The Gazette 1910-11

210

The Gazette of the Incorporated Law Society of Ireland.

[APRIL, 1911

Cozens-Hardy, M.R., in giving judgment,

said :—In my opinion the proceedings in the

action have been futile, and the costs

incurred by the plaintiff have been absolutely

thrown away by reason of the appearance

entered by Mr. Dunn for a non-existing

corporation. A Solicitor must be held to

warrant the authority which he claims as

representing his client.

Youge v. Toynbce

(1910, 1 K. B. 215) is a recent illustration of

this well established principle. I do not

think this is seriously contested, but it is

sought to escape by arguing that Mr. Dunn

had some persons for whom he was authorised

to act, though, strange to say, he even now

declines to say who were his clients. If A..

B. and C. publish a newspaper under the

style of the X. Company (Limited), the rules

contain provisions that they may be sued

under that style, but they must appear in

their own names. The whole proceedings

in the present action are inconsistent with

the theory now set up. In my opinion the

judgment is not available against Mr. Dunn's

unknown clients, and I fail to see that the

plaintiff, by signing judgment in the only

way in which it could be signed, viz., against

Liberal Opinion (Limited),

has in any way

altered the position. I think we have

jurisdiction to order Mr. Dunn to pay the

plaintiff's costs of the action (less £150 which

has been received from a co-defendant

against whom the action had been dis

continued on terms), and that we ought to

exercise this jurisdiction. The appeal must

be allowed, with costs both here and below.

Fletcher Moulton and Buckley

L.JJ

delivered judgment to the same effect.

(Reported 46

L. J.

135 ;

55 S. /. 315 ;

T. L. R.

278 [1911J,

W. N.

52).

PROBATE, DIVORCE, AND ADMIRALTY

DIVISION (ENGLAND).

(Before Evans, P.)

Jinks,

Jinks.

.March

13, 1911.—

Divorce—Judicial Separa

tion—Wife

petitioner—Change

Solicitors for petitioner—First Solicitor's

costs.

IN a suit for judicial separation at the

instance of the wife, notice was given, on

December 21, 1910, of a change of Solicitors

by the petitioner. Thereafter the parties

resumed cohabitation, and the respondent

applied to have the petition dismissed.

Held,

that the application should be

refused until security was given for, or actual

payment of, the costs incurred on behalf of

the wife by her first Solicitor.

The President, in giving judgment, said :—

This is in form an application on the part of

the respondent for an order dismissing the

petition of his wife for a judicial separation

from him on the ground of his cruelty. The

question that arises is whether or not the

petition ought to be dismissed without

security being given for, or actual payment

made of, costs incurred on behalf of the wife

by her first Solicitor, she having changed her

Solicitors

duringthecour.se

of the proceedings.

If properly instructed, and if his action has

been reasonable, a Solicitor can get his costs

if properly incurred. I have to decide in

this case whether the determination of the

matter rests with the officials of this Court,

or whether the petition should be dismissed

and the Solicitor be left to recover his costs

by an action at common law. I do not

think the solution presents any great

difficulties.

The petition was filed in

September, 1910, and is still on the file, and

therefore the suit is still alive.

Mr.

Grazebrook (Counsel for the respondent) says

that the suit practically ended in November,

1910, but I do not agree with this view. The

Court minutes say, that between October 26

and December 19 of that year five or six

orders were made relating to custody,

alimony, and other matters. On December

21, 1910, notice was given of a change of

Solicitors by the petitioner. Mr. Whitehead

ceased to be the petitioner's solicitor on the

record, she being now represented by Messrs.

Newton and Co. After the petition was filed

the parties resumed cohabitation. There was,

however, another separation later, and on

December 21 the parties were still living

separate and apart. After this there were

various negotiations, which resulted in

another resumption of cohabitation. I have

considered the steps which Mr. Whitehead

took to recover his costs, and the dates on

which he took them, and I consider that

there was no unreasonable delay on his part ;

but, on the contrary, that it might be laid

to the charge of the other side. Mr.

Glazebrook does not contend that a change