1837.-Wiggins v. Peppin.

takes effect, and consequently that the prayer of this petition cannot be granted.(a)[1]

1837: December 19, 22. 1839: June 24, July 19.

A joint and several answer filed for two persons, by a solicitor having authority from one only, will not be ordered to be taken off the file on the application of one party in the absence of the other.

The retainer of a solicitor need not be in writing, but if he neglects taking that precaution, and his retainer being afterwards questioned, there is nothing but assertion against assertion, he must bear the costs of the risk he thus undertakes.

A motion for the taxation of a solicitor's bill, with special directions to disallow the costs of certain proceedings alleged to have been improperly taken by the solicitor, or with a qualification that the taxation was to be of the costs of such proceedings only as had been properly incurred, refused as such objections may be taken advantage of under the common order for a taxation.

A BILL had been filed to which a trustee had been made a defendant; he died before answering the bill, and a common bill of revivor was thereupon filed agaiust his executors, William Clarke and Lydia Spriggs, in which no accounts were prayed. William Clarke alone, without any authority from Lydia Spriggs, gave directions to Messrs. D. and A., solicitors, to do what was necessary for the executors in the suit.

Some time afterwards Lydia Spriggs and William Clarke gave a retainer in writing to another solicitor, Mr. V., but Messrs. D. and A., acting under the previous authority, proceeded to enter an appearance for William Clarke and Lydia Spriggs, and filed their joint and separate answer, without oath or signature.

A motion was now made, on behalf of Lydia Spriggs alone, to take off the file a parchment writing purporting to be the joint and several answer of William Clarke and Lydia Spriggs.

Mr. Pemberton and Mr. G. L. Russell, in support of the motion.

Mr. Bethell, contra.

*December 19:-THE MASTER OF THE ROLLS:-With reference [*404] to William Clarke, who has answered jointly with Lydia Spriggs, it

is necessary to consider the terms of the order proper to be made.

I am, however, of opinion that a solicitor has not, without authority, a right to enter an appearance or put in an answer for an individual.

The circumstances of this case are really extremely simple: [his Lordship stated the above circumstances.]

A considerable time after William Clarke had given the directions to Messrs.

(a) Extract of Order.-Pay the costs, and let one moiety of the residue of the fund be transferred to the legal personal representative of William Mount, and the other moiety to the legal personal representatives of Thomas Meyrick.

[1] Vide Nordine v. Greenfield, 7 Paige, 544. McDonald v. Bryce, 2 Keen, 284.

D. and A., Lydia Spriggs and William Clarke gave a retainer in writing to Mr. V., another solicitor, to attend to their interests in this cause; but notwithstanding this retainer in writing given to another solicitor, Messrs. D. and A., acting on the supposed authority which they had received from William Clarke, the brother, proceeded to enter an appearance, not for him only, but for Lydia Spriggs, from whom they had no direct authority, and as to the supposed authority from whom, they solely trusted to William Clarke. They not only entered an appearance for her, but they took on themselves to file a joint and several answer for her and William Clarke.

I believe it has been decided more than once, that it is not necessary that an authority given to a solicitor should be in writing;(a) further, it has been said that it is the duty of the solicitor to take care that he has sufficient evidence of the authority; and if he neglects the precaution of obtaining it

in writing, and his authority is afterwards challenged, he will, for [*405] want *of written evidence, be treated as if he had no authority at

all; I think the cases go to that length.

Then how is it in this case? The solicitors have no authority whatever, they never had any communication with this lady, and they have trusted wholly to her brother. She denies that she ever gave any such authority, and has given a retainer in writing to another solicitor; Messrs. D. and A., in consequence of not using proper precaution, have filed an answer and have incurred expenses without any authority from her.

Then comes the question, whether a solicitor has a right, without any authority from or communication with the party, to appear for him in the cause, to take upon himself to say that an answer without oath or signature may be safely put in, and accordingly to put in such answer. It would, I think, be very improper to afford any countenance to such a proceeding.

I have no doubt on the merits of this case, but I shall consider the terms of the order, so far as respects the interest of William Clarke. I desire, for my own satisfaction, to look into the authorities that bear on this subject.

December 22:-THE MASTER OF THE ROLLS:-I have looked at the authorities, and they entirely bear out the opinion I expressed the other day, that if an authority be not given in writing, and the authority is denied, and there is nothing but assertion against assertion, the solicitor must bear

the costs of the risk he thus undertakes;(b) at the same time there [*406] may be *subsequent conduct, from which an acquiescence may be inferred, and that will make a difference.[1] There is nothing of

(a) Lord v Kellett, 2 Myl. & K. 1. (b) See Wright v. Castle, 3 Mer. 12. [1] In a previous case, Lord Langdale, M. R., said: "According to the strict practice, there ought to be a warrant in writing to authorize the solicitor to commence proceedings; it is sometimes, however, dispensed with, at the peril of the solicitor; had the party here acquiesced, it would be another question." Tabbernor v. Tabbernor, 2 Keen, 680. "As a general rule, when a suit is commenced or defended, or any other proceedings is had therein, by one of the regularly licensed

1839.-Wiggins v. Peppin.

that description here, and if this motion had been regularly brought on, I should have no doubt as to the order to be made, to take off the file a parchment writing purporting to be the joint and several answer of William Clarke and Lydia Spriggs ;[1] it is impossible, however, to do that in the absence of William Clarke, and William Clarke not being served in the regular way, I am afraid I cannot, in the present state of things, make any order; I cannot in his absence do that which I am asked to do.

Lydia Spriggs subsequently discharged Mr. V. and retained Messrs. D. and A. in the suit; the motion was not therefore prosecuted. Mr. V. having delivered his bill of costs to Lydia Spriggs for these proceedings, amounting to SSI., commenced an action for the amount, and arrested her.

A motion was afterwards made on her behalf before the Lord Chancellor, to restrain proceedings in the action. His Lordship, however, refused the application.

June 24:-It was now moved, before the Master of the Rolls, on behalf of the defendant, Lydia Spriggs, that it might be referred to one of the Masters of this court to tax the bill of costs amounting to 881. 2s. 9d., delivered by Mr. V. to her, other than and except the costs of certain proceedings mentioned in the notice of motion, which it was prayed inight be wholly disallowed; or otherwise that the Master might tax the costs of all the proceedings which had been properly taken on behalf of the *defendant, Lydia [*407] Spriggs, and that Mr. V. might be restrained from all proceedings in the action at law brought by him against Lydia Spriggs.

Mr. Bethell, in support of the motion, contended, that this lady ought to be relieved from the costs of a proceeding quite unwarranted, which, from

solicitors, it is not the practice of the court to inquire into his authority to appear for his supposed client. But if the party for whom such solicitor appears, or assumes to act, denies his authority, and applies to the court for relief before the adverse party has acquired any rights, or suffered any prejudice in consequence of the acts of the solicitor, the court may correct the proceeding, and may compel the solicitor, who has assumed to act without authority, to pay the costs to which the parties have been subjected in consequence of his improper interference. In cases, however, where the adverse party has acquired rights, or been subjected to costs, by proceedings in the name of a party, who afterwards denies the authority of the attorney or solicitor who has thus proceeded, the courts are in the habit of permitting the proceedings to stand, where the solicitor or attorney is a responsible man; and leaving the party injured by such unauthorized proceedings in his name, to seek his redress against such solicitor or attorney, by a summary application to the court, or otherwise." Walworth, Ch., The American Ins. Co. v. Oakley, 9 Paige, 498. This case is cited 2 Keen, 680, n. 1. It was thought advisable to introduce a fuller statement in this place. The fact that a party,-knowing that his name has, without authority, been introduced as plaintiff by the solicitor of some of the other plaintiffs in a suit,-does not take any active steps to have his name expunged from the record, is not, as between that party and the solicitor, equivalent to a retainer, or an adoption of the latter as his solicitor. Hall v. Laver, 1 Hare, 571. A party to a cause, for whose benefit, in common with others, the cause has been prosecuted, cannot avail him. self of the benefit resulting from the suit discharged of the expenses of it, although he might have been made a party without his authority. Ibid.

[1] As to taking answer off the file, see further Denison v. Bassford, 7 Paige, 372,

1839.-Wiggins v. Peppin.

the commencement, it must have been apparent would terminate unsuccessfully, and from which she could not by possibility have derived any benefit.

Mr. Pemberton and Mr. G. L. Russell, contra, contended that the retainer having been proved, Lydia Spriggs was entitled to the common order for taxation only; that no special directions could now be given to the Master to proceed in any other than the ordinary mode in the taxation of the bill of costs; and that under the common order, the Master would take notice of all objections.

July 19.—THE MASTER OF THE ROLLS:-Lydia Spriggs having retained and employed Mr. V. as her solicitor, and Mr. V. having deliver d his bill of costs, she is entitled to the common order for taxation of the bill, on the usual terms. The question is, whether she is entitled to any other or different order.

Lydia Spriggs and her brother, a Mr. Clarke, were defendants to a bil! of revivor: Mr. Clarke, as Lydia Spriggs has sworn, without her authority, employed Messrs. D. and A., as solicitors, to act for both; and those gentlemen, thereupon appeared and put in an answer for both, without oath or signature.

Lydia Spriggs, however, thought fit, or was induced, not to acquiesce [*408] in that proceeding; and on the suggestion, as it seems, of Mr. *Shut

tleworth, she retained and appointed Mr. V. to act for her; he did so, and adopted proceedings on her behalf, to have the answer put in for herself and her brother taken off the file. Before these proceedings were brought to a close, she dismissed Mr. V., and thought fit, or was induced, to employ the solicitors who were first engaged on her behalf by her brother.

Mr. V.'s bill was incurred in these proceedings, and she now desires that the reference for taxation may be accompanied by a disallowance of the greatest part of the bill, or by a qualification, that the taxation is to be of the costs of such proceedings only as have been properly incurred.

It appears, from the facts stated in the affidavit, that the case of Lydia Spriggs is a very unfortunate one: she has been led into an expense which turns out to be entirely useless, and was probably led into it by the competition of two solicitors, who, after all that has passed, would have done well to unite their endeavors to save her harmless; but the case is clear that she retained Mr. V., and by two affidavits, one made in July and the other in November, last, she recognizes the retainer, and insists upon his being her solicitor ; and when he has thus acted under her authority, thus solemnly recognized and confirmed, and in the absence of any fraud, the question is, whether there ought to be any special direction or qualification in the order for taxation, and I think that there ought not.(a)[1]

(a) An appeal was presented to the Lord Chancellor, who, having ascertained the practice to be that the Masters, under the common order for taxation would take into their consideration the objections here complained of, affirmed the order of the Master of the Rolls.

[1] Vide In the matter of Rice, 2 Keen, 181. Jones v. James, id. 184. S. C. 1 Beav. 307. Russell v. Buchanan, 9 Sim. 167.

1840.-Johnson v. Woods.

1840 February 26, 29.

*JOHNSON v. WOODS.

[*409]

A testator gave his real and personal estate to trustees, upon trust with all convenient speed to convert into money; and he directed them, at the end of twelve months after his decease, to invest the sum of 6001. out of his personal estate, in trust for a charity; he also directed them at the end of twelve months after his decease, (all his property being personal,) to lay out the residue for other charities. The realty was sold: Held, that the 600l. was not payable out of pure personalty, but out of the mixed fund: and that this gift, and the gift of the residue were rendered void by the mortmain act, in the proportion which the realty bore to the personalty; Held also, that the realty was not converted to all intents, so as to entitle the next of kin to the fund released in consequence of the invalidity of the gift of the real estate to charity.

THE testator in this cause, by his will, dated in 1832, gave, devised, and bequeathed all his real and personal estate whatsoever and wheresoever to the defendant Woods and two other trustees, upon trust, with all convenient speed after his death, to dispose of all his freehold and leasehold estates and premises, with the appurtenances; and also to sell and convert into money, except as was thereinafter excepted, all such part of his personal estate and effects as should not consist of money; and he directed his executors to stand and be possessed of and hold the moneys to arise or be gotten by the means aforesaid or otherwise under or by virtue of that his will, in trust in the first place to satisfy his debts, funeral and testamentary expenses, and certain legacies; and he directed that his trustees "should, at the end of twelve months next after his decease, invest the sum of 6001. out of his personal estate in the purchase of parliamentary stocks or funds of Great Britain, or upon real or other security, at interest, with full power to vary or change the same funds and securities, at their discretion, for the general good and benefit, but without impeachment of waste, upon the trusts thereinafter mentioned, that is to say, in trust to pay the interest, dividends, and other proceeds of the funds and securities upon which the said sum of 600l. 'should be so invested, &c., unto his wife for her life, or during her widowhood, and at the death or *marriage again of his wife, in trust to pay, assign transfer, and [*410] assure the said sum of 6001. and the funds and securities whereupon the same might be placed or invested" unto certain trustees, upon trust "to pay the income thereof unto the minister for the time being of the dissenting chapel at Rainford, so long as he should preach agreeable to the thirty-nine articles of the Church of England, and teach the Assembly's catechism;" in default thereof he directed the trustee to expend the income of the funds in the purchase of linen and woollen cloth for the poor of Rainford. And he also directed that his trustees should, at the end of twelve months next after his decease, all his property being personal, pay, lay out, and expend, invest, and dispose of all the rest, residue, and remainder of his personal estate and effects whatsoever (save and except what was therein before mentioned and disposed of) into two equal moieties or shares, and invest one moiety in the parliamentary stocks or funds of Great Britain, or upon real or other security