mark in respect of the greater number of the r which they claimed it, and at the hearing of they withdrew opposition in respect of all the icles in respect of which Messrs. Schmidt xcept the six kinds above mentioned-viz., pers' drawing-knives, matchets, augers, sheepid garden-shears.

tion and the adjourned summons now came on ng together, and the summons was dealt with hout prejudice to the action.

arson, Q.C., Moulton, Q.C., and R. F. Norton, summons, argued that Messrs. Schmidt were to proceed with the application of 1876.-The $75 contained no provision as to abandonment, on 63 of the Act of 1883, which provided that :registration of a trade-mark has not been or I be completed within twelve months from the he application, by reason of default on the part pplicant, the application shall be deemed to be d," was not retrospective; and, moreover, secof that Act saved applications pending at the ement of the Act. If, however, section 63 was tive, then the application of 1876 was not to be bandoned, because there had been no "default art of the applicant." The letter of the registrar have been sent to Messrs. Schmidt at the address their application, and not to the Trade-Marks on Society. The registrar could not recognize it. They further contended that, having regard 'three marks rule," the word "exclusive" in secf the Act of 1875 and section 76 of the Act of 1883 e construed, not with reference to the three per10, under the rule, might be entitled to registraan old mark inter se, but with reference to the public, and, therefore, that the fact of the shaving been on the register for five years was to Messrs. Schmidt' application.

cited In re Wood's Trade-Mark, 32 Ch. D. 247, 1. Dig. 199: Edwards v. Dennis, 30 Ch. D. 454, R. Dig. 197; In re White Rose Trade-Mark, R. 796, 30 Ch. D. 505; In re Jelley, Son, & application, 51 L. J. Ch. 639; In re Lyndon's Mark, 34 W. R. 403, 32 Ch. D. 109.

ings, Q.C., and Hatfield Green, for Messrs. , as respondents to the summons, and as plaintiffs action, referred to In re Hudson's Trade-Marks, R. 616, 32 Ch. D. 31; Johnston v. Orr-Ewing, R. 417, 7 App. Cas. 219.

Pearson, Q.C., in reply on the summons, and for fendant in the action, cited In re Hayward's -Marke, 54 L. J. Ch. 1003, 34 W. R. Dig. 196; v. Boehm, 32 W. R. 612, 26 Ch. D. 398.

alton, Q.C., followed for the defendant in the

etings, Q.C., in reply, for the plaintiffs in the

ee. 15.-STIRLING, J., after stating the facts above tioned, proceeded as follows:-I will deal first with adjourned summons. By that Messrs. Schmidt, in stance, ask that the Comptroller-General of Tradeks may be directed to proceed with both their applions for registration-namely, that of 1876 and that 885. I will first consider their position in regard to application of 1876. The main objection which has raised to that being proceeded with is founded on on 63 of the Trade- Marks Act, 1883. It has been ended on behalf of Messrs. Schmidt that that section not apply, first, on the ground that it is not pective, and, secondly, because section 113, sub(a), of the same Act excepts pending applicas from the operation of the Act. I have no doubt

HIGH COURT.

also that section 113, sub-section (a), does not operate to exempt a pending application from its operation. Section 113, sub-section (a), saves the past operation of the enactments thereby repealed; it also saves pending applications, but it does not provide that they shall not be affected by any of the provisions contained in the other parts of the Act. In my opinion these provisions affect and govern a pending application. That was the view taken by Kay, J., in In re Hayward's Trade-Mark. The application of 1876 is therefore within the operation of section 63, and it becomes necessary to consider the effect of that section. It was argued that in the case of Messrs. Schmidt there had been no "default on the part of the applicant." If that were so no doubt the application would not be an "abandoned "" one, and the section would not apply. But it seems to me that there has been default. The letter of the registrar, in substance, required Messrs. Schmidt to apply to the court. That they did not do. It was said that the letter was improperly addressed; that it ought to have been sent to Messrs. Schmidt at the address given as their address in their form of application, and not to the care of the Trade-Marks Protection Society; and that the registrar was not at liberty to recognize an agent. I cannot agree with that contention. Every person who is sui juris has a common law right to appoint an agent for any purpose he pleases, and not the less so where the appointment is for the purpose of exercising a statutory right. Nothing has been pointed out to me in the Trade-Marks Act which has the effect of taking away that primâ fucie right, and I therefore hold that it remains.

It is clear upon the evidence that Messrs. Schmidt appointed the society as their agents for all purposes connected with the registration. It had, consequently, full power to give its own address as the place to which notices were to be sent. At all events, as between Messrs. Schmidt and the registrar, Messrs. Schmidt must be taken to have authorized the giving of that address. I consider, therefore, that the notice of the registrar was properly given, and that the application should have been proceeded with in due course. It is further objected that no time is limited within which the applicant is to proceed. That is true; but the meaning of the enactment is that he is to proceed without unreasonable delay. If he has had a reasonable time and opportunity to apply to the court, and has neglected to do so, he must be taken to be in default. Messrs. Schmidt did not proceed within a reasonable time; on the contrary, they delayed until 1885. They are therefore in default, and they are not the less so because the delay was due to the negligence of their agents. My conclusion, therefore, is that the application of 1876 must be taken

to have been abandoned.

HIGH COURT.

by Cotton, L.J., in his judgment in Edwards v. Dennis (30 Ch. D., at p. 472). In that case it was held that section 3 was no bar to considering the question whether a trademark was properly upon the register or not. In the present case the question is not whether the plaintiff's mark is properly upon the register, but whether Messrs. Schmidt are entitled to have a similar mark of their own registered. The same principle applies in both casesnamely, that if a person can make out a title to be put upon the register section 3 is no bar. Section 76 of the Act of 1883 is almost identical in terms, and must be interpreted in the same way. Messrs. Schmidt are therefore entitled to have their second application proceeded with.

His lordship then dealt seriatim with the six kinds of goods in respect of which the opposition of the plaintiffs had not been withdrawn, and said that the question in each case was whether there had been user in England of such goods bearing Messrs. Schmidt's mark prior to 1875. With regard to what was sufficient to constitute user, his lordship referred to the judgment of Lord Westbury in McAndrew v. Bassett, 12 W. R. 777, 4 De G. J. & S. 380, in which he said :-"An element of the right" to the property in a trade-mark "may be represented as being the fact of the article being in the market as a vendible article, with the stamp or trademark." A trade-mark must, therefore, be considered to have been used in England if articles marked with it had appeared as vendible articles in the English markets. His lordship applied this test to each of the abovementioned articles, and came to the conclusion that user bad been proved of all of them except sheep-shears, the evidence as to the latter being merely that they had been ordered by foreign firms through Messrs. Schmidt's agent in London, shipped by them to London, opened there for inspection, and immediately re-shipped. That was not a user of the mark in England. He, therefore, held that Messrs. Schmidt were entitled to be registered in respect of all the above-mentioned kinds of goods except sheep-shears. The costs of the summons must be paid by the plaintiffs.

His lordship then proceeded to deal with the action. He held, in the first place, that Messrs. Schmidt's mark so closely resembled the plaintiffs' as to be calculated to deceive. So far, therefore, as related to sheep-shears, there was nothing to preclude the plaintiffs from enforcing their rights. The defendant Napper had acted as Messrs. Schmidt's agent in England, and there was evidence to show that he had offered for sale in England goods bearing the plaintiffs' trade-mark. The injunction asked for by the plaintiffs would be granted as regards sheep-shears, but in other respects the action must be dismissed. There would be no order as to costs.

Solicitors for Messre, Jackson & Co., Cattarns, Jehu, & Hughes, for Younge, Wilson, & Co., Sheffield. Solicitors for Napper, Ellis, Munday, & Bartrum.

HIGH COURT.

thereon to be purchased for its erection, was or were rated or assessed or did pay to such several rates and taxes in 1777." The Sessions House had, since that date, been enlarged and altered upon a new portion of land purchased for the purpose. This new portion was to be used for the same purposes and vested in the same persons as the old.

Held, that, notwithstanding such enactment, the Sessions House, being used by the justices for purposes devolving upon them from the general government of the county, was analogous to Crown property, and, as such, was exempt from rateability.

A junior clerk of the justices of the county of Middlesex occupied, with his family, a sitting-room, six bedrooms, and an office in the precincts of the Sessions House. He acted as caretaker to the Sessions House. No consideration was taken by the justices for such occupstion beyond the services performed by the clerk in the discharge of his official duties.

Held, that such did not amount to a beneficial occupation of the Sessions House rateable to the poor law.

Appeal by special case.

This was an appeal on behalf of the justices of Middlesex against a rate imposed by the assessment committee of the Holborn Union upon the Middlesex Sessions House, Clerkenwell-green. This Sessions House had been built under the terms of 18 Geo. 3, c. 67, which authorized the building of a new Sessions House with all suitable accommodation, and which further enacted that "the said Sessions House, with all its appurten ances, shall not be rated or assessed for or towards the payment of the sewers tax, land tax, or any public or parochial rate or assessment than that for which the piece or pieces of grounds or buildings, if any thereon, to be purchased for the erection of such new Sessions House was or were rated or assessed, or did pay to such several rates or taxes in 1777." Land was purchased for such purposes, the assessment upon which at that date was for gross value £135, and rateable value £103. In 1875 negotiations were entered into with the Metropolitan Board of Works for the purchase of a further piece of ground under the powers given by 38 & 39 Vict. c. 179, s. 27, for enlarging the Sessions House: the building upon this piece of ground "to be part of the appurtenances of the Sessions House, and to be vested in the same body as that in which the said house was vested." In October, 1877, this was daly conveyed to, and appropriated by, the clerk of the peace, he being the officer in whom the Sessions House was duly vested. Certain rooms in this new portion were allotted to the junior clerk of committees, who occupied the same with his family and acted as a caretaker of the Sessions House. He occupied a sittingroom and six bedrooms. He also had an office in the building. The justices received no consideration from this clerk for his occupancy beyond the discharge of hi duties. From the date of this enlargement of the hous up to 1879 the buildings remained assessed at the ol valuation. Under the powers of provisional assessmen given by the Valuation (Metropolis) Act, 1869 (32 £800 gross value and £667 rateable value. 33 Vict. c. 67), the overseers raised the valuation t appeal, however, these sums were reduced to £465 au £388 respectively, such sums being made up by th valuation of the new portion being added to the origins assessment of the old building. The trustees of th Sessions House did not then further appeal to th assessment committee. In January, 1885, notice wa given of a new valuation at £610 gross value and £50 rateable value. Notice of objection was given by th trustees on the ground that the Sessions House was no rateable at all, or, if so rateable, that it could not be a a higher valuation than that of 1777. An appeal wa

Upo!

URT.

section 32 of the Valuation Act, 1869, but, E Field, J., under section 40 of the same, case was stated, the questions left for the g: (1) Whether the Sessions House came description of rateable property the subject Valuation (Metropolis) Act, 1869. (2) if so rateable, the Sessions House could law. ated at a higher rate than that of 1777it a gross value of £135 and rateable value of

Wright, for the appellant, the trustee of the House. This Sessions House being used for pistration of public justice only is exempt as "place used for the performance of Crown There is no person occupying it in such a to be liable for the poor rate: Reg. v. The f Worcestershire, 11 A. & E. 57; Hodgson v. le Local Board of Health, 8 El. & Bl. 116; . The Justices of Berks, 31 W. R. 356, 32 10 Q. B. D. 207, 9 App. Cas. 61. This clerk officer residing for the purpose of performing services: Reg. v. Stewart, 6 W. R. 35, 8 El. : Mersey Docks ▼. Cameron, 13 W. R. 1069, Cas. 464. If the house is rateable the amount essment is limited, by 18 Geo. 3, c. 67, to that

(Castle with him), for the respondents.-This distinguishable from those cited, because the House is used for municipal rather than Crown

The exemption of certain Crown property is y due to the omission of any mention of the a the Poor Law of Elizabeth (43 Eliz. c. 2), but emption only applies to what is strictly Crown The occupation of the caretaker is a beneupation. The proper construction of 18 Geo. 3, that of a parliamentary contract to the effect Sessions House is to be rateable, and the limily applies to the building as then existing; the 8 to it are rateable to the full amount: Reg. v. 8 of Manchester, 3 El. & Bl. 336, 2 W. R. 16; Reg. . The Governors of the Foundling 1,20 W. R. 92, L. R. 7 Q. B. 83.

At replied.

AN, J.-After hearing the argument in this which Mr. Wright very clearly brought us all the authority which can be considered to bear upon the questions raised, and after all that the ingenuity of Mr. Poland can on the other side, it appears to me that possible to distinguish this case, in principle, he principal authority relied on by Mr. Wright Ely, Coomber v. The Justices of Berks. In that reported in 9 Q. B. D. 17, when it first came the Divisional Court, it appears that the question hether the buildings in which the assizes are held ading for the county of Berks, with the surroundcommodation such as is to be found there, were ble buildings. Without going minutely into the iption of the building there, the case states, gst other things, that there was a resident conle who was the keeper of the hall, and it also eare, from that and other cases, that it does not Fer whether such a person is a married man with a or not, unless the occupation is such as to amount ore than what could reasonably be expected for the accommodation of a person occupying the place be purpose of such occupation as that which, in ance, comes within any exception from rateability. description of the purpose for which buildings so Pted have been used is generally in accordance the description of the uses to which the buildings estion here have been applied. In the case tioned it was stated that the use of the building

HIGH COURT.

was solely official, and it was found, and is so stated in the Court of Appeal, among other matters, that the ground on which that court decided was that, though the building was not Crown property in the fullest and strictest sense of the words, yet still it was property which was in the nature of Crown property as being occupied solely, for all practical and substantial purposes, for public service-that is, for purposes connected with the government of the country, as much as if it had been solely and entirely occupied for the adminis. tration of justice. In the House of Lords, Lord Blackburn went very fully and very exhaustively through the cases on the subject, and he intimated doubts, or, at all events, he threw out a suggestion that it might have been an open question and one capable of further and closer argument, whether such buildings as county halls, occupied for the purpose of the assizes and for other kindred purposes, were within the exemption were it not for a course of decisions which had held that property of that nature, or sufficiently analagous to that, was property practically within the rule that Crown property was not to be rated. And he held, in substance, that, where a duty was cast upon the county in aid of the general government of the county through the justices, and where there were buildings occupied for the business of the justices keeping the peace of the county, and in aid of the general business of the county, there the rule applied, and such buildings as those were exempt from rates. The other judgments in the case-those of Lord Watson and Lord Bramwell -are entirely in accordance with the judgment of Lord Blackburn-in fact, they do not go so far in expressing any doubt as to the law upon the subject as the judgment of Lord Blackburn himself, the principle being, as stated by Lord Bramwell, that the justices occupy it in respect of their public functions. Now that might possibly be too large a description in reference to some conceivable functions of the justices, but I fail to find, under the general statement which we have in this case -namely, that this Sessions House is occupied and used by the justices in the discharge of the public business of the county-that such goes at all beyond the case in which all those learned judges held that the exemption from rateability applies.

Now the justices of the peace have many functions which they have derived from the earliest times, their main functions being the preservation of the peace of the county; and many of their duties have been imposed on them from time to time by the Legislature, all important duties; and I do not think that it was too much to say that, in the absence of any special peculiarity, all the duties discharged by justices of a county would come well within the definition of duties performed by them as part of, and in aid of, the general government of the country. If that is so I think the case of Coomber v. The Justices of Berks is one which it is impossible to distinguish from the present case; and that, supposing this had arisen upon the original valuation of the Sessions House, with the same duties performed in it as are performed now, and it being put to the same uses as now, it would be impossible to distinguish this case from that. The case of Reg. v. Stewart decides that the mere fact of a man having a family resident upon the premises will not render such premises rateable for that reason alone, and that the court should have regard to the number of the family and to other considerations of the kind. It was also held, as I think rightly, that the court will not be nice to pick out some trifling circumstance in the case which might give rise to a rate of a farthing or a shilling or some such very small matter, where the subject-matter of the case is a great public building used for public purposes and in aid of the general government of the country.

Another question has been raised-namely, how far the original Act which authorized the original

HIGH COURT.

Sessions House was to be considered as not only limiting the rate then to be imposed, but as fixing it for all future time. I must say at once that if I thought it was fixed by that Act at all I should be entirely with Mr. Poland in thinking that since the building has been altered and enlarged and additions have been made on new ground, the original limitations would not apply to the newly-existing state of things, but inasmuch as, according to the existing state of things, the whole is occupied for purposes rendering the whole exempt, supposing that the question arose for the first time in relation to the present building and that there had been no old building at all, I do not think that that clause, which enacts that the Sessions House shall not be assessed at a higher rate than its then value, would prevent the persons who object to the rate from coming forward to say that the thing as it is is not rateable at all, and that they therefore appeal against any assessment, the premises not being in their nature liable to be assessed at all. On the whole I think it is impossible to distinguish this case from Coomber v. The Justices of Berkshire. No circumstances are brought forward which would take it out of the general rule as there laid down. I think, therefore, that we ought to act on that rule and that the appellant is entitled to our judgment.

HAWKINS, J.-I am of opinion also that the Sessions House, with the additions to it, does not come within the description of rateable property, the subject of the Valuation Act, 1869, under which Act the question is raised. I cannot, for my own part, distinguish the case from the authority which has been cited, and being bound by those authorities, I do not think it necessary to say more on the subject.

Mr. Poland endeavoured, with the aid of the Act of 1777, to establish that, substantially, that Act must be considered to have enacted that henceforth the Sessions House should be rateable to the extent of £135 as gross value. I think the meaning of that enactment simply is this, if the new Sessions House, when built and when occupied, should be entitled to become assessable to the rate for the relief of the poor, it shall be assessed, but it shall not be assessed at any higher value than the sum of £135 as gross value, that being the sum assessed upon the premises which occupied the site on which the new Sessions House was built.

With regard to the additions to the old Sessions House, I am of opinion that they stand altogether unaffected by the previous statute, and with reference to them it must be considered that, if the Sessions House itself were rateable, the rate would not be limited, so far as regards the additions to certain parts, to the sum of £135. I think that the assessment, in regard to the additional part, would be treated separately and, as far as practicable, by itself, if there were any assessable value to the new part in addition to the £135, and that then the assessment of the whole would be taken. The old part which was built under the Act of 1777 would be assessed at the sum of £135, or some lesser sum, plus the rateable value of the new part. I think, however, that the premises are not assessable at all, for the reasons which have been given in the cases cited. The judgment, therefore, will be for the appellants.

Appeal allowed.

Solicitor for the appellants, E. Nicholson. Solicitor for the respondente, E. W. James.

Q. B. Div. (Lord Coleridge, C.J., and Manisty, J.)

HIGH COURT.

Nov. 10.

BLUCK v. LOVERING & Co. (a.)

Solicitor's lien-Discharge by solicitor-Demand fo funds to carry on suit-Special agreement. Where a solicitor applied to his client for funds carry on a suit under a special stipulation in the retain that such funds should be supplied, and, on the clie refusing to pay, declined to continue the suit or delive up the papers until his taxed costs were paid,

Hell, that this was a discharge by the solicitor, an that he might be called upon to deliver to new solicitor the papers relating to the matters in question in t suit.

Robins v. Goldingham, 20 W. R. 277, L. R. 13 Eq. 44 followed.

This was an appeal from Pollock, B., reversing th order of a master who, upon the application of th plaintiff, made an order upon the plaintiff's late solici tor, William Morley, to deliver up all the papers con nected with this action which were in his possession The plaintiff had changed his solicitors because Mr. Morley had refused to continue to act for him in this action unless he was supplied with the necessary funds. Mr. Morley refused an application to give up the paper until his taxed costs were paid, because he had special stipulated, in the agreement by which he was retained that money should be supplied, from time to time, b the plaintiff to him for the necessary outgoings.

The master held that this was no excuse, but hi decision was reversed by the learned judge at chamber on the ground that the special stipulation distinguishe this case from those previously decided upon this poin and ought to be enforced. The plaintiff appealed.

This The plaintiff requir proper conduct of th

case must

Lynch, for the appellant. governed by the ordinary rule. the papers in question for the action, which is a claim against Messrs. Lovering & Co accountants, for negligence. The solicitor has discharge himself, and cannot be allowed to impede the plaintif It has been so decided, in the case of Robins v. Golding ham, 20 W. R. 277, L. R. 13 Eq. 440, and in Clover Adams, 6 Q. B. D. 622, 29 W. R. Dig. 207, and it clear that a solicitor is not entitled to be paid for th conduct of an action until that action is concluded.

Lush-Wilson, for the respondent, William Morley.In this case the solicitor did not discharge himself; h was discharged by his client, and in these circumstance the client is not entitled to any assistance. The solicit undertook to conduct the case upon the terms that should be advanced money, from time to time, for t necessary expenses of the suit; that was a conditi precedent for the fulfilment of the contract, and it admitted that the condition was not fulfilled. T distinguishes this case from the case of Robins Goldingham. A charging order, under section 28 23 & 24 Vict. c. 127, is not available in this c because the property has not yet been either recove or preserved. The decision in the case of In Boughton, 31 W. R. 517, 23 Ch. D. 169, was given in administration action in which the practice is quite tinct from that in an ordinary action. The princ governing this case is laid down in In re Moss, 14 W 814, L. R. 2 Eq. 345, and Lord v. Wormleight Jac. 580.

Lynch, in reply.-The whole bill of costs has be sent in, not only the out of pocket expenses. The c of In re Boughton was decided upon precisely the sa argument.

(a.) Reported by CECIL CHAPMAN, Esq., Barrister-al

Law.