retained, and that he had acted throughout with bona fides. Held, that to warrant a petitioner (husband) in opposing, and the Court in refusing, the usual order for a wife's costs, it is not necessary to show "misconduct" on the part of the wife's solicitor. Held further, that a solicitor acting for the wife in a matrimonial case is not entitled to rely upon his client's instructions, but, in order to entitle him to look to the husband for payment of the wife's costs, he must fairly investigate for himself the various points put forward by the wife as a defence, and must satisfy himself in regard to their reasonableness. Held, upon the authorities of Robertson v. Robert son (45 L. T. Rep. 237 6 P. Div. 119); and Ash v. Ash (68 L. T. Rep. 500; (1893) P. 222), that the usual order for wife's costs be refused, and that the amount in court be paid out to the petitioner. APPLICATION for the usual order for wife's costs, after decree nisi pronounced on the ground of the wife's adultery with the co-respondent, who was not represented at the hearing. Adkins, for the wife. Bargrave Deane, Q.C. and Barnard, for the petitioner, opposed. Mr. W. M. Skinner, the wife's country solicitor, in the course of his evidence, stated that, although he had known from an early period of the proceedings that the respondent had committed adultery with the co-respondent, he had questioned both her and her sister, and had been assured that this was only after the respondent had been left without means by the petitioner. The respondent had told him that the petitioner alleged as his reason for not rejoining her on his return from sea, that he had been informed of men visiting her at her lodgings in his absence. He (witness) did not go and make inquiries at the lodgings because he understood that the persons who kept the house would be hostile to his client, and that her interests would be best served by leaving those witnesses to be dealt with in crossexamination. [Div. fence. After I had pronounced a decree nisi, an application was made to me by counsel for the respondent that the costs secured up to the amount of 401. should, in the usual way, be allowed to her for the benefit of her solicitor in conducting her defence. That application was opposed by counsel for the petitioner, on the ground that there was no reasonable ground for defending the case, and, that if the facts had been investigated it could not properly have been defended. This question of wife's costs was considered by the Court of Appeal in Robertson v.. Robertson (45 L. T. Rep. 237; 6 P. Div. 119); and by myself, in Ash v. Ash (68 L. T. Rep. 500; (1893) P. 222. It may be stated very shortly by referring to the judgment of the late Master of the Rolls in the former case (6 P. D. at p. 122): "If he (the solicitor) himself conducts the litigation properly, if he fairly investigates the charges and sees a reasonable foundation for a defence, he is not to lose his costs and the fair remuneration for his labour, because he is not successful. No solicitor would engage in the practice of the profession on the terms of not getting paid whenever he was unsuccessful; and, therefore, unless he himself has been guilty of misconduct, there is no reason for depriving him of his costs. It appears to me, therefore, that where the defence is fairly and reasonably conducted, the solicitor ought to be paid in full his costs, that is, his costs properly incurred." In regard to the term "misconduct," used in that judgment, I myself said, in Ash v. Ash (1893) P., at p. 227), it seemed to me to amount to this, that a solicitor who incurs unnecessary costs cannot be said to incur them relying on the credit of the husband: and that he must, in fact, look either to himself or his own immediate client for payment of those costs. I do not myself feel that "misconduct is a necessary term at all: it is rather that the solicitor has done what he has done, relying on being paid by the husband, or that he must look to his own client. It is very important, in my opinion, that that view should be acted on strictly in this court; because, if it is not, in cases where wives either sue or are sued, and the wife's solicitor acts without having fairly inves The other material facts appear in the judg-tigated the case and without having a reasonable ment. BARNES, J.-In this case, the petitioner sought to obtain a divorce from his wife on the ground of her adultery with a man named Lawson, and the petition was framed in order to obtain a decree on that ground. The respondent, by her answer put upon the record, denied the adultery with Lawson, alleged that the petitioner had been guilty of great unkindness, and had kept her without food and money, and deserted her in February, 1888, and that he had himself been guilty of adultery with a woman unknown; and particulars of the counter-charge of adultery were given, to the effect that it was committed about a certain month at a continental port on board a certain steamship. The case was heard a few days ago, and at the hearing the adultery of the respondent was established, and was practically admitted. With regard to the counter-charges, nothing was really put forward as to the pleas of unkindness and adultery alleged against the petitioner; but a suggestion was made that the petitioner had deserted the respondent. I found that was not so, and there really was not anything whatever in the de ground for defence, it is obvious that the husband is put to very great expense, which he ought and would never have been put to, if the wife had alone to fight her case without relying on costs. from him. It is not uncommon in this court to see cases defended up to the time they are brought into court, and that counsel for the wife then get up and say that, having looked into the case, they find that they are unable to put their client into the witness-box. If the solicitor could, by proper investigation, reach that position before coming into court, he ought, in my opinion, to do so. In the present case, there never was any reason to defend the charge of adultery, and, with regard to the counter-charges, there was nothing but the mere statement of the wife herself; and the only serious question one has to consider is the allegation of desertion. That counter-charge also entirely failed; but, if it had been reasonably investigated before being put on the record, it is a defence which would properly be put forward, having regard to the discretion which the court might exercise, either in refusing a decree, or imposing terms on the husband, if a decree should be granted after proof of the counter-charge. But, at the same time, it is charge that is made by the wife, and it must amount to desertion without cause, and should be properly investigated. The solicitor in the present case seems to have taken the wife's statement, and that of the wife's sister, as to the circumstances under which she left the petitioner. But the wife told him that she left her husband owing to certain charges at the house in which she had been staying while the petitioner was away; and, that on the petitioner coming home from sea, he had told her of those charges, and left her. The solicitor never made any inquiries of the people at that house, one of whom has come here as a witness for the petitioner. Can I say that the case of the wife was fully investigated before it was launched? In my judgment, this case ought never to have been defended at all. The expense is a serious matter for men who have to proceed in this court for divorce. In the first place, a man who petitions for a divorce has to provide for his own costs; then for alimony, which he ought not to have to pay if his wife has committed adultery; and he has, further, to pay or secure the wife's costs. I have no doubt that this prevents many cases being brought into court, from the fact that the husbands cannot afford all these expenses. It is said that the order to pay or secure a wife's costs is required in such cases for the protection of the solicitor. It is not the protection of the solicitor that has to be looked to; it is the protection of the client; and the protection of the client works out in this way. The client cannot employ a solicitor unless with costs being secured; but that involves that the solicitor, in order to get the benefit of those costs, múst investigate the matter, and if there is no ground for the defence, he ought not to defend the suit. In the present case, I refuse to make the usual order for the wife's costs, and the husband shall have out of court the amount which he has paid in or secured. Solicitors for the petitioner, Clarke and Blundell, Solicitors for the respondent, Gibson, Weldon, and Co. NOTE. On the 4th March 1897, in a common jury case of Stokes v. Stokes and Claybrook, in which all the parties were represented by counsel, the jury having found that the respondent and co-respondent had committed adultery, and that the petitioner had not been guilty of cruelty towards the respondent, a decree nisi was granted with costs against the co-respondent. Counsel for the respondent then applied for the usual order for wife's costs; but the learned judge intimated that no costs should be allowed to her, without some satisfactory explanation from the solicitor as to his reasons for defending the case. Counsel for the wife (respondent) thereupon called a gentleman, who stated that he was managing clerk to her country solicitor. He said that he was consulted by the respondent in July 1896. Another solicitor, who had died, had previously acted for her, and had placed a simple denial upon the record on her behalf. The respondent told witness that she had applied to the magistrates for maintenance immediately after she had been, as she stated, deserted by her husband; that an arrangement was then come to, and that she was to have the custody of the children and an allowance. The respondent did not then tell witness that the arrangement was in writing. It was towards the end of July that he gave notice of the change of solicitors and took out a summons to amend the answer, and for security for the [Div. wife's costs. The amended answer was filed on the 29th July, the additions being that the petitioner had deserted the respondent without cause in Feb. 1894 while the respondent was dangerously ill, and thereby caused her a further serious illness; and, that the petitioner had been guilty of cruelty towards his wife in Feb. 1894, while she was dangerously ill. He first saw the written agreement for a separation about three or four days after the amended answer had been filed. The case was set down about that time, he believed. He thought the respondent had a good defence on the ground of cruelty. He interviewed the doctor who had attended her, and he assured him that the respondent had been very ill since the month of December, and that the day on which the petitioner left her (when the petitioner now stated that the respondent had been violent) was the first day that she had come downstairs after her illness. The doctor had expressed to witness the opinion that it was a cruel thing for the petitioner to desert the respondent under such circumstances, and witness came to the conclusion that, under the circumstances, the desertion amounted to cruelty. Witness stated that a policeman was present upon the occasion when the petitioner went to the house to fetch away his box, when the respondent told him she had been knocked down by her husband, and when the petitioner himself said she had fallen on the floor; but that policeman was dead. He had advised the respondent that, the petitioner having, as he understood, broken the terms of the deed, she was entitled to set up the alleged cruelty, which he believed to be a good defence. The learned judge (Barnes, J.), in refusing the application made by counsel for the respondent for the usual order for wife's costs, said this was just like the case of Walker v. Walker and Lawson (sup.), in which he had indicated the principles upon which the court acts in dealing with these applications. The principles which he had then stated, should be strictly applied. In his view, husbands were put to great expense, simply because absolutely undefended cases were brought into court as defended causes, upon the erroneous notion that the husband would be ordered to pay the wife's costs. petitioner in the present case had given a bond, in compliance with the registrar's order, for security of the wife's costs of the hearing, and the order would now be that no effect be given to that bond. Feb. 22 and March 15. (Before BARNES, J. (in Chambers). JOSEPH v. JOSEPH AND BURNHILL. (a) Divorce practice-Wife's costs. The Upon a husband's petition for divorce, the solicitor for the wife incurred costs which were taxed, and ordered to be paid; but after the pleadings were closed and before the cause was set down, the petitioner, without paying them, applied for and obtained leave to proceed in formâ pauperis. The wife's solicitor thereupon took out a summons before the judge in chambers, calling upon the petitioner to show cause why further proceedings should not be stayed by reason of the petitioner not having complied with the order dated the 8th Feb. 1897, for payment of 201. 11s. 6d. for the respondent's taxed costs. The registrar who taxed the bill had refused to order a stay of proceedings in the event of the amount not being paid by the petitioner. The Judge ordered proceedings to be stayed until payment of the wife's taxed costs. SUMMONS as to wife's costs. The facts appear in the head-note. (a) Reported by H. DURLEY GRAZEBROOK, Esq., Barrister-at-Law. The defendant Hughes was the owner of a freehold estate. On the 7th Nov. 1895 his agent wrote to the plaintiff offering it for sale at 20001. On the following day the plaintiff replied accepting the offer, and his letter went on to say, "I should like to know from what time Mr. Hughes wishes the purchase to date." In an action for specific performance against Hughes and Armstrong, with whom Hughes had entered into a subsequent contract for sale, it was contended by Armstrong that there was no completed contract, inasmuch as the letter of acceptance contained a reference to a new term upon which the parties never agreed. Held, that the letter of the 7th Nov. was a definite offer of the property for 2000l., not an invitation to negotiate; and that the reply of the 8th Nov. was a complete acceptance, and constituted a binding contract between the parties, and must be read just as if the inquiry as to from what time Hughes wished the purchase to date had never been inserted, for it was no part of the contract, a reasonable time within which the contract would be completed being imported by law. Decision of Romer, J. (75 L. T. Rep. 487) affirmed. H. R. HUGHES was the owner of a freehold house and land known as "The Wray Estate," Grasmere, Westmoreland, which was in the occupation of W. F. Simpson, as tenant, and which Hughes was desirous of selling. After some previous negotiation Hughes's (a) Reported by E. A. SCRATCHLEY, Esq., Barrister-at-Law. Vol. LXXVI., 1954. [CT. OF APP. agent, St. John Charlton, wrote to Simpson, on the 7th Nov. 1895, as follows: Mr. Hughes has received an offer for the Wray of 1700l. which he has refused. He will take 2000l. Are you disposed to purchase at that price? You will please regard this matter as private, and let me have an immediate answer. Upon receipt of this letter Simpson replied on the next day, the 8th Nov. 1895, in the following terms: I had not wished to give so much, but have decided to accept Mr. Hughes's offer, and will give you the 20001. he asks for the freehold of the Wray property. I should like to know from what time Mr. Hughes wishes the purchase to date. The amount of your cheque for the rent is, rent 251., less tax 168. 8d., 24l. 38. 4d. You do not mention fences, but I should be obliged if they may be seen to at once, as they really need attention. No reply was sent to that letter. Charlton had previously to this correspondence been in negotiation with one Armstrong, for the sale of the same property to him, and on the 13th Sept. 1895 had written on behalf of Hughes offering Armstrong the Wray estate at the same price as to Simpson. On the 12th Nov. 1895 Armstrong replied by letter accepting Hughes's offer to sell for 20001. Armstrong was not at the time aware of Hughes's offer to, or its acceptance by, Simpson. Under these circumstances Hughes declined to complete either contract, and in Dec. 1895 Armstrong brought an action against him for specific performance of his contract. In March 1896 Simpson brought an action for specific performance against Hughes and Armstrong. The two actions came on and were heard together before Romer, J. on the 18th Dec. 1896, when his Lordship decided (75 L. T. Rep. 487) that the letter written by Simpson on the 8th Nov. 1895 was a sufficient acceptance, and made a binding contract between the parties; that it was not necessary for the contract to fix the time for completion, for where no time for completion was fixed a reasonable time was implied by law; and that the sentence in Simpson's letter as to the time of purchase was not intended to introduce a fresh term, or to leave the point open for further negotiation, but was only a way of asking when the contract was to be completed. His Lordship accordingly gave judgment for Simpson, with costs against Hughes except in so far as they had been increased by Armstrong having been made a party, which costs had to be borne by Armstrong. The action of Armstrong against Hughes was dismissed with costs. From the decision in the second action Armstrong now appealed. Neville, Q.C. and O. Leigh Clare for appellant. The question is whether there was an acceptance of the offer contained in the letter of the 7th Nov. 1895, so as to constitute a binding contract. We submit that there is no binding contract between Simpson and Hughes. The inquiry in Simpson's letter as to the time of the purchase was a new term which prevented the acceptance being a clear one, and the letters forming a binding contract. The letter of acceptance shows that the parties were agreed only as to the price, and that the time for completion was not yet fixed. All the terms were not finally settled, and the court will not imply a term for the parties where the correspondence shows that they intended to arrange one for themselves. Then as to the last words of the letter about the fences. This point was not raised before Romer, J. The acceptance is an acceptance with the condition that the fences shall be put in order. [LINDLEY, L.J.-How was it that this point was not raised before Romer, J. ?] It was overlooked perhaps. Eve, Q.C. and Henry Fellows for the respondent Simpson.-The contract of Simpson with Hughes being completed on the 8th Nov. is prior in date to that of Armstrong, and Simpson is therefore entitled to have it enforced. On the question of construction we say that the letters constituted a valid binding contract. A case almost identical with the present was Clive v. Beaumont, 1 De G. & Sm. 397. They also referred to Marshall v. Berridge, 45 L. T. Rep. 599; 19 Ch. Div. 233. No time having been fixed for completion, the court can infer that a reasonable time was intended. George Lawrence for the respondent Hughes. Neville, Q.C. replied. LINDLEY, L.J.-This case comes before us in a somewhat curious way. The question is whether two persons Hughes and Simpson have entered into a binding contract. They both say that they have, but a third party Armstrong says that they have not. It is the more curious because the third party who says that they have no binding contract has already had a decision against him, to the effect that he has got no contract concerning the same subject-matter. If that is so, I do not see that he has got any locus standi. If that point had been brought to our attention when this appeal was opened, we might have allowed the appeal to stand over in case there should be an appeal in Armstrong's action; but we have considered the matter, and we will dispose of it now. The real point that we have had to consider is whether there was a binding contract between Hughes and Simpson made by the two letters of the 7th and 8th Nov. 1895. Now, in order to understand those letters, it is necessary to look at the facts of the case. [His Lordship referred to the facts and continued:] The first question that arises is, whether the letter of the 7th Nov. 1895, written by the agent of Hughes, was an offer for acceptance at all, or anything more than an offer by way of opening negotiation. There can, however, be no difficulty as to that when one reads the correspondence. It was a definite offer of the property for 2000l., not an invitation to negotiate, but the last stage of the negotiation so far as the vendor was concerned. Simpson, in answer to that letter, said that he decided to accept the offer, and would give the price asked for the property. Up to that point, therefore, there was a clear and distinct offer and acceptance. Then Simpson's letter continues thus: "I should like to know from what time Mr. Hughes wishes the purchase to date." It is said that that leaves the matter still open, but I do not think so. True, there is no time fixed for completion, but that is not uncommon on a sale of real estate; and if no time is fixed, the inference is that the completion I will be within a reasonable time. Does that [CT. OF APP. inquiry in Simpson's letter exclude the inference which there would otherwise be as to the time for completion? Counsel for Armstrong say that it does. No time was really fixed; the matter was left just as it was, with no time fixed by either party. The inquiry was made simply as a matter of courtesy. If a reasonable time had been fixed Simpson could not have got off his bargain, because I think that he was bound by his letter to complete within a reasonable time. It was a complete contract, and must be read as if the paragraph were not there. Then there is the paragraph about the fences. That I think is not a condition of the purchase. I understand that the letter was written in answer to some previous letter. It does not justify the construction sought to be put upon it. I think that there is nothing in the letter which detracts from the acceptance contained in the first part of it. Armstrong had had an offer of the property, and he wants us to say that there had been no bargain between Hughes and Simpson. I think that he is wrong as to that, and that his appeal must be dismissed with costs. SMITH, L.J.-I am of the same opinion. [His Lordship referred to the correspondence and continued:] The letter of the 8th Nov. contains a clear acceptance of a clear offer to purchase the property for 20001. If it had stopped there, the completion would have been within a reasonable time; the law would import that it should be within a reasonable time. But having bound himself hard and fast, Simpson goes on to ask as to the date of the purchase. The paragraph in which he does so is no part of the contract at all. Simpson did not thereby bind himself to any time, or to any term which Hughes might think fit to impose. The time for completion was fixed by law. I agree. therefore, with Romer, J. in the view that he took of it. Then as to the last part of the letter, as to the fences. This point was not taken before Romer, J., but it has been taken here, and we must deal with it. It is said that that is a material term of the bargain, but I cannot read it like that. It was not part of the bargain, which was to buy for 2000l., nor was it a condition precedent to the bargain being carried out. For these reasons I think that there was a binding contract between Hughes and Simpson, and on that I rest my judgment. I would add that this is a remarkable case. RIGBY, L.J.-I am of the same opinion, although I cannot say that I have arrived at that conclusion without some difficulty. I feel no difficulty, however, in treating the letter of the 7th Nov. 1895 as an offer, and the only question is whether there has been a complete acceptance of that offer. If I thought that the matters contained in the paragraphs of the letter of the 8th Nov. that have been referred to were intended to form part of the contract, I should have great difficulty in coming to the conclusion that there was a complete contract. These things run very close, and I do not go so far as to say that, if the words in the letter of the 8th Nov. 1895, "I should like to know from what time Mr. Hughes wishes the purchase to date," were read as "I must know at what time Mr. Hughes will complete," I should treat that as not being part of the express terms of the contract. That is to say, if I read it thus, "I will give the price subject to this, that we APP.] Re WESTERN COUNTIES STEAM BAKERIES, &C., Co; Ex parte PARSONS & ROBJENT. [APP. must arrange between ourselves a date for completion," I should say that there was no complete contract. That would not be within the principle that when no date is fixed for completion it must be within a reasonable time. I cannot understand, however, that the question whether these two letters contained a valid contract for the sale and purchase of the property within the Statute of Frauds can be affected by the ideas that either party entertained as to it. Interpreting the language according to the facts known at the time is a totally different thing from saying what the parties thought. But I agree with the conclusion arrived at by Romer, J. and by the other members of this court on this ground, that I do not think that those words are part of any contract. It is an offer and acceptance, and do these words qualify it, or are they independent? In my opinion, they leave it a complete acceptance, because I rely on the form of it. "I should like to know when you will be ready to complete," that is, what is the day, within a reasonable time, which you will fix. With regard to the last clause, as to the fences, it is obvious that one would not have expected them to have been mentioned unless something had been said about them before. There must have been something, but what it was I do not know. It is remarkable that in the court below no mention was made of this part of the case. Therefore no opportunity was given to either Simpson or Hughes of explaining about it. I do not consider that as part of the bargain. The only part of the letter which contains a contract is the first part, which is clear. The appeal must be dismissed with costs. Appeal dismissed. Solicitors for the appellant, Quayle and Ouvry. Solicitors for the respondents, Hyde, Tandy, Mahon, and Sayer; Meredith, Roberts, and Mills, agents for Birch, Cullimore, and Douglas, Chester. Feb. 24 and March 11. (Before LINDLEY, SMITH, and RIGBY, L.JJ.) Re THE WESTERN COUNTIES STEAM BAKERIES AND MILLING COMPANY LIMITED; Ex parte PARSONS AND ROBJENT. (a) APPEAL FROM THE CHANCERY DIVISION. Company-Winding-up— Misfeasance—Auditors —" Officers” — Chartered accountants casually employed by directors-Appointment of auditors of company under articles of association-Companies (Winding-up) Act 1890 (53 & 54 Vict. c. 63), s. 10. Although auditors are primâ facie not officers of a company, within the meaning of sect. 10 of the Companies (Winding-up) Act 1890, yet, if appointed to an office under the company, and if they act in that office as officers of the company, they will be "officers" within sect. 10; and no irregularity in their appointment will avail them. Such persons, however, cannot be called officers who fill no position either de jure or de facto, but who happen to do some of the work which they would have to do if they were officers in the proper sense of the word. Decision of Stirling, J. (75 L. T. Rep. 648) reversed. (a) Reported by E. A. SCRATCHLEY, Esq., Barrister-at-Law. THE above-named company was registered in Jan. 1888 with articles of association of which the clauses material for the purposes of this report were those providing for the appointment, and Iduties of auditors. The clauses were substantially in the same form as those contained in schedule 1 of Table A. to the Companies Act 1862, and were as follows: Art. 125. Once at least in every year the accounts of the company shall be examined and the correctness of the balance-sheet ascertained by two auditors. Art. 126. The first auditors shall be appointed by the directors; subsequent auditors shall be appointed by the company in general meeting, and the re-election shall be made by the company at their ordinary meeting in each year. Art. 127. The auditors may, but not of necessity, be members of the company, but no person shall be eligible as an auditor who is interested otherwise than as a member in any transaction of the company, nor shall a director or other officer of the company be eligible during his continuance in office. Art. 128. The remuneration of the first auditors shall be fixed by the directors; that of subsequent auditors shall be fixed by the company in general meeting. Art. 129. Any auditor shall be re-eligible on his quitting office. Art. 130. If any casual vacancy occurs in the office of any auditor, whether appointed by the directors or by the company, the directors shall fill up such vacancy until the next general meeting of the company. Art. 131. Every auditor shall be supplied with a copy of the balance-sheet, and it shall be his duty to examine the same with the accounts and vouchers relating thereto. Art. 132. Every auditor shall at all reasonable times have access to the books and accounts of the company. He may at the expense of the company, if the company in general meeting so direct but not otherwise, employ accountants or other persons to assist him in investigating such accounts, and he may in relation to such accounts examine the directors or any other officer of the company. Art. 133. The auditors shall make a report to the members upon the balance-sheet and accounts, and in every such report they shall state whether in their opinion the balance-sheet is a full and fair balancesheet, containing the particulars required by these regulations and properly drawn up so as to exhibit a true and correct view of the state of the company's affairs. Art. 140. The directors, auditors, and other officers for the time being of the company, and every of them, and their and every of their heirs, executors, and administrators, shall be indemnified and saved harmless out of the funds or property of the company from and against all costs, charges, losses, damages, and expenses, which they or any of them, or their or any of their heirs, executors, or administrators, shall or may incur or sustain in or about the execution of their respective offices or trusts, or in or about or by reason or on account of any action, suit, or proceeding relating to or in consequence of the acts or property of the company, and which by the board of directors or any general meeting may be ordered to be commenced, prosecuted, or defended, except such as shall happen or occur by or through their own wilful neglect or default respectively. Charles Edward Parsons and Frederick Pring Robjent carried on business at Newport, Monmouthshire, in partnership as chartered accountants and stock and share brokers. |