themselves to act for the defendant in the action had thereby impliedly warranted that they had authority to do so, and therefore were liable personally to pay the plaintiff's costs of the action.

Smout v. Ilbery, (1842) 10 M. & W. 1, questioned.

Collen v. Wright, (1857) 8 E. & B. 647, followed.

APPEAL from refusal by Sutton J. at chambers to order that solicitors, who had assumed to act for the defendant in an action for libel and slander, should personally pay the plaintiff's costs in the action.

The defendant Toynbee in August, 1908, retained Messrs. Wontner & Sons, the respondents in the appeal, to act as his solicitors in the conduct of his defence to an action which he then expected to be brought against him by the plaintiff, and, on several occasions in September, instructions in the matter were given by him to the respondents. On October 8, 1908, the defendant was certified, and a detention order was made against him, as being a person of unsound mind not so found by inquisition. It appeared that the respondents had at that time been informed that the defendant wac suffering from a nervous breakdown, and was in a home and unable to attend to any business, but it was not until April, 1909, that they became aware that he was of unsound mind and that he had been certified as such. On October 26, 1908, the plaintiff brought an action against one Morshead and the defendant for libel and slander. On October 30 the respondents undertook to appear in that action for the defendant, and did, in pursuance of that undertaking, on November 6 enter an appearance for the defendant. The plaintiff, being subsequently advised that the defendant and Morshead were improperly joined as defendants in that action, discontinued that action as against the defendant, and on December 19 commenced a fresh action against him for libel and slander. The respondents on December 21, 1908, undertook to appear for the defendant in this action, and on December 30 entered an appearance accordingly. On February 22, 1909, they delivered a statement of defence in the action, pleading privilege and denying the alleged libel and slander. On February 26, 1909, an order was made in lunacy appointing the defendant's wife receiver of his estate with certain of the powers of a committee

thereof. The plaintiff put in a reply to the defence of the defendant, and other interlocutory proceedings in the action took place. Afterwards, on April 5, 1909, the action not having then come to trial, the respondents, having, as before mentioned, become aware that the defendant had been certified as a person of unsound mind, forthwith communicated that fact to the plaintiff's solicitor. Correspondence ensued between the plaintiff's solicitors and the respondents with regard to the appointment of a guardian ad litem for the defendant, but ultimately none was appointed. Application was subsequently made on behalf of the plaintiff to a Master at chambers for an order that the appearance in the action, and all proceedings subsequent thereto, should be struck out, and that the respondents should personally pay to the plaintiff her costs of the action, on the ground that they had acted for the defendant without authority. The Master made an order that the appearance and subsequent proceedings in the action should be struck out, but refused to make an order that the respondents should personally pay the plaintiff's costs of the action. On appeal to Sutton J. at chambers against that refusal, he affirmed the decision of the Master. The plaintiff appealed to the Court of Appeal.

Nov. 12. G. A. Scott, for the respondents, Messrs. Wontner & Sons. There is a preliminary objection to the hearing of this appeal. The application at chambers, as between the plaintiff and Messrs. Wontner & Sons, was not a matter of practice and procedure within the meaning of s. 1, sub-s. 4, of the Judicature Act, 1894, and there is no appeal under that sub-section to the Court of Appeal. Further, any order made upon such an application is a final order, from which there is a right of appeal, and under s. 1, sub-s. 5, the appeal lies to the Divisional Court. In re Marchant (1) is a clear authority on both points. The application did not, in the proper meaning of the phrase, arise out of an action; it was in effect an originating summons, tacked on to the summons in the action which asked that the proceedings should be struck out. It was an application to the summary jurisdiction of the Court, and an order made upon such

(1) [1908] 1 K. B. 998.

an application is a final and not an interlocutory order: In re Marchant (1); Hayden v. Cartwright. (2)

Montague Shearman, K.C. (Ernest Todd with him), for the appellant, the plaintiff in the action. The true question is not whether the order is final or interlocutory, but whether it was made in or in connection with an action. It is a good practical working rule that such an application, if made in connection with an action, is a matter of practice and procedure; secus, if it is an independent proceeding wholly unconnected with an action: see Annual Practice for 1910, vol. 2, 655, 656. That is the distinction drawn in In re Marchant (1), where the undertaking sought to be enforced against a solicitor was not given in the course of an action. Here the solicitors have brought themselves within the purview of the action by undertaking to accept service of the writ. This application is as much a matter of practice and procedure as a summons to review the taxation of a solicitor's bill of costs, which has been held to be such a matter: In re Oddy. (3)

G. A. Scott in reply. Whether this is a matter of practice and procedure or not, it is clear from Hayden v. Cartwright (2) and In re Marchant (1) that this is a final order, from which under s. 1, sub-s. 5, of the Judicature Act, 1894, an appeal must be brought to the Divisional Court and not to the Court of Appeal.

BUCKLEY L.J. I am of opinion that the preliminary objection to this appeal fails. After the issue of the writ in the action Messrs. Wontner & Sons, the defendant's solicitors, undertook to enter, and in due course did enter, an appearance for the defendant. Subsequently the plaintiff applied to Master Wilberforce that the appearance and all the subsequent proceedings in the action should be struck out, and that Messrs. Wontner & Sons should be ordered to pay the plaintiff's costs incurred subsequently to the appearance. The ground of the application was that the defendant was not of sound mind at the time when Messrs. Wontner & Sons undertook to enter an appearance or at the time

(1) [1908] 1 K. B. 998.

(2) [1902] W. N. 163.

(3) [1895] 1 Q. B. 392.

when they in fact entered it. The Master confined his order to the earlier part of the application and ordered that the appearance and all subsequent proceedings in the action should be struck out; he made no order on that part of the summons which asked for payment of the plaintiff's costs by Messrs. Wontner & Sons. Upon appeal to the judge at chambers the decision of the Master was affirmed. It results that no order has been made on the second part of the summons. The plaintiff's notice of appeal to this Court asks that the order of the judge may be rescinded, and that Messrs. Wontner & Sons may be ordered to pay personally to the plaintiff all costs of the action against the defendant Toynbee, and also the costs of the proceedings at chambers. In substance the plaintiff, by this appeal, asks us to hold that Messrs. Wontner & Sons are liable for her costs in the action.

A preliminary objection has been taken on behalf of Messrs. Wontner & Sons to the hearing of this appeal on the ground that it does not fall within the provisions of s. 1, sub-s. 4, of the Judicature Act, 1894, which runs thus: "In matters of practice and procedure every appeal from a judge shall be to the Court of Appeal." The contention is that the appeal lies to the Divisional Court and not to the Court of Appeal. The question for our determination is whether this is a matter of practice and procedure within the meaning of the sub-section. The case of In re Marchant (1) has been relied on. That case looks like the present until it is seen that the undertaking there given by the solicitor was not given in an action. That application was an application to the jurisdiction which the Court exercises over its own officers, made by an originating summons, which asked that a solicitor should be ordered to pay to the applicant or his solicitor a sum of money alleged to be due under and in pursuance of a written undertaking to indemnify the applicant against any action which might be brought against him. The undertaking had not been given in the course of an action. Reading the judgment in that case, it is plain that a distinction was drawn between a proceeding brought in an action against a person who is not a party to that action and one brought

(1) [1908] 1 K. B. 998.

under the inherent jurisdiction of the Court against a person to enforce an undertaking given outside any action. In Watson v. Petts (1), which was the case of an application for a prohibition to restrain a county court from exceeding its jurisdiction, A. L. Smith L.J. said: "The practice and procedure mentioned in the section cover matters of practice and procedure in connection with a cause or matter in the High Court, and not a matter in which a county court judge is sought to be prohibited from exceeding his jurisdiction in his Court." The expression "practice and procedure" is not confined to steps in the action itself, but covers also matters in connection with the action. In the present case the summons is addressed to the solicitors in the action. The application is made against the solicitors to one of the parties to an action, and is in my opinion a matter of practice and procedure in connection with the action. I think, therefore, that the appeal lies to the Court of Appeal and not to the Divisional Court.

The appeal itself raises a question of very great importance to solicitors, and must be adjourned for argument before a Court of three judges.

SWINFEN EADY J. I agree.

W. J. B.

Nov. 13, 15. Montague Shearman, K.C., and Ernest Todd,for the appellant, the plaintiff in the action. The judge at chambers acted on the authority of Smout v. Ilbery (2) and Salton v. New Beeston Cycle Co. (3) In so far as Smout v. Ilbery (2) decided that an agent is only liable for a breach of warranty of authority where he has done something wrongful, the decision has been overruled by Collen v. Wright (4): see Halbot v. Lens (5), per Kekewich J. In Collen v. Wright (4) the principle was clearly laid down that a person who assumes to act as an agent does not merely warrant that he honestly believes

(1) [1899] 1 K. B. 54.

(2) 10 M. & W. 1.

(3) [1900] 1 Ch. 43.

(4) 8 E. & B. 647.

(5) [1901] 1 Ch. 344.

that he has authority to act for a principal, but warrants absolutely that the authority which he professes to have does in fact exist. The principle of Collen v. Wright (1) was originally applied to cases of contracts, but in Oliver v. Bank of England (2), in the Court of Appeal, it was pointed out that the principle applied to any case where a person professed to act as agent of another and induced a third person to act on the faith of that representation.

Firbank's Executors v. Humphreys (3) is also an instance of the application of the principle of Collen v. Wright (1) to a case other than one of contract.

[VAUGHAN WILLIAMS L.J. referred to Merry v. Nickalls. (4)]

Salton v. New Beeston Cycle Co. (5), which was also relied on by the judge at chambers, was wrongly decided, because Stirling J. acted on Smout v. Ilbery (6) without considering how far that decision had been modified or overruled by Collen v. Wright. (1) The decision is also distinguishable on the facts, for there the solicitor had authority originally to defend the action, but his authority was revoked by the dissolution of the company shortly before the trial. In the present case the solicitor had no authority to act for the defendant when he entered the appearance, for it is not now disputed that the defendant was insane at that time. For the purpose of making the solicitor liable for a breach of warranty of authority it is immaterial to consider whether he had reasonable ground for believing that he had authority to act for the defendant. [They also referred to Beattie v. Lord Ebury. (7)]

G. A. Scott, for the respondents, Messrs. Wontner & Sons. The cases in which, prior to Salton v. New Beeston Cycle Co. (5), solicitors have, in the exercise of the disciplinary jurisdiction of the Court, been ordered to pay the opposite party's costs in an action, on the ground that they had acted without authority, appear to have been cases, where the solicitors had acted wrongfully as between themselves and their own clients, and where,

(1) 8 E. & B. 647.

(2) [1902] 1 Ch. 610.

(3) (1886) 18 Q. B. D. 54.

(4) (1872) L. R. 7 Ch. 733; (1875) L. R. 7 H. L. 530.

(5) [1900] 1 Ch. 43.

(6) 10 M. & W. 1.

(7) (1872) L. R. 7 Ch. 777; (1874) L. R. 7 H. L. 102.

therefore, they might, as between themselves and their clients, have been ordered to bear those costs. The basis of the exercise of the disciplinary jurisdiction of the Court in these cases appears to have been that the solicitor had acted wrongfully as against his client in acting without his authority, even though he might have done so bona fide, and without any wrongful or fraudulent intention. There does not appear to have been any case before Salton v. New Beeston Cycle Co. (1) in which this jurisdiction has been exercised against a solicitor without his having acted in some way wrongfully. There is only a very imperfect analogy between the case of solicitor and client and that of an ordinary agent and his principal, which is the kind of case to which Collen v. Wright (2) applies. The solicitor retained to defend an action is not like an agent employed to sell goods. He is retained as a legal expert and an officer of the Court, and he is bound to go on taking the necessary steps in the conduct of the defence until he has notice of the revocation or determination of his retainer. His contract is an entire contract, to conduct the defence to the action until it is finished, and to take all the steps necessary for that purpose, and if he fails to do so he is guilty of a breach of contract: see Underwood, Son & Piper v. Lewis. (3) Under the circumstances of this case the solicitors would have been incurring a most serious responsibility if they had failed to take the steps which they took on behalf of the defendant, and they cannot possibly be said to have acted wrongfully as against him. They had been retained by the client to conduct his defence to the expected action, and fully instructed by him for that purpose, and they were subsequently informed that he was too ill to attend to business. In that state of affairs they only did what was their duty, and did nothing either legally or morally wrong, in taking the steps which they took. The principle which was acted on in Smout v. Ilbery (4) really was that, where a principal gives an authority which is in the nature of a continuing authority to an agent, and that authority is determined without the agent's knowledge, as for instance by the death of the principal, then, until the agent receives notice of the fact

(1) [1900] 1 Ch. 43.

(2) 8 E. & B. 647.

(3) [1894] 2 Q. B. 306.

(4) 10 M. & W. 1.

that his authority has been so determined, he is not responsible personally to anybody in respect of acts done by him in pursuance of the authority originally given. The principle so laid down in Smout v. Ilbery (1) has not, it is submitted, really been overruled in any subsequent case. The facts of Salton v. New Beeston Cycle Co. (2) were to a considerable extent similar to those of the present case. There a solicitor had originally authority to defend an action in the name of a company, but his authority was determined by the dissolution of the company shortly before the trial. The action was tried on the assumption that the company was in existence, and judgment was given for the plaintiff. Neither the solicitor nor the plaintiff knew till after the trial that the company had been dissolved. Upon motion by the plaintiff that the solicitor might be ordered to pay his costs of the action as from the date of the dissolution of the company, Stirling J., applying the principle laid down in Smout v. Ilbery (1), held that the solicitor, having originally authority to represent the company, was not liable for acting on that authority after it had been revoked by the dissolution of the company, until he knew, or, by the exercise of due diligence, might have known, of the dissolution; but he held that, as, on the day of the trial, the solicitor was informed that the final meeting of the company had been held, he was on that day put on inquiry whether it had been dissolved, and therefore was liable in respect of costs subsequently incurred. It is submitted that the result of the authorities is that the Court ought not in the exercise of their disciplinary jurisdiction to order the solicitors in this case to pay the plaintiff's costs. [He also cited Newbiggin-by-the-Sea Gas Co. v. Armstrong (3); Nurse v. Durnford (4); Fricker v. Van Grutten (5); Geilinger v. Gibbs (6); Reynolds v. Howell (7); Attorney-General v. Odell (8); Oliver v. Bank of England (9); Starkey v. Bank of England (10); Drew v. Nunn. (11)]

(1) 10 M. & W. 1.

(2) [1900] 1 Ch. 43.

(3) (1879) 13 Ch. D. 310.

(4) (1879) 13 Ch. D. 764.

(5) [1896] 2 Ch. 649.

(6) [1897] 1 Ch. 479.

(7) (1873) L. R. 8 Q. B. 398.

(8) [1906] 2 Ch. 47.

(9) [1902] 1 Ch. 610.

(10) [1903] A. C. 114.

(11) (1879) 4 Q. B. D. 661, at p. 666.

E. Todd, for the plaintiff, in reply. The suggestion that the solicitor can only be ordered to pay the costs in such a case as this where he has acted wrongfully is inconsistent with Fricker v. Van Grutten (1) and Geilinger v. Gibbs. (2) The judgment of Lord Davey in Starkey v. Bank of England (3) shews that it is immaterial for the purpose of the application of the law as laid down in Collen v. Wright (4) whether the supposed agent knew of the defect in his authority or not.

The solicitors in this case were, having regard to the lapse of time which had taken place since they received their instructions, and to the fact that they knew that their client had suffered from a nervous breakdown and was in a home, guilty of negligence in not making inquiries as to the state of his mind before acting on their original instructions.

Dec. 21. The following written judgments were delivered:-

BUCKLEY L.J. Vaughan Williams L.J. has asked me to deliver my judgment first.

The interesting and important question in this case is as to the extent to which the principle of Smout v. Ilbery (5) remains good law after the decision in Collen v. Wright. (4) In Smout v. Ilbery (5) Alderson B., in giving the judgment of the Court, dealt with the authorities under three heads: First, the case where the agent made a fraudulent misrepresentation as to his authority with an intention to deceive. In such case the agent is, of course, personally responsible. Secondly, the case where the agent without fraud, but untruly in fact, represented that he had authority when he had none, instancing under this head Polhill v. Walter. (6) In that case A., having no authority from B. to accept a bill on his behalf, did accept it as by his procuration, bona fide believing that B. would retrospectively approve that which he was doing. In such case again the agent is personally liable, for he induced the other party to enter into a contract on

(1) [1896] 2 Ch. 649.

(2) [1897] 1 Ch. 479.

(3) [1903] A. C. 114, at pp. 118, 119.

(4) 8 E. & B. 647.

(5) 10 M. & W. 1.

(6) (1832) 3 B. & Ad. 114.

a misrepresentation of a fact within his own knowledge. The third class is where the agent bona fide believes that he has, but in fact has not, authority. This third class the learned Baron seems to subdivide into two heads - the first where the agent never had authority, but believed that he had (e.g., when he acted on a forged warrant of attorney which he thought to be genuine), and the second where the agent had in fact full authority originally, but that authority had come to an end without any knowledge, or means of knowledge, on the part of the agent that such was the fact. The latter was the state of facts in Smout v. Ilbery. (1) I understand Smout v. Ilbery (1) not to dispute that in the former of these last two cases (that is, where the agent never had authority) he is liable, but to hold that in the latter (namely, where he originally had authority, but that authority has ceased without his having knowledge, or means of knowledge, that it has ceased) he is not liable. The principle is stated in the following words: "If, then, the true principle derivable from the cases is, that there must be some wrong or omission of right on the part of the agent, in order to make him personally liable on a contract made in the name of his principal, it will follow that the agent is not responsible in such a case as the present. And to this conclusion we have come." It seems to me that, if that principle be the true principle, then the former of the last two mentioned cases ought to have been resolved in the same way as the latter. I can see no distinction in principle between the case where the agent never had authority and the case where the agent originally had authority, but that authority has ceased without his knowledge or means of knowledge. In the latter case as much as in the former the proposition, I think, is true that without any mala fides he has at the moment of acting represented that he had an authority which in fact he had not. In my opinion he is then liable on an implied contract that he had authority, whether there was fraud or not. That this is the true principle is, I think, shewn by passages which I will quote from judgments in three which I have selected out of the numerous cases upon this subject. In Collen v. Wright (2) Willes J. in giving the judgment

(1) 10 M. & W. 1.

(2) 8 E. & B. 647.

of the Court uses the following language: "I am of opinion that a person who induces another to contract with him, as the agent of a third party, by an unqualified assertion of his being authorized to act as such agent, is answerable to the person who so contracts for any damages which he may sustain by reason of the assertion of authority being untrue. .... The fact that the professed agent honestly thinks that he has authority affects the moral character of his act; but his moral innocence, so far as the person whom he has induced to contract is concerned, in no way aids such person or alleviates the inconvenience and damage which he sustains. The obligation arising in such a case is well expressed by saying that a person professing to contract as agent for another, impliedly, if not expressly, undertakes to or promises the person who enters into such contract, upon the faith of the professed agent being duly authorized, that the authority which he professes to have does in point of fact exist." This language is equally applicable to each of the two classes of cases to which I have referred. The language is not, in my opinion, consistent with maintaining that which Smout v. Ilbery (1) had laid down as the true principle, that there must be some wrong or omission of right on the part of the agent in order to make him liable. The question is not as to his honesty or bona fides. His liability arises from an implied undertaking or promise made by him that the authority which he professes to have does in point of fact exist. I can see no difference of principle between the case in which the authority never existed at all and the case in which the authority once existed and has ceased to exist. In Firbank's Executors v. Humphreys (2) the rule is thus stated by Lord Esher: "The rule to be deduced is that, where a person by asserting that he has the authority of the principal induces another person to enter into any transaction which he would not have entered into but for that assertion, and the assertion turns out to be untrue, to the injury of the person to whom it is made, it must be taken that the person making it undertook that it was true, and he is liable personally for the damage that has occurred."

(1) 10 M. & W. 1.

(2) 18 Q. B. D. 54, at p. 60.

Lastly, Lord Davey in Starkey v. Bank of England (1), after stating that the rule extends to every transaction of business into which a third party is induced to enter by a representation that the person with whom he is doing business has the authority of some other person, rejects the argument that the rule in Collen v. Wright (2) does not extend to cases where the supposed agent did not know that he had no authority, and had not the means of finding out; cites Lord Campbell's language in Lewis v. Nicholson (3), that the agent "is liable, if there was any fraud, in an action for deceit, and, in my opinion, as at present advised, on an implied contract that he had authority, whether there was fraud or not"; and concludes by saying that in his opinion "it is utterly immaterial for the purpose of the application of this branch of the law whether the supposed agent knew of the defect of his authority or not."

The result of these judgments, in my opinion, is that the liability of the person who professes to act as agent arises (a) if he has been fraudulent, (b) if he has without fraud untruly represented that he had authority when he had not, and (c) also where he innocently misrepresents that he has authority where the fact is either (1.) that he never had authority or (2.) that his original authority has ceased by reason of facts of which he has not knowledge or means of knowledge. Such last-mentioned liability arises from the fact that by professing to act as agent he impliedly contracts that he has authority, and it is immaterial whether he knew of the defect of his authority or not.

This implied contract may, of course, be excluded by the facts of the particular case. If, for instance, the agent proved that at the relevant time he told the party with whom he was contracting that he did not know whether the warrant of attorney under which he was acting was genuine or not, and would not warrant its validity, or that his principal was abroad and he did not know whether he was still living, there will have been no representation upon which the implied contract will arise. This may have been the ratio decidendi in Smout v. Ilbery (4) as expressed in the passage "The continuance of the life of the principal was,

(1) [1903] A. C. 114, at p. 119.

(2) 8 E. & B. 647.

(3) (1852) 18 Q. B. 503.

(4) 10 M. & W. 1.

under these circumstances, a fact equally within the knowledge of both contracting parties"; and this seems to be the ground upon which Story on Agency, s. 265a, approves the decision. The husband had left England for China in May, 1839, a time in the history of the world when communication was not what it is now, and the Court seems to have decided upon the ground that the butcher who supplied the goods knew that the facts were such that the wife did not, because she could not, take upon herself to affirm that he was alive. If so, there was no implied contract. The principle, as stated in the words I have quoted, may have been meant to be, but is not in words, rested upon that ground, and, if it is to be understood as it seems to have been understood in Salton v. New Beeston Cycle Co. (1), it is not, I think, consistent with Collen v. Wright. (2) The true principle as deduced from the authorities I have mentioned rests, I think, not upon wrong or omission of right on the part of the agent, but upon implied contract.

The facts here are that the solicitors originally had authority to act for Mr. Toynbee; that that authority ceased by reason of his unsoundness of mind; that, subsequently, they on October 30, 1908, undertook to appear, and on November 6 appeared, in the first action, and, after that was discontinued, did on December 21 undertake to appear, and did on December 30 enter an appearance, in the second action; and that they subsequently, on February 22, 1909, delivered a defence pleading privilege, and denying the slander, and did not until April 5 inform the plaintiff that, as the fact was, their client had become of unsound mind. During all this time they were putting the plaintiff to costs, and these costs were incurred upon the faith of their representation that they had authority to act for the defendant. They proved no facts addressed to shew that implied contract was excluded.

It has been pressed upon us that a solicitor is an agent of a special kind with an obligation towards his client to continue to take on his behalf all proper steps in the action. The particular nature of his agency is not, I think, very material. On the other hand it must be borne in mind that after August 21, when the

(1) [1900] 1 Ch. 43.

(2) 8 E. & B. 647.

defendant Toynbee wrote to the plaintiff's solicitors, referring them to Messrs. Wontner & Sons, the plaintiff could not consistently with professional etiquette communicate personally with the defendant. During the period from August, 1908, to April, 1909, the solicitors had the means of knowing and did not in fact ascertain that the defendant had become of unsound mind. In the interval they did acts which amounted to representations on their part that they were continuing to stand in a position in which they were competent to bind the defendant. This was not the case. They are liable, in my judgment, upon an implied warranty or contract that they had an authority which they had not.

For these reasons I think that the appellant is entitled to succeed and to have an order against the solicitors for damages, and the measure of damage is, no doubt, the amount of the plaintiff's costs thrown away in the action. The appeal, therefore, should be allowed with costs here and below.

SWINFEN EADY J. The plaintiff on October 26 last applied to the Master that the appearance and all subsequent proceedings in the action might be struck out, and that Messrs. Wontner & Sons, the solicitors for the defendant, might be ordered to pay the plaintiff's costs of the action down to date. The application was supported by an affidavit made by a clerk to the plaintiff's solicitors, from which it appears that the writ was issued on December 19, 1908, and that Messrs. Wontner & Sons undertook to appear for the defendant, and duly entered an appearance on December 30. Paragraph 5 of that affidavit is as follows: "On April 5, 1909, Messrs. Wontner called on me, and informed me that the said defendant, Harry Valpy Toynbee, had been certified, and was then lawfully detained, as a person of unsound mind not so found by inquisition, and I have since ascertained that he was so certified and detained on October 8, 1908 (that is before the writ in either action was issued), and that on February 26, 1909, an order was made in lunacy appointing his wife Sarah Edith Toynbee receiver of his estate with certain of the powers of a committee thereof. Until Messrs. Wontner & Sons so informed me of Mr. Toynbee's condition on April 5,

1909, I was unaware that he was of unsound mind, although they had more than once told me that he was in poor health and was unable to attend to business matters." The Master made an order as asked, except that he refused to order Messrs. Wontner to pay the costs of the action. The plaintiff appealed to the judge against this refusal, and the judge affirmed the Master. The plaintiff now appeals to this Court, and asks for an order that Messrs. Wontner may be ordered to pay the costs of the action down to date.

No suggestion is made that Messrs. Wontner & Sons were aware of the unsoundness of mind of the defendant before April 5, 1909, nor is their good faith in any way impugned.

The plaintiff contended that, by giving an undertaking to appear for the defendant and by entering an appearance, Messrs. Wontner & Sons represented that they had authority to act as defendant's solicitors, whereas by reason of defendant's unsoundness of mind, occurring at a date antecedent to the action, they had not in fact any authority from him to enter an appearance on his behalf, or to give any undertaking to appear, and are therefore liable for their unauthorized acts. Messrs. Wontner & Sons contended that in August, 1908, when the defendant was of sound mind, they received authority to represent the defendant, and did represent him, in respect of the matters to which the action relates, and that they were not aware and by due diligence could not have ascertained that their authority had determined, and they rely upon the cases of Smout v. Ilbery (1) and Salton v. New Beeston Cycle Co. (2) as determining that under such circumstances they are not under any liability for the costs incurred by the other side.

In my opinion the material date to consider is December 30, 1908, when appearance was entered. That was the date upon which Messrs. Wontner & Sons represented that they had authority to defend the action on behalf of the defendant, upon which representation the plaintiff has acted to her prejudice by continuing the legal proceedings which have so far proved abortive. On this view the respondents are not protected by the principle of Smout v. Ilbery (1), and they are simply in the

(1) 10 M. & W. 1.

(2) [1900] 1 Ch. 43.

position of having acted in good faith, but without authority. Under such circumstances good faith alone will not protect them, and they are liable to pay the costs of the party misled: Newbiggin-by-the-Sea Gas Co. v. Armstrong (1); see also Fricker v. Van Grutten. (2)

If, however, contrary to my opinion, the true view is that the time with reference to which the point is to be decided whether the solicitors had originally authority to defend the action is August, 1908, when they were instructed to act for defendant, then it becomes necessary to consider what is the result of their continuing to act upon an authority which they once had, but which has determined without their knowledge.

Where an agent represents that he has authority to do a particular act, and he has not such authority, and another person is misled to his prejudice, the ground upon which the agent is held liable in damages is that there is an implied contract or warranty that he had the authority which he professed to have. It would seem to follow from this, in principle, that, where the authority upon which an agent is professing to act is a continuing authority, there is a continuing representation by him that he has authority to do the series of acts, and an implied contract or warranty that he possesses such authority In Firbank's Executors v. Humphreys (3) the law is thus stated by Lord Esher: "The principle of Collen v. Wright (4) extends further than the case of one person inducing another to enter into a contract. The rule to be deduced is, that where a person by asserting that he has the authority of the principal induces another person to enter into any transaction which he would not have entered into but for that assertion, and the assertion turns out to be untrue, to the injury of the person to whom it is made, it must be taken that the person making it undertook that it was true, and he is liable personally for the damage that has occurred." And Lindley L.J. said (5): "Speaking generally an action for damages will not lie against a person who honestly makes a misrepresentation which

(1) 13 Ch. D. 310.

(2) [1896] 2 Ch. 649.

(3) 18 Q. B. D. 54, at p. 60.

(4) 8 E. & B. 647.

(5) 18 Q. B. D. 54, at p. 62.

misleads another. But to this general rule there is at least one well established exception, namely, where an agent assumes an authority which he does not possess, and induces another to deal with him upon the faith that he has the authority which he assumes."

Now this principle is, in my judgment, equally applicable whether the authority which the agent assumes extends to one act only, or to a series of acts; and, in the latter case, if some only of the acts are unauthorized by reason of an authority having determined, there is no reason why the principle should not extend to those. The fact that the earlier acts of the series were within the authority should make no difference as regards the later unauthorized acts.

The contention of the respondents is inconsistent with the opinion expressed by Lord Davey in the House of Lords in Starkey v. Bank of England. (1) Lord Davey said: "The whole stress of his" (Mr. Upjohn's) "argument has been to shew that this case is not an exception from the rule as to actions of deceit, and that the rule as laid down in Collen v. Wright (2), and other cases which need not be enumerated, does not extend to cases where the supposed agent did not know that he had no authority and had not the means of finding out. .... I am of opinion that it is utterly immaterial for the purpose of the application of this branch of the law whether the supposed agent knew of the defect of his authority or not, and indeed that is the very doctrine which is asserted by Story J. in the first edition as well as in subsequent editions of his work on Agency to which a reference has been made." And Lord Lindley stated that the decision in Firbank's Executors v. Humphreys (3) was sound, thus repeating in the House of Lords what he had previously said in that case in the Court of Appeal, to which I have already referred. Lord Halsbury expressed the same view, citing with approval some of the original judgments in Collen v. Wright (4), which were affirmed in the Exchequer Chamber, laying down that, when a person purports to act as agent, he promises or warrants that he is what he represents himself to be, and can be sued on the

(1) [1903] A. C. 114, at p. 119.

(2) 8 E. & B. 647.

(3) 18 Q. B. D. 54.

(4) 7 E. & B. 301; 8 E. & B. 647.

promise or warranty, although he believed it to be true. Lord Halsbury also points out that this principle is unaffected by the decision in Derry v. Peek. (1)

Having regard to the authorities to which I have referred, I am of opinion that the distinction acted upon by Stirling J. in Salton v. New Beeston Cycle Co. (2) is not a sound one, - namely, the distinction between the period before and that after the date at which the solicitor knew, or by the exercise of due diligence might have known, of the revocation of his authority, - the principle that there must be some wrong or omission of right on the part of an agent, for the time being acting without authority, to make him personally liable.

In my judgment Smout v. Ilbery (3) can no longer be regarded as law, if and so far as it decided that an agent continuing to act without knowledge of the revocation of his authority is not under liability to the other party for his warranty or representation of authority.

I wish to add that in the conduct of litigation the Court places much reliance upon solicitors, who are its officers; it issues writs at their instance, and accepts appearances for defendants which they enter, as a matter of course, and without questioning their authority; the other parties to the litigation also act upon the same footing, without questioning or investigating the authority of the solicitor on the opposite side; and much confusion and uncertainty would be introduced if a solicitor were not to be under any liability to the opposite party for continuing to act without authority in cases where he originally possessed one. At one time the Common Law Courts acted very firmly upon the view that, if an attorney took upon himself to sue or defend, the Courts would presume his authority and not inquire into it; so much so that, if an attorney (being a solvent person) without authority instituted or defended proceedings, the Court would not interfere, but left the party injured to his remedy in damages against the attorney. In an anonymous case, in Salkeld (4), Holt C.J. said: "The course of this Court is, where an attorney takes upon him to appear, the Court looks no farther,

(1) (1889) 14 App. Cas. 337.

(2) [1900] 1 Ch. 43.

(3) 10 M. & W. 1.

(4) Anon., 1 Salk. 86.

but proceeds as if the attorney had sufficient authority, and leaves the party to his action against him." See also Stanhope v. Eavery (1); Bayley v. Buckland. (2) Subsequently, and in consequence of Lord Mansfield's decision in Robson v. Eaton (3), the Common Law Courts took a different view, and stayed the unauthorized action, and made the attorney pay the costs: Hubbart v. Phillips (4); Reynolds v. Howell. (5) The manner in which business is ordinarily conducted requires that each party should be able to rely upon the solicitor of the other party having obtained a proper authority before assuming to act. It is always open to a solicitor to communicate as best he can with his own client, and obtain from time to time such authority and instructions as may be necessary. But the solicitor on the other side does not communicate with his opponent's client, and, speaking generally, it is not proper for him to do so, as was pointed out by Kekewich J. in In re Margetson & Jones. (6) It is in my opinion essential to the proper conduct of legal business that a solicitor should be held to warrant the authority which he claims of representing the client; if it were not so, no one would be safe in assuming that his opponent's solicitor was duly authorized in what he said or did, and it would be impossible to conduct legal business upon the footing now existing; and, whatever the legal liability may be, the Court, in exercising the authority which it possesses over its own officers, ought to proceed upon the footing that a solicitor assuming to act, in an action, for one of the parties to the action warrants his authority.

In my opinion an order ought now to be made in accordance with the notice of appeal.

VAUGHAN WILLIAMS L.J. Reluctantly, and not without doubt, I have yielded to the views expressed by my brethren. I concur, and have come to the conclusion that we must reverse the decision of Sutton J., dismissing the plaintiff's appeal against the decision of Master Wilberforce, refusing to order Messrs.

(1) (1836) 5 Dowl. 357; 3 Bing. N C. 301.

(2) (1847) 1 Ex. 1.

(3) (1785) 1 T. R. 62.

(4) (1845) 13 M. & W. 702.

(5) L. R. 8 Q. B. 398.

(6) [1897] 2 Ch. 318.

Wontner & Sons to pay all costs of the action against the defendant Toynbee, and must allow this appeal.

In the present case before us there was on the argument of the appeal no dispute as to the facts. It was agreed that, whether one regards the first writ or the second writ, there were in themselves sufficient general instructions to justify the appearance to both writs, but it is said that the lunacy of the defendant put an end to the instructions.

If the authority was determined by the lunacy, I fear that as to all subsequent costs we must hold the solicitors, however innocent of knowledge, liable. It is, I believe, an extension of the law to hold that a solicitor is responsible where he had authority originally, but the authority is determined by lunacy or death without the solicitor's knowledge. I do not think it necessary to hold that Smout v. Ilbery (1) has been overruled by Collen v. Wright (2), for I think that the judgment of Alderson B. is overridden by the words at the end of his judgment shewing that the judgment is based on the relations in law of husband and wife existing at the date when the decision was given.

I have only to add that, if there had been a contest as to facts before us, as there seems to have been at chambers, I should have thought it a better course to leave the plaintiff to her action rather than dispose of the matter on a summary disciplinary order.

The judgment is that the appeal be allowed with costs here and below.

Solicitors for appellant: Wood, Bigg & Nash, for J. H. Yonge, Worcester.

Solicitors for respondents: Wontner & Sons.

(1) 10 M. & W. 1.

(2) 8 E. & B. 647.

E. L.