The Gazette 1910-11

210

The Gazette of the Incorporated Law Society of Ireland.

[APRIL, 1911

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

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 ; 27 T. L. R. 278 [1911J, W. N. 52). PROBATE, DIVORCE, AND ADMIRALTY DIVISION (ENGLAND). (Before Evans, P.) Jinks, v. Jinks. .March 13, 1911.— Divorce—Judicial Separa tion—Wife petitioner—Change of 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