make a settlement, no matter where the income is derived from. We have, as I have said, no power to reform the marriage settlement; but I am not aware that the cases have decided that, because a woman has a large income arising from a marriage settlement, the court should not order her to make a settlement of it. I take a different view from the registrar, and I express that view. I send the case back to the registrar, to say what the amount shall be; he will report on all the circumstances, having reference to the quantum. Solicitors for the husband, Peacock and Goddard. Solicitors for the wife, E. F. B. Harston,

(Before BUTT, J., assisted by TRINITY MASTERS.) THE HERMOD. (a)

Collision-Lightship at anchor- River Mersey Merchant Shipping Act 1873 (36 & 37 Vict. c. 85), s. 17—Merchant Shipping Act Amendment Act 1862 (25 & 26 Vict. c. 63), s. 32. In considering whether a breach of the Regulations for preventing Collisions could possibly have contributed to a collision, the court must take into consideration the whole of the evidence even where there is a conflict, subject to the qualification that the onus of proof lies on those infringing the Regulations; and if upon such evidence the court comes to the conclusion that the breach could not possibly have contributed to the collision, the ship committing it is not to be deemed to blame in respect thereof

The steamship H. at night ran into the barque E. at anchor in the river Mersey. By Order in Council of the 5th Jan. 1881, every vessel when at anchor in the river Mersey shall carry two white lights, the after light being carried double the height of the foremost light. The E. exhibited two anchor lights both of which were about twenty feet above the deck. It was admitted by the defendants that they only saw the after light. Held, that the H. was to blame for a bad look out, and the E. to blame for a breach of the regulation, it not being shown that in the circumstances of the case the breach could not have contributed to the collision.

The Duke of Buccleuch (6 Asp. Mar. Law Cas. 471; 15 P. Div. 86; 62 L. T. Rep. N. S. 94) considered.

THIS was an action in rem by the owners of the Norwegian barque Ebenezer and others against the owners of the Danish steamship Hermod, to recover damages occasioned by a collision between these two vessels.

The collision occurred in the river Mersey on the 13th Feb. 1890.

The facts alleged by the plaintiffs were as follows: Shortly before 4.45 a.m. on the 13th Feb. 1890 the Ebenezer, a barque of 577 tons register, manned with a crew of eleven hands all told, was, whilst on a voyage from Liverpool to Buenos Ayres, laden with a cargo of coals, at anchor in the Mersey to the westward of mid-river, off Laird's Yard. The wind was a moderate breeze from about S.S.E., and the weather was fine, (a) Reported by J. P. ASPINALL and BUTLER ASPINALL, Esqrs., Barristers-at-Law.

[ADM.

clear, and moonlight. The Ebenezer was heading from S. to S.S.E., and she had the regulation lights for a vessel at anchor in the Mersey, duly exhibited and burning brightly. In these cir cumstances those on board the Ebenezer observed the masthead red and green lights of a steamship which proved to be the Hermod, from a quarter to half a mile distant, and bearing about seven points on the port bow. The Hermod came on, taking no measures to keep out of the way, and although loudly hailed by those on board the Ebenezer, she with her stem struck the port side of the Ebenezer, causing her shortly afterwards to sink.

The facts alleged by the defendants were as follows: Shortly before 4.55 a.m., on the 13th Feb., the Hermod, a steamship of 743 tons register, manned by a crew of twenty-two hands all told, and laden with a general cargo, was proceeding down the river Mersey, heading about N., in charge of a duly licensed pilot, in the course of a voyage from Liverpool to Gothenburg. In these circumstances those on board the Hermod observed the bright light of a vessel which afterwards proved to be the Ebenezer, distant from three to four ships lengths, and nearly ahead, but a little on the port bow, withal. As only a single bright light was visible at this time, the pilot of the Hermod, believing it to be the stern light of a vessel going down the river, hard-aimmediately after a second bright light at about the same height as, or rather lower than the first bright light came into view, a little on the starboard bow of the Hermod. The engines of the Hermod were at once reversed full speed, but, before her headway could be stopped, she with her stem struck the port side of the Ebenezer about amidship.

starboarded the helm of the Hermod.

But

The defendants charged the plaintiffs with having failed to carry their anchor lights as required by rule 4 of the Rules for Preventing Collisions in the river Mersey. They also alleged that at the time in question, the Hermod was in charge of a pilot by compulsion of law, and that navigation of the Hermod, such negligence was if there was any negligence attributable to the solely that of the pilot.

According to the evidence of a diver called on behalf of the defendants, the forward anchor light was twenty-two feet above the main deck, and the after light seventeen feet six inches from the poop deck, which was about three feet six inches above the main deck, the result of his evidence (which was accepted as true by the court) being that the lights were within about a foot exhibited at the same height.

It appeared that the light first seen by those on board the Hermod was the after light, and that they did not see the forward light either until the collision, or at a time when the collision was inevitable.

The regulation in question as to lights is as follows:

Every vessel when at anchor in the river Mersey. shall carry two white lights in globular lanterns of not less than eight inches in diameter, and so constructed as to show a clear uniform and unbroken light visible all round the horizon for at least one mile; one of which lights shall be placed at a height not exceeding twenty feet above the hull on the forestay, or otherwise near the bow where it may best be seen, and the other at the main or mizen peak, or on the boom topping light, or

other position near the stern, at double the height of the bow light before mentioned."

This regulation was made under sect. 32 of the Merchant Shipping Act Amendment Act 1862 (25 & 26 Vict. c. 63).

Sir Walter Phillimore (with him J. P. Aspinall) for the plaintiffs.-The Hermod is alone to blame. The Ebenezer was exhibting two anchor lights, which ought to have been seen in sufficient time by those on board the Hermod to have enabled them to avoid the Ebenezer. Even assuming the Ebenezer to have infringed the strict letter of the regulations as to lights, the infringement was not of such a character as to make her owners liable, under sect. 17 of the Merchant Shipping Act 1873. Those on the Hermod, in consequence of bad look-out, admittedly never saw the foremost light, and therefore the fact whether the after light was double the height, became immaterial. It is submitted that, in the circumstances of this case the infringement of the regulation could not possibly have contributed to the collision:

The Duke of Buccleuch, 62 L. T. Rep. N. S. 94; 6 Asp. Mar. Law Cas. 471; 15 P. Div 86; The Fanny M. Carvill, 32 L. T. Rep. N. S. 646; 2 Asp. Mar. Law Cas. 565; 13 App. Ĉas. 455, n. Barnes, Q.C. (with him Joseph Walton) for the defendants.-The Ebenezer is alone to blame. She clearly committed a breach of the regulations which may have contributed to the collision, and therefore, on the proper construction of sect. 17 of the Merchant Shipping Act 1873, her owners are liable. The after light being carried only twenty feet above the deck must have been many feet less than double the height at which at its lowest the foremost light could be carried consistently with the regulation. To say that in the circumstances of this case the breach of the regulation could not possibly have contributed to the collision is to give no effect to the Act of Parliament at all, and render it practically nugatory.

BUTT, J.-This action arises out of a night collision in the river Mersey between the barque Ebenezer and the steamship Hermod. The barque was at anchor, and had two anchor lights, one forward and the other aft, both of them burning brightly. It is perfectly clear that neither the pilot nor the look-out on the Hermod perceived the barque's lights till they were close upon her, and I think that the prime cause of this collision was the defective look-out on board the steamer. The defence of compulsory pilotage has been pleaded by the defendants, but it necessarily fails, inasmuch as the defective look-out was not the fault of the pilot alone, but was a fault shared by the officers and crew of the ship. The owners of the Hermod are therefore liable. Upon that part of the case we have no doubt. But a far more difficult question arises as to whether the Ebenezer is also in fault. It is said that she must be held to blame for improperly placing her lights, or rather the after light. Now there were two lights as prescribed, one forward, the other aft, but it appears from the evidence that they were somewhere about twenty feet above the deck, and that at the outside there was not more than three or four feet difference between them, if there was so much. There has been some conflict of evidence on this point, but the clear conclusion to which I come as to the relative heights of these lights is that which I have stated. On this

[ADM.

point I accept the evidence of Lawson the diver. His evidence is very precise. He found by measurement that the forward light was fixed twenty-two feet above the main deck, and the after light seventeen feet six inches from the poop deck which was about three feet six inches above the main deck. It has been suggested for various reasons that he may have been mistaken in his measurements. It appears to me that that man's evidence is trustworthy. I know there is evidence to the contrary, but there is considerable corroboration of the diver's evidence in the evidence called on behalf of the plaintiffs. I do not think a single witness has ventured to say that the after light was being carried at double the height of the forward light. I know certain witnesses have said that the after light was some few feet higher than the other, but no one has gone further than that. The evidence has brought me to the clear conclusion that there has been a manifest infringement of the regulations. It was suggested by Sir Walter Phillimore that inasmuch as those on board the steamer did not see the foremost light before the collision, it ought not to be taken that the after light should have been twice eighteen or twenty feet above the level of the deck. The suggestion is this: the Ebenezer was not bound to carry the foremost light so high as eighteen or twenty feet above the deck, and, therefore, the people on board the Hermod not having seen the foremost light, it is argued that there was no breach of the regulations. I have considered the suggestion, but I think it is clear that the after light, carried at the height it was, was fully ten feet less than double the height at which at its lowest the foremost light could have been carried consistently with the regulations. I therefore think there was a breach of the regulations, for a departure from which, to use the language of the Act of Parliament, there was no necessity. The regulation in question is as follows: "Instead of the light prescribed by art. 8 of the said regulations every vessel when at anchor in the river Mersey shall carry two white lights in globular lanterns of not less than eight inches in diameter, and so constructed as to show a clear, uniform, and unbroken light. visible all round the horizon for at least one mile; one of which lights shall be placed at a height not exceeding twenty feet above the hull on the forestay, or otherwise near the bow, where it may best be seen; and the other at the main or mizen peak, or on the boom topping lift, or other position near the stern at double the height of the bow light before mentioned." The regulation is made under one of the Merchant Shipping Acts, and by sect. 17 of the Act of 1873, "If in any case of collision it is proved to the court before which the case is tried that any of the Regulations for Preventing collision, contained in or made under the Merchant Shipping Acts 1854 to 1873 has been infringed, the ship by which such regulation has been infringed shall be deemed to be in default, unless it is shown to the satisfaction of the court that the circumstances of the case made a departure from the regulation necessary." If the section is applicable in the circumstances of the present case, then the Ebenezer must be held to blame. The case of The Fanny M. Carvill (ubi sup.), decides that this enactment only applies where the infringement of the statutory regulation is one which, by possibility, might have contributed

to the collision. The enactment in question is based on broad grounds of public policy, and ought therefore to be strictly enforced. Until lately I had considered that in cases of clear infringement of the regulations unless the factseither admitted or established beyond the reach of controversy-show that the infringement could not possibly have conduced to the collision, the ship unnecessarily infringing it must be held to be in fault. In other words that the object of the enactment was to preclude the court from entering into the region of disputed facts, or of evidence of facts and circumstances, which, from the nature of the case would probably be changing each moment with the altered position of the ships coming into collision. I acted on that view in The Duke of Buccleugh (ubi sup.). The Court of Appeal, however, held that that was taking too narrow a view of the judgment of the Privy Council in the case of The Fanny M. Carvill (ubi sup.); that in such cases the court ought to go into the evidence, and, if satisfied on the balance of that evidence that the state of things was such that the infringement of the regulation could not have conduced to the collision, should hold that such infringement would not entail the consequences provided by the Act of Parliament. That is what I understand the judgment of the Court of Appeal in The Duke of Buccleugh (ubi sup.) to be. It is true that in that case

there was no conflict of evidence as to the material facts. There could be no such conflict because the Duke of Buccleugh went down immediately after the collision, and every one on board her perished. The judgment of the Court of Appeal therefore was given in a case in which the evidence was all on one side; but as I understand it the Lords Justices held that even if there had been a conflict of evidence the court should have gone into the matter, and if satisfied on the whole that the state of things was such, that the infringement of the regulation could not possibly have contributed to that collision, should have declined to pronounce the ship infringing it to blame in the action. It is of course my duty to give effect to that judgment, and I have carefully considered the evidence in the case before me with the intention of so doing. Although, as I have said, I think I am bound to go into the evidence on the one side and the other, and to decide on the balance that must be taken with one qualification expressly stated by the Lords Justices, viz., that the onus of proof rests entirely on those by whom the regulation has been infringed, and that, before exonerating them from the somewhat penal provisions of the 17th section of the Act of 1873, the court must come to the clear conclusion that the facts were such that by no possibility could its infringement have conduced to the collision. I have considered the matter in that light, and I have not been able to come to such a clear conclusion in the present case. The pilot and the first officer of the Hermod state that they did, as a matter of fact, mistake the aftermost light of the Ebenezer for the stern light of a vessel going down the river in front of them, and, although there is much in the facts of the case which makes me hesitate to accept their evidence as altogether trustworthy, I am not prepared to say that I am satisfied that the evidence establishes a state of things such that the breach of the regulation could not

[CR. CAS. RES.

possibly have conduced to the collision. I do not forget that the pilot of the Hermod said in answer to me that he should have starboarded as he did even had he known that the light he saw was the light of a vessel at anchor. I think, however, he was somewhat confused, and failed to realise the situation when he gave the answer. The result is that I must hold the Ebenezer to have been in fault, and pronounce both vessels to blame.

Solicitors for the plaintiffs, Hill, Dickinson, Dickinson, and Hill.

Solicitors for the defendants, Bateson, Warr, and Bateson.

CROWN CASES RESERVED.

May 12 and 17.

(Before Lord COLERIDGE, C.J., HAWKINS, MATHEW, DAY, and GRANTHAM, JJ.)

REG. v. SOLOMONS. (a) Criminal law― Larceny — Obtaining money by trick-Purse trick-Pretence of dropping several shillings into purse-Shilling obtained in exchange for purse and its contents.

In support of an indictment for the larceny of three shillings and sixpence it was proved that the prisoner had obtained possession of a shilling. and then of a half-crown, from the prosecutor by means of what is known as the purse trick. That is to say, he had induced the prosecutor to give him a shilling for a purse, into which he had dropped three coins, by first showing the prosecutor three shillings, and then making it appear as if he had dropped them into the purse. In the same way he had induced the prosecutor to give him a half-crown for a purse into which he had made it appear that he had dropped two halfcrowns. Having been convicted of obtaining the money by means of a trick, upon a case reserved for the opinion of this court:

Held, that the prosecutor having parted with the property in his shilling and half-crown in ezchange for the purses and their contents, the prisoner had been guilty, if at all, of obtaining the coins by means of a false pretence, and could not be convicted of larceny.

CASE stated by the Deputy-chairman of the London County Quarter Sessions, as follows:

The above prisoner was tried before me on the 20th Feb. 1890, upon an indictment which charged that he did on the 2nd Feb. 1890, feloniously steal, take, and carry away three shillings and sixpence, the property of Edward Davy." The second count charged him with feloniously receiving the same well knowing it was stolen.”

The prosecutor Edward Davy deposed as

follows:

done.'

That on the 2nd Feb. in this year I was near Aldgate, when the prisoner came up to me. At that time there was another man standing a little way off selling purses. The prisoner said, "I'll show you how the trick is He then opened a purse which he had in his hand, and patting three shillings in his other hand said, "You see there are three shillings there," I said "Yes." He then dropped them, or appeared to do so, into the purse. He then asked me if I would give him one shilling for the three shillings and the purse. I hesitated. but afterwards gave him a shilling for the three shillings (a) Reported by R. CUNNINGHAM GLEN, Esq., Barrister-at-Law.

and the purse, and put the purse into my pocket. He then pulled out another purse, and showing two halfcrowns in his hand, put them, or appeared to put them, into the purse, and asked me if I would give him half-acrown for the two half-crowns and the purse. I gave him half-a-crown. The prisoner then said, Just to show that I am not cheating, and to let the public see it, you had better give me one-and-sixpence for myself,' which I did. I then walked a little distance away and opened the first purse which he had said contained three shillings, and found only three halfpence. In the second purse which was said to contain two half-crowns, I found two penny pieces only.

In cross-examination the prosecutor stated that the prisoner promised him three shillings for one shilling, that he bought the three shillings and the purse, that he did not buy on speculation, and that he was willing to take the half-crown, if the prisoner was willing to part with it; that he never said that he parted with his money to see how the trick was done, and that at the time he was on his way to the Tabernacle to hear Mr. Spurgeon.

Another witness named Norfolk in every particular corroborated the story, but his evidence will be unnecessary to give in detail.

A constable named Burnett was also called, and stated that he took the prisoner into custody for stealing three shillings and sixpence. Prisoner in reply said, "Serve him right, more fool he to buy them." On being searched there were found on prisoner seven purses and eleven shillings in silver. The prosecutor on being recalled stated that he did not care for the purses, but that he wanted the money which the prisoner promised.

Upon this state of facts it was argued by counsel for the prisoner, that the prisoner ought not to have been indicted for larceny, because the prosecutor voluntarily parted with his money, both the possession and the ownership, in return for the money which he hoped to get. Cases were quoted in support of this statement.

66

I overruled the objection, and pointed out that in my opinion there was no difference between the present state of facts and the crime of larceny as committed in the case of ring dropping," and that although the indictment might have been framed for obtaining money by false pretences, the present one was equally good to maintain the crime of larceny by a trick.

The verdict was as follows:

We find the prisoner guilty of "obtaining" the money by a trick. I asked the jury what they meant; did they mean that the prisoner committed the crime of larceny by a trick as explained by me? and they answered in the affirmative.

I considering it of importance to have it determined whether this form of crime came within the misdemeanour of obtaining goods by false pretences, or whether it was a felony, decided to state this case, which I respectfully do, for the consideration of the Court of Criminal Appeal.

The question for the opinion of the court is, whether I was right in holding and directing the jury that the prisoner might be convicted of larceny by trick.

Keith Frith on behalf of the prisoner.-There was no larceny by a trick here, for wherever the ownership as well as the possession of goods is parted with, there can be no larceny. The prisoner should have been indicted for obtaining the coins by false pretences. Where it has been held that there has been larceny by a trick, such Vol. LXII., N. S., 1600.

[CR. CAS. RES.

as the confidence trick, the possession and not the ownership has been parted with. [Lord COLERIDGE, C.J.-In Reg. v. Robson (R. & R. 413) money was deposited for a pretended bet, and it was held to have been a case of larceny.] Yes, because there the money was only deposited, and though the possession was parted with the ownership of the money did not pass. In Reg. v. Wilson (8 C. & P. 111), the ring-dropping case, it was held to be a case of false pretences. [The Court here adjourned, and upon re-assembling on the 17th May, called upon the counsel for the prosecution to support the conviction.]

May 17.-Slade Butler for the prosecution.The question here is, whether or not this particular trick comes within the definition of larceny. It is said that it does not, because the prosecutor intended to part with the ownership of the coins. But the intention in the mind of the prosecutor cannot alter the nature of the crime. The question is really what was the intention of the prisoner when he took the coins; and there can be no doubt but that he intended to obtain them wrongfully. The point is ccncluded by the case of Reg. v. Middleton (28 L. T. Rep. N. S. 777; 12 Cox C. C. 417; L. Rep. 2 C. C. R. 38; 42 L. J. 73, M. C.). There must be a genuine contract in order to pass the property, and here there was never any contract. The prosecutor here intended to contract for what he obtained. He also cited

Reg. v. Buckmaster, 57 L. T. Rep. N S. 720; 16 Cox C. C. 339; 20 Q. B. Div. 182; 57 L. J. 25, M. C. Lord COLERIDGE, C. J.-This case is really upon consideration too clear for me to entertain any doubt about it. Of course one hesitates to let a man off if he is guilty of a gross fraud, and it is matter for regret to have to let off a man who is really guilty of something. But as long as we have to administer the law we must do so according to the law as it is. We are not here to make the law, and by the law of England, though it is enacted by 24 & 25 Vict. c. 96, s. 88, that a man indicted for false pretences shall not be acquitted if it be proved that he obtained the property with stealing which he is charged in any such manner as to amount in law to larceny. Unfortunately the statute stops there, and does not go on to say that if upon an indictment for larceny the offence committed is shown to be that of false pretences, the prisoner may be found guilty of the latter offence. The statute not having said it, and the one offence being a misdemeanour while the other is a felony, you cannot according to the ordinary principles of the common law convict for the misdemeanour where the prisoner is indicted for the felony. Now the law is plain that, where the property in an article is intended to be parted with, the offence cannot be that of larceny. Here it is quite clear that the prosecutor did intend to part with the property in the piece of coin, and the case is not like any of those cases in which the prosecutor clearly never intended to part with the property in the article alleged to have been stolen. Whether or not the prosecutor here intended to part with the property in the coin does not signify if what he did was in effect to part with it for something which he did not get. I have already said that you cannot convict of false pretences upon an indictment for larceny, and as the offence here was, if any

thing, that of false pretences, and the indictment was for larceny, it follows that this man must get off upon this indictment. I am therefore of opinion that the conviction must be quashed.

HAWKINS, J.-I cannot myself imagine a clearer illustration of the difference between the offence of false pretences and that of larceny than is afforded by this case. It is perfectly clear that the prosecutor intended to part with the property in the coins, and that being so, the case is clearly not that of larceny. The conviction must therefore be quashed.

MATHEW, J.-This is a case of false pretences, if anything, and not of larceny; and I am of opinion therefore that the conviction must be quashed. DAY, J.-I entirely concur with my Lord. GRANTHAM, J.-I am of the same opinion. Conviction quashed.

Solicitor for the prosecution, The Solicitor for the Treasury.

Solicitors for the defendant, Olland and Milli

kins.

Supreme Court of Judicature.

COURT OF APPEAL.

Friday, April 25.

(Before Lord ESHER, M.R., FRY and LOPES, L.JJ.) Re WALLIS; Ex parte LICKORISH.(a)

APPEAL IN BANKRUPTCY.

Solicitor and client - Mortgage to a solicitorRedemption-Charges and expenses of mortgagee -Right of solicitor to charge profit costs.

A solicitor mortgagee cannot, upon redemption, charge the mortgagor with profit costs of an action to recover the mortgage debt, in which he acted as his own solicitor.

Re Roberts (62 L. T. Rep. N. S. 33; 43 Ch. Div. 52) and Field v. Hopkins (62 L. T. Rep. N. S. 102) approved.

APPEAL from the decision of Mr. Registrar Linklater in bankruptcy.

The appellants, who were solicitors, advanced to one Wallis, a sum of money upon a promissory note, and took as a collateral security a deposit of certain shares. An action was brought by the appellants against Wallis in the Queen's Bench Division to recover the amount of the loan, in which they acted as their own solicitors; judgment was obtained in that action. Execution was issued, but practically proved abortive, the amount realised being insufficient to pay the costs of execution. A bankruptcy petition was presented against Wallis, founded upon the judgment debt, and a receiving order was made, which was subsequently set aside upon the terms that Wallis should pay into court a sum of 450l. to meet the judgment debt, and all costs, charges and expenses, of the appellants as mortgagees. It was referred to the taxing master in bankruptcy to find what amount was due to the appellants upon the mortgage for principal, interest, and expenses, any disputed question to be referred to the registrar. Upon taking the accounts Wallis objected to the

(a) Reported by A. H. BITTLESTON, Esq., Barrister-at-Law.

[CT. of App.

allowance of any of the professional charges of the mortgagees in respect of the action in the Queen's Bench Division, and the taxing master disallowed all such charges. The registrar, upon appeal, affirmed the decision of the taxing master, and the mortgagees appealed upon the ground that the registrar ought to have allowed them the same costs as if they had employed another solicitor to act for them instead of acting for themselves.

Lane, Q.C. and Maidlow for the appellants. The decision of the registrar proceeded upon the authority of

Re Roberts, 62 L. T. Rep. N. S. 33; 43 Ch. Div. 52. Though that case was not one in which the costs of litigation were in question, yet I think that it will be necessary to overrule it if this appeal is successful, for Kay, J. has, in a later case, explained his judgment in that case more strongly against my contention:

Field v. Hopkins, 62 L. T. Rep. N. S. 102. [FRY, L.J.—Is there any case recorded in which, upon redemption, any charges for work and labour done by the mortgagee himself, have been allowed? That is the question.] It has been the general practice to allow personal costs of a solicitor mortgagee. There is a difference between a solicitor and other persons. Kindersley, V.C., in Sclater v. Cottam (5 W. R. 744; 3 Jur. N. S. 630) disallowed such costs, but that case has not been acted on in practice except as to charges for commission:

Price v. McBeth, 10 L. T. Rep. N. S. 521; 33 L. J. 460, Ch.

The profit costs of a solicitor acting in person as plaintiff or defendant have been held to be rightly allowed:

London Scottish Benefit Society v. Chorley, 50 L. T.
Rep. N. S. 265; 51 L. T. Rep. N. S. 100; 12 Q. B.
Div. 452; 13 Q. B. Div. 872.

If these solicitors had employed another solicitor to do this work, they could have charged the costs against the mortgagor. Their own costs, if they do the work themselves, are costs and expenses reasonably incurred. The principle of the decision in London, &c. v. Chorley (supra) is contrary to that of the cases cited in regard to mortgagees:

Re Donaldson, 51 L. T. Rep. N. S. 622; 27 Ch. Div. 544.

A mortgagee is entitled to charge the mortgagor, upon redemption, with the costs of an action to recover the mortgage debt:

National Provincial Bank of England v. Games, 53 L. T. Rep. N. S. 955; 54 L. T. Rep. N. S. 696; 31 Ch. Div. 582.

Wallis, the respondent in person, was not called upon to argue.

Lord ESHER, M.R.-It is said that this matter is one of very great interest to solicitors, but it can only be of interest to those solicitors who are also money lenders, who I hope are not numerous. It has been urged on behalf of the appellants that the case of London Scottish Benefit Society v. Chorley (sup.) has, by inference, overruled two or three other cases, though it has not done so expressly. It is, in my opinion, a most dangerous argument to urge that a court has, by inference. overruled cases which were not the subject of discussion before it, and were not expressly, or