J.

1896

PETTY

v.

TAYLOR.

KEKEWICH should not equally claim protection for them, and through them for the letterpress of which he never wrote a word. That seems to reduce the argument to an absurdity; and I do not find anything in the Act or the cases cited to support any such conclusion. I hold in the present case, as well under the one Act as under the other, that the name and place of abode of the proprietor of the copyright, or, as it is in the later Act, the name and place of abode of the person in whom the copyright is vested, are not in fact stated on the register; because the person there named is Wesley Petty, whereas it ought to have been Petty & Sons, Limited, and that Wesley Petty cannot be registered as a trustee for Petty & Sons, Limited, so as to vest in him a title to sue on their behalf, because in fact there is nothing vested in him of which he can be trustee. In my judgment a trustee may be registered and can sue with or without the concurrence of his cestui que trust; but a nominee cannot be properly registered, and if registered cannot sue, notwithstanding that the person by whom he has been nominated, on whose behalf he purports to have a copyright, is joined as a co-plaintiff. The result is that the plaintiffs' case fails, and there must be judgment for the defendants with costs.

Solicitors: Herbert Bentwich; Vincent & Vincent, for Bowling & Son, Leeds; Pitman & Sons, for Herbert Denison, Leeds.

C. C. M. D.

DAVIS v. INGRAM.

[1896 D. 1854.]

Practice-Partition Action-Form of Judgment-Infants entitled to one undivided Third.

Form of judgment in action for sale in lieu of partition, where infant plaintiffs are entitled to one undivided third, declaring infants, in event of a sale taking place, to be trustees for the purchaser, and directing conveyance by next friend.

THIS action was brought by three infant plaintiffs suing by their next friend, James Ingram, for the purpose of obtaining a sale in lieu of partition of certain freehold hereditaments, consisting of a messuage, cottages, and land, devised by the will of a testator. Under the will the plaintiffs were entitled to one undivided third part of the hereditaments, and the defendants to the other two-thirds.

Percy F. Wheeler, for the plaintiffs, asked the Court to pronounce judgment directing usual inquiries, and also directing that in the event of a sale taking place the infant plaintiffs might be declared to be trustees, and their next friend appointed to convey on their behalf, according to the form in Seton on Judgments, 5th ed. vol. ii. p. 1542, No. 21.

KEREWICH J. pointed out that the form in Seton was applicable to a case in which there was an absolute order for a sale. In the present case the sale was necessarily hypothetical, and depended on the answers to the inquiries; and his Lordship was not sure that it was consistent with the practice to give elaborate directions as to conveyance in a case where it was not certain that there would be a sale; but if the registrar was satisfied upon inquiry that such directions were not inconsistent with the practice, the judgment might be drawn up in the manner asked.

Gore-Browne, and E. A. Jelf, for the several defendants.

The judgment as ultimately drawn up, after directing usual

KEKEWICH

J.

1897

Jan. 16.

J.

KEKEWICH inquiries, including an inquiry whether it would be for the benefit of such of the persons interested in the hereditaments as were infants that the same should be sold, proceeded as follows:

1897

DAVIS

v.

INGRAM.

And if it shall be certified that all the persons interested are parties to this action, and either (1.) that the parties desiring a sale (other than the infants) are interested to the extent of one moiety or upwards in the said hereditaments, or (2.) that it will be for the benefit of the said infants that the said hereditaments should be sold, and that the parties desiring a sale (including the said infants) are interested to the extent aforesaid: It is ordered that the said hereditaments be sold, with the approbation of the judge.

And it is ordered that the money to arise from such sale be paid into court to the credit of this action.

But if it shall appear that any of the persons interested are not parties to this action, then It is ordered that any of the persons interested collectively or individually to the extent of one moiety or upwards in the said hereditaments be at liberty, when it shall have been certified that the persons who ought to be served with notice of this judgment have been so served, to apply at chambers for a sale of the said hereditaments, the said infants not to be at liberty to apply hereunder unless and until it shall have been certified that it will be for their benefit that the said hereditaments should be sold.

And this Court doth declare that upon any such sale being made, such of the parties interested in the said hereditaments as are infants will be trustees for the purchaser or purchasers of their undivided share or shares of the said hereditaments within the meaning of the Trustee Act, 1893.

And it is ordered that James Ingram of, &c., the next friend of the plaintiffs, be appointed to convey such share or shares to the purchaser or purchasers of the said hereditaments.

And it is ordered that the said James Ingram, upon payment into court by any purchaser of the amount of his purchase-money, convey to such purchaser accordingly the property bought by him.

[Usual directions as to liberty to bid, as to set-off of purchasemoney by parties purchasing, and reserving further consideration.]

Solicitors: J. S. Tyler; J. L. Higgs; Sims & Syms.

C. C. M. D.

GEILINGER v. GIBBS.

[1895 G. 2285.]

Practice-Costs-Unauthorized Use of Plaintiff's Name-Right of Defendants to apply for Payment of Costs by Solicitors.

Where an action is brought in the name of a person as plaintiff without his authority, and he subsequently repudiates the action, the defendants, on application in the action, may obtain an order for payment of their costs by the solicitors who issued the writ.

So held, in a case where an infant was joined as co-plaintiff by solicitors on the assumption that he was of full age.

Fricker v. Van Grutten, [1896] 2 Ch. 649, considered and applied.

ADJOURNED SUMMONS.

This action was brought by Walter Geilinger and Bertie Hallett, as plaintiffs, against Frank Irons Gibbs and William Wright, as defendants, claiming by their writ, issued December 10, 1895, specific performance of an agreement for the sale and purchase of certain patents and patent rights, injunctions to restrain any sale of the patent rights by the defendants, and other incidental relief. The writ purported to be issued by Messrs. Williams & Neville as solicitors for the plaintiffs.

At the time when the writ was issued, Geilinger was an infant, but Messrs. Williams & Neville were not aware of this fact, and issued the writ by the direction of his co-plaintiff Hallett, in the belief that Geilinger, who was stated to be Hallett's partner (but who appeared in fact to be his clerk), was of full age, and of course, therefore, without naming any person as his next friend.

Geilinger attained the age of twenty-one years on July 2, 1896, and on July 7, 1896, he took out a summons asking that his name might be struck out as a plaintiff in the action, and that his costs of and incident to that application, and any costs for which he might be liable to the defendants in the action, might be taxed and paid by Hallett or his solicitors, Messrs. Williams & Neville, on the ground that Geilinger was an infant at the date of the commencement of the action, and the action

KEKEWICH
J.

1897

w

Feb. 2.

J.

KEKEWICH was unauthorized by him. On this summons the chief clerk made an order striking out Geilinger's name as plaintiff, and directing that the plaintiff Hallett should pay the defendGEILINGER ants' and (he consenting thereto) the applicant's costs of

1897

V.

On July 13, 1896, the present summons was taken out by the defendants asking that all their costs of and occasioned by the plaintiff Geilinger being made a party to the action, and the costs of this application, might be taxed and paid by his late solicitors, Messrs. Williams & Neville.

This summons was adjourned into court, and now came on for hearing.

He

The examination of the plaintiff Geilinger had been taken, and he deposed that he never gave instructions that his name should be used as plaintiff, and that he believed that his coplaintiff Hallett gave instructions for the use of his name. stated that he first heard of the action about December 13, 1895, and admitted that on several occasions subsequently to that date he was at the offices of Messrs. Williams & Neville.

Warrington, Q.C., and Cave, for the applicants, the defendants in the action. The plaintiff Geilinger being an infant, the solicitors, Messrs. Williams & Neville, must necessarily have acted without his authority. Consequently, according to the practice of the Court as now established by Fricker v. Van Grutten (1), Nurse v. Durnford (2), and Newbiggin-by-the-Sea Gas Co. v. Armstrong (3), they ought to be ordered to pay to the defendants the costs occasioned to them by the unauthorized joinder of Geilinger as co-plaintiff.

Renshaw, Q.C., and Eldon Bankes, for the respondents, Messrs. Williams & Neville. The defendants are not entitled to make this application. In all the cases the application against the solicitor has been by the plaintiff who has been injured by the unauthorized use of his name. The decisions are based on the law of principal and agent, and proceed upon the principle that the person who has acted as agent without (2) (1879) 13 Ch. D. 764.

(1) [1896] 2 Ch. 649.

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