had been brought by the defendant against the plaintiff, on account of certain promissory notes, to restrain proceedings in which action the bill had been filed, although not by the express directions of the plaintiff, yet in the course of business, and by virtue of a general authority under which he acted as the plaintiff's solicitor; but Lord Eldon did not consider such authority sufficient. Practice where Bill filed without authority. Where party is only a co-plaintiff. made as soon as possible. but on may be ordered to stand over till the hearing. If the name of a person is made use of in a bill as co-plaintiff with others without his consent, such person may move that his name may be struck out, and that the solicitor who filed the bill may be ordered to pay the costs (l); such a motion, however, should be made at the earliest possible Motion must be opportunity after the fact has come to the plaintiff's knowledge; and if there has been acquiescence or laches, on the part of the plaintiff making the application, it will not be granted. In Dundas v. Dutens (m), a motion was made the part of Sir T. Dundas, one of the co-plaintiffs, that his name might be struck out from being a plaintiff, upon an affidavit that he had never given the solicitor any authority to use his name in the suit; but the Lord Chancellor (Lord Thurlow) did not immediately grant the motion, and directed it to stand over till the hearing of the cause. Upon the hearing, the bill was dismissed with costs, to be paid to the defendants by all the plaintiffs; but with respect to the motion of Sir T. Dundas, it was ordered that it should be referred to the Master, to enquire what costs and expenses the plaintiff, Sir T. Dundas, had been put to; and that the plaintiff's solicitor should pay to Sir Thomas Dundas what the Master should find due for his costs and expenses. It is to be observed, that in the above case the Court appeared to think that there had been considerable laches on the part of Sir Thomas Dundas, and his Lordship said that it was scarcely to be imagined that the suit should have been so many years in Court without his knowing that his name stood as the first plaintiff in the cause; for the bill had been filed four or five years before, and Sir Thomas Dundas had made no complaint until a few days previously to the hearing; and (1) Wilson v. Wilson, 1 Jac. & W. 457. (m) 2 Cox. 235, 1 Ves. J. 196, S. C. Practice where Bill filed without authority. Practice where plaintiff makes the discovery after decision. Of obtaining the Where assets are in a course of administration in the court. that, therefore, under the circumstances, the utmost the Court was called upon to do, was to make the solicitor pay Sir Thomas Dundas's share of the taxed costs (n). In Titterton v. Osborne (o), Lord Northington appears to have made a similar order, although the plaintiff stated that, till then, he was ignorant of the suit, and that his name was inserted without his privity or consent, his Lordship being of opinion that were he to grant the motion then (i. e. before the hearing) it would tend only to derange the cause, and impede the hearing. In a recent case (p) where a co-plaintiff was not apprised that his name had been made use of without his authority till after the bill had been dismissed with costs, and he was served with a subpoena to pay them, Lord Eldon, upon motion, ordered the solicitor to pay to the defendant the costs, which were ordered to be paid by the plaintiffs to the defendant; and also to pay to the plaintiff who made the application his costs of the application, as between solicitor and client. It is to be observed that, by the order made upon that occasion, the solicitor was ordered to pay the whole costs to be paid by all the plaintiffs to the defendants; but he was to be at liberty to make any application as to those costs as against the other plaintiffs as he should be advised (7). As connected with this subject, it may be noticed here, that in certain cases it is necessary, before a suit is commenced, to obtain the sanction of the Court to its institution. The cases in which this is most usually done, are those in which the suit contemplated is for the benefit of an estate, which is already the subject of a proceeding in Court, and the expenses of which are to be paid out of such estate. Thus, where there is a suit pending for the administration of assets, and it becomes necessary, in order to get in the estate, that a suit should be instituted against a debtor to the estate; in such cases it is usual for the personal representative, previously to filing a bill, to apply in the administration suit for (n) 2 Cox. 240. (p) Wade v. Stanley, 1 Jac. & W. 674. (2) Reg. Lib. B. 1819 for 1835. And so, Of obtaining the leave of the Court to exhibit a Bill for that purpose. sanction of the Court. Where a re ceiver has been appointed. In the same manner where the property of an infant is In the case of the subject of a suit already depending, and it becomes an infant. necessary that another suit should be instituted on behalf of the infant, it is usual before any steps are taken in it, to procure a reference to the Master to enquire and state to the Court whether such contemplated proceedings will be for the benefit of the infant (s). It is to be observed, however, that such reference can only be made where the property of the infant is already subject to the control and disposition of the Court in another suit; and that, in ordinary cases, where a person commences an original proceeding on behalf of an infant as a prochein amy, he is considered as taking upon himself the whole responsibility of it; nor will the Court, either before or after the commencement of the proceeding, grant a reference to the Master to enquire whether it will be for the infant's benefit at the instance of the prochein amy himself (unless in cases where there are two or more suits brought by different next friends for the same object), although, as we have seen, it will sometimes do so at the instance of other parties (t). It has been before stated, that the committee of an idiot or or of anidio or lunatic. lunatic ought, previously to instituting a suit on his behalf, to obtain the sanction of the Lord Chancellor to the proceeding, sanction of the Court. Omission to obtain the sanction cannot be Of obtaining the by petition under the commission (u); and that in the case of suits by the assignees of bankrupts, or insolvent debtors, it is necessary, previously to instituting the suit, to procure the sanction of the majority of the creditors in the manner pointed out by the Bankrupt Act, 6 Geo. 4, c. 16, s. 88(x); and the Insolvent Debtor's Act, 1 Geo. 4, c. 119, s. 11 (y). It is to be observed, that, with respect to all the above mentioned cases, in which it is stated to be right, previously to the taken advantage institution of a suit, to obtain the proper sanction, the omission of by defendant. to obtain such sanction is not a ground upon which a defendant to the suit can object to its proceeding. Some doubt appears, as we have seen, to have existed upon this point with reference to suits commenced by the assignees of bankrupts or insolvent debtors; but that appears to have been completely set at rest by the decision of Sir J. Leach, in Piercy v. Roberts(2); which has been before referred to (a), and by a more recent decision of the Vice-Chancellor (Sir L. Shadwell), in Casborne v. Barsham (b). Preparation of Bills ought SECT. III. By whom Prepared. THE solicitor being duly authorised, the next step in the institution of a suit is to have the bill properly prepared. The duty of drawing the bill ought, strictly, to be performed by the solicitor, who is allowed a fee for so doing (c); but as the rules of the Court require that the draft should be signed but usually by by counsel, who is held to be responsible for its contents, and, as much of the subsequent success of the suit may depend upon the manner in which the bill is framed, it has been found more convenient in practice that the bill should be prepared, as well as signed, by counsel; and, accordingly, except in particular cases, instead of the draft of the bill being prepared by the solicitor, and laid before counsel for his perusal and signature, counsel. (u) Ante 117. (y) Ante 84. () 1 M. & K. 8. (a) Ante 83. (b) 6 Sim. 317. (c) 1 Turner & Ven, p. 3. Bill. the instructions to prepare the bill are generally, in the first Preparation of instance, laid before the counsel, who prepares the draft from those instructions, and afterwards affixes his signature to it. Counsel; to the draft or engrossment. The practice of counsel signing pleadings in Chancery be- Signature of gan, as it is said, in Sir Thomas More's time, previously to which, it seems, the practice was, for the bill to be examined by one of the Masters in Chancery, in order that he might consider whether the matter contained therein was fitter to be dismissed by original or retained by subpoena (d), but, however necessary either the practice began, the rule is now imperative that the signature of counsel must be subscribed, either to the draft or the engrossment of every bill before it is filed (e); if it be not, or the hand be counterfeit or disowned, the bill will be dismissed on the defendant's demurrer (ƒ). Thus, in Kirkley v. Burton(g) a demurrer was put in to an amended bill, because the name of counsel did not appear to the bill; and the ViceChancellor (Sir J. Leach) held that, as the objection appeared upon the record, the defendant might well allege, by demurrer, that he was not bound to answer the bill; and he likened it to the case of a demurrer, for want of an affidavit, to an interpleader bill, or to a bill to transfer a litigation from law to equity, upon the ground of a lost instrument. The ViceChancellor, however, gave the defendant liberty to add, the name of the gentleman who had signed the draft, to the record. If it appear to the Court, upon inspection of the record or the office copy, that the bill has not been signed by counsel, the Court will, of its own accord, order it to be taken off the file (h). Objection may be taken by de murrer; The usual course, however, in such a case, appears to be or by motion. for the defendant to move that the bill may be taken off the file, and that the costs may be paid by the plaintiff. Upon such a motion, if any doubt arises as to whether the bill has been signed by counsel or not, the Court will refer it to the Master to inquire into the fact; and if he certifies that it Reference to the was not signed by counsel, the bill will be ordered to be taken (d) Treatise on Maisters of the Chauncerie, 1 Harg. Law Tracts,302. (e) Lord Red. 39. (f) Prax. Alen. 3. (g) 5 Mad. 378. (h) French v. Dear, 5 Ves. 547. Master. |