THE MEETING OF SOLICITORS and representatives of building societies, held at the Westminster Palace Hotel on Tuesday last, to consider Mr. Warton's Forfeiture Relief Bill, resolved that the enactment of a measure to restrain the enforcement of provisoes for re-entry ought not to be delayed during the period which must be required for the consideration of any comprehensive measure dealing with the law of property. We entirely agree with this expression of opinion, and rather than the matter should stand over, we would accept Mr. Warton's bill, faulty as it appears to us to be in several respects. But we are at a loss to see why there should not be added to this Bill the well-considered provisions which Lord Cairns adopted in the measure he introduced last session. It cannot fail to be to the benefit both of

lessor and lessee that encouragement should be afforded to the settlement, without application to the court, of the terms on which a forfeiture which has been incurred shall be waived. It must also be admitted to be fair that the application to the court for relief, in case the parties fail to agree, should be by the tenant. If the Bill were altered so as to correspond in these respects with Lord Cairns' Bill, and were restricted to leases not at rack rent, there would be much more chance of passing it this session. Half a loaf is better than no bread, and if relief could be obtained in the case of forfeiture of building leases, there would be no great hardship arising from the exercise of the proviso for re-entry.

A SUGGESTION has appeared in print that Mr. Bradlaugh may proceed by way of mandamus to compel the Clerk of the House of Commons to administer the oath to him. This is a startling proposition, seeing that this official, although appointed by the Crown, must clearly be the servant of the House which he is appointed to attend. If so, the case seems to fall within the principle of the decision of Reg. v. Lords Commissioners of the Treasury (L. R. 7 Q. B. 387); and since a mandamus could not issue to the House, neither can it issue to the servant of the House with respect to the performance of that which is a parliamentary duty. But apart from this difficulty, courts usually decline to issue orders which they are incapable of enforcing. Whether the House would order into custody the judges who issued such a mandamus is a question which we need not discuss. But how is the official on whom it is sought to impose this duty to carry out the orders he receives? Originally, by the statute of Elizabeth, the Commons' oaths were to be taken before the Lord Steward, for which reason the oath was formerly called an "outdoor oath." The Lord Steward was the servant of the Crown, and the question in a like case might then have lain between the Court of Queen's Bench and her Majesty. By the Act of Charles II. the oath was directed to be also taken "at the table in the middle of the said House, and whilst a full House was there duly sitting, with their Speaker in his chair." An Act of William IV. (1 & 2 Will. 4, c. 9) dispensed with the "outdoor oath" before the Lord Steward; and the Act of 29 Vict. c. 19, s. 3, re-enacts the rules laid down by the Statute of Charles II. as to the mode in which the parliamentary "indoor oath" is to be taken. Now, if the Clerk of the House of Commons is directed by mandamus to administer the oath or affirmation (whichever it may be) to Mr. Bradlaugh, how is that official to procure for his occasions "a full House of Commons duly sitting with their Speaker in his chair"? and if he should procure it, what will he be able to do" at the table in the middle of the House," with the Speaker behind it, and the serjeant-at-arms at his elbow? Does it seem probable that any court would issue a mandamus which might invite on themselves the perils of breach of privilege, or direct the officer of the House to do an act which the very occasion for the application for the writ shows it would be impossible for him to perform?

THE DECISION in Rickards v. Gledstanes (3 Giff. 298), that notice of the assignment of a reversionary interest in a trust fund given to the solicitor of the trustees of the fund was notice to the trustees, so as to take it out of the order and disposition of the assignor, has led textbook writers of such eminence as the late Mr. Lewin and Mr. Fisher to state that notice of an incumbrance may be given either to trustees or to their solicitor, and that notice to the solicitor of trustees will bind them. According to the Court of Appeal in The Saffron Walden Building Society v. Rayner, (28 W. R. 681.) this is true in a sense, but not in the sense in which it has been understood by the profession. There is no such thing as a solicitor to trustees, meaning thereby a permanent and

tanding relationship. "A man," said Lord Justice Bramwell, "is not a solicitor in the same sense as he is a chaplain, who, I suppose, is continually in his employment or engaged by him as such. A man is a solicitor for another only when that other has occasion to employ him as such. Or, as Lord Justice James put it, "There is no such thing, and no such officer known to the law [as an 'official solicitor']. A man no more has a solicitor in that sense than he has an accountant, or a baker, or butcher. There may be a person whom he employs as an accountant when he wants one, or a person who is his wine-merchant or baker, and a solicitor whom he employs when he wants one, and then the solicitor is his solicitor while he employs him, and in the matter in which that solicitor is employed. Beyond that the solicitorship is at an end." We have quoted the words of these judges because it is of the greatest importance that our readers should gather the exact bearing of the recent decision. As we understand it, for the future the only cases in which notice of an incumbrance can be effectually given to a solicitor on behalf of trustees is where the solicitor has been constituted the agent of the trustees to receive notice of incumbrances. He may be

so constituted either expressly or by his employment by

the trustees to distribute the trust fund. He will not be constituted such agent by mere previous employment by the trustees to act in matters connected with the trust estate, nor by his employment to invest part of the trust fund on mortgage, although he may afterwards receive from the mortgagee the interest and continue to pay it by direction of the trustees to the different persons entitled to receive it. The practical result is that, to ensure their validity, all notices of incumbrances must be sent to the trustees.

GOOD PROGRESS is being made towards the completion of the building of the Royal Courts of Justice, and it may reasonably be expected to be ready for occupation in November, 1882. The eastern part of the uncompleted portion of the buildings-the part, that is to say, which bounds the large quadrangle on its western side-is so far advanced that a period short of twelve months should find it fit for occupation by some of the chief clerks to the chancery judges, whose chambers are to be placed in this part of the building. The walls of all the courts (numbering eighteen) are finished, and in some of them progress has already been made in erecting the open timber roofing. The large hall-the substitute for, or successor of, Westminster Hall-is well advanced, the stone-work of the side-lights is within a few days of completion, and the groined stone roof, and the columns from which it is to spring, are already carried so high as to show the first portion of the curve of the arch. Judging from present appearances, the passages in this part of the building will be even darker than those in the portion already completed, and in some places it seems probable that it will be necessary to burn gas during the whole day even in summer. A passage nine feet wide and more than a hundred feet in length cannot be said to be sufficiently lighted by means of a window at one end or even at both ends; and the value of the light borrowed by means of glazed apertures above doors may be estimated by any one on a very cursory inspection of the passages leading to the legal offices in the completed part of the building. In the passages now referred to this borrowed light can be obtained on one side only instead of on both sides. Everywhere throughout the building the crowning stones and parapets are in position round the outside walls, and the workmen are busily engaged in putting up the rafters of the roof. Immense water tanks are placed under the roof to supply water to the building, both for ordinary use and in case of fire. One of the most important matters in connection with the new building is the internal fittings of the courts. This concerns judges, barristers, officials, jurymen, suitors and their solicitors, witnesses, and, lastly, the

general public. In the original plan, the interests of each of these classes were considered, and it is to be hoped that the original arrangement will be adhered to; it was based upon the principle that all those who have business in the courts should have free access, absolutely uninterrupted by the general public, and that no facilities should be given for idlers who make the round of the courts with a view of deriving amusement from what is going on.

THE MIDDLESEX REGISTRY BILL, to which we recently referred, was met on the motion for second reading with the plea of the intention of the Government to lay before Parliament next session "measures dealing with the whole subject of land transfer." We agree with Mr. C. E. Lewis that it is scarcely satisfactory to say that, because a general scheme relating to land transfer is in prospect, a reform affecting exclusively a small area, and more urgently required than any other land law measure, should be set aside. Moreover, the proposals for Middlesex, if they proved a success, would afford a practical guide to the lines on which any general scheme of registration should proceed.

PAYMENT INTO COURT IN ACTIONS OF DEFAMATION.

Ir seems now to be finally settled by the decision of the Court of Appeal in the case of Hawkesley v. Bradshaw (28 W. R. 557, L. R. 5 Q. B. D. 302) that, with the exception of cases where an action is brought to try a right, the defendant has in general a right to pay money into court as well as to plead defences going to the cause of action in respect of which such payment into court is made.

The judges of the Queen's Bench Division have strenuously contended for the opposite view. The first case on the subject was Spurr v. Hall (26 W. R. 98, L. R. 2 Q. B. D. 615), in which the judges of that division decided that payment into court could not be pleaded with other pleas, following the old practice on the subject. We ventured at the time (22 SOLICITORS' JOURNAL, 28), notwithstanding the great weight that must be attributed to the opinion of the judges of the Queen's Bench Division, who at different times have enunciated the view upon which Spurr v. Hall was decided, to contend that under the new practice the rule ought to be different from that which prevailed under the old practice; and the result has justified our contention. The next case was Berdan v. Greenwood (26 W. R. 902, L. R. 3 Ex. D. 251), in which the Court of Appeal held that, in general, payment into court could be pleaded with other pleas, but in that case it was thrown out by way of suggestion in the judgment that possibly a different rule must prevail in actions of libel and slander. In the case we are discussing the question arose in respect of an action of libel, and the court held that the plea of payment into court might be pleaded even with a plea of justification.

This is certainly going a good deal further than Berdan v. Greenwood. We contended, when discussing the case of Spurr v. Hall, and we venture still to contend, that though the general rule ought to be in favour of allowing this rode of pleading, in particular cases the court ought to have, and to exercise, the right of disallowing it as unfair and embarrassing to the plaintiff. We cannot doubt the justice and good sense of allowing this mode of pleading in general. Why should not a defendant be allowed to say, "I deny the right of action altogether, but if you will be content with so much, I am content to pay it rather than be at any more trouble and expense. If you will take that amount, well and good; if not, I will fight you at all points"? He ought not in such a case to have to pay the costs if the plaintiff fails to recover an amount ex

ceeding his offer. All the subsequent costs are waste of money, brought about by the excessive claim of the plaintiff. It seems to us plain that the justice of the case demands that the defendant should have this right. If he cannot plead in this way, he may have offered by way of compromise more than the amount that the plaintiff ultimately recovers, but may have to pay the costs of the action. The plaintiff, as far as we can see, suffers no injustice. He can take the money out under the rules, and apparently can keep it in any event, and he will have all his costs up to the time of its being paid in. It may be said to be illogical, but it seems to us that this objection savours of the ancient notion, by which the essence of pleading was to reduce the matter to one issue-a very pretty system regarded from the point of view of an artist in pleading, but practically most unjust. Why is it more absurd that a defendant should be allowed to deny the cause of action and to pay money into court than it is to plead never indebted and payment after action brought ? or to deny an assault and plead that it was committed in self-defence? We confess ourselves wholly unable to understand the opposite point of view. We can only attribute it to the tendency that the most able and enlightened men sometimes have in favour of a system to which they have grown by long use accustomed.

But we must admit that in the case of libel and slander other considerations of great moment come in. We see no reason whatever why a plea of privilege or a plea denying an innuendo should not be admissible with a plea of payment into court. The difficulty arises with regard to cases where a plea of justification is pleaded. We think, on the whole, that the decision in Hawkesley v. Bradshaw was in conformity with reason and justice, but we do not feel sure that there might not be cases in which such a mode of pleading might work hardship to the plaintiff. In Hawkesley v. Bradshaw the amount paid into court was merely nominal, being forty shillings. It is obvious that, if this embarrassed the plaintiff, it was because his action was one which ought never to have been brought. If the libel had been substantial, he would clearly have been safe iu disregarding the amount paid in; perhaps even he could have treated it as an aggravation of the wrong done, and so as affording an advantage to him by way of increasing the damages. The damages in libel and slander are not confined to the actual pecuniary injury sustained. the libel is such as to be substantially injurious to a man's character, a payment into court of nominal damages ought not to put him into any difficulty, and, as was observed by the Court of Appeal, the judge, in the event of any eccentricity on the part of the jury,

can protect bim so far as the costs are concerned.

If

But

it occurs to us that, though it might not, and probably would not, often happen in practice, it is just possible that some defendants in exceptional cases might be willing to pay in a more substantial sum than forty shillings. A wealthy and vindictive defendant ought not to be allowed to purchase the right of defaming people. It would be like the old story of the Roman who used to assault people and then tender them the legal compensation. We do not think that there would be much risk in most cases of this course being taken. It would be such a dangerous thing for a defendant to put a high figure himself on the damages that it is only conceivable that this would be done under circumstances of desperation, and if it was done a jury would generally give enough in addition to carry costs. It is, perhaps, however, conceivable that, in some desperate case which the defendant wanted at all costs to keep out of court, it might be done. It does not seem to us that such a mode of pleading ought to be allowed. A. defendant seeks, not only compensation by way of damages, but the public vindication of his character. The wrong is oftentimes committed under circumstances of publicity, as in a newspaper. The fact of a payment into court does not involve the same publicity, and

in the case we are putting it is accompanied by a repe. tition of the libel. It would be a most gross thing, to our notion, that a man should be entitled to repeat the libel upon the record, and yet so far admit its falsity as to pay substantial damages into court.

The hardships we are suggesting would arise to some extent in the case of a payment into court pleaded alone, which is clearly admissible since the Judicature Act. Under Lord Campbell's Act the defendant had to apologize publicly if he paid money into court. But it would be more monstrous still if the defendant could justify. We think the probability of what we are supposing is rather remote, for we do not know of any case in which a substantial amount has been paid into court in an action of defamation; but, then, it must be remembered that, as above mentioned, such a course could not, before the Judicature Act, be taken without an apology. It seems to us, however, that in theory, at any rate, this possibility is an argument against the proposition that there is an absolute general rule in favour of allowing payment into court with a justification in actions of defamation. There are other actions in which somewhat similar questions might arise, such as false imprisonment and malicious prosecution; but there the plaintiff's character is seldom so directly at stake, because it is not generally essential to the defendant's case to allege that the plaintiff was actually guilty of a crime, but only that there was good ground for suspicion against him.

A MAN AND HIS NAME.

III.

THE question how far a patentee is entitled to restrain other manufacturers and the public generally from using his name to describe the article made under the patent stands upon a separate footing, and depends upon the general principle that one trader is not entitled to monopolize words which are properly descriptive of a particular article, or principle of manufacture, or process of construction, and which the public would naturally employ for the purpose of pointing out to what article of commerce, or principle, or process they wish to refer. The general principle is clearly set out in the judgment of Vice-Chancellor Malins in Raggett v. Findlater (22 W. R. 53, L. R. 17 Eq. 29), the "Nourishing Stout" case, where he said "It is of the highest importance that, on the one hand, every protection should be given to trademarks when fairly and properly used, and when used within just limits; and, on the other hand, it is of great importance that, by the use of a particular word or any thing which may be called a trade-mark, the right should not be unduly extended so as to infringe on the right of traders to call their article by a quality they possess, or to give an undue protection to any man who happens to use a particular word."

been laid down in America. Thus, in Caswell v. Davis And with no less distinctness has the same principle (58 N. Y. 223), Folger, J., said, in the New York Court of Appeals, "There is no principle more firmly settled in the law of trade-marks than that words or phrases which have been in common use, and which indicate the character, kind, quality, and composition of the thing, may not be appropriated by any one to his exclusive use. In the exclusive use of them the law will not protect, nor does it matter that the form of words or phrases adopted also indicates the origin and maker of the article. The combination of words must express only the latter. It is the result of all the decisions that known words and phrases indicative of quality and composition are the common property of all mankind. They may not be appropriated by one to mark an article of his manufacture, when they may be used truthfully by another to article made by him." inform the public of the ingredients which make up an So in Town v. Stetson (3 Daly, 53) a judge of the New York Court of Common

Pleas said that, "no manufacturer can acquire a special property in an ordinary term or expression, the use of which, as an entirety, is essential to the correct and truthful designation of a particular article or compound." So again, in Osgood v. Allen (1 Holmes, 185), another judge laid down that "a genuine name, or a name merely descriptive of an article of trade, or its qualities or ingredients, cannot be adopted as a trade-mark, so as to give a right to the exclusive use of it. The office of a trade-mark is to point distinctively to the origin or ownership of the article to which it is affixed. Marks which only indicate the names or qualities of products cannot become the subjects of exclusive use, for, from the nature of the case, any other producer may employ, with equal truth and the same right, the same marks for like products." And many other statements of the law, both by English and American judges, might be cited to the same effect.

It is obvious that the names of patentees are within the rule thus expounded, for every patent is necessarily taken out for some new invention or improvement, though the invention or improvement is frequently, no doubt, of a somewhat shadowy nature, and the patent is universally described by the name of the patentee, as "Bessemer's Patent," "Newton's Patent." The article manufactured in accordance with the patent then acquires a name derived from the name of the patent process, thus, "Steel manufactured according to Bessemer's Patent," or "Bessemer's Method," or, shortly, "Bessemer Steel." The result is that the name "Bessemer," as applied to steel, by no means indicates steel manufactured at the works of the patentee, or under his direction, but indicates that the steel has passed through a certain process of manufacture, at whatever establishment it may be, and has so acquired the particular aggregation of qualities which steel so manufactured is known to possess. The name, in fact, is descriptive of quality. And there may, of course, be cases, especially where the manufacture has been kept a secret, in which the name of an inventor of a new manufacture may come to be descriptive of the manufactured article, even though no patent was ever taken out. Probably no patent was ever granted to the originator of "James' Powders." But in such cases the name is, of course, not so necessarily descriptive as where there is or has been a patent.

When the name of an inventor or patentee has thus become the name of the article, there would clearly be a double injury inflicted on the public if they were debarred from describing the article by the name which properly belongs to it. For not only would other manufacturers of the same article be unable to convey to the minds of their customers that their goods were the exact equivalent of those which had been made under the patent by the original inventor, but purchasers would be deceived by two or more different names being in use to denote the same article. Lord Hatherley, therefore, in Young v. Macrae (9 Jur. N. S. 322), gave it as his opinion that, where a patentee's name had been usually applied to particular goods inanufactured by him, not because they were of his make, but because he, as patentee, could alone make them, after the expiration of the patent any one might use the name; and, further than this, that where a patent was for a means of getting at a new natural product, which had for the first time received a name, any one might use the name, even during the continuance of the patent, if he could invent a new means of getting at the natural product without infringing the patent. The name there in issue was "Paraffin Oil," but it seems that the same principle would have applied if the oil had been given out to the public by the patentee as "Young's Oil." In Liebig's Extract of Meat Company v. Hanbury (17 L. T. N. S. 298) it was held that the name Liebig's Extract of Meat" had become descriptive, and could be used by any one who was in possession of the recipe. So Condy's Fluid," in Condy v. Mitchell (26 W. R. 269). On the other hand, in Wilkie v. McCulloch (2 S. 413)

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the Scotch Court of Session granted an interdict to restrain the use of the name "Wilkie" on ploughs, notwithstanding a defence that the name was used to indicate a class of plough, and not the manufacture of the plaintiff. Here there was no patent. In Tucker Manufacturing Company v. Boyington (9 U. S. Off. Pat. Gazette, 455) it was decided that, on the expiration of Tucker's patent for beds, the right to use the name "Tucker's Spring Bed," and to publish a representation of the bed, had become public and common property. And in In re Richardson (3 U. S. Off. Pat. Gazette, 120), a registration case, a similar conclusion was arrived at with respect to the name "Richardson's," as applied to a leather-splitting machine.

In the case of In re Consolidated Fruit Jar Company (14 U. S. Off. Pat. Gazette, 269) registration was refused to the name "Mason" as applied to seven-inch jars made under an existing patent, since, although the inventor, or those claiming through him, had the sole right to make the article, and call it by its special name during the existence of the patent, at the expiration of the patent the article would be thrown open to manufacture by independent firms, who would be entitled to apply the appropriate name to the jars they made. (See, however, Ex parte Consolidated Fruit Jar Company, 16 U. S. Off. Pat. Gazette, 679, in which an opposite conclusion was arrived at.)

On looking into the point, it certainly appears to be reasonable in every way that the mere fact of a name having been exclusively used by a patentee during the continuance of his patent should not be sufficient of itself to give him an exclusive right in the name as long as he keeps up the manufacture; for, as was well pointed out by Mr. Justice Fry in Linoleum Manufacturing Company v. Nairn (26 W. R. 463, L. R. 7 Ch. D. 834), where the word "Linoleum" was in issue, "until some other person is making the same article, and is at liberty to call it by the same name, there can be no right acquired by the exclusive use of a name, as showing that the manufacture of one person is indicated by it, and not the manufacture of another." If after the expiration of the patent the patentee were to continue to use the name and no one else were to adopt it, a different state of circumstances would arise. But apart from some such independent user, "protection," to cite the present Master of the Rolls in Cheavin v. Walker (L. R. 5 Ch. D. 850), "only extends to the time allowed by the statute for the patent, and if the court were afterwards to protect the use of the word as a trade-mark, it would be in fact extending the time for protection given by the statute. It is, therefore, impossible to allow a man who has once had the protection of a patent to obtain a further protection by using the name of his patent as a trade-mark." The name there held by the Court of Appeal to have become publici juris was "Cheavin's" water filter, and Lord Justice James added-" It is impossible to allow a man to prolong his monopoly by trying to turn a description of the article into a trademark. Whatever is mere description is open to all the world." In very much the same language he had already said, speaking of the "Wheeler & Wilson" sewing machines (Wheeler & Wilson Manufacturing Company v. Shakespeare, 39 L. J. Ch. 36), while Vice-Chancellor, "A man cannot prolong his monopoly by saying, ‘I have got a trade-mark in the name of a thing which was the subject of the patent.""

It is, of course, possible that, though the name is applied to a certain description of articles made under a certain patent, it may also be applied to other articles of the same description but made on a different prin ciple or by a different process which has formed the subject of one or more other separate patents of the same patentee. This is, of course, a question of evidence in each case, and it is for the court or jury to decide on the facts whether one principle or one set of characteristics sufficiently runs through all the differing articles which pass by the same name for the name to be sus