it is customary to take a formal reconveyance by deed, that is not strictly necessary. The payment of the debt, interest, and costs is a discharge of such a mortgage; and an attested receipt indorsed on the deed is satisfactory evidence of its discharge: (2 pt. ii. David. Conv. 4th edit. 277). The reason for this is, that by such mortgages the legal estate in the land does not pass. The mortgagor's solicitor may duly attend to pay off the mortgage, only to find that the mortgagee refuses to receive the sum tendered, and disputes the account. The mortgagor can then either apply to the court for redemption, or he can pay the sum the mortgagee demands under protest. Of each in order. If the mortgagor commence an action, or take out, under Order LV., r. 5A, of the Rules of the Supreme Court, an originating summons, for the redemption of the mortgage, and at the trial or hearing it appears that the mortgagor had actually tendered to the mortgagee the full amount of principal, interest, and costs, and that the mortgagee had obstinately refused to receive it, and so had rendered the proceedings necessary, the court would probably fix the costs of the proceedings on the mortgagee: (Grugeon v. Gerrard, 4 Y. & C. at p. 128). A mortgagor's advisers must now, however, think twice before allowing the mortgagor to commence an action for redemption by writ. For, in a modern case certain plaintiffs, whose title to redeem a mortgage was disputed, recovered judgment in an action so commenced; nevertheless, they were held entitled to such costs only as would have been incurred on an originating summons attended by counsel in chambers, including the costs of the witnesses examined in court: (Johnson v. Evans, 60 L. T. Rep. 29). The costs allowed as between party and party to a successful litigant are, in all conscience, little enough; and for the successful party to find out, when too late, that his solicitor has unwittingly followed a more expensive course, and that he is to be mulcted in his costs of suit accordingly, is scarcely pleasant. If the mortgagor elect to pay, and in fact do pay, the excessive claim under protest, then he must commence an action against the mortgagee in the Queen's Bench Division, or, if it have jurisdiction, in the County Court, the sum overpaid being recoverable as money not justly due which has been paid involuntarily and under pressure. In the case of Close v.. Phipps (7 M. & G. 586) a larger sum than was due was demanded; and the case of Fraser v. Pendlebury (10 W. R. 104) was one of a claim of an excessive amount for costs. It may be asked, however, whether the.. principle of the decision as to costs in the case of Johnson v. Evans (ubi sup.) does not apply to the amount recoverable by a successful plaintiff in such an action; and ere electing to adopt the course of paying an excessive claim, & mortgagor's solicitor would do well to consider the point. Haste, as well as anger, destroys good counsel. In 1893 a beneficial amendment of adjective law was made, which, among other things, provides a prompt and cheap method by an "originator of settling some questions that may from time to time arise between mortgagors and mortgagees. We refer to Order LIV.A. of the Rules of the Supreme Court. That order provides that, in any division of the High Court, any person claiming to be interested under a deed, will, or other written instrument, may apply by originating summons for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the persons interested (r. 1). But the court or judge is not bound to determine any such question of construction if, in their or his opinion, it ought not to be determined on originating summons (r. 4). Mr. Justice Kekewich decided, in the recent case of Re Nobbs; Nobbs v. The Law Reversionary Interest Society Limited (75 L. T. Rep. 309; (1896) 2 Ch. 830), that the court has jurisdiction and is competent to decide the rights of a mortgagor and mortgagee under a mortgage deed upon a summons under this rule, and, what is most important, notwithstanding the applicant is a mortgagor who has made no offer to redeem. With this reference to a modern order, the practical utility of which should on no account be overlooked or forgotten, we will conclude our observations on a subject of some public interest and concern. COMMENTS ON CASES. AFTER the very clear disapproval of Lord Justice Cotton in Re Randell Hood v. Randell (56 L. T. Rep. 8), decided in 1887, that three copies of documents must be furnished to the court when three judges are present, it seems strange that the same omission should have been commented upon just lately. In Re Maule; Chester v. Maule (noted ante, p. 293) the same excuse was made, viz., that taxing masters would not readily allow the cost of them in a small case. Lord Justice Cotton said in terms that "the costs of such copies ought to be allowed by the taxing master." The notes to Order LXV., rr, 27 (18), say "costs of copies of every material document for the use of each member of the C.A. should be allowed." As Lord Justice Cotton pointed out, the omission to provide an adequate number of copies entails much inconvenience and waste of time. An appellant failing to supply three copies of material documents in Cannot v. Oppenhein (38 W. R. 1) was punished by his appeal being ordered to stand over, and the costs thereby occasioned were left for him to defray. As this case also shows that the practice is to allow the costs of the necessary copies, it is not clear how the taxing masters have any power to hesitate to allow them. There can, however, be no doubt now, as the court in this recent case again clearly intimated that taxing masters must allow them. "Where MR. THEOBALD in his work "on Wills" (4th edit. p. 76) says, a power of disposition over property is given to a person, the power may be exercised by deed or will, and will not be cut down to a testamentary power without clear words.” Further down he says: "Possibly, if the tenant for life is restrained from alienation, a power at her decease to dispose of property" might be construed as testamentary only." The case of Re Waddington; Bacon v. Bacon (noted ante, p. 294) shows that a tenant for life restrained from anticipating and having a power of appoint ment at her decease-words arguably appropriate to a testamentary giftis not precluded from exercising her power by deed. Mr. Justice Romer held that the restraint being no restraint on anticipation of corpus, did not enlarge or detract from the words of the power. In Archibald v. Wright (9 Simon, 161) a woman was tenant for life without power of alienation, but with power to dispose of it at her death as she thinks fit. Shadwell, V.C. held that the power of disposition was testamentary only. |