A \^. W'MlTMVv ^•^ ''•^^T*^/ X ^§1^ V J^.^ S 1 s, UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY iS of the ts, Orders, h Practical the Inner Barristers- vo. 1883. fl in the i, and the ting to the )tey; from 5-classified [ FRANK D, B.C.L., Vol. I. ikmptcy." iding the NEV Wilson's Supr llules Notes Temp] at- Lai *^* A lai Price 30s. cl Chitty's I severa House Princi the ea and bi JONE M.A., Eoyal *^* Volur The Title Bi Decisions at Frideaux's sertations on its svised and adapte Land Act, 1882, t Us of Sale Act, lo^ij. j-f_y J.. X iuxx-'iJia.u.a., iiiiu u. »t x± J. -H^v_;ivii>j:i, xjsqrs., Bar- risters-at-Law. 2 vols. Royal 8vo. 1883. Price SI. 10s. cloth. " This work is accurate, concise, clear and comprehensive in scope, and we know of no treatise upon conveyancing which is so generally useful to the practitioner." — Law Times. " The most useful work out on Conveyancing." — i<(it' Jottrnal. 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Forming a .'supplement to " Roj^ers on pjloctions." Royal 12mo. 1883. Price 5s. cloth. " Mr. (barter's notes are exjilicit, ami hcrvc the useful jjurposo of clearlj- indicating all alterations in the Jaw." — J.aw Tmut. *^* All Standard Law Works are kept in Stock, in laxv calf and other bindings. HINTS TO SOLICITORS,^ TREATISE ON THE LAW RELATING TO THEIR DUTIES AS OFFICERS OF THE HIGH COURT OF JUSTICE. T^\\\ Hotcs oil ih Recent Cbaitiges ^.ffccting tbc Ipvofcssioir, AND A VADE MECUM TO THE LAW OF COSTS. A. R. WHITEWAY, M.A., 'II TKINITY COLLEGE, CAMBRIDGE, OF THE EQUITY BAR AND MIDLAND CIRCUIT, AUTHOR OF "hints ON PRACTICE." LONDON : STEVENS AND SONS, 119, CHANCERY LANE, 1883. yy^^Ctyi^y i/^^ PREFACE Claims to originality in a Law Book are not only generally unfounded but also undesirable. Indeed for the rendehng of the subject to be at all complete the writer must have been "a gatherer and disposer of other men's stuff." State- ments made by him to have authority should be the reproductions of those made by great judges as noted by careful reporters ; and their very words must be often used for greater accuracy. To be exact is essential, and to know what may be safely omitted in a reference to a judg- ment is no mean knowledge («). If this is true of law books generally, how much more is it so of a book written for solicitors about the practical details of their own profession. More critical readers could hardly be found, nor men more able to say at once Avhether such a book is wanted ; ami if so, whether the one before them meets the want in any degeee. And yet their very knowledge of the difficulties with which they have to contend should make them well-disposed towards any earnest attempt to deal with these subjects ; for they (a) See the instance given in the note to p. 430, Wanxn's I>a\v Studic!--, ed. 1. a 2 iv PREFACE. would not fall into the error of expecting from a book professing only to give hints, an exhaustive treatise on so large a matter. It goes without saying that it is not a simple one, and that its proper understanding is of deep importance to the body of men best able to judge of it; and yet the latest book upon the subject (6) does not profess to touch upon, but, indeed, expressly excludes party and party costs; while the passing of the Judicature Acts and various enactments especially relating to the profession makes the only other still in use (c) now out of date for practical purposes. Although I have taken pains to consult all recent works which deal with the subject matters of this book, it appears to me that there is still a useful field for a handy treatise dealing with the solicitor's duties, work and difficulties, and to which he can readily turn for a hint on a point which possibly materially affects himself, where he might not desire to seek the assistance of counsel, and which •otherwise could only be obtained by a prolonged search anions recent enactments, voluminous rules and a variety of recent cases ; many of which last can only be found either in the weekly notes or in the columns of the law papers. These remarks are particularly applicable to decisions in chambers and the practice with regard to costs. The solicitor's duties are constantly increasing, and his responsibility is in no way diminished by recent legisla- {h) Mr. Corelery's aLle work on the Law Relatirg to Solicitor.*, 1878. (c) Pulling's Law Relating to Attornie?, 1862. PREFACE. V tion, whilst his disabihties are multiplied. The next step may be to deprive him of much of the assistance of counsel upon which he has been accustomed to rely in the rough and ready work at chambers ((/) ; while the lengthy and complicated rules ■which during the last few years have appeared with such frequency, demand incessant attention from the country as well as from the London solicitor. A copious index with cross references, a full list of cases cited, and extensive marginal notes will, it is hoped, make this book easy of reference, "without which ease its object would fail. The writer will be thankful for and will acknowdedge any practical suggestions for a future edition, should such be required. A. R. W. 9, Old Square, Lincoln's Inn, W.C. April, 1883. ((/) See In re Chapman, 10 Q. B. D. 54. TABLE OF CONTENTS. PAGE Table op Cases ........ xi CHAPTER T. Articled Clerks . 1 CHAPTER II. As Ofticers of the Court . 12 CHAPTER III. Retainer ......... 22 CHAPTER IV. Privilege . . . 36 CHAPTER V. General view of Lien . . . . . . . 4-4 CHAPTER YI. Lien II 56 CHAPTER VIL Change of Solicitors ....... 62 CHAPTER VIIL Disabilities ......... 68 VIU TABLE OF CONTENTS. CHAPTER IX. Agreements ami Uuili'itakiii|j;-s ..... 74 CHAPTER X. Town Agents ......... 84 CHAPTER XI. As Trustees ......... 90 CHAPTER XIL As Advocates ......... 94 CHAPTER XIII. As Draftsmen 97 CHAPTER XIV. Negligence ....... .104 CHAPTER XV. Unqualified Practitioners . . . . . .113 CHAPTER XYI. General Costs . . . . . . . . . 118 CHAPTER XVII. Taxation of Costs 138 CHAPTER XVIII. Taxation between Solicitor and Client . . . .145 CHAPTER XIX. Where Taxing Master's opinion final . . . . 152 CHAPTER XX. Costs payable by a Client . . . . . ,161 TABLE OF CONTENTS. CHAPTER XX T. Taxation after Twelve IMouth.s CHAPTER XXir. Party and Party Costs . Costs out of a Fund •Statutory Charges CHAPTER XXIIL CHAPTER XXIV. CHAPTER XXV Priorities of Costs and Charges Conclusion ...... IX PAGE 177 187 194 203 208 APPENDIX. Solicitors Remuneration Act, 1881 . The rules under it . . . Remarks upon the Act Holicitors Act, 1870 Solicitors Act, 1843, ss. 37 — 41 An item disallowed on taxation List of cases on neulicrenct; 215 221 232 239 247 254 256 Index 2G5 TABLE OF CASES. A. and B. solicitors, In re, 16 Abercrombie v. Jordan, 34, IIG — V. Jordan, In re Hunt, 114 Adams, Ex parte, 2 Alcock, Ex parte, 142 Allen Davies v. Cliatwood, In re, 27 — V. Jarvis, 176 Andrew v. Hawley, 104 Articled Clerk, Ex parte, 9 Ai^hworth v. Outrani, 136, 179 Atkinson, In re, 169 Attorney and Solicitors Act, 1870,' In re, 99 Attorney- Generally. Stewart, 147 — V. Korr, 147 Austin V. Jackson, 197 Baile v. Baile, 49, 200 Bailey v. Birchall, 200 Baines v. Wonnsley, 158 Baker v. Loader, 192 — V. Oakes, 122 BaniLrigge, In re, 144 Banyan!, Ex parte, 4, 5 Barker v. Hemming, 133, 205 — V. St. Quentin, 26 Barnes v. Aildey, 90 Barrett v. Ilamniond, 16 Barring, In re, 166 Batley v. Kynock, 179 Beaufort (Duke of) v. Earl of Aslibuiidiani, 181 B. lamy v. Ffrench, 66 Bell V. Aitkin, 159, 167 Benson, In re, 4 Berrie v. Howitt, 199 Bevan and Whitting, In r.', 65 Beynon v. Godden, 133 Birchall v. Pugin, 206 Bird V. Harris, 22 Birt, In re, Birt v. Birt. 34 Blair, Ex parte. In reMackie, 176 Blake, In re, 13 — V. Appleyard, 123 Bloyce, In re, 155 Blunt V. Heslop, 140 Blyth and Faushaw, In re, 184, 186 Bodenhaiu, Ex parte, In re Jephson, 82 Bonser v. Bradsliaw, 197, 200, 201 Bookham v. Potter, Ex parte Rogers, 95 I'ozon V. Bolland, 61, 65 Bracey, In re, 169 — V. Carter, 111 Branford v. Bran ford, 43 Ih-ay V. Hine, 88 ikenmer v. Breniner ami Brett, 59 British Mutual Investment Co. V. Cobbold, 107 British Mutual Investment Co. v. Peed, 41 Broadhouse, Ex part', 95 Bronnsall, E.x. parte, 3, 14 Brooks V. Bockelt, 143 Xll TABLE OF CASES, Broughton v. Brongliton, 91 Brown, In re, 152, 170 — a solicitor, In re, 79 — V. North, 135 — V. Sewell, 132, 153, 154 — V. Tolley, 112 — V. Trotman, 197 Brownsall, Ex parte, 14 Brunswick, Duke of, In re, 116 Bryant v. Herbert, 125 Bulklev V. Wilford, 73 Bullock r. Cony, 39 Buichall, In re, 169 Burdick v. Garrick, 90, 118, 119 Burrell, In re, 150 — V. Jones, 80 Burge V. Burton, 89, 91 Burton v. Earl o! Daruley, 39 Butler V. Knight, 26 Calvert r. Scinde Railway Co., 159 182 — Ex parte, In re Mes- senger, 60 Carew, In re, 78 Carter v. Green, 146 Cartwright, In re, 175 Catlin, In re, 67, 169 Catlow V. Catlow, 196, 202 Cbambeiiayne, Ex parte, 92 Chanipernown v. Scott, 46 Chapman, In re, 151, 156 — V. Chapman, 110 — V. Midland Railway Co., 130 Charlton v. Charlton, 144 Cbatfield v. Sedgwick, 128, 129 Cliennell, In re, Jones v. Chen- nell, 145, 149 Child V. Kelly, 86 Churchj'ard v. Watkins, 106 Churton v. Frewen, 180 City of Brussels, 11 City of Manchester, 136 Clack V. Carton, 91 Clark V. Malpas, 159, 181 Clarke, In re. Ex parte Newland, 49 Cobb V. Beckc, 87 Cockburn v. Edwards, 145 Cole V. Frith, 127 — r. Grove, 84 ('(illett V. Foster, 112 Collins V. Welsh, 129 Connop V. Chattie, 26 Cooper r. Pritchard, 112 Corticine Floor Co. v. Jull, 130, 185 Cowper V. Green, 60 Cox V. Coleridge, 94 Cracknell v. Janson, 158 Cradock v. Piper, 91 Crawcour i\ Salter, 42 Cross V. Kennington, 14S Cumberland, Ex parte, 9 Darville, Ex parte, 4 Davies v. Marshall, 181 — V. Lowndes, 58 Davis' Trusts, In re, 11 Daw V. Eley, 20 Dawkins v. Rokeby, 19 Dawson v. Shepherd, 133 Daxv. Ward, 111 Day V. Batty, 185 De Bray v. Griffin, 202 De Iloufigny v. Peale, 108 Dendy, In re, 142 Dickens, Ex parte, 166 Ditton, In re, Ex parte Woods, 143, 159, 165 Dodd r. Evans, 182 Doe dem. Davies v. Eyton, 29 Donaldson r. Holclane, 109 Downam v. Williams, 81 Drake, In re, 78 Du Boison v. Maxwell, 58 Dufaur v. Blakeway, 144 Eadie v. Addison, 40 Earle v. Hopwood, 99 Earl de la Warr v. Melis, 179 Eastside v. Outram, 37 Edd V. Winson, 136 Edwards, Ex parte, 52, 87, 88 Eley V. The Positive Government Life Assurance Co., 24 TABLE OF CASES. Elmslie & Co., In re, E.v parte Tower Subway Co., 175, 17G Emanuel, In re, 151, 164 Emden v. Carte, 50, 190, 194 Engleheart v. Moore, 140 Evans v. Bear, 16 Everett v. Londhara, 21 Faithful, In re, 47, 65 V. Ewen, 51, 207, 208 Fane v. Fane, 129 Farewell v. Coker, 88 Farmer v. May, 124 Fariington, In re, 158 Fergusson v. Davison, 126 Fernandez, In re, 76 Ft'rrell, In re, 152 Fiddey, In re, 201 Field V. Great Northern Railway Co., 123 Findon v. Parker, 99 Firth, Ex parte. In re Cowburn, 137 Fish r. Kelly, 109 Fleming v. Manchester, Sheffield and Lincolnshire Railway C.j., J 25 Flux, Argles and Rawliii?, In re, 169 Foster v. Edwards, 123, 136 — r. El.sley, 35 — In re, E.x; parte Dicken?, 85, 159, 166 — V. Great Western Railway Co., 122 — V. Monmouthshire Canal Co., 113 Foxon V. Gascoigne, 198 Fray v. VoAvlea, 26, 105, 106 Fritz V. Hobsou, 131 Frost V. London, I'rightou and South Coast Railway Cn., 178 Furlong V. Howman, 60 Galatti v. Wakefield, 126 Garnett v. Bradley, 121, 123, 124 General Share Trusts Co. r. Chapman, 59 Gibbs r. Daniel, 71 Gibson v. Jeyes, 70 Gilbert v. Cooper, 82 Giles r. Hamer, 192, 197 Gilliniore v. Gill, 191 Godefroy r. Dalton, 104, 108, 110 — V. Jay, 106 Gomley v. Wood, 91 Goodhand v. Ayscough, 131 Grant v. Banque Franco Egypt- ienne, 133 V. Holland, Ro-ss r. Grant, 67, 133 Gray v. Kirby, 86 Greenough v. Gaskill, 36 Gregg, In re, 141 Gresley v. Moulsey, 68, 69 Greville, In re, 7 Griffin, Ex parte. In re Adams, 205 Grills V. Dillon, 135 Grundy, Kershaw & Co., In re, 54, 79, ] 31 Hall & Barker, In re, 175 — V. Bennett, 25 — r. Teiiper, 195 Hambridge r. De la Crouee, 25 Hamer v. Giles, 61, 192, 197, 206 Haniet r. Panel, 10 Hammond r. Barclay, 57 Hanley r. Casson, 86 Harbin r. Darby, 92 Harding, In re, 173 Hargreaves v. Scott, 153 Harlock v. Ashberrv, 135 Harnett r. Vise, 119, 122 Harper, Ex parte, In re Poole v, 33, 36, 156, 189 — r. Williams, 80 Hat])ham c. Shacklnck, 112 Harrington v. Biiins, 107 Harris v. Aaron, 13(5 — r. Petherwick, 122 — V. Quine, 49 — V. Tremenheerc, 73 Harrison, In re, 173 — V. Lentner, 132 — r. AVearin.', 154 ; Hartland r. Murrell, 179 XIV TABLE OF CASES. Hawkins v. Harwoutl, 104, 107 Haynes v. Cooper, 50 Heath v. Crealock, 39 Heather, In re, 142, 169 Heinxich, The, 204 — V. Sutton, 28, 32, 196, 201 Henderson v. Dodds, 148 Herbert, Ex parte, 5 Heritage, In re, Ex parte Docker, 170, 175 Hill, In re, 3, 10, 13, 14 — r. Finney, 110 — V. Fletcher, 82 Hills V. Reeves, 112 Hirst V. Procter, 103 Hdljson r. Shearman, 195 Hoby r. Built, 108, 111 Holmes' Estate, In re, i2 Holroyd & Smith, In re, 142 Holt, In re, 17 Hope, In re, 114 — V. Liddell, 41 Hornby r. Cardwell, 134 Horton, In re, 35, 85, 117 Houseman r. Houseman, 192 Howell V. Young, 107 Hubbard r. Phillips, 109 Hunt r. Austin, 52 Husband v. Bolland, 65 IxGWELL V. Hooper, 90 Ireson v. Pearman, 99, 105 Iveson r. Conington, 81 Izard, Ex parte, In re ]Moir, 134 Jacand v. French, 109 Jacob V. Majnay, 32 James v. James, 147 Jarman, Ex parte, 49, 169, 171 Jeffreys r. Evans, 143 Jenkins v. Bid^ulph, 108 Jennings r. Johnson, 74, 183 Johnston v. Alston, 25 Johnstone v. Cox, 193 Jonas, In re, 137 Jones, Ex parte, 87 — In re, 113, 138 Jones V. Frost, 202 — r. James, 139, 170 — V. Read, 74 Joyce, Ex parte, 7, 9 Judd V. Green, 136 Keane, In re, Lixmley v. Des- borough, 201 Kevan v. Crawford, 146 King, In re, 3, 15, 115 — r. Savery, 70 Kirkwood v. Webster, 153, 178 Kynaston v. Mucknider, 121 La Grange r. MacAndrew, 135 Laidler v. Elliot, 108 Law Society i: Shaw, 85 — V. Waterlow, 85 Lawrence v. Fletcher, 53, 88, 89 Leadbitter, In re, 171 Leader, The, 207 Lee, a Solicitor, lu re, Ex parte Nevill, 163 — V. Sankey, 90 Lewes v. Morgan, 69 Lewis, In re, Ex parte Munro, 75, 75 — r. Pennington, 41 Lightfoot V. Keane, 60 Little V. Kingswood Collieries' Co., 34 Local Board of Health of Lea- mington, Ex parte, 96 London, Brighton and South Coast Railwav Co., In re, 47, 65 Lord V. Warndeighton, 64 Loughborough, In re, 139 Lowe V. Holme, 126 Lucas r. Peacock, 61, 196 Ludlow r. Kingdom, 158 Lydall v. Martinson, 134 Lyle V. Ell wood, 11 Mackay r. Ford, 96 Mackley v. Cliillingwoith, 180 Macgregor v. Keilv, 141 M'Corcuodale r. Bell, 39, 42 TABLE OF CASES. XV Malins v. Green way, 86 Maud us V. Lancashire and York- shire Railway Co., 136 Mann v. Harbord, 179 Manning v. Wilkin, 104 Marseilles Extension Railway and Land Co., In re, Ex parte Evans, 176 Mason and Taylor, In re, 208 — V. Brentini, 127 — V. Catsley, 41 Mayor of Swansea v. Quirk, 36, 38 Mercus Co., Ex parte, 121 Mercer v. Graves, 204 — V. King, 110 Messenger, In re. Ex parte Cal- vert, '60 ]\Ieynott r. Meynott, 179 ]\Iidland Railway Co. r. Brown, 153 ^lildmay v. Quicke, 131 Miller v. Atlee, 58 Minet v. Morgan, 40 Mitchell V. Honifray, 71 Moore v. Froud, 92 Jilordue v. Palmer, 146 Morgan v. Minett, 71, 72, 73, 209 — V. Etford, 133 • Morley, In re, 159 Morrison, Ex parte, 54, 191, 194 Morton v. Palmer, 137 Moses, Ex parte, 6 Moss, In re, 44, 63, 210 Munay, In re, 49 Myers v. Defries and others, 122, 123 Neville, Ex parte, 164 New British Mutual Investment Co. V. Peed, 41 Newbiggin-by-the-Sea Gas Co. v. Armstrong, 30, 32 Newington Local Board r. Eld- ridge, 46 Newman, In re, 171 Newton v. Boodle, 152 Nias V. Northern and Eastern Railway Co., 40 Nolan V. Copeman, 179 Norfolk (Duke of) v. Arbuthnot, 130 Norman, In re, 172 North Western Railway Co. r. Sharp, 108 Northampton Coal, Iron and Wagon Co. v. Midland Wagon Co.| 135 Nur.se v. Durnford, 30, 32, 150 Nye V. Macdonald, 11 O'Brien v. Lewis, 71 Oliver, In re, 138 Ottley r. Gilby, 111, 118 Owen ?'. London and North Western Railway Co., 160 — r. Ord, 22 Paddon r. Winch, 39, 41 Payne v. Layton, 54 Palmer i-. Jones, 150 Pappa de Rossa, 157 Parker, In re, 138 — V. Rolls, 100, 105 Parkinson r. Atkinson, 181 Parsons v. Tinlint,', 123, 124 Patch V. Ward, 42 Payne r. Layton, 54 Pearce r. Beattie, 92 Peatfield r. Barlow, 88, 89 Penley r. Anstruther, 141 Penn v. Jack, 151 — V. Bibby, 151 — v. Fernie, 151 Peppercorn, In re, 7 Philippini-, Tlie, 204 Phillipps r. Phillipps, 1.32 Piller c. Roberts, 134 Pinker ton r. Easton, 198 Pisani r. Attorney-General of Gibraltar, 70 Plant r. Peai'man, 110 P(dini r. Grav, 135 Pollard, In re, 20 Pontifex r. Midland Railway Co., 125 Poole, In re, 14 XVI TABLE OF CASES. Poole V. Pass, 149 Pooley i\ Driver, 130 Potter V. Chambers, 127 — i\ Jackson, 193 — V. Eankin, 159 Potts I'. Sparrow, 99, IIQ Prance, In re, 141 Pringle v. Gloag, 53, 120, 157, 205 Pritcliard v. Roberts, 197, 200, 201 Pugwell V. Hooper, 38 Ramsbotham v. Senior, 39 Ransom, In re, 169 Raymond r. Lakeman, 75 — V. Tapson, 48 Read v. Bailey, 134 Reades v. Bloom, 113 Reece v. Rigby, 110 Rees V. Williams, 78 Reeve v. Palmer, 108 Regina r. Avery, 38 — - r. Biggins, 94 — V. Justices of Cumber- land, 25 — V. Lichfield Town Coun- cil, 25 — V. Upper Boddington, 38 Rex V. Sankey, 46 Reynell v. Sprye, 38, 41 Rhodes v. Bate, 71 Richards v. Suffield, 34 Richardson, In re, Richardson v. Eichardsiin, 148, 150, 192 Robarts v. Buee, 204 Eobbins v. Fennell, 86 V. Heath, 86 Robins v. Goldingham, 52, 63 Robinson, In re, 174 Rodick V. Gandell, 54 Rogers v. Jones, 185 — Ex parte, 95 Rolfe V. Maclaren, 128 Ross r. Laughton, 64 Rush, In re, 15 Russell, Ex paite, In re Butter- worth, 188 Saffron AValdon Second Benefit Building Society v. Rayner, 23 Sandeman, In re, 185 Savage, In re, 18 Sayer, In re, 4, 5 — Ex parte, 4 Scarth v. Rutland, 75 Schjott V. Schjott, 19, 29 Scholefield v. Lock wood, 199 Seaman v. Netherclift, 19 Sewell, Ex parte, 5 Sharp V. Lush, 150, 185 Sheffield v. Eden, 59 Sheffield Waterworks Act, 1864, In re, 160 Sherry, In re, 6 Shippey v. Gray, 207 Shitler i: Shitler, 147 Shrewsburv (Eail of) v. Tra2>pep, 182 SiJdons r. Lawrence, 122 Simmonds v. Great Eastern Rail- way Co., 63 Simmons v. Storer, 154 Sinclair v. Great Eastern Railway Co., 160, 178 Singer Manufacturing Co.r. Loog, 179 Slack V. The Midland Railway Co., 131 Smith V. Buller, 152, 177 — V. Dale, 27 — V. Daniel), 42, 154 — V. Dimes, 139 — V. Keal, 112 — r. Pococke, 106 Snell, In re, 24, 60, 157, 162, 166 Solicitor, In re, 15, 17 South Essex Estuary and Re- clamation Co., In re, 54 Southwark and Vauxhall Water Co. V. Quick, 41 Sparrow v. Hill, 132, 153 Spencer, In re, Spencer r. Hart, 143 Spenser r. Topham, 70 Stannard v. UUithorne, 100, 105 Steel V. Scott, 66 Steele v. Hutchins, 150 Stephens v. Lord Newborough, 153, 161, 166 TABLE OF CASES. XVll Stephenson v. Higginson, 115 Stevens v. Avery, 88 Stevenson v. Rowland, 105 Stewart, In re, 14 Stirke, In re, 173 Stooke V. Taylor, 126 Street v. Hope, 16 Streeter, Ex parte. In re Morris, 96, 212 Sullivan v. Purson, Ex parte Morrison, 54 Swinbanks, Ex parte. In re Shanks, 162 Swinfen v. Chelmsford, 104 Tabram v. Horn, 23 Tardew v. Howell, Shitler r. Shitler, 147 Taylor, In re, 170, 171, 172 — V. Batten, 42 — V. Gorman, 101 — V. Harlstone, 35 Terrell, In re, 185 Thomas v. Jones, 148 — V. Harris, 105 Thompson, In re, 78 Tihbitts, In re, 144 Tillett V. Stracey, 153, 155 Tilney r. Statisfield, 18 Toleman v. England, In re. Ex parte Bramble, 54 Tower Subway Co., Ex parte, 175, 176 Trenchard, Ex; parte, 3 Turnbull v. Janson, 181 Turner, In re, 3, 15 — V. Collins, 146, 149 — V. Deane, 47 — r. Hancock, 34 — V. Hi'Yhnid, 122 Turton )'. Barber, 39 Tyne Alkali Co. v. Lawson, 121 Twynam v. Porter, 191 Underwood, Ex parte, 63 Union Cement and Brick Co., In re, Ex parte Pulljnxik, 54 Upperton, In re, 144 Upton 1'. Brown, 15 Vic ART V. Great Northern Rail- way Co., 123 Vines v. London, Brighton and South Coast Railway Co., 178 Wainwright, Ex parte, In re Wainwright, 189, 193 Wake V. Harrop, 80 Wakefield v. Newton, 47, 159 Walford v. Walford, 118 Walker v. Smith, 71 Ward, In re, 87, 138 — V. Eyre, 89 — V. Kepple, 88 — V. Lawson, 74 — V. Wild, 125 Warner v. Mosses, 153, 178 — V. Murdock, 120 Watson V. Murrell, 80 — V. Rodwell, 69, 174 — V. Row, 26 Waugh V. Waddell, 139, 143 Webb V. Man sell, 131 Webster v. Le Hunt, 66 — Ex parte. In re Morris, 134 Weeks v. Goode, 61 Wells V. Mitcham Gas Light Co., 154, 155 West ol England Banking Co. v. Batchelor, 53, 56 Wheatcroft, In re, 59 Whitcombe, In re, 78 Whitehead r. Lord, 66 Whiteman v. Hawkins, 107 Whitney v. Smith, 91, 93 Widgery v. Tepper, 195 Wilkinson v. Barber, 146 Williams, In re, 63 — ?•. Preston, 25, 33 — r. Swansea Canal .\avi- gation Co , 17() Williamson, Ex parte, 3 Willmott V. Barber, 120 Wilmshurat, Hollock & Co. v. Barrow Ship Building Co., 127 TABLE OF CASES. Wilson V. Eiiimett, 63 Witt V. Corcoran, 136 Wood V. Wacey, 54 Woodfin V. Seray, Working Men's Mutual Society, In re, 181 Wormsley, In re, Baines v. Wormsley, 158 Worth, In re, 151 Wyclie, In re, 174 Yglesiab v. Eoyal Exchange Assurance Corporation, 159 Yorkshire Wagon Co. v. New- port and Abercome Coal Co., 133 Young V. English, 48 HINTS TO SOLICITORS. CHAPTER I. ARTICLED CLKRKS. The provisions relating to the service and admission of articled clerks do not present many difficulties, and being generally known to the profession, it is not intended to recapitulate them here ; indeed, niention will be made only of a few things to be noticed Avith regard to them that applications to the Courts have lately brought to light. The duration of a clerkship is five years, except in Duration the case of those who have passed certain specified "^ clerk- preliminary examinations at the universities, when four suffice ; and in the case of such as have taken a degree there, and persons who have served for ten years as clerks to solicitors, three years is the jDeriod of probation. AVith reference to this period, & 7 Vict. c. 73, rouplin',' s. 13 enacts that, when a clerk sliall have been dis- '^H"''''.''''' of service. charged before its expiration through (among other causes) mutual consent, if the clerk enters into another contract of service, the Court may allow the periods of service to be coupled. The Solicitors' Solicitors Act, 1877 (40 & 41 Vict. c. 25, s. 15), which gives to ^'"tV'''^' B 2 ARTICLED CLERKS. irregular tliG Master of tbc Rolls further discretionary power service as to the period of service, was no doubt intended to meet hard cases, as, for instance, Ex parte Adams, 4 Ch. D. 39. The words of the section are : " Where any person articled to a solicitor has not served as a clerk imder such articles strictly within the pro- visions of the Solicitors Act, 1843, and the Solicitors Act, 1860, and any Act amending the same, but subsequently to the execution of his articles bona fide serves (either continuously or not) one or more solicitors as an articled clerk for periods together equal in duration to the full term for which he was originally articled, and has obtained such certificate as he is required by this Act to obtain ; it shall be lawful for the Master of the Eolls, in his discretion, if he is satisfied that such irregular service was occasioned by accident, mistake, or some other sufficient cause, and that such service, though irregular, was substantially equivalent to a regular service, to admit such person to be a solicitor in the same manner as if such service had been a regular service, within the meaning of the said Acts and any Act amending the same." Ex parte In the case above quoted the clerk was articled to his father for five years, from September, 1870, and he served till October, 1873, when his father by an indenture assigned his services to another solicitor for fifteen months, after which he returned to his father and served under the original articles till September, 1875. The Court held that the fifteen months could not be reckoned as part of the five years service, as such service had been under an assisfnment, and the conditions of G & 7 Vict. c. 73, ss. 6 and 12, had not been fulfilled. The clerk con- tinued to serve with his father for another fifteen ARTICLED CLERKS, 6 months after September, 1875, though without fresh articles ; but the Court held that he had not duly served under the contract within the meaning of sec. 3, which prohibits the admission of a clerk unless "he shall have been bound by contract in writing to serve as clerk for and during the term of five years to a practising solicitor in England or Wales, and shall have duly served under such con- tract for and during the term of five years." It held that he must, therefore, complete his five years service under fresh articles for fifteen months ; but that, under the circumstances, he might be allowed to go in for his examination at once. This is a good instance of the class of case in which the Master of the Rolls, under sec. 15 of the Act of 1877, is now empowered to give relief. Ex parte Williamson, 4 Ch. D. 581, shows that Cancella- ^ . . tion of " mutual consent " will be construed liberally for the ai-tides by clerk ; see also Ex parte Trenchard, L. II. 9 Q. B. 40G, '^^^^^^_ where the Court was divided as to whether the facts in that case amounted to a virtual cancellation by mutual consent. The latter case is also a precedent for three several periods of service under three different sets of articles having been allowed to make up the full term. Articles of clerkshio rofiuirc a stamp of £80, Stamping ' ■•■ /■ ' articles. which should be impressed before execution. They can, however, be stamped up' to six months after execution, upon payment of a fine of £10, and even after six months by leave of the Treasury and pay- ment of a heavier fine. The clerk's master must Enrolment enrol them (together with an affidavit by himself of "^ '"*',':!*;'' ^ , °_ -^ ^ and alhaa- his due admission, and of the proper execution of vit of thcii- such articles) within six months from their date ^^ petty" with the Clerk of the Petty Bag, who marks them lias ^^^ ^^ be has a bill of costs against the gagor. latter, he loses his lien upon the deeds relating to the mortgaged property, and holds them for the former, unless his lien is expressly reserved : Jesse], M.R., in In re SnelL G Ch. D. 107. But where a solicitor was instructed to prepare a mortgage and the title deeds were deposited with hira by the mortgagor, although he also acted for the mortgagee and afterwards continued to hold his deeds for him, when the mortgagor filed a petition and the trustee appointing another solicitor sold the equity of redemption, the first solicitor was held to have a lien for the costs due to him from the mortgagor : In re Messenger, Ex parte Calvert, 3 Ch. D. 317 (V. C. B). Waiver of If the solicitor consents to waive his lien, it is of course gone. Thus, supposing he consents to go in with the other creditors of a bankrujDt, and takes a dividend, he cannot afterwards fall back upon his lien : Coiuper v. Green, 7 M. & W. 633. By claim- ^2.) And though a lien is not lost by claiming LIEN II. 61 more than is due, it is by claiming some other right i^s ^'^^*^ n T / iir 7 other to detain documents than that of mere hen {\\ eeks right. V. Goode, 6 C. B. N. S. 307), or by denying his client's title to them. In conclusion, two cases, — Lucas v. Peacock, 9 Boav. ^"<^«^ J"- ' ' Peacock. 177, and Bozon v. Bolland, 4 My. & Cr. 854, — seem to ^Q..g^^ v_ establish nearly all that remains to be said upon the Bollond. subject of lien. From them it is clear that a lien upon a fund is not a general lien ; and that what it extends to is only costs in the cause, and costs immediately connected with the costs in the cause : as, for instance, the costs of successfully protecting a solicitor's right to the costs in a cause ; that such a lien he is entitled actively to enforce ; but that the general lien upon a client's papers, which applies to all his bills of costs, cannot be actively enforced, and merely amounts to a right to retain the papers themselves for whatever they may be worth. 62 CHAPTER VII. CHANGE OF SOLICITOES. Where order necessary. When not, what is necessary. Where soHcitor discharges himself. First soli- citor's lien, When there is a change of the solicitors of a party in an action, it is plain that if the former ones are allowed to keep his papers to protect their lien, his new solicitors may have a difficulty in prosecuting the action satisfactorily ; and also that the other side may not know on whom service of papers in the action may with safety be made. Consequently, an order of Court is necessary for this purpose, except in a very few instances, as where the solicitor on the record has died, or where a party, who originally had appeared without a solicitor, appoints one ; in which cases notice to the records and writ clerk and to the solicitors of the other side is sufficient. The rule is different where a solicitor discharges himself and where he is discharged by his client. Where a solicitor discharges himself during an action, his client is entitled to an order for delivery up of his papers, upon an undertaking by the new solicitor to carry on the action vigorously, and to hold them without jDrejudice to the first solicitor's lien, and to return them after the action has been brought to an end. If it is brought to a conclusion by which the client gets anything, the first solicitor's lien is a first charge upon any payment to be made CHANGE OF SOLICITORS. 63 to the client : Wilso7i v. Etninett, 19 Beav. 233. Where a solicitor places himself in such a position as Where to render himself incapable of performing his duty discharges to his client, he discharges himself. A solicitor is himself, taken to have discharged himself where he applies to his client for funds to carry on a suit, and uj^on Client fail- the client not furnishing any, declines to continue funds, it: Robins v. GoldingJiam, L. R. 13 Eq. 440 (V. C. M.). There the undertaking was to hold the papers with- out prejudice to the lien of the former solicitor, and to return them undefaced within twelve days after the conclusion of the suit, and to allow the former solicitor access to them for the purpose of carrying on an action for his costs. If a solicitor becomes bankrupt, this is a discharge Bank- by himself ; but if a client becomes bankrupt, that ^"^' ^^' is a discharge by the client : In re ilioss, L. R. 2 Eq. 348. If the solicitor's principal becomes bankrupt, and his trustee appoints another solicitor, in such a case the solicitor is held to have discharged him- self: Simmonds v. Great Eastern Ry. Co., L. R. 3 Ch. 799. In the case of a deceased principal, his solicitor would jDrobably be taken not to have dis- charged himself : Ex parte Undervjood, 9 Jur. 632. The papers which the solicitor will be ordered to Order for deliver up are only such as are necessary to enable papers, the client to proceed with pending matters in litiga- tion ; and where he is ordered to deliver up all documents in his custody or jDower, such order does not extend to documents which are detained by third jmrties, and which the solicitor cannot obtain with- out bringing an action. In re Williams, 9 W. R. Tapers in 1- • 1 1 1 1 1 IT the hands 393, a solicitor had been ordered to deliver up some of counsel, papers which were in the chambers of counsel, who declined to part Avith them until his fees were paid, G4 CHANGE OF SOLICITORS. as the solicitor had made an agreement with him that such papers should remain with him as a security for such fees. It was held that these docu- ments were not in the solicitor's custody or power. It was argued by Selwyn, then Q.C., in this case, that counsel had no lien for their fees on papers sent to their chambers, as they are not bound to take in papers without payment; and the payment of counsel not being a debt which could be established by any legal proceedings, that therefore no lien could possibly arise. The principle in such cases seems to be that if a solicitor chooses to discharge himself he must not leave his client in the lurch in the middle of a matter, even though his client cannot supply him with money, or by reason of any other difficulty ; and if he does he must produce to the new solicitor all papers necessary to enable him to prosecute or defend the matter in litigation. In other words, if the solicitor refuses to act for his client, his lien may be of little value, as he cannot in that case deprive him of the full use of papers for the purposes of the suit. If, however, the client discharges or ceases to employ the solicitor, the case is now different. It was originally held by Lord Eldon, in Boss v. Laugh- ton, 1 Ves. & B. 349, that even in such a case the solicitor was compelled to afford facilities for the continuance of the proceedings by the use of papers and documents ; but afterwards, in Lord v. Warm- leighton, reported in Jac. 580, he decided that a solicitor, if discharged by his client, could not be compelled to assist him by the delivery up of papers in a pending suit. And this has ever since been the established rule. Lord Cottenham gave effect to it in CHANGE OF SOLICITORS. 65 Bozoii V. Bolland, Iliosband v. Bolland, 4 My. & Cr. 358. In that case the client had ceased to employ C. as his solicitor in a cause; C. had a deed belonging to the client which was valuable evidence in the cause. The Lord Rule in Chancellor said that he might have withheld the use j^ll'^al of this deed, and so, if it really was essential to his client, have compelled payment of his general pro- fessional demand ; but that it would have been at the option of the client to jDurchase the use of the deed at that price or not. The solicitor did not tender this option, but he produced the deed as evidence in the cause ; and then, contending that the decree, which was ultimately made in favour of his client, could not have been obtained without such production, asked the Court to declare him entitled to the same lien on the fund that he had on the deed. The Lord Chancellor pointed out that the lien he had on the deed Avas a passive lien, but that the one he asked for, a declaration of on the fund, was an active one ; that the former lien was a general, and that the latter was a specific, one for his costs in and relating to the suit. He gave him, however, the costs of the suit out of the fund. The rule in this case was approved of, and acted upon, by Malius, V.-C, in In re Faithfidl, In re London, Brighton and South Coast By. Co., L. R G Eq. 328.' And the only case at all at variance with it is In re Bevaa and Whitting, decided by Lord Westbury, and reported in 33 Beav. 43.9. It is commented upon and distinguished In re Faithfall. A solicitor, however, cannot embarrass a suit la admini- by keeping papers which belong to an estate '^'^^'^**""- which is being administered by the Court, and cannot use that means of obtaining payment, even though he has been discharged by the trustee of 66 CBULNGE OF SOLICITORS. What is discharge by the client. the estate: Belaney v. Ffrench, L. R. 8 Ch. 920 (James, L.J.). If a woman, a party to an action, marries during the action, and her husband changes the solicitor, this was a discharge by the client ; as may also be outrageous conduct on the part of a client, which makes it impossible for a solicitor to continue to act for him: Steel v. Scott, 2 Hog. 141. Where a client gets an order to change solicitors, this is a dis- charge by the client. It must be observed that the power of a solicitor to discharge himself in the middle of an action is a very limited one. It exists if his client dies, or if, after reasonable notice from him, the client neglects to provide funds. In the case of Whitehead v. Lord, 7 Ex. 694, Park, B., said that this rule must not be extended to a case where a suit in Chancery had fallen into a state of sleep for a lengthened period, the rule being (subject to the two exceptions before mentioned) that a solicitor, when once retained to Si^suitTo^. conduct a suit, is under the obligation to carry it the end. qj^ ^0 its termination. This is expressly the case where a solicitor makes a bargain with a client to carry on an action for him on the chance of getting the costs out of the other side. In Webster v. Le Hunt, 9 W. R. 804, the agreement made was that the solicitor should carry on a suit without requiring to be supplied with funds up to hearing. The order then made was appealed from, and it was held by Kindersley, V.-C, that as the word " hearing " must be taken to have meant the original hearing, the solicitor had a right to refuse to go on after the original hearing without funds. But, with respect to the papers, he ordered the delivery over of them to the new solicitor, without prejudice to the lien of the Solicitor Specula- tive action. CHANGE OF SOLICITORS. 67 first solicitor, upon an undertaking to restore tliem when the appeal was disposed of. The order was in the usual form. A solicitor, if he makes an affidavit when he hands Costs of . , 1 n • , 1 , 1 affidavits over papers, can, it appears, charge tor it; but he and list of cannot charge for a list of the deeds and documents ^^eds. which he hands over to his client: Re Catlin, 18 Beav. 514. The present practice as to the form of the order Grant v. for changing a solicitor is stated by Field, J., Hud- "^ '*"' " dleston, B., and Lindley, J., in Grant v. Holland, Boss V. Grant, 3 C. P. D. 180, to be the same in law as in equity — viz., that it will now be made without any provision as to the payment of the first solicitor's costs. 68 CHAPTER VIII. DISABILITIES OF SOLICITORS. Gifts and purchases from clients. Dealings between solicitors and clients, principle. The principle which puts restrictions upon the re- ceipt of gifts and the purchase of property from clients by solicitors, is that the clients may have been acting under undue influence and without suffi- cient information in such transactions. It was said by Turner, L. J., in Gresley v. Mousley, 10 W. E. 224, that there is one principle which runs through all the cases on dealings between solicitor and client — viz., that the solicitor dealing with the client is bound to give him at least the same protection as he would be bound to give him if dealing with a stranger. It would be his duty to see that the client, if dealing with a stranger, did not commit himself to anything which would be to his prejudice. If, for example, he were dealing with the stranger for an advance of money upon security, or for the sale of an estate, he would have to see that the client did not acknowledge the advance, or give a receipt for the purchase money, unless it was actually paid. If he failed to advise the client acting in the transaction under his advice not to give the acknoAV- ledgment, or to sign the receipt, unless the money Avas actually paid, he could not be permitted to set up in justification of his own negligence that the DISABILITIES OF SOLICITORS, 69 client had done so without his advice; and if he could not do this in the case of a client dealing with a stranger, how could he he allowed to do so in the case of the client dealing with himself ? From this ^J^j^^^f *^^j. consideration follows the necessity of independent dent proof proof of payment in the case of dealings between ^^^{[' solicitor and client. The obligation which rests upon him to protect the client when dealing with him in matters of security or purchase would be of no value unless some independent proof of payment was re- quired, and it is no hardship upon him to require such proof, for it is no less his duty than his interest to keep correct accounts, and to preserve the evidence of his dealings with his clients. In Levjes v. Morgan, 5 Price, 153, Lord Redesdale said: — "This is the Takin- Till security. case of an attorney, who acted as general agent and legal adviser of his principal and client, obtaining his bond. He is, therefore, bound by a very strict rule of law to prove by other evidence the actual advance of the whole consideration." So that on a purchase In pur- by a solicitor from his client, the onus of showing cHeiit that the purchase money was actualjy paid cannot be onus of shifted from the purchaser, and the receipt endorsed payment upon a conveyance or security made by a client to ^^ solici- his solicitor is not sufficient for this purpose, nor is the defect cured by a lapse of twenty years : Gresley V. Moulsey. Upon the same principle, in Watson v. Rochvcll, Account 11 Ch. Div. 150, an account which had been settled after between a client, who was an old lady, and her "^ariy two years, solicitor, including arranged bills of costs, was ordered to be re-opened, and the bills of costs taxed, after the lapse of nearly two years, although without actual proof of error or overcharge. The ground of the order v.'as that the client had acted under undue 70 DISABILITIES OF SOLICITORS, Purchase must be a good one for client. Client should have inde- pendent legal advice. Solicitor purchasing annuity from client. influence and without sufficient information, and that much of the business charged for was unnecessary and improper. In Pisani v. A.-G. for Gibraltar, L. K 5 P. C. 536, it was said that the eftect of pre- vious decisions had been that the Courts do not hold that a solicitor is incapable of purchasing from his client, but watches such a transaction with jealousy, and throws on the solicitor the onus of showing that the bargain is, generally speaking, as good as any that could have been obtained by due diligence from any other purchaser. In the case last quoted it was held that the circumstance of the employment of the solicitor might be considered, and the amount of in- fluence estimated ; and it appeared from that case, too, that the opinion of the Court was, that a legal adviser purchasing from his client ought to insist on the intervention of another professional adviser. This would seem to be the view of the Courts in the case of taking security from a client, as well as in the case of a purchase. A strong example of this was King v. Savery, 1 Sm. & G. 276, where a mortgage given by a son to a family solicitor, to secure his father's debt, was not allowed to hold good, as he had had the advantage of no other professional assistance than that of the family solicitor himself. Where a solicitor bought an annuity from his client, and paid for it by his personal bond, the trans- action was set aside by Lord Eldon : Gibson v. Jeycs, 6 Ves. 266. In Spenser v. Topham, 22 Beav. 576, £100 was not thought by the Master of the Rolls a difference sufficient to set aside the sale of a pro- perty, the purchase money of which amounted to £1820. Of course, the general principle stated by Turner, DISABILITIES OF SOLICITORS. 71 L.J., in RJiodes v. Bate, L. R, 1 Ch. 257, to apply to persons standing in a confidential relation towards others, exists in the case of solicitors — viz., that they Indepeu- cannot entitle themselves to hold benefits (other ^^"Itf!;^ than trifling ones) which those others may have when conferred upon them unless they can show, to the conferred. satisfaction of the Court, that the persons by whom the benefits have been conferred had competent (see Gihbs v. Daniel, 10 W. R. (iSS) and independent advice in conferring them. Age and capacity afford but little protection in cases of influence founded upon confidence. Of course, a confidential relation- ship has to be established, and the existence of sucli a relationship will not be interfered with, without the strongest evidence, by the appointment of an agent : Rhodes v. Bate, L. R. 1 Ch. p. 259. Where a relation Relation of of confidence is once established, either some positive not easy to act, or some complete case of abandonment, must be determine, shown in order to determine it. The mere fact that the relation is not called into action is not sufficient of itself to determine it, for this may well have arisen from there liaving been no occasion to resort to it. And with regard to gifts to solicitors by clients, ^^^^, *» the rule was that where the relation exists they are by clients contrary to public policy, and void : O'Brien v. Lewis, contrary to 9 Jur. N. S. 521 ; Walker v. Smith, 29 Beav. 394 ; policy. and to prevent the operation of the rule, there must not only be a total absence of fraud, misrepresenta- tion, or even suspicion, but there must be a severance of the confidental relation : Morgan v. Minett, 6 Ch. D. 638 (V. C. B.). But in the case of Mitchell v. Cannot be Homfray, 8 Q. B. D. 592, Lord Selborne decided 'Ste^tli. that such a gift was voidable only, and cannot be of donor, impeached after the death of the donor ; and it seems from tins case, that where the influence which t'l DISABILITIES OF SOLICITORS. a solicitor may be supposed to have exerted over liis client has been removed, the solicitor may become the object of his client's bounty, and may receive from him a gift which will be valid both at law and in equity. See also In re Holmes' Estate, 3 Giff. 337. Gifts by As to gifts by will from clients to solicitors, one of ' the latest cases referring to them is Morgan v. Mmett, 6 Ch. D. G47 (V. C. B.), quoted before. The Vice-Chancellor in his judgment states that a client inclined to bestow bounty upon his solicitor, can do Suspicion so, and the solicitor can accept it ; but both must act must be . i • i ^ ^ ^ -I •^• impossible. Under circumstances which preclude the possibility of suspicion. Suspicion is the basis of the rule of influence, and is enough to upset the transaction. The relation of client and solicitor must cease before the gift is made. In that case a separate solicitor was called in, who explained to the client the effect of what he had done inter vivos, and of Avhat he proposed to do for his solicitor by will, and the new solicitor expressed it as his opinion that the client thoroughly understood what he was doing, and that he expressed the strongest regard for his solicitor, as being a person to whom he was under the greatest What new obligation. If a new solicitor is called in, it is must ex- indispensably necessary that he should explain to plain. ^\^Q client the law upon the subject ; and why the interference and advice of an independent person is necessary at such a time. While the relation of solicitor and client exists, the inference produced by that relation is such that it makes it almost impossible that the gift can pre- vail : Re Holmes' Estate, 3 Gifif. 345. Above all things, there must be no concealment of the trans- action at the time by the solicitor taking the benefit. DISABILITIES OF SOLICITORS. 73 Therefore the case of the solicitor taking a gift by- will is much the same as when taking it in the life- time of his client. His conduct is viewed with o-reat suspicion ; and he can derive no advantage from his client's will, especially if drawn by himself, unless it is clearly shown to the Court tliat it was not made under any influence, direct or indirect, springing from their relation, exercised over the client by the solicitor ; and unless the law on the subject and the nature of the transaction was explained to the client by another solicitor, who in every respect acted as solicitor to the client in the matter. The ignorance of the solicitor does not help him : Bidkley V. Wilford, 2 CI. & F. 141. In conclusion, it may be observed that a purchase Difference from or a security given to a client, or even a gift of gifts to anri leases which involved obligations (Harris v. Tre- purchases menheere, 15 Ves. 34), is not to be considered in the clients, same light as a gift inter vivos or by will, from a client to a solicitor. They stand on a different footing than that of mere bounty ; and, yet, even in these, the onus lies on the solicitor to show that he dealt with his client exactly as a stranger would have done. This differ- ence cannot, perhaps, be better illustrated than by the argument of the present Mr. Justice Kay in the case of Morgan v. Minett, quoted above ; to which the reader is referred. 74 CHAPTER IX. AGREEMENTS WITH AND UNDERTAKINGS BY SOLICITORS. Agree- BEFORE the Solicitors Act of 1870, although a soli- paid more citoi* might agree with a client to be paid less than than taxed his taxed costs in a proceeding, he could not enforce an agreement for payment to himself of more than his taxed costs ; and if the client repudiated the agreement his only remedy against him was for his Between taxed costs. This also applied to arrangements solicitOTs hetween country solicitors and their town agents, and agents, although the question might arise whether the special agreement constituted the relation of agency or that of partnership between the parties: Lord Selborne in Ward v. Laivson, L. E,. 8 Ch. 70. In Jones v. Read, 5 A. & E. 531, it was held that work done in the character of an attorney could be done upon a contract to take costs out of pocket Solicitors which should not exceed a sum named. As the Act applies to' of 1870 only applies to agreements in writing, the ^^^^- . same rule still holds good as to all parol agreements inents m . . it mi • r writing between solicitor and client. Thus, m Jenmngs v. ''"^y- Johnson, L. E. 8 C. P. 42G, the following verbal agreement by the solicitor was upheld. To act as; attorney for the plaintiff in an action, to charge him nothing if he lost the action, and to take nothing for UNDERTAKINGS BY SOLICITORS. to costs out of any money that might be awarded to him in such action. The only way in which such an Cham- . perty. agreement could be impeached under the statute is under section 11, which provides against champerty. But this agreement not to charge anything for costs is not champerty (Bovill, C J.). Therefore, though a solicitor may still agree with a client verbally to charge him less than his taxed costs, he cannot make an agreement with him which will bind the client to pay him more. If he desires to do this, he must do it in writing:. The proper way to obiect to a claim Solicitor . 7 . . . charging by the solicitor in such a case is to plead no signed more than bill delivered: Scarth v. Rutland, L. R. 1 C. P.'642; ^^^^ then, upon delivery of such bill and taxation of it by the client, he may be entitled to less, but he cannot recover more, than the agreed sum. No third person can, however, benefit by a private Third ^ _ ... I^arties arrangement between a client and his solicitor. For cannot example, a company wdio employed standing soli- p^ivlte "^ citors at a fixed salary purchased property under a arrange- sale by order of the Court. The biddings were opened between on payment by the applicant of the costs of the solicitor company. The arrangement between the company and their solicitors did not affect the amount of costs payable by the applicant to the company's solicitors: Raymond v. Lakeman, 34 Beav. 584. Under the Act of 1870, however, the remuneration Alteration of a solicitor lor the whole or any part of any past tors Act, or future services or disbursements may be fixed by ■^^'^'^• ■ agreement in writing to be signed by the solicitor and the client. Lord Coleridge says In re Lewis, Ex parte Munro, 1 Q. B. D. 724, that an agreement in writing, to come within the provisions of this Act, must be an *.' i ' _ parties agreement by both parties, and both parties nuist must sign sign their names upon the agreement. The object of jj^^^t^ E 2 70 AGREEMENTS WITH AND Solicitors' Remunera- tion Act, 18S1. See AppendLx. Agree- ment to be examined by taxing master. this was that no discussion might occur as to what was really understood by either party, and that the soli- citor might not be able to place before the client a document containing favourable terms for himself signed by himself alone, and then to contend that the client was bound by it. See also Re Fernandez, 1878, W. N. 57. The Solicitors' Kemuneration Act, 1881 (44 & 45 Vict. c. 44), which will be found together with the orders made under it in the Appendix, regulates the remuneration of solicitors in respect of business con- nected with sales, purchases, leases, mortgages, settlements, and other matters of conveyancing, and in respect of other business, not being business in any action, or transacted in any court, or in the chambers of any judge or master, and not being otherwise contentious business, and to this extent restricts the operation of the Solicitors Act of 1870. Its scope, however, being limited to non-contentious business, it will not materially affect the provisions of this Act (Solicitors Act of 1870), which will here be considered alone. Section 4 goes on to say that when any written agreement signed by solicitor and client shall be made in respect of business done or to be done in any action at law or suit in equity, the amount payable under the agreement shall not be received by the solicitor until the agreement has been examined and allowed by a taxing officer of the Court having power to enforce the agreement. From the words of the section it would appear that the amount agreed to be paid for business other than that done or to be done in any action at law or suit in equity could not be adjudged to be unfair or unreasonable. However, In re Attorney and Solicitors Act, 1870 (1 Ch. Div. UNDERTAKINGS BY SOLICITORS. 77 575) Jessel, M.R., says that the meaninf? of section Charges ,., ,.. , , , must 4 IS that a solicitor may make what agreement he appear likes with his clients, but that he is not to receive reasonable. any payment under it unless the taxing master con- siders it fair and reasonable, and if he does not consider it so that he may require the opinion of the Court or a judge to be taken upon it. This opinion, however, cannot be taken until some- n^^"T" °^ thing is payable under the agreement (same case), not be although attempts have been made on the part of gon^Jthing solicitors who have obtained their clients' signatures due under , ,1 • • n jt /-^ i agreement. to agreements to get the opinion oi the Court upon them before anything was done under the agreements as to whether they would be considered on taxation fair and reasonable or not. An agreement which gave the solicitor in the Cham- . , perty. event of success what was equivalent to a tenth part of the property to be recovered, was in the opinion of Jessel, M.R, pure champerty, 1 Ch. Div. 575. A bill of costs, in proceedings before magistrates, ^^^^^ ",i f T r-i r\ai proceed- can be taxed before the master of the Crown Omce : ings before Re Leids, 1 Q. B. Div. 726, Lord Coleridge and ^'^^g^; Quain, J. Agreements only bind the solicitor and the client^ Agree- and do not aifect the amount recoverable from the client m^t, affect by any third person ; and any provision in them limit- **^^4 ing the responsibility of the solicitor is void. An action cannot be brought upon the agreement for remu- neration due under it; but any question respecting ^S^ee it can be determined and the agreement enforced or aside on set aside on motion or petition by any person, or the "JJitjonby representative of any person, who is alleged to be any person liable to pay, or entitled to be paid, the costs in respect of which the agreement was made. The provision that an action may not be brought under 78 AGEEEMENTS WITH AND sucli an agreement means upon the particular stipu- lation for the remuneration of the solicitor, not the entire contract between the parties. The agreement often is in effect that the client will employ the solicitor to act as his solicitor in a certain transaction, Client re- and then if the allegation is that the client has h-.sing to . , ^ ^ • 1 1 1 • 1 1 employ reiusecl to employ him damages can be claimed by undl-°' I'^'^soii of *^^^^ ^®f"^'^^ '■ '^^^^y' ^■^•' ^^"^ Bramwell, B, agreement, in Mecs V. Williams, L. E. 10 Exch. 206 and 209. Improper Scctioii 9 euacts that improper agreements may be nfeiits ^^^ aside upon motion or petition, and that the matters referred to may be taxed as if no such agreement existed, and tbe Court may make what order it thinks fit as to the costs of such motion or Costs of petition. Upon a petition for taxation. In re Tliomp- Eation!'''" ^^^^^' 8 Beav. 240, Lord Langdale said, as to the costs, that in some cases circumstances arise which create a modification of the rule, that a petition if dismissed should be dismissed with costs; as, for instance, if pressure has been used. See In re Whit- combe, 8 Beav. 144, where the conduct of the solicitor was exposed to suspicion. Where there was ambiguity as to the mode of payment: In re Carew, 8 Beav. 153. Where the items were probably not correct: In re Drake, 8 Beav. 123. All these cases were petitions for taxation which were dismissed without costs, for the reasons given above. It may, therefore, now well be that a petition under this section of the Act may be dismissed, but without costs, as the notion of the Court is that the solicitor has all the knowledge on his side, and that therefore the agreement should contain nothing not fair and reasonable upon the face of it. Therefore, great care should be taken in drawing such agreements to avoid a petition or motion for the setting aside of an UNDERTAKINGS BY SOLICITORS. 79 agreement, which, even though dismissed, may be dismissed without costs. Section 10 permits aofreementsto be re-opened under -^g>^ee- ^ ° _ •'• ments re- special circumstances within twelve months, and opened the money paid under them to be repaid. This t^^^giyg section merely gives powers to the Courts with months. reference to agreements analogous to those they have with reference to solicitors' bills under 6 & 7 Vict. c. 73, s. 87. The section, however, goes on to enact Agree- ' ' ' ° ments by that in the case of agreements made by trustees, trustees, guardians, or committees, such agreements must be before payment examined and approved by the taxing officers, under the penalty of their having to account for any moneys paid without such examina- tion, and in the case of the solicitor having, if so ordered, to refund the same. The effect of this section is illustrated by the remarks of Lord Eomilly (In re Broivn, a solicitor, L. R. 4 Eq. 465 and 466), upon the taxation of a bill under the third party clause (6 & 7 Vict. c. 73, s. 38), which, however, only applies to costs between solicitor and client, and not to party and party costs : Jessel, M.R., in Grundy, Kershaw CHAPTER X. TOWN AGENTS. agent. Solicitor is ALTHOUGH it is quite discretionary with a solicitor negligence whom he shall employ to do any act not in itself of his prohibited to be done by anyone not a solicitor, yet, as he, being directly retained, is liable for the negli- gence of his agent, it has been found to be safer that town agents for all purposes should be regularly admitted solicitors. There is no summary process by which the jurisdiction of the Court can be set at work in the case of an agent not being a solicitor, even though money has been received by him in that capacity : Cole v. Grove, 1 Scott, IST, S. 30. Persons without any qualifications are, however, often appointed to serve writs and notices, to make demands, and to collect debts and rent. Moreover, of late, London law stationers have been employed by country solicitors to do work of a ministerial character, such as to take to the registry original wills, and the engrossments of them, together with the proper affidavits, and if these are in order, to fetch away the probate. It has been decided that this work may be done by persons not solicitors, pro- vided that if any question arises as to the sufficiency of the documents, they communicate it to the country solicitor, and that they leave the papers in the names Law stationers acting as agents. TOWN AGENTS. 85 of the latter, and charge only for their clerk's time, and for the engrossing and copying of the documents when required. If law stationers, however, act for themselves, and not as agents for solicitors whose names they give, and with whose authority they act, and if they undertake to prepare affidavits or to prepare documents which could be used for the pur- pose of obtaining probate, they might then come within 40 & 41 Vict. c. 02. The test is whether or Test of law , , , . 1 • 1 Till stationers not they do something which anyone may do, although acting solicitors generally do it ; and whether they get a "^^"^^ ^'"■^^* share iu the profits made by solicitors, or indeed act in any way so as to get, in the name of the solicitors, the solicitor's profit : Lav) Society v. Shaw; The same V. Waterlow, 9 Q. B. D. 15. The name and place of business of the agent, as Name of well as of the country solicitor, must appear on the appear on writ and pleadings: Orders IV., r. 1, XII., r. 7, XIX., '^v"*- r. 7. If a solicitor has not a London certificate he Doing , . IP ^ • ^ • • • -T ^ London exposes himseit to penalties by practismg m London, business within the meanino- of the Stamp Act, 1870, s. 59. :j}''''^''"t ^ _ i- ' ' London To fall within its meaning, however, he must do a certificate. series of acts, and not one isolated transaction. He must carry on business with a quasi-permanent habitat within the proscribed locality : In re Hortov, 8 Q. B. D. 430. Attending a taxation is not within the section : What is In re Norton ; and if the costs of a country solicitor attending a bankruptcy appeal are allowed in a proper case (In re Foster, Ex parte Dickens, 8 Ch. D. 598), a fortiori, such attendance does not come within the meaning of the statute. The town Agent agent should not take any steps wliich he is not f^j^"^^ "'^'^ expressly directed to take, and he has not the same unless ex- privilege as a solicitor who, for the benefit of his^'"*''"'^ 86 TOWN AGENTS. directed to do so. Work done by town agent must be in ordi- nary course of business. No privity between client and London agent ; right of action between. Money im- projierly received by town asrent. Money re- ceived by agent in ordinary course of business. Summary juiisdic- tion of Court. client, outsteps his authority : Matins v. Crveenway, 17 L. J. Ch. 26. In order to bind the client, that which the town agent does in an action must be done in the ordinary course of business as such town agent, and his authority as an agent does not extend beyond the proceedings in the cause entrusted to him : Hanlcy V. Casson, 11 Jur. 1088. There is no privity between the client and the London agent, and the client cannot bring an action against him, for instance, for moneys had or received ; except on the ground of his having improperly received them. Where moneys do not come to the hands of the London agents in their character of London agents, but by what amounts to mistake, as when sent to them by the under-sheriff out of the regular course of business, and they attempt to apply it to a debt owing from the country solicitor, the Court will interfere summarily. The test is simply whether they obtained the money in their character of solicitors: Rohhins v. Heath, 11 Q. B. 258, The country solicitor is liable to the client for money improperly received by his agent : Gray v. Kirhy, 2 Dow. P. C. 601. Rohhins v. Fennell, Child v. Kelly, 11 Q. B. 248, decided that where a country solicitor, who is employed in a cause, employs an agent, there is not in general such privity between the client and the agent as entitles the client to recover against the agent for money had and received in respect of the proceeds of the cause, which the agent has received in the ordinary course of his business. The proper course, therefore, is to appeal to the sum- mary jurisdiction of the Court, and the London agent will be ordered to pay tlie nionej^ over, even though TOWN AGENTS. 87 the country solicitor is indebted to the London agent in a greater sum on his account. The town agent cannot maintain an action against No right of the client for his fees, nor the client against the town town agent agent for negligence : Lord Denman, in Cobb v. BecJce, ''^p^"^* ^ *= * ' ' client for G Q. B. 935. The same case decided that where A., fees; nor being defendant in an action brought by B., paid against" the debt and costs to his own country solicitor for agent for n6''*'li'^Gnctj. transmission to B., who sent a cheque exceeding the ^ amount to his town agent, telling him to pay the debt and costs out of it ; and the agent acknow- ledged the letter and promised to do so, but in fact retained the money in reduction of a debt due to him from the solicitor, there was no sufficient privity to support an action for money had and received by A. against the agent. In Ex parte Jones, 2 Dow. Country _ P. C. 161, it was held that where a j)laintiff obtained iiabie to a verdict in consequence of the defendant's assent l'^'^ '^^^®"* I . . . . for negli- not havmg informed the defendant of his having gence of been served with notice of trial, that the solicitor ^"^ ^s^^^- was liable for the neglect of his agent. In fact the country solicitor is responsible to his client for all the acts and representations of his Loudon agent : Re Ward, 31 Beav. 1. The agent is, of course, accountable to the country Town solicitor, and may be sued by him for negligence or countable for any other default. The late case of Ex parte to country solicitor Edwards, 8 Q. B. D. 262 (C. A.), decided that the for negli- Court, in the exercise of its summary jurisdiction Sf-'nce. over its own officers, will order the town agent to pay over the amount of a debt received from the sheriff under a fi. fa. to the plaintiff, though there is no fraud imputed, unless the country solicitor has a lien upon it for a greater amount; thus giving expression to the principle that a town agent has no 88 TOWN AGENTS. right to retain money, the proceeds of a judgment, in order to satisfy a debt due to him from the Insolvency country sohcitor. An injunction would be granted of country ^^ ^^iq instance of a client to restrain a London accent solicitor. _ _ _ ° from paying over a debt received by him to the country solicitor, if the latter were suddenly dis- covered to be in a state of hopeless insolvency, and commanding him to pay it into Court or to pay it over to the client : Manisty, J., in Ex parte Edivarcls, 7Q.B. D. p. 159. Lien of The lien of the town agent on deeds is, as against on deeds'^* the couiitry solicitor, general : Bray v. Hine, 6 Price, as against 203, 210. Where there have been two country soiicitOT. solicitors who have each employed the same town Same agent, his lien extends to what is due to him for pkwed^by ^^^^^ ' l^^t^'o^ V. KeppU, 15 Ves. 297. As between two solici- the town agent and the client, the lien of the former \s against extends only to the costs of the particular proceeding client. jn w^hich he has been engaged : Lawrence v. Fletcher, Extent of 12 Ch. D. 860. A town agent's lien extends to a *"^° , charging lien upon a fund : Farewell v. Coker, 2 agent s ° o J- ' lien. P. Wms. 4G0. In Stevens v. Avery, 1 Dick. 224, a defendant was restrained from paying fees to the representatives of a deceased solicitor until the costs of his agent were paid. But notice must be given to the client by the London agent. In a case in which a country solicitor has moneys of his clients exceeding the amount of costs in his hands, and an order in the suit is made to pay the client's costs to the country solicitor's London agent, if the country solicitor take advantage of the Bank- ruptcy Act, the costs must be handed over by the - London agent to the client, at least up to the amount that was in the country solicitor's hands : Peat field v. Bccrloin, L. R. 8 Eq. Gl. TOWN AGENTS. 89 As between the town agent and the cKent, the lien Lien of 1 j^ r- j_i town agent of the former extends only to tlie costs ot the par- extends ticular action in which he is enojaf^ed : Laivrence v. ^'^ ^'l'^^^, "^ ° " particular Fletcher, 12 Ch. D. 8G0. action. V.-C. Mahns, in Peatjield v. Barloiv, L. R 8 Eq. 01, Notice by said that he assumed that if the town agent had given ^,^ ^.jjgjj^. the cHent notice not to pay any money to the country '^ot to pay . . . , , . , , money to solicitor without providing for his costs, that this would country disentitle him to pay the country solicitor anything s"^^citor. after the date of such notice ; but it would not have deprived the client of the right of treating any moneys in his hands as part of the costs due to him, for this is simply a right of set-off. The costs of a town agent, if employed by a To\vn . 1- 1 • -n 1 f^gent em- country solicitor trustee m ordinary business, will be ployed by allowed, and can be charged to the trust estate : country ' o solicitor Burge v. Burton, 2 Har. 373. trustee. The Solicitors Act, 1870 (33 & 34 Vict. c. 28), docs Ward v. not apply to dealings between town agents and ^"^* country solicitors. Interest cannot, therefore, be allowed on disbursements made prior to the passing of the Act : Ward v. Eyre, 15 Ch. D. 130. 90 CHAPTER XI. SOLICITOES AS TRUSTEES. Actinff as agent to trustee who has committed breach of trxist. Paying money to one of two trustees. Cannot charge trust estate unless It is not proposed here to do more than mention briefly that, although a solicitor is the agent of his client and not a trustee for him, except in special cases, as where he receives money to invest for him, and acts under a power of attorney, — BurdicJc v. Garrick, L. R. 5 Ch. 233, — he may become construc- tively liable as a trustee under certain circumstances. He is not liable to the cestuis que trustent for acting as an agent to a trustee who has committed breaches of trust, unless he is cognisant of a dishonest design on the part of the trustee : Barnes v. Addy, L. R. 9 Ch. 244 ; but if he pays trust money to one of two trustees only, and it is lost, he practically constitutes himself a trustee for the parties beneficially entitled : Lee V. Sankey, L. R. 15 Eq. 204. The object of this chapter is rather to touch upon the duties and dis- abilities of a solicitor who has allowed himself to be appointed a trustee. He cannot act as solicitor for one of his cestuis que trustent against another of them : Ingivell v. Hooper, 10 Beav. 349. He cannot, unless allowed by the instrument creating the trust, charge the trust estate with more than costs out of pocket for work done in or out of SOLICITORS AS TRUSTEES. 91 Court: Brouqhton v. BrouqUon, 25 L. J. Ch. 250 ; specially , . , „ . v autnorised. or the costs of his own deience to a suit regarding the trust estate. A deed executed by his cestui que trust for secur- ing a solicitor trustee his costs, was set aside without costs : Gomley v. Wood, 3 J. & L. G78. A firm of solicitors, of whom one member is a ^^ember of ' a nrin trustee, cannot charge more than costs out of pocket being for work done for the trust estate. But the trustee could employ the firm as his solicitors, provided he took no share of profits out of the transaction, and in fact, to all intents and purposes, was not a partner in the firm pro ea vice : Clack v. Carton, 9 W. R. 5G8. From this case it would also seem that two firms can come to an arrangement for conducting each other's trust business; for the Courts consider that the rule that a solicitor trustee shall have only his costs out of pocket, is a severe one : Gomley v. Wood. A town agent's charges to a solicitor trustee are Town chargeable to the trust estate : Biivge v. Burton, 2 charges to Hare, 378. ^"f ^'^ . . . . . trustee. A solicitor trustee appearing for himself and his Solicitor co-trustee in a suit, is entitled to full costs, as if he '^l^l*^l"'^S', for iumself were not a party, except so far as the costs arc and a co- increased by his being a party : Cradock v. Pi2'>er, 1 *^'^^*^®- Mac. & G. 6G4. And no special direction is made in the decree giving him his costs. This decision was (juestioned in Broughton v. B roughton, 1 Jur. N. S. 905, and it might not be safe to act upon it. Where a solicitor who is a trustee acts for a Acting for 1 1 (• 1 i mortgagor mortgagor, and also lor the trust estate as mortgagee, and also he can charo-e the mortijaoor the ordinary costs : ^^^'' */"'^'^ ® , ® ® -^ estate as Whitney v. /S'ju/^A, L. IX. 4 Ch. 513. The same case mortgagee. 02 SOLICITORS AS TRUSTEES. is also an authority tiiat a solicitor may derive some profit, and yet not have to account for it, in conse- quence of the employment of part of the mortgaged estates for building j)urposes. And he can get his costs out of the other side : Pearce v. Beattie, 11 W. E. 979. Clause in Even Supposing there is in the trust deed a pro- • vision for the retainer by the trustees of costs " in- curred, sustained, or borne " by them, or which they might sustain or be put to, this will not give ordi- nary costs to a solicitor trustee : Moore v. Frowd, 3 Cannot My. & C. 45. If the clause enables him to make charge for ^|^g ordinary charo^es for professional services, this •work ordi- _ -^ ° ^ _ ' uariiy done clause will be construed strictly against him, and he cutor ^^^' "^^i^l ^°^' ^^ appointed also executor, be thereby when enabled to charge for the work ordinarily done by 'such.° ^^ executor ; as, for example, attending at the Bank making transfers and selling stock: Harhln v. Darby, 28 Beav. 325. Trustee in In the same way, a trustee in bankruptcy, when a ruptcv. solicitor, can contract to be remunerated for acting as a solicitor, and the petitioning creditor may act as solicitor to the trustee : Ex parte Chamherlayne, 19 L. J. Bank. 10. Eule. Perhaps a fair way to put the law relating to solicitor trustees is this ; — that a trustee to a trust estate is the trustee of any profits he may make out of the trust estate for the benefit of those beneficially entitled to the trust estate ; and that, therefore, a solicitor trustee must not by getting himself appointed solicitor to the trust estate get costs (other than ovit of pocket costs, which are not profit) out of it for his own benefit. But if a soli- citor, being a trustee, employs the trust funds in loans, charging no costs other than out of pocket SOLICITORS AS TRUSTEES. 93 costs, to the estate, even though liis so doing puts him in the way of getting business, he is not liable to the trust estate for remote profits of this kind. Such profit is not fairly the produce or profit of the trust estate, or a matter with which the cestuis que trustent have anything to do : Giifard, L.J., in Whitney v. Smith, L. R. 4 Ch. 573. 94 CHAPTER XII. SOLICITORS AS ADVOCATES. Prelimi- nary in- quiry. Proceed- ings before grand jury Trial before magis- trate. In Bank- ruptcy Court soli- citor to the parties may be heard. The true rule would appear to be that at the trial of any action, when it is not the invariable custom, according to the practice of that Court, for counsel only to be heard, the actual solicitor of either or both parties may conduct the case on their behalf before any Court of Justice in this country. At a preliminary inquiry to decide whether there is sufficient ground to commit a prisoner for trial, it is optional with the magistrates conducting it whether any advocate for the prisoner may attend on his behalf: Cox v. Coleridge, 1 B. »Sz; C. 50. The proceedings before the grand jury are of the same nature ; and it would be difficult if the right exists in the one case to deny it in the other. At a trial before a magistrate it is different, for either party is allowed to j^lead by attorney (11 & 12 Vict. c. 43, s. 129) ; but a prisoner has no right to require his case to be adjourned in order that he may procure the attendance of a solicitor on his behalf : R. v. Biggins, 5 L. T. N. S. 605. In the Bankruptcy Court the actual solicitor to the parties can be heard, but not a solicitor retained as an advocate by another solicitor. The object of allowing the appearance of a solicitor SOLICITORS AS ADVOCATES. 95 asrepresenting another person is, that the Court should Object of have before it a person who, on the one hand, is under allowing an obliocation to the Court, because he is one of its offi- solicitor to 1 . . . appear. cers ; and, on the other hand, is under an obhgation to the suitor, because he is in privity with him, and is the actual person who represents him. Unless that chain of connection is maintained and kept complete, the object of allowing solicitors to appear on behalf of other parties is entirely defeated : Lord Cairns, in Ex parte Broadhouse, L. K,. 2 Ch. 659. And although these remarks of his lordship apply primarily to the Court of Bankruptcy, it is submitted that they apply also to proceedings in all other Courts where soli- citors are heard. That this view is correct as regards County Courts County Courts. can be gathered from Bookham v. Potter, Ex parte Rogers, L. K. 3 C. P. 490, where it was held that the only attorney who is entitled to be there heard is the one who is acting generally in the action for the party ; and that the County Court judge is bound to determine the question ; and unless he did not decide upon the question when submitted to him, a superior Court, in the opinion of Bovill, C.J., and Willes, J. (although it does not so clearly appear to have been that of Montague Smith, J.), cannot inter- fere. It ought, however, to be observed that there is the following provision with regard to Count}^ Court practice and solicitors. 15 & IG Vict. c. 54, s. 10, enacts, that an attorney of a Superior Court, being an attorney acting generally in the action for the party, but not retained as advocate by the acting- attorney, may appear for a suitor in the County ('ourt. Probably this does not mean that an admitted 90 SOLICITORS AS ADVOCATES. Solicitor's clerk. Who may be heard before magis- trates. Privilege. solicitor acting as the clerk to the solicitor to the suitor may not be heard. This appears to have been the opinion of the Court in the case last cited, but there is in it no direct authority to that effect. A clerk to a solicitor who is not himself a solicitor, has no right to act as an advocate in Court, or to cross-examine a witness, and a Registrar in Bank- ruptcy can decline to hear him ; but he must not decide against the client without having heard him personally, or by an advocate. He ought to adjourn the hearing in such a case, that the client may be properly represented : Ex parte Streeter, In re Morris, 19 Ch. D. 222. From Oke's Magisterial Synopsis it would appear that police magistrates in the metropolis permit articled clerks to be heard before them ; and, quoting Cockburn, C.J., in Ex parte The Local Board of Health of Leamington, 5 L. T. N. S. G37, that justices may permit a police superintendent to appear, and hear him on a case before them, if they think fit. Certain Acts too, as 7 & 8 Vict. c. 101, s. G8, sanction the conduct of cases by persons not soli- citors, as, for instance, by the officer of a union. When a solicitor is acting as advocate he has the same privilege as to the statements he may make to the Court as counsel : Mackay v. Ford, 5 H. & N. 792. What the nature and extent of that privi- lege is has been glanced at in the chapter upon Solicitors as Officers of the Court, p. 19. 97 CHAPTER XIII SOLICITORS AS DRAFTSMEN. Only a few words will be necessary upon the duties of the profession in this capacity. The subject could not, however, be passed over entirely, in consequence of the passing of the Soli- tors' Remuneration Act and Order, which will be found given at length in the appendix to this book. This Effect of Act has made the payment of solicitors, in convey- tion Act. ancing matters and other non-contentious business, independent of the length of the documents drawn hf them, and, indeed, in conjunction with the Con- veyancing Acts, created a new era in the history of drafting. Before 6 & 7 Vict. c. 73, s. 37 (the Solicitors' Act of 1843), the charges of a solicitor for business re- lating entirely to conveyancing were not taxable, except upon bills filed, or possibly under the sum- mary jurisdiction of the Court over solicitors; but the effect of that statute was to render them liable to taxation, or reduction to the established scale which is regulated only by length. That scale was one shilling for seventy -two words. Stat. 8 & 9 Vict. Provision c 119, s. 4, and 8 & 9 Vict. c. 124, s. 3, as well as the f ^I'fK ' ' tors Act. Solicitors' Act of 1870, contain provisions that in tax- ing bills tlie taxing officer should consider the skill 98 SOLICITORS AS DRAFTSMEN. and responsibility attending the preparation of deeds; Recent \,nt the Remuneration Act has changed the basis of taxation and substituted vahie for length. Mr. Joshua Williams says, in his chapter on a modern conveyance (Real Property, 11th ed. p. 196), that the labour of a lawyer is very different from that of a copyist or printer. That it consists, first and chiefly in ac- quiring a minute acquaintance with the principles of the law, then in obtaining a knowledge of the facts of any particular case which may be bi'ought before him ; and lastly, in practically applying to such ease the prin- ciples he has previously learnt ; but that for the last and least of these claims alone has he obtained any direct remuneration. This is no longer true, and the reform which has been initiated by the Act is a thorough one which goes to the root of the matter. Principles But although the method of remtineration has °' been changed, the principles upon which drafts should be drawn have not. Mr. Davidson's remarks (Precedents, chap, ii., Principles upon which Legal Instruments are framed) are as applicable now as they ever were. " It seems to be often considered," lie writes, " that the business of the draftsman is a very easy one; that he has little more to do than to find an appropriate precedent, and then, by changing names and dates, to construct the new in- strument required ; and there is a class of draftsmen who draw from the precedents without knowing why or wherefore, who have little or no acquaintance with the commonest practical rules of their art, and not an idea of those general rules or principles on which it depends. But though men who trust thus implicitly to their precedents and remain in igno- rance of the rules of their art, may, by good fortune, avoid doing any inaterial mischief as long as they are SOLICITORS AS DRAFTSMEN. 99 confined to everyday matters, yet, when new com- binations of circumstances arise, of which precedents afford no example, they are either unable to proceed Avithout assistance or fall into pernicious mistakes." Some few of these mistakes will now be noticed. Agree- , • , , . . , . . , . ments bad An agreement between a solicitor and his client may for chaui- be bad for champerty, as, for instance, where an ^^^^^ agreement, under the Solicitors' Act, 1870, gave a solicitor, in the event of success, a tenth part of the property recovered: In re Attorneys and Solici- tors Act, 1870, 1 Ch. D. 575. It may, perhaps, be broadly stated that any agreement to pay a share of, or a fixed commission on property recovered, is very likely to be bad for champerty. In Earle v. Hoptvood, 9 W. R. 272, a contract that a part of the thing recovered should be given to the solicitor who supplied funds for an action, and also one b}'^ which the solicitor was to receive a sum proportioned to the estate recovered, were both stated to be illegal. This would have been known to a person ac- quainted with the principles of the law, and he would not have drawn such a draft. But an agreeement between several persons to maintain one another in defending a claim against them may be also an illegal negotiation : Findon v, Parker, 11 M. & W. G75. If a solicitor drew such an agreement he could Acting- not recover the cost of so doing, nor, indeed, the counsel's cost of a corrupt contract of any kind. Where, ^'^^'i^e. however, a solicitor, under the advice of counsel, drew and sued on for a client an agreement bad for champerty, he was held not liable to an action for negligence : Potts v. Sparrow, 5 C. & P. 749. Again, it is expi'essly said in Ireson v. Pearman, Wrong 8 B. & C. 812, that although it may not be part of ,7o"ns'"' F 2 100 SOLICITOES AS DRAFTSMEN. Counsel's fees. Precedents in Acts of Parlia- ment. Mistakes. the duty of an attorney (i.e., if he employs counsel) to know the legal operation of conveyances, yet that if he draws wrong conclusions from the deeds laid before him he does so at his peril. If, therefore, a conclusion of law which was not coiTect were drawn from the perusal of an abstract of title, and a draft drawn in consequence, acting on such mistake, the solicitor would be liable to an action for neo^ligence. It may here be remarked that under r. 4 of the Order (of 18S2) made under the Solicitors' Remuneration Act, counsel's fees, stamps, and other disbursements, reasonably or properly paid will be allowed as out of pocket expenses, although clerk's and law stationers charges will not. Any draft, however, for which there is a precedent, in any Act of Parliament, as, for example, those in the schedule to the Conveyancing Act, 1881, should not, except in very special cases, be settled by counsel, as there can be but little doubt as to the form it must take. But it is the preparation of wills and settlements that the draftsman finds his most difficult task ; and it is probable that if a solicitor made such a mistake as that made by Mr. Butler, a conveyancer of great eminence — viz., the striking out, by mistake, of the word " Gloucester," in a devise of the testator's "estates in the counties of Sussex and Gloucester" (which was followed by the alteration by the copyist of counties into county), which resulted in a trial as to what the devisee took (5 Had. 364), he would be liable for it ; and it is arguable, even in this case, whether he would not be liable for not seeing that counsel followed out his instructions. Cases illustrative of this principle are : Parl-er v. Rolls, 14 C. B. C91 ; Stannard v. SOLICITORS AS DRAFTSMEN. lOi Ullithorne, 10 Bing. 491 ; and Taylor v. Gorman, 4 Ir. Eq. Rep. 550. The real difRculty is to know whether a case is one of difficulty or not, as this requires a sound knowledge of law : Introduction to Conveyancing, Elphinstone, 1st ed. p. 2. All that has been said hitherto in this chapter has had reference to non-litigious business, and a few words are necessary with reference to drafts of notices and other things in an action. It is a matter of surprise why the endorsement on Endorse- a writ should not always be settled by counsel, as it ^^^j^^ costs, is surely the most important step in the action ; and yet it is only sometimes allowed for on taxation between party and party, lor example, if a writ is issued for an injunction and some other relief, and all that is required is obtained on the granting of an interlocutory injunction, and so the action is settled, when the bill is taxed, the rule in some taxing- master's offices appears to be this : The writ may have been endorsed by counsel unless a state- ment of claim has been delivered in the action ; but, if a statement of claim is charged for, the allowance for the writ is withheld. It is not necessary to point out that at the time of the issuing of the writ it could hardly be foreseen whether or not a statement of claim would be required, and, therefore, the ration- ale of this custom is difficult to understand. Another uncertainty which exists is that with re- ference to the allowance or non-allowance of notices of motion. It appears that some taxing-masters rule that if a Notice of precedent for a notice of motion can be found in the ™'^ '*^"' books — as, for instance, in "Daniel's Forms" — that the solicitor should draw it liimself. This is surely 102 SOLICITORS AS DRAFTSMEN. Special sum- monses. Drawing pleadings. Interro- sa'.oiies. throwing responsibility upon him which is scarcely reasonable, as the same remark might apply to a pleading, a precedent for which probably exists if it can only be found and rightly applied. With reference to special summonses, it would ap- pear that any reference in the summons to a par- ticular rule and order makes it at once an ordinary one, and one for which counsel's fees for settling cannot be allowed. It is true that the result of any ordinary inter- locutory application is too often costs, costs in the cause, and that, therefore, the party who is right in the main gets his costs, and that therefore, it does not much matter if he makes a mistake in the form of a notice of an interlocutory motion or summons ; but this custom does not conduce to the cultivation of exactness or style in such proceedings, and costs may, of course, not be costs in the cause, but plaintiff's or defendant's in any event. This uncertainty as to when the fee to counsel will be allowed in settling notices of liiotion and sum- monses makes it easily to be understood why they are often settled by the solicitor ; but it is not easy to see why pleadings, which are always allowed for, should not invariably be the work of counsel alone. It is apprehended that a solicitor drawing a pleading to which a demurrer was sustained, would be an- swerable to his client for the costs of his false step ; and it is difficult to see how he would escape having to pay the costs himself of any successful attempt to strike out paragraphs, if the costs were given against his client. The same remark applies to interrogatories, which, as well as the answers thereto, will always, if needed, be allowed for. SOLICITORS AS DRAFTSMEN. 103 With reference to affidavits, it may be remarked Unneces- that the Court has lately made the party filing im- dTvits. necessary ones pay the costs of the same : Hirst v- Procter, W. H. 12, 1882 : and see Hints on Practice, 1st ed, 143. It is difficult to see why a client, who had been ordered to pay his opponent's costs of answering an unnecessary affidavit by himself, would not have a remedy over against his solicitor for such costs if the solicitor had drawn it himself. It only remains to be said that in all drafts in litigious business the greatest care should be taken, and that the responsibility for the consequences of drawing a pleading, interrogatories, or the answers thereto, lies upon the solicitor (who takes upon him- self what is not his province), except in so far as he may have acted under the advice of counsel. 104 CHAPTER XIV. NEGLIGENCE. No privity No action caii be brought against counsel, because cUent and there is no privity of contract between the client and codiisel the counsel, and the counsel cannot recover his fees from the client: Siulnfen v. Chelmsford, 5 H. & N. 890. Therefore, in all proper cases, if a solicitor em- ploys counsel, and fairly states a case to him and acts under his advice, he relieves himself from responsi- bility ; but where the law would presume him to have the knowledge he proposes to get from counsel himself,he cannot shelter himself in this way: Godefroy v. Dalton, 6 Bing. 4G9. And where the opinion from counsel is not obtained bona fide, he is no shield : Instruct- Andrew v. Haivley, 2G L. J. Ex. 823. As to what ing coun- . „ . . i m • sei. the true meaning ot mstructmg counsel is, see Pollock, C. B.'s judgment in HaiuJcins v. Harivood, See p. 107. 4 Ex. 505. Ill a difficult case, and where some new point crops up, the solicitor should lay a full case before counsel and follow his advice thoroughly : Manning v. Wilkin, 12 L. T. 249 ; but in matters which he should know all about himself he cannot Cannot transfer his liability to counsel nor shift the respon- Ws'cwn sibility on to any one else. Mere questions of law, liability, the form of pleadings, and the kind of evidence to be adduced, are questions for counsel; but if the NEGLIGENCE. 105 solicitor undertake to determine questions of law and What arc acts upon his own opniion, he will, it wrong, be forcounsel. answerable for the consequences : Stevenson v. Row- land, 2 Dow. & Clark, 119. Solicitors are liable if they draw wrong conclusions Liabilityof ,. solicitors from deeds laid before them, though it seems not to for mis- be part of their duty to know their legal operation. *^'^^''- They should here consult counsel : Bayley, J., in Iveson V. Pearman, 3 B. «fe A. 799. If a solicitor undertakes to act without employing counsel he is liable if he makes a mistake in the principles of real property law. For example, if he prepares an instru- ment not under seal, where a deed is necessary : Parker v. Rolls, 14 C. B. 691; or if he permits a client to execute a deed which contains improper covenants : Stannard v. Vllithorne, 10 Bing. 491. But a solicitor is liable both for the results of Exceeding having exceeded his duty and also for negligence. ^'^ " ^' Thus, if he be directed not to compromise an action, Compro- and he does so, he is liable to an action for damages action con- for having so done, although he asserts that he has t^'^ry to in- done so under the advice of counsel : Fray v. Vowles, effect. 7 W. R. 446. This is a breach of duty arising out of the relation of the parties for which the client is en- titled to bring an action, even though it has been in the result beneficial to him. In such a case, how- Solicitor ever, the damages would probably be nominal : "w special Crompton, J. Where special directions are given an directions, attorney, he is bound to follow them : Thomas v. Harris, 27 L. J. Ex. 353. But a solicitor acting under a general retainer Acting has power to compromise an action in which he is ""^^'' , /^ j^ general re- retained, unless the client, by giving him express tainer. directions not to do so, remains thus himself dominus litis. The compromise, however, in any case is good f8 106 NEGLIGENCE. as between the client and the third party : Fray v. Compro- Voivles. If a client directs his solicitor to compro- " certain" ^^^ f^r a certain sum, this means the sum mentioned sum. clear after payment of costs: Churchyard v. Wat- kins, 30 L. T. 154. Extent of Where a solicitor has been eiiilty of neffliffence he liability .vii-i ^ » ^ • ^ for negli- IS liable m damages to the extent of the mjury sus- £:ence. tained by the client ; and the solicitor, if he relies upon the absence of actual damage, must prove that none accrued : Godefroy v. Jay, 7 Bing. 413. If the negligence complained of is in an action, the client has not to show that but for it he would have won the action. All that he has to show is, that there has been what amounts to negligence sufficient to entitle him to nominal damages; and to these he is entitled if there has been anything amounting to negli- gence which might operate to produce the loss of the cause. But, certainly, unless the solicitor acts fraudulently and improperly, as when he gives his client a worth- less security: Smith v. Pococke, 2 Drew. 197; and not even then, possibly now, can a declaration be obtained in equity that the solicitor, for negligence in investigating a title, is liable to make good to his client the loss which he has sustained through his negligent and unskilful management on his behalf of the matter referred to him by the client, and that he be ordered to take the security off the hands of the Remedy of client. The reason is, that the appropriate remedy t" n at ^ ^^ ^^ action-at-law for the actual loss (when ascer- law for loss tained) that the client has sustained. And the fact that Covu-ts of Equity have a concuri'ent jurisdiction with Courts of Law over their ov/n officers, even in a case of culpable negligence, Avhich is only one of non feasance, does not help the client, because of the NEGLIGENCE, 1 07 appropriate remedy he has at law : British Mutual Investinent Co. v. Cobhold, L. R. 19 Eq. 629. When there are abundant materials before the Court to show to what extent the client has been damnified by his solicitor's negligence, the solicitor cannot be permitted to measure the damages resulting from his own wrong : Whiteman v. Hmohins, 4 C. P. D. 20. The Statute of Limitations runs from the date of the Statute of act of negligencCj not from the time when the injury tions runs accrues : Hoioell v. Yomiq, 5 B. & C. 259, 266. The from date 1 1 1 • 1 • • of act of client is entitled to be placed m the same position as negligence. if the solicitor had done his duty, but to nothing ^j^^"^ "^ more ; and, consequently, when his client has no case, unless his solicitor by his negligence has caused him loss independent of the necessary result of the action the solicitor is not liable : Harrington v. Binns, 8 F. & F. 942. The amount of loss the client is likely Probable to suffer may be taken into consideration by the jury assessed. in assessing damages : Mayne on Damages, 3rd ed. 414, commenting on Howell v. Young, 5 B. & C. 259, 266. Where a solicitor did not attend a trial with the witnesses, and the record was withdrawn, he was held liable for the expense so incurred, but not for more : Hawkins v. Harwood, 4 Ex. 503. This Instruct- case is also an authority that the true meaning of set " instructing counsel " is not putting a brief into his See begin- hands professing to be instructions in the cause in chapter. which he is to appear, but that it means putting him into such a situation, both with respect to the information which is given him and the means of making that information available, as will enabli' him to conduct the case properly. The links in tht' chain of instructions necessary to make the chain available must be there. Where the misconduct of the solicitor has forced 108 NEGLIGENCE. the client to take legal proceedings, it is conceived that, by analogy to what is done in the case of a sheriffs misconduct, only the taxed costs of such pro- ceedings as between party and party can be re- covered, and not the extra costs as between solicitor Neglect to aud client: Jenkins v. Biddulph, 4 Bing. 160. But Avliere a cause in which a solicitor was acting for the defendant was taken as undefended, and a verdict given against the defendant in consequence, the Court ordered a new trial, the solicitor to pay all costs as between solicitor and client : De Roufigny v, Peale, 3 Taunton, 484. However, the Court has since refused to act in this way ; but in such a case the jury might give the whole value of the subject-matter of the action as damages, as they did in Hohy v. Built, 3 B. & A. 350. Amount of It is difficult to stato what is the smallest amount "^ ' of negligence for which a solicitor will be held liable ; but it is certain that the ordinary idea that he will only be liable for gross negligence is an incorrect one. It has been pointed out in text books on negli- gence that more than ordinary care is required and presumed to have been taken by solicitors and other learned men. If this is so, ordinary neglect, where so great care is required, becomes in the eye of the law gross negligence. An error into which any careful man might have fallen is not negligence : Laidler v. Elliot, 3 B. & C. 738. But the dividing line between the necessary amount of care and negli- gence is not strongly marked : Godefroy v. Dalton, Client's 6 Bing. 461. Want of care of a client's title deeds and losing them and mixing his papers with others, if the cause of any loss, is actionable : Reeve v. Palmer, 5 Jur. N. S. 916 ; K W. By. Co. v. Sharp, 10 Ex. 451. deeds and papers, NEGLIGENCE. 1 01) Inattention to any fact of which he has received Notices notice affecting his client in any pending matter, client. ^ and in respect of which he should have taken pre- cautions, is negligence : Jacand v. French, 12 East, 317. He is liable for the negligence of any agent Negli- employed by him as his town agent, agent for a |^g,^t °p particular purpose, clerk or jDartner, and whether he partner, is acting gratuitously or not : Donaldson v. Holdane, 7 CI. & F. 762. But if a clerk of the solicitor to an execution creditor were asked by the sheriff's officer what goods he was to seize under an execution, and the clerk refused to tell him, although he knew at the time that there were goods which might be seized, no action would lie at the suit of the client : Smith V. Real, 9 Q. B. D. 348. His liability, however, is Tliird par- only to his own client, and does not extend to tliird ^^^^ cannot . . . sue. parties, although such third parties may have been damnified by his negligence : Fish v. Kelly, 1 7 C. B. N, S. 194. But if he acts without authority for any Acting person, he is liable to such person for the conse- authoHty quences of such misconduct, and even, it appears, to the person against whom he may have so acted wrongfully : Huhhard v. PhilliiJs, 13 M. & W. 702. This branch of the subject is touched upon in the chapter upon Ketainer. A few instances will now be given of cases in Employ- which a solicitor is liable, and of cases in which he ^unsel. is not liable for negligence, from which it may, per- haps, be inferred, that if he properly states a case for counsel, and carries out his advice accurately, he is not responsible for any mistake made as to the effect of any principle of law, or as to the general course to be adopted in an action ; but that he is liable for the neglect of any professional duty of a ministerial character, whether he employs counsel or not ; and. 110 NEGLIGENCE. of course^ for any mistake he may make in the instructions he gives to counsel ; as also for the results of ignorance upon any point of thoroughly ordinary law. Cham- Thus, a solicitor was held not liable where, under the advice of counsel, he drew and sued on for a client an agreement bad for champerty : Potts v. Spar7Viu, 5 C. & P. 749. In this case had he not employed counsel he would have been liable. Employing In the Same way, if he takes the advice of compe- surveyor. ^^^^ surveyors as to the nature of a property upon which his client advances money, especially if he consults his client upon the transaction, although the security proves insufficient, he is not liable ; for it is not a matter which requires professional skill : Chap- man v. Chapman, L. R. 9 Eq. 276. In this case, the conduct of the solicitors complained of is described by V.-C. Stuart as being rather to be described as imprudent or indiscreet than as neoflisrent. Providing Again, a solicitor, if he employs counsel, is not evidence. \[q}j\q f^j. ^ mistake as to the evidence required at the trial of an action ; but he is liable for neglecting to provide it. For example, if he fails to have the necessary witnesses in Court at the trial : Beece v. Righy, 4 13. & Aid. 202, or eniploys a surveyor who is a notorious drunkard, and who does not do the work entrusted to him to be done : Mercer v. King, 1 F. & F. 490. Non- He is liable if he does not register a lis pendens, ifs^pen^ though not specially instructed so to do by the dens. client ; for this is an ordinary duty of a solicitor : Plant V. Pearman, 2G L. T. N. S. 313. He is not liable for error in judgment on j^oints of rare occur- rence, or sucli as are usually entrusted to men in NEGLIGENCE. Ill the higher branch of the profession : Godefroy v. Dalton, 6 Bing. 460, Indeed, even when that case was decided, it appears that solicitors were liable for the consequences of the non-observance of rules of practice ; want of preparation of a cause for trial, and for the mismanagement of that part of the conduct of the case which is ordinarily the business of the solicitors ; but not for error in judgment upon points not belonging to their department of the profession, or upon points of rare occurrence. It would, however, appear to be the safer course for him to adopt in order to limit his responsibility, to point out to his client when asked to advise upon a point of the latter kind, that it does not come within his province, and that the client must take his opinion for what it is worth, as it is a case proper to be sent to counsel. He is not liable for advice upon the facts, but only upon the law of a case: Hill v. Finney, 4 F. & F. G25. It may be further added that if an action fails Failure of through being wrongly investigated and improperly through advised the costs of it cannot be recovered from the "^proper ... , . , . -r- advice. client by the solicitor who advised it : Dace v. Ward, 1 Stark, 409. Such a course is derogatory to the dignity of a solicitor : Ottley v. Gilhy, 8 Beav. 603. If a solicitor's services, which were at first of use to his client, are afterwards rendered useless by his negligence, he cannot claim costs : Bracey v. Carter, 12 A. & E. 373. If a solicitor abandons a cause without reasonable Abandon- notice, as four days before assizes, he is liable : Hohy V. Built, 4 B. & A. 350. When a solicitor takes upon himself to do an act for which his client has to answer, as for instance when a fi. fa. is set aside for being irregular: Golldt 112 NEGLIGENCE. Acting as s Court° ^ ^^^ original jurisdiction to deprive a successful party of the costs of an action tried before a jury. Myers V. Befries and Others ; Siddons v. Laivrence, 4 Ex. D. 179. In the latter case judgmentwas signed, the costs taxed, and the plaintiff had obtained the Master's allocatur. Baler v. And not only can a judge in a jury case mero motu, and without the application of the defendant, deprive the successful jjarty of costs : Baker v. Oahcs, if he considers his conduct bad in the course of the litigation, but even if he disapproves of it previous to and as conducing to the litigation : Harnett v. Vise, 5 Ex. D. 307. Further, he can make a plaintiff who recovered in an action, two sums of £85 and Qs., and in a second trial recovered the Q>s. and lost the £85, pay the costs of both trials : Harris v. Pethemck, 4 Q. B. D. 6, 110. How his discretion may probably be exercised will be considered further on. And see Foster v. Great Western Ry. Co., 55 L. J. Q. B. 233. Where Where there are two trials, the second is the event COSTS GENERALLY. 123 which decides costs: Field v. Great Northern Ry. Co., ^^^^^e are 3 Ex. D. 261. This Avord "event" mast be read dis- tributive ly when in the same action the jury find for the plaintiff with damages as to one cause of action, and for the defendant as to other and distinct causes of action ; and the defendant is entitled to tax the costs of the issues found for him if no order otherwise is made : Myers v. Defries, quoted above. Though a Master cannot award costs other than the Pi'oceed- ings before costs of any proceeding before him, Order Li v., r. 2, a Master. yet he can decide who shall pay the costs of the examination of a party before a special examiner, in consequence of his answers to interrogatories being insufficient : Vicary v. Great Northern Ry. Co., 9 Q. See also _ _ pp- 130 B.D.I 68. and 212. The Queen's Bench Division however, intimated that in some cases it was better that the question of costs should be reserved until the trial. There is always an appeal from a Master as to Appeal costs, or from a District Registrar, as sec. 49, Judica- Master as turo Act, 1873, does not apply in such cases : Foster *" '^°'**^- V. Edwards, 48 L. J. C. P. 749. In a libel case, where a jury gave nominal costs I^ibel and and a verdict for plaintiff, and the judge refused to certify for costs, the plaintiff was held to be en- titled to them : Parsons v. Tinling, 2 C. P. D. 119 ; and also in a slander case : Garnett v. Bradley, which has been before cited. Indeed, the case of Parsons v. Tinling, decides that all previous statutes as to costs, with the sole exception of such of the provisions of the County Courts Act, 1867, as are expressly pre- served by sec. 67 of the Judicature Act, 1873, are repealed. The chief provision of the County Courts Act we <^osts in have to consider here, is the rule that a plaintiff Court. g2 124 COSTS GEXERALLY. cannot recover costs upon the scale allowed in the High Court (lower scale), unless in an action of contract he recover £20, or in an action of tort £10 or more. The County Courts Amendment Bill to be introduced next session proposes, as it is understood, to extend these sums to £50 and £20 respectively. It is doubt- ful, however, whether the costs in actions for large sums are much less in the County Court than in the High Court. The other provisions are, that claims for sums below, or which have been reduced below £50, can be re- mitted upon the application of the defendant to the When ac- County Court ; that equitable claims which come remitted to within the limit (£5''00) of County Court actions can County -^Q referred to it upon the application of any of the parties interested, and that the defendant against whom an action is brought in a Superior Court for malicious prosecution, illegal arrest, or distress, assault, false imprisonment, libel, slander, seduction, or other action of tort, may, upon an affidavit that the plaintiff has no visible means of paying the costs if he loses, make him either give security for costs, or have his action remitted to the County Court. In an action remitted under 19 & 20 Yict. c. 108, s. 26, the Superior Court has power over costs : Farmer v. May, 50 L. J. R. C. P. 295. Costs in It has been held, as was shown in Parsons v. Tinl'mg^ mitted to' ^^^ Garnett v. Bradley, that in libel or slander, costs High follow the event ; and that a verdict of one farthing will carry costs where the judge declines to make any order. Also, where a plaintiff commences a suit in a County Court, which, at the hearing is transferred to the High Court, because the subject matter exceeds Where the amount of £500, though he succeeds and obtains £500. the general costs of the suit, he must pay the costs of COSTS GENERALLY. 125 the hearing before the County Court : Ward v. Wyld, 5 Ch. D. 770. Difficulties frequently occur as to whether an Contract action IS an action lounded on tort or on contract, and consequently whether a plaintiff must recover £20 or £10, in order to get costs in the Supreme Court. A claim alleges that the plaintiffs caused to Instances. be delivered to defendants, as common carriers, a parcel, but that they did not safely carry it, and that it was lost. The defendants paid into Court £12 3.S. 4J. which the plaintiffs accepted; and in this ca.se it ^vas held that the action was founded on contract : Fleming v. MancJicster, Shejfield and Lincolnshire Ry. Co., 4 Q. B. D. 81, On the other hand, in Pontifex v. Midland Ry. Co., 3 Q. B. D. 28, it was held that the following action was founded on tort, and that, therefore, the plaintiff was entitled to his costs. The plaintiff entrusted goods to the defendants as carriers, consigned to intending pur- chasers. Before the goods were delivered or claimed, the plaintiff discovered that the consignees were insolvent, and as an unpaid vendor gave notice to the defendants not to deliver the goods to the con- signees, but to hold them to the defendants order ; and before they were delivered, the plaintiff required the defendants to re-deliver them to him, which they refused to do ; but delivered them to the consignees, who absconded and never paid for them. The plaintiff claimed £12 16s. (id., which was paid by the defendants into Court, and was taken out by the plaintiffs in satisfaction. An action claiming the Bryant v, return of a picture, or its value, and damages for its detention, is an action founded on tort: Bryant v, Herbert, 3 C. P. D, 389. If an action is referred by Costs on a consent to an arbitrator upon the terms that the 126 COSTS GENERALLY. costs of the cause shall abide the event, but the costs of the award shall be in the discretion of the arbitrator ; if he decides in favour of the plaintiff he can give him the costs of the reference and award, though he is deprived of his costs of the action under Cases. the County Court Act: Galatti v. Wakefield, 4 Ex. D. 249. Where an action is referred by consent, the costs to abide the event ; the plaintiff recovering less than £20 in contract, does not obtain costs without an order : Fcrgusson v. Davison, 51 L. J. E. Q. B. 266. \\here Where difficulties a^enerally arise, is when the amount re- ... duced by amount recovered by the plaintiff is reduced by the daim^^' amouut recovered by the defendant upon his counter- claim to a sum which brings it apparently under the County Court Acts ; and these difficulties are further complicated if they arise out of a reference, as then the exact terms of the reference and of the finding have to be carefully considered. See Loive v. Holme, 31 W R 400. Action and Thus, in Stoolce v. Taylor, 5 Q. B. D. 569, to claim re- which the reader is referred, the Court was divided, ferred to This was an action for more than £50, to Avbich there arbitrator was a counterclaim, which was referred by consent upon the terms that the costs of the action should abide the event of the award, and that the costs of the reference and the award should be in the dis- Stool-e V. cretiou of the arbitrator. The arbitrator found for the plaintiff for £00 and for the defendant for £20. Cockburn, C.J. and Manisty, J., held that the pro- vision in the order of reference as to costs, did not alter the rights of the j^arties, and that the plaintiff was entitled to the costs of his claim, and the defendant to his costs of the counterclaim ; but Field, J., was of opinion that the case was governed by the f)rovision as to costs in the order of reference. COSTS GENERALLY. 127 and that the plaintiff was entitled to the costs of the action, and that the defendant was not entitled to any costs. In Cole V. Frith, 4 Ex. D. oOl, an action with claim, defence, and counterclaim, was referred upon the terms " costs of the cause and counterclaim to follow the event, costs of the reference and award, to be in the discretion of the arbitrator." The arbi- trator awarded the plaintiffs iiSTl, and the de- fendants £375, and ordered the plaintiffs to pa}^ to the defendants £4, and the costs of the reference and award. It was held that the plaintiffs were entitled to the costs of the action and the defendants to the costs of the counterclaim. Where an order of re- Where ference is silent as to costs, the Court under Order reference LV., may refuse an application for costs in favour of ^^ ^^^^^^ ^^ the party in whose favour the reference was decided : Wihnshitrst, Holloch and Co. v. Barroiu Shipbuild- ing Co., 2 Q. B. D. 335. But perhaps it may be advantageous to consider Costs of further the costs of a counterclaim. Difficulties as counter- to the apportionment of costs often arise with re- c^^^^' 1 . n • 111 where both lerence to counterclaims, as tor instance, where both dismissed the claim and the counterclaim are dismissed with ^^^*^ '^'^^^^' costs. Here the plaintiff pays the defendant the general costs of the action, and the defendant pays the plaintiff only the amount by which the costs have been increased by reason of the counterclaim : Mason V. Brentini, 15 Ch. D. 287. Where, by reason of a defendant gaining on his Potter v. counterclaim, the claim of a i^laintiff (in an action Q{Chamhers. contract and originally above £50) is reduced below £20, he is not deprived of his costs under the County Court Act, 18G7, sec. 5, because he could not have 128 COSTS GENERALLY. Chatfield v, Sedffivick. County Court Act does not apply to counter- claim. Where balance is in favour of defend- ant. Claim must not be for ficti- got his relief in the County Court : Poticr v. CJtamlcrs, 4 C. P. D. 457. If, however, in such an action, although the plaintiff got a verdict for £10, the defendants succeed upon their counterclaim to the extent of £23, so as to leave a balance in their favour of £7 due to them from the plaintiff; the defendants are entitled to their costs: Chafjiehl v. Sedgivlck, 4 C. P. D. 459. It does not appear that the County Court Act apjjlies to counterclaims ; so where a defendant wins upon his counterclaim £10, though the plaintiff gets £40 on his claim, he is, in the absence of any order as to costs, entitled to the costs of proving it and the issue relating to it : Blake v. Aiiijlcyurd, 3 Ex. D. 195. If a plaintiff's claim is bona fide over £50, but by reason of a counterclaim he fails to recover £20 in an action on contract, he is entitled both to the general costs of the action and also to his costs of the issues upon which he succeeds, while the defendant is in like manner entitled to the costs of the issues upon wdiich he succeeds. In fact, the general costs follow the judgment, but the costs of the particular issues must be respectively taxed in favour of the party who has succeeded on them. (This is the effect of cases collected " in Andrews and Stoney's Jud. Acts, at p. 242, in nearly their own w^ords, and the reader is referred there for many other isolated cases upon the subject). Order XXIL, r. 10, says that where there is a counterclaim, if the balance is in favour of the defendant {i.e., upon the hearing of the action) — Rolfe v. Maclaren, 3 Ch. D. 106, — the Court may give him judgment, or such other relief as he may be entitled to on the merits. It may be noticed that a claim must not be made for a fictitious amount so as to get costs and take COSTS GENERALLY. 129 the case out of the County Court Act: Ghatjleld v. tious Sedgwick, ante, and also that when the case does ^™*^™^.g " not fall under any of the rules given above, and difficulties appear likely to arise, a special order as to costs should be asked for at the time. Then the discretion of the judge seems to be almost absolute, although in the case of Collins v. Welsh, 5 C. P. D. Collins v. 27, the reasons given by the Divisional Court and the Court of Appeal were not the same, although the result was. The facts of that case were these as given in the head note : — At the trial of an action of tort the jury found for the plaintiff for £12; the counsel for defendant was about to apply to deprive plaintiff of costs, when before he did so, the judge made that order, although the plaintiff's counsel objected. Grove and Lopes, J.J., held that the judge might, under Order LV., make the order without any application being made to him ; and the Court of Appeal held that what occurred at the trial was equivalent to an application by the defendant, and to showing good cause why the order depriving the plaintiff of his costs should be made. In the Chancery Division, too, in the case of an Unneces- unnecessary application to the Court, the successful cation m ^ party mav not only be deprived of his costs, but t;hancery 1 " r.11 -1 TT^ Division. made to pay those of the other side. In Fane v. Fane, 13 Ch. D. 228, the plaintiff was held to be entitled to judgment for the execution of the trusts of a settlement against the surviving trustee of which settlement he had made, but abandoned at the trial, charges of breach of trust, and for whose removal he had wrongly asked ; but as the action was unnecessary he was made to pay the costs of it up to and including trial. g3 130 COSTS GENERALLY. Money When a plaintiff takes out money paid into Court n?ii(l into V X Court and confesses the defence under Order XX., r. 8, if taken out. ^^^^ entitled to costs under this rule, he may be under Order LV.; or if the amount is small, under the County Courts Act. Power to Aofain, a iudofe has power to order costs upon the order costs o ' j o i x on higher higher scale under Rules of the Supreme Court scale. (costs) Order VI., r. 3, in the case of the whole or any part of an action which would otherwise come under the lower scale set out in the schedule to that order. Jessel, M.E., did so in an action on a bill of exchange which was proj)erly brought in the Pooleyy. Chancery Division ; Pooley v. Driver, 5 Ch. D. 494 ; but the authority to allow costs on the higher or lower scale as he may think fit cannot be delegated by a judge to the taxing master {Coriicine Floor Go. V. Jidl, 27 W. E. 373.) As an instance of a late case in which the lower scale only was allowed, Chapman v. Midland Ry. Co., 5 Q. B. D. 431, may be referred to. Where Under Order VI., r. 2 (costs), the higher scale may higher , . ... scale may be charged in all actions for special injunctions, be charged, ^j^gj-g procuring such injunctions is the principal relief sought, and in all cases other than those to which the lower scale is thereby made applicable. The case above referred to was an action for trespass, and in addition to damages for the trespass, an in- junction was obtained. The Court of Appeal, how- ever, held that this was not the kind of injunction referred to in rule 2. •Costs, In the Duhe of Norfolk v. Arbuthnot, 50 L. J. Order VI. 334^ -^ ^^,^^ j^^lj ^Ymt though rule 2 does not apply to the Chancery Division alone but to all actions, yet that in that case, notwithstanding that the trial had lasted a long time, and the evidence had been volu- COSTS GENERALLY. 131 minous, costs on the higher scale could not be allowed. An injunction to carry costs on the higher scale must be to restrain an injury to the soil : see Gooclhand v. Ayscough, 10 Q. B. D. 71. From the foregoing observations it will be seen that the discretion of the judge is almost unlimited, and that he will exercise it not only when asked to do so, but of his own accord. Indeed, the tendency of the courts has been to repress in every way unne- cessary expense. For example in Slach v. The Mid- Courts dis- C01.11'9)GfG land Ry. Co., 50 L. J. R. Ch. 196, the costs of an uuneces- inquiry were reserved in order to keep the control ^^^^ ®^* . . . 7-, . pense. over undue expense with the judge ; and in Frit2 v. Hohson, 14 Ch. D. 542, it was distinctly stated that in every order of the Court, liberty to apply is implied, so that an application as to costs may be made ; as, for instance, when a motion for an interim injunction was adjourned to the trial, and no costs were at the trial asked for in respect of it. Where a notice of appeal is given, but the appeal Costs of is not put in the paper by the party giving the motion, notice, the other party ought not to appear, but may make a substantive application for the costs of his motion : Wehh v. Mansel, 2 Q. B. D. 117. This tendency to repress expense has been shown Tendency as against solicitors in two late cases. From what expense." the Master of the Rolls said, In re Grundy, Ker- shmu S Co., 50 L. J. Ch, 467, it appears, that if on a party and party taxation, wliere the party taking the taxation jxays the costs, the solicitor, whose bill is beinsT taxed, delivers an exorbitant one to increase the costs of taxation, the Court can not only deprive the solicitor of sucli costs, but also make him jmy the costs of taxation. The other case is Mlldmay v. Quicke, Ch. D. Mlhlmayy. '^ Qittcke, 132 COSTS GENERALLY. 553, where the solicitors of a manied woman in an action obtained a charging order, and afterwards a stop order. Having been served with the minutes of order, on furtlier consideration, they appeared by counsel, and asked for their costs of obtaining the stop order and their appearance at the further hear- ing. Both were refused. C!o>*ts of It was not decided till the end of 1880 {Brovm uf'cW°" V. Sewell, IG Ch. D. 517), that when an order merits. is made in an action in the Chancery Division for the production of documents at the office of the producing partj^'s solicitor, that that party, if ultimately successful in the action, is not entitled as between party and party to his solicitor's costs of the production, nor to his own costs of inspecting the documents of the other party. Upon a A good case illustrating what costs will be allowed wuir ° when a notice of withdrawal is allowed, is Harrison drawai. y. Lentnev, 50 L. J. Ch. D. 264, which shows that the test is whether the time for doing the work charged had arrived, and that the Judicature Acts had not altered the practice in this respect. Objections Any party dissatisfied with the allowances of the ance of^ taxing master, makes an objection in writing to his taxing certificate, stating the items to which he objects, but not his reasons for so doing. Then the master reviews his taxation, and may receive further evi- dence ; and if he refuses to entertain the objections, he states the reasons for his refusal. An application to a judge may be made to review any items which have been thus objected to but no other ; yet sections Sees. 30 & 30 & 32 (costs), the authority for these propositions, 32, costs. ^^ ^^^^ apply, where the general principle of the taxation is challenged. Sparroiu v. Hill, 7 Q. P. D. 862, which apply only where specific objections are COSTS GENERALLY. 138 made to particulai- items. This point was not touched upon when this case came before the Court of Appeal, 8 Q. B. D. 479. The time for taxation of costs is the termination of Time for the action ; but where the Court of Appeal has given costs in an interlocutory appeal in the ordinary way, *' the judgment of the Court below to be reversed with costs of this appeal and of the proceedings in the Court below," the party to whom they are ordered to be paid is entitled to have them taxed and paid forthwith : Phillipps v. Pliillijrps, 5 Q. B. D. 60. Payment of costs will not be stayed pending an Ai)peal t*. appeal to the House of Lords if the solicitors to wliom they are payable give their personal undertaking to refund them if the order is reversed, and payment will not be stayed on the ground that another pro- ceeding in the same action is pending, upon which costs may become payable to the applicant : Grant v. Banque Franco-Egypt ieniic, 3 C. P. D. 202 ; Morgan V. Elford, 4 Ch. D. 888. Though in the case of a party entitled to receive Set-off. costs, but liable to pay some to the other party, the taxing-master may adjust them by way of set-ofi", yet such set-off is strictly limited to costs due to either party in respect of the same action, and cannot be enforced in respect of the costs of any separate pro- ceedings between the same parties : Barker v. Hem- ming, 5 Q. B. D. 009. With regard to the costs of third parties, if anC'<«t3of order has been made that a third party shall pay the parses, costs of interlocutory proceedings taken to bring him before the Court, and yet by the judgment he is dis- missed with costs, to be paid by the defendants, the Court cannot annul this order: Begnon v. Goddeii, 134 COSTS GENERALLY. Hornby v. CanhveU. Adjourn- ment for parties to be added. Where un- necessary parties served. Security for costs when ordered. 4 Ex. D, 24G. But a party bringing in a third party can be ordered to pay his costs : Dawson v. Shepherd, 49 L. J. Ex. 548, exj^laining Yorkshire Wagon Co. V. Neiupovt and Ahercorne Coal Co., 5 Q. B. D. 2G8. It may, jDerhaps, be taken generally from the above cases (subject, however, to Hornby v. Cardtoell, 8 Q. B. T>. 329, from which it would appear that a third party can be ordered to j^ay the plaintiff's costs), that the only discretion as to the costs of third parties that the Court has, is to impose them or not upon the party coming in, and in certain cases to make the party bringing him in pay his costs. But before the case last cited, the third j)arty could not get his costs out of the plaintiff; but the j)lainti£f can out of him : Piller V. Roberts, 21 Ch. D. 198. When the hearing of an action is adjourned for parties to be added, the party applying must pay not only the costs of the day, but also all costs occasioned by the action having been in the paper : Lydall v. Martinson, 5 Ch. D. 780. If, in a motion for judgment against one of two defendants for default in pleading, the other be served with the notice of motion, he will be entitled to his costs if he attend at the hearing, such costs to be paid by the iDlaintifF: Read v. Bailey, Fry, J., Dec. 1st, 1882 (1881, R. No. 1581). See, however. Ex parte Webster, In re Morris, 22 Ch. D. 13G, and Ex parte Izard, In re Moir, 20 Ch. D. 704. A few words as to security for costs will, perhaps, be expected in this place. Security will be ordered, though the matter is one of discretion, in the case of the insolvency or liquidation of the j^laintifF, and in the case of a suit by a foreign government, but not of a foreign plaintiff if actually in England at the time of the application ; but a defendant, though out of COSTS GENERALLY. 135 the jurisdiction, cannot be ordered to give security, even though he sets up a counterclaim overriding the plaintiff's claim in the action. And the Court has had discretion to allow a mar- ried woman to sue alone or with a next friend, and with or without giving security, and to direct a next friend to give security at any time. If a married woman is suing alone she must give security if she has no available means to pay the costs if she loses, but not where she has such means : Brown v. North, 9 Q. B. D. 52, C. A. Under the Married Women's Property Act, 1882, a woman can sue, though mar- ried, as if she were a feme sole. When, however, Ameud- the plaintiffs set up amendments which really raise ^^by ^^ a fresh case, security will be ordered : Northmwpton plaintiff. Goal, Iron and Wagon Co. v. Midland Wa TN T r ciple not as peal lies : City of Manchester, 5 P. D. 221. If a an act of judge is wrong in point of law, an appeal lies to the ^^i^'^^'^ti""- Court of Ap23eal: MandersY. Lancashire and York- hire Ry. Co., 7 Q. B. D. G4. Where a plaintiff had obtained a verdict in an New trial action, and a new trial had been refused by the Divi- ^ourt^of ^"^ sional Court, but allowed by the Court of Appeal, Appeal which Court also ordered the j^laintiff to pay the costs of the application ; upon his failure to do so it was held b}^ Mathew and Cave, J.J., in Morton v. Palmer, 9 Q. B. D. 90, that the defendant was not entitled to an order to stay the proceedings until the costs were paid. Where an application is made against a solicitor, Applica- either to strike him off the roll or to show cause why ao-ainst he should not answer the matters of an affidavit, the solicitors, same rules as to costs apply as in other cases, and an improper application is punished by the applicant having to pay the costs of it. Moreover, where the Incorporated Law Society Law have been requested to intervene unnecessarily, their costs. '^ costs, also, may be ordered to be paid by the appli- cant : In the matter of Mr. A. S. Jonas, Solicitors' Journal, p. 5G, Nov. 25, 1882. As to the costs of a mortgage, see Ex parte Firth, Costs of In re Coivhurn, 19 Ch. D. 427, which explains the ° ° ' reason of the usual undertaking by the intended borrower's solicitor to pay expenses. 138 CHAPTER XVII. TAXATION OF COSTS. The 37th section of the Solicitors Act, 1843, which prevents a sohcitor from commencing an action for his costs until one month after he has delivered a signed bill, is given at lengi:h in an Appendix to this Bill must book ; and with reference to that section it must be be for sou- . , , , i -n t t t ^ citor's premised that the bill to be liable to taxation must costs. i^g £qj, ^]-^g ordinary work of a solicitor done by a duly qualified solicitor. Thus, where a solicitor was Election- employed as an electioneering agent, his bill was agent ^i^l^l not to be liable to taxation : Re Oliver, 15 W. R. 331; see also In re Pao^ker, 21 Ch. D. 408. Steward of The fees of the steward of a manor who is a solicitor, but who has acted in the character of steward only, are not taxable : In re Ward, 5 Beav. 401. Where a solicitor, w^ho was appointed return- ing officer for the election of a School Board, under the Elementary Education Act, 1870, sent in the bill of his charges in the usual form of a solicitor's bill, including both the election charges proper, and also those for attendance at the Board after the elec- tion was over : Lord Romilly, M.R., In re Jones, L. R. 13 Eq. 338, said that as he had constituted himself the solicitor to the School Board, his bill was taxable. It would appear from the arguments TAXATION OF COSTS. 139 in that case that the Court has no jurisdiction over the performance of any duties but those of a sohcitor, and that if the solicitor had then charged a lump sum, and had not constituted himself the solicitor to the Board his bill would not have been taxable. As a London agent is employed by a solicitor in Eill of the country, solely because he is a solicitor, he is agent, bound to deliver his bill for such agency, and liable to have it taxed ; for such bill is for business done by a solicitor in respect of an employment in his professional character as such. The taxing master, Tor non- , , , .„ p . 11' . litigious when the bill was lor conveyancing and business not businesg done in Court, was obliged to ascertain the proper amount of remuneration, as well as he could, accord- ing to the contract between the parties, express or implied : Smith v. Dimes, 4 Exch. 40; but, now, see Solicitor's Kemuneration Act, 1881, and rules in Appendix, pp. 215, et seq. Where a married woman employs a solicitor and Married 11 Till xi 1 i. woman makes her sej)arate estate liable, she was, tnougii not employing personally liable, a party chargeable under this solicitor, section: Waugli v. Waddell, IG Beav. 521. And probably the Married Woman's Property Act, 1882, now makes her liable as well. Under the common order for taxation, an account has not to be taken of the pecuniary matters between the parties, which are foreign to the bill of costs ; except where monies are paid on account of the bill of costs, or where, by agreement, the monies which come to the hands of the solicitor, are to be appli- cable to the payment of the bill : Jones v. James, 1 Beav. 307. If a solicitor refuses to produce his bill it is pre- Solicitor sumed to be taxable : In re Lovfjhhovov (jh , 23 Beav. produce his bill. 140 TAXATION OF COSTS. Time for bringing action for costs. Calendar month. 439 ; and the bill should be delivered, aud not merely sliown to the party chargeable. The month, until the expiration of which, no action in respect of a .solicitors's bill can be brought, was under the Act, 2 Geo. II., c. 23, s. 23, which was replaced by the 37th section of the Solicitors Act of 1843, a lunar month ; but it is expressly enacted by section 48 of the same Act that the word month in this Act means calendar month. And Blunt v. Heslop, 8 A. & E. 581, is an authority that under the old Act no action could be brought until after twenty-eight da3's and so many hours over, as there might happen to have been of the day on which the bill was delivered, after such delivery. The words of the section in both Acts are similar, "until the expiration of one month ; " but in the older Act the words " or more " follow. In the later Act, these words "or more" are excluded, and whereas Blunt V. Heslop is a direct authority that a lunar month is intended in the older Act, the Act of 1843 itself says that a calendar month is meant by that enact- ment. This being so, it is arguable whether the month must now be calculated exclusively of the days on which tlie bill is delivered and the action brought, as it had to be under the older Act. Messrs. Morgan and Wurtzburg (2nd. ed. p. 428) state posi- tively that it is to be so calculated, relying, probably, upon Engleheart v. Moore, 15 M. & W. 548, which decides that the Act is to be construed liberally for the client. If the bill has been properly delivered after the ^e ivery o j^^j^^]^ j^^g elapsed, the solicitor, or his representa- tive, or the party chargeable can get the bill taxed • and the solicitor can choose any method of delivery prescribed by the Act in delivering the bill to the Mode of TAXATION OF COSTS. 141 party chargeable, or an agent authorised to receive it ; or in the alternative by sending it by the post to, or leaving it for liini at his counting house or last known place of abode. Parke, B., says in Macgregor Delivery of v. Keibj, 3 Ex. 797, that having selected his mode f.jj^p';;";*^. of delivery the solicitor must prove to the satisfac- tion of the juiy an actual delivery by himself, or his agent, or some one authorised by him ; and he has to satisfy them that the bill reached the party chargeable. In that case the bill was delivered to a What cou- man servant ; this was evidence of a delivery of the delivery, bill to the party chargeable, and the onus was then upon that party to shoAV that he had not received it. The solicitor, or his representative, must, however, prove, unless any informality is waived, that it was signed with the proper hand of the solicitor, or, in the case of a partnership, by one of the partners, or Must be o 1 1 • • , i • ft signed by 01 tire executor, admniistrator or assignee oi such solicitor, solicitor, or that it was accompanied by a letter so subscribed. Whether in the flap of the envelope " with compliments " and the name is sufficient, has never been decided. Although such an enclosure does not comply with the letter of the Act, it appears to satisfy its spirit. " With compliments " and the initials of the firm would not satisfy the requirements of the Act: see Penley v. Anstntther, W. N. 1883, 48. A judge's order must be obtained for the deliver}'^ Order for of a bill, and this is obtained by summons at bm?*^^ chambers. Afterwards a four day order to enforce the order previously made is a usual course to adopt. This order is as of course, and upon it there is no argument as to the propriety of the original order ; and the order and the common order to tax Enforced may be enforced by attachment : In re Gregg ; In re ij^^^t^ Prance, L. R. 9 Eq. 141, Avhich is also an authority service. 142 TAXATION OF COSTS. that an order for delivery improperly endorsed may be properly endorsed and served again. In ex parte Alcoch, 1 C. P. D. G8, the rule for attachment was Where made absolute without an affidavit of personal service waiver of , , . „ , personal when the argumg ot the rule had been put off by consent ; upon the principle that the appearance of counsel, and his consenting to the rule being enlarged, was a waiver of personal service. In re Dendy, 21 Beav. 565, on payment of the costs of the motion the solicitor had further time for delivering his bill. After a bill has been delivered it cannot be altered, although the party chargeable send back the bill with suggested alterations which are partially acqui- esced in. James, L.J., In re Heather, L. H. 5 Ch. 697, shows the danger of allowing alterations. He puts the case of the client through his new solicitor, saying, " I have looked through the bill, and I find many improper charges in it ; but if j'ou are satisfied to take so much in full payment, I will advise my client to pay that sum, and not to have the bill taxed." And the solicitor, saying to himself : " If I can so alter the bill as just to avoid taxation, I will do so. I know now what objections will be made. I cannot sustain all the charges of the original bill, but I am sure of the amount offered. I will put on so much more as will leave me safe against the costs of taxation ; and if it is attempted, I shall have the profit of conducting the business." Special circumstances, however, such as fraud or mistake, may enable a solicitor to avoid taxa- tion of a bill by withdrawing it, and delivering an amended bill : In re Holroyd and Smith, W. N. 6, 1881. Taxation is not the only way in which a client TAXATION OF COSTS. 143 is entitled to protect himself. In an ordinary case a judge and jury would not go through the items of a solicitor's bill ; but if a solicitor Solicitor proving in tenders a proof in the bankruptcy of his client in bank- respect of his bill, the registrar can determine [^"f ]^^ii °^ the amount due to him, taking assistance if he thinks necessary, and the solicitor cannot insist Cannot on taxation : Ex parte Ditton In re Woods, 13 Ch. ["J^ti^" D. 320. No account stated, or admission by the client, Srooks v. defeats the provisions of the statute, and dispenses with taxation : Lord Deuman in Brooks v. Bockett, 9 Q. B. 857. Before the statutory enactments as to taxing bills Jm-isdic- of costs, a bill for an account and taxation by a client ^°^-^^ against his solicitor could be maintained in equity, and the jurisdiction was not taken away by those enactments. Such a bill could not, however, be maintained by a person out of whose estate such a bill was to be paid, where a solicitor had not been employed by himself: In re Spencer; Spencer v. Hart, W. N. 170, 1881. A solicitor may sue on a promissory note given on May sus account of his costs before deliverincj his bill : Jeffreys °° pi'omis- o M u gory note V. Evans, 14 M. & W. 210. given for Pending a reference for taxation against a married ^° '''* woman, the solicitor could not maintain a suit to enforce a lien for his bill of costs on her separate estate: Waiigli v. Waddell, IG Beav. 521. When a sum is found due from a solicitor on Costs of taxation, he will be ordered to pay all the costs of the proceedings to compel payment, as, for instance, of substituted service of a copy of the certificate of the taxing master, a motion for a 144 TAXATION OF COSTS. short order for payment, and delivery up of deeds and papers, and al?.o all the subsequent costs : In re Diifaur and BlaJceney, IG Beav. 114 ; In re Bamhrigge, 13 Beav. 108, and 14 Beav, 645. Where _ As to the time at which a motion should be made ^j,jgj. that the taxing master be directed to tax the bill in time. a particular way, see In re Tibhitts, a solicitor, W. N. 168, 1881. Atten- A solicitor cannot object to items in his oppo- letter ^ nent's bill at a taxation by writing to the taxing master. He must attend : In re Upperton, 30 W. K 840. Person not "Where a person not a party to the order is dis- satisfied^' Satisfied with a taxation he should apply to discharge the order for taxation : Charlton v. Charlton, 31 W. E. 237. Uo CHAPTER XVIII. TAXATIOX BETWEEX SOLICITOR AND CLIENT. Party and party costs are such only as were neces- Party and sary to enable the party entitled to them to conduct the litigation, in respect of which they have been incurred, successfully. These are the costs to which he is entitled upon a simple order for taxation of costs, even though, according to the practice of the Court, he would from his position (i.e., as a trustee) be entitled to costs as between solicitor and client. The decree should specify that costs are to be so taxed, or that any special expenses are to be allowed whenever anything but party and party costs are to be given. Besides party and party costs and solicitor Costs of and client costs, there is a third method of taxation, ^^^^.j^j^j^^f namely, that by which there is allowed besides costs appeal, of suit all other costs, charges and expenses properly incurred. Tliis is for the most part given to trustees, executors and administrators in tlie execution of their trust or the administration of their estate. These are not, strictly speaking, costs, and therefore the order giving or refusing them is subject to appeal : In re ChenneU, Jones v. Chennell, cS Ch. D. 502. In CoMiirn v. Edwards, 18 Ch. D. 4.59, Jessel, Solicitor M.R., says : " I am of opinion that it is not according costs not to law to give to a party by way of dan^ages the costs ^^^^'^ ^'* H ' ''"'*°^' 146 TAXATION BETWEEN SOLICITOK AND CLIENT, as between solicitor and client of the litigation in which the damages are recovered." And Brett, L.J. added : " The damages in an action of tort must have been incurred when the action is brought, except in some cases where they include everything up to the time of trial, and they cannot include any expenses incurred in the action itself The law considers the extra costs which are disallowed on taxation between party and party, as a luxury for which the other party ought in no case to be liable, and they cannot be allowed by way of damages." Equity Sir R. Malins, V.-C, in Turner v. Collins, L. R. practice. ^^ Eq. 440, says that it is not the course of the Court to give other than party and party costs in dismissing a bill, except where the parties are in a fiduciary position, or where there is something in the nature of scandal, such as gross charges of fraud which are not sustained. When soli- Where there was a fiduciary relation between the client parties, solicitor and client costs were given in costs Mordue v. Palmer, L. R. 6 Ch. 22. gj^^ In Kevan v. Crawford, G Ch. D. 35, the plaintiff alone was ordered by the Vice-Chancellor of the Palatinate arges. Qqj^|j.|, ^0 pay SO much of the costs of the suit as had been occasioned by charges of immorality against the defendants, Mr. and Mrs. Crawford, between solicitor and client, and this decree was upheld on appeal. Of gifts to Where there is a fund about which the con- tention is whether it has been given to charity or not the costs of all parties have been given between solicitor and client, but in Wilkinson v. Barber, L. R. 14 Ex. 99, Lord Romilly, M.R., said that he kncAv of no rule that this should be so, and that he could not act upon it. Carter v. Green, 8 K. & J. 591j was quoted in the argument in favour of the charities. TAXATION BETWEEN SOLICITOR AND CLIENT. 147 existence of such rule. In Attorney-General y.'^^'P^y^^^ Vm but the Steiuart, L. R. 14 Eq. 25, Malms, V.-C, gave the custom. Caledonian Asylum and the Attorney-General their costs as between solicitor and client out of the fund, though he dismissed the petition without costs. In the case of a relator in a charity information Relator's wlio has obtained a decree, although he has beea ^ * ^* allowed his costs, charges, and expenses of, incidental, and even preparatory to the cause itself, he ought only to be allowed his costs of the cause as between solicitor and client ; and to be paid the difference between the amount thereof and that portion recovered from the defendants out of the charity estate. The extra costs of a charity information, instituted in respect of one only of several gifts belonging to the charity, should, in the first instance at least, fall on the property which is the subject of the informa- tion. It may happen that justice to the relator, and even the interest of the charit}^, might require a different provision which would be made when the circumstances require it, but not otherwise. Lord Langdale in the Attorney-General v. Kerr, 4 Beav, 803 tfe 304. In administration suits, too, costs as In admim- between solicitor and client are given in the following su^it.s^°^ cases. The costs of the heir-at-law, where the real Cos^s of estate had been exhausted by creditors, were given i^^^'^^''" as between solicitor and client, upon the principle of his being in the position of a trustee in Tardrew v. TIoivcU, Sldtler v. Shitler, 4 ]^. R 485. But ia James v. James, 11 Beav. 397, we find the general statement that the heir-at-law is only allowed costs as between solicitor and client in charity cases, and where he is a trustee. Also the costs of a plaintiff in a legatee's action on behalf of himself and all H 2 148 TAXATION BETWEEN SOLICITOR AND CLIENT. Of plaintiff other the legatees where there was a surplus after action! ^^ ^ ^^^ payment of the creditors, although there was not enough to pay the legacies in full, were given as between solicitor and client in Cross v. Ken- nington, 11 Beav. 89. The Master of the Rolls said that if the assets were deficient, the plaintiff was entitled to costs between solicitor and client ; and he ordered the master to tax the costs of the plaintiff and one defendant between solicitor and client including the costs, charges, and expenses properly incurred in certain sales and in making out the bill, and directed the amount to be paid out of the fund in Court ; and he further directed the master to apportion the residue among the plaintiff and the other legatees mentioned in the master's report. See also 18 Beavan 216. The rule as to costs in a creditor's suit to administer the realty, where there was no personalty, and the realty was deficient is clearly laid down by Kindersley, V.-C, in Henderson v. Dodds, L. R. 2 Eq. 533, and has been subsequently approved and followed. The plaintiff's costs are taxed between party and party, and not as between solicitor and client. The plaintiffs and the defendants, the beneficial devisees, have their costs as between party and party pari passu out of the fund, and any surplus of the fund has to be paid to creditors towards satisfaction of their debts. If such surplus is insufficient to pay the debts in full, the plaintiffs are entitled as between themselves and other creditors to have their extra costs as between solicitor and client out of such surplus. In re Richardson, Richardson v. Rich- ardson, 14 Ch. D. 612, Jessel, M. R., referring to Thomas v. Jones, 1 De Gex & Smale, 134, says that Costs in creditors iidmini- stration suit. In re Richard- son. TAXATION BETWEEN SOLICITOR AND CLIENT. 149 the principle was well laid down tliere by V.-C. Kindersley, that where the fund administered is a creditors' fund, it is extremely unreasonable that the general body of creditors should take advantage of the exertions of the particular creditor through whose instrumentality the fund has been recovered without paying all his costs. In this case the estate being insolvent, the creditors who had the conduct of an administration action against the sole next-of- kin had their costs as between solicitor and client. The rule therefore, shortly is — a creditor Avho brings Rule an action on behalf of himself, and all other creditors for the administration of an estate which turns out to be insufficient to pay debts is entitled to solicitor and client costs, as is also a creditor who obtains the conduct of an action originally commenced by a legatee or next-of-kin. The Court may direct an unsuccessful party to Trustee's pay the costs of a trustee as between solicitor and where client when there is not any fund out of which they f^^^f ^^ °" may be paid : Turner v. Collins, L. K 12 Eq. 438. In Poole V. Pass, 1 Beav. 604, the master was ordered to tax the defendant his costs of the suit as between solicitor and client, and to tax him his charges and expenses properly incurred to be paid by the plaintiff. Lord Longdale, M. R., remarking, that no trustee would be safe unless such costs were allowed. A trustee is not only entitled to his costs between Trustee's solicitor and client, but also to his charges and and ex- expenses. He has a lien for them on the trust fund, P^nses. and he is only deprived of them in a singular and extraordinary case : In re Chennell Jones v. Chcnnell, ' 8 Ch. D. 502. The same rule applies to executors, and admiuis- Exeeutors 150 TAXATION BETWEEN SOLICITOR AND CLIENT. and acl- ministra- tors. Who may attend. Sharp V. Lush. In suit by next-of-kin or legatees where estate is insuffi- cient. Cost of next friend. trators as to the kind of costs to which they are in the absence of misconduct entitled. But it is de- termined by the Judge in Chambers, who under a general order shall attend the taking of the accounts at the cost of the estate. As a rule one solicitor has leave to attend on one side, and one on the other When the residuary legatees come in, one solicitor takes the accounts for them on one side, and one solicitor takes the accounts for the executors on the other : Sharp v. Lush, 10 Ch. D. 474. The costs of a residuary legatee in a suit for administering an in- sufficient estate were allowed as between solicitor and client: In re Burrell, L. R. 9 Eq. 443; but the rule is that in a next-of-kin's suit, or in a legatee's suit, where the estate is insufficient for payment of debts, the plaintiff is not entitled to solicitor and client costs : In re Richardson Richardson v. Rich- ardson, 14 Ch. D. 613 Other cases in which solicitor and client costs are frequently allowed are a next friend's costs. In Palmer v. Jones, 22 W. R. 909, costs, charges, and expenses of a next friend properly incurred before suit, relative to its institution, were also ordered to be paid out of a fund recovered by the suit. The costs of a plaintiff on a motion to commit the defendant for the breach of an undertaking, embodied in an order where the circumstances of the case would justify an order for committal which was not pressed for, were ordered by Jessel, M. R., n Steele v. Hutchins (1879, W. N. 18) to be paid as between solicitor and client. Where a solicitor takes proceedings though un- authorised ; see ante, page 30, and Nurse v. Diirn- forcl, 13 Ch. D. 964. There are also certain Acts under which such costs are given; viz., the Patent TAXATION BETWEEN SOLICITOR AND CLIENT, 151 Law Amendment Act, 1852, s. 43, which is explained ^''^^^'^^j,.^ by Lord Hatherley, in Penn v. Bibhy, Penn v. Jack, s. 43. Penn v. Fernie, L. R. 3 Eq. 311, 312. This section in suits for means that where, when a second trial for an in- nient of fringement of a patent takes place, the certificate by patents, the judge of the first action is produced in evidence on the second trial, the full costs, charges, and expenses as between solicitor and client are given the plaintifi" on obtaining a decree upon such second trial, unless the judge certify that he ought not to have such full costs ; and such extra costs are given to afford a full indemnity. These costs are costs of the second trial only, and the section does not apply to the costs of the first trial. The Merchandise Marks Act, 18G2, 25 & 26 Vict. Merchan- . , case Mark 0. 88, s. 23, also gives similar costs. Act, 1862, Three late cases affect the subject of solicitor and ^' ~'^* client costs : In re Emanuel, 9 Q. B. D. 408, decides that a solicitor can recover charges other than those specified in the scale (38 & 39 Vict. c. 50, s. 8), in actions in the County Court under £20, for work Actions in done out of Court before and after the commence- Cou"t'^ ment of an action. This applies of course to solicitor "nder £20. and client costs to be paid by his own client. In re Worth, 18 Ch. D. 521, shows that costs as Taxation between solicitor and client in a County Court admini^- ° administration action may bo taxed in the Chancery stratiou -r,^. . . action in Division. County In re Chapman, 10 Q. B. D. 54, C. A., it was ^'""'^t- decided that the costs of counsel for attending counsel judges' chambers would not be allowed even be- -i-ttendinj,' . . . . . judges tween solicitor and client, without their allowance chambers, being mentioned in the order made by the judge upon the hearing of the summons. 152 CHAPTER XIX. WHERE TAXING MASTER'S OPINION FINAL. The taxing master's opinion is final not only on a question of quantum, but on a question of quoties. For instance, Avhether Ss. ^d. or 6s. 8d. be allowed for an interview ; or whether ten or twelve interviews shall be allowed : Lord Romilly, IM.E., In re Brovm, L. R. 4 £q. 46G. But if there has been a charge of a very exorbitant character, the Court will, even in a question of C[uan- tum, go into detail : Malins, V.-C, Smith v. Buller, L. R. 19 Eq. 474. The question whether costs should be taxed on tlie higher or lower scale is also appealable : In re Ferrell, 31 W. R. 208. Appeals en Tlie Courts set themselves against appeals upon raised°oii qiicstions raised on taxation involving small amounts ; taxation, and in no case will re-taxation be ordered when the overcharge does not amount to £2 in all : Newton v. Boodle, 4 C. B. 359. Where Where, however, a general rule is made by the amount . . o ^ ^^ small. masters, as lor nistance, that copies oi pleadings are not to be allowed on interlocutory applications, it is different. If in any particular case where the taxing- master has inquired into the question, and it is thought that he has come to an erroneous view, even WHERE TAXING MASTER'S OPINION FINAL. 153 if the Court be of a contrary opinion to the master^ it will be very loth indeed to allow the appeal : Brett, L.J., in Warner v. Mosses, 19 Ch. D. 76. If When ' ' .... master has the taxing master has exercised his discretion npon acted on a the facts of the case, and has not merely acted on a ^uie!^'^ general rule, the judge will not, without very strong reasons, differ from the conclusion of the taxing master: Midland Railway Co. v. Broivn, 10 Hare, App. 44; Kirkwood v. Webster, 9 Ch. D. 241, Fry, J. In Sparroio v. Hill, 8 Q. B. D. 481, Brett, L.J., Master . 1T1TJ ™^ist make says: — "I agree with Bramwell, L.J., and i should a gross have allowed something more to the defendant than ^i^t^^^s- the master has done ; but in this he has not done anything so wrong that we should interfere." On the taxation of the costs of a petition under the Matters in the lURiS" Parliamentary Elections Act, 18G8 (31 & 32 Vie. ter's dis- c. 125), the number of witnesses to be allowed, the ^retion. lengths of the briefs and proofs, the number of counsel, and the amount of fees, together with the incidental expenses of the trial, are matters in the master's discretion, subject to the control of the Court, where a proper case is shown for its interference : Tillett V. Straceij, L. K 5 C. P. 185. As to the amount of fees, the master's discretion will not be interfered with unless unreasonable : Hargreavcs v. Scott, 4 C. P. D. 21 ; or mdess a gross mistake has been made : Brown v. Bewell (see 6 Ch. D, below). Grove, J., said in the former case : — " I do "'" * not see that the master has been so wrong as to warrant us in interfering." As a nde the junior Counsers counsel will receive two-thirds the amount allowed allowed, the leader, and two counsel in all but simple cases have generally been allowed, whether both juniors, or one leader and one junior. In Stephens H 3 154 WHERE TAXING MASTER'S OPINION FINAL. V. Lord Xeivhorouyh, 11 Beav. 403, briefs to two counsel in an unopposed motion by a trustee to pay lie- money into Court were allowed. In the Chancery irGSiiGrs Division the fees of counsel on an appeal are generally the same as on the original hearing ; but in Broiun v. ^^ Ch. D. SeumU, the taxing master was held to have the power of allowing a larger fee on the appeal than on the trial. In the Common Law Division, the practice as to refreshers is not quite the same as in Chancery. On both sides in actions with witnesses refreshers are allowed in the case of actions which have taken up more than one entire day for each day afterwards > but where the action is tried on affidavit no refreshers are allowed. Their amount is in the discretion of the master, and depends upon the fee originally marked on the brief and the nature of the case : Harrison v. Wearing, 11 Ch. D. 29G. In Smith v. Daniell, 34 L. T. 897, refreshers were said to be Avithin the discretion of the master. The true rule is stated by Jessel, M.R., in Brown v. Seicell, 16 Ch. D. 520. A taxing master has no discretion to allow refreshers unless the case has occupied more than six hours ; when it has done so then the discretion arises. Term fee. When a casc, the brief of which was delivered in one term, is not reached until another, a refresher is Costs of generally allowed. The costs of brief copies of the oruoteTia 110^,68 in a reference will not be allowed unless by ^reference, agreement: Wells V. Mitcham Gas Co., 4 Ex. D. 1. Garnishee The master can disallow costs of abortive garnishee monses. summonses under Rules of Court, 1875, Costs Order, 6, R. 26; Simmons v. Stover, 14 Ch. D. 156; but his decision can be reviewed. The rule, therefore, is that it lies on the party who impeaches what the master has done, to show that he has done wrong. And the master must liavc made a considerable mis- WHERE TAXING MASTERS OPINION FINAL. 155 take for the Court to interfere where he has acted ^'^^"^jn upon his discretion, and has not acted upon some interfere, supposed rule which was not a correct one. A master must not strike off all the specific What . , , . , . . master items under a particular head without going into must not the separate items, otherwise the matter will be sent back to him : Brett, J., in Tillett v. Stracey, L. E. 5 C. P. 189. Such a consideration (in the absence of any order, or of any agreement by the parties) as that the losing party might have had to pay a sum equivalent to that charged {i.e., for brief copies of shorthand writers* notes) must not weigh with a master, and ought not to be taken into account on determining their liability to these costs : Wells v, Mitchcuii Gas Light Co., 4 Ex. D. 3 ; Kelly, C.B., and Cleasby, B. Rule 29 of Order 0, Rules of the Supreme Court Costs. • O 6 R ''9 (costs)' states what is in the discretion of the ' ' taxing master. It is : — " As to all fees and allow- ances which are discretionary, the same are, unless otherwise provided, to be allowed at the discre- tion of the taxing officer, who, in the exercise of such discretion, is to take into consideration the other fees and allowances to the solicitor and counsel, if any, in respect of the work to which any such allowance applies, the nature and importance of the cause or matter, the amount involved, the interest of the parties, the fund or persons to bear the costs, the general conduct and costs of the proceedings, and all other circum- stances." As to costs of day in bankruptcy, see In re James Bloyce — Solr. J., p. 335, March 17, 1883. But a master must not allow in a taxation between Counsel at solicitor and client the costs of counsel on the hear- Chambers, ing of a summons before the judge in chambers, unless the judge certifies in his order that it is a loG VHERE TAXING MASTER'S OPINION FINAL. Objections to allow- ances on taxation. Applica- tion for order to review. Ilegistrar in bank- ruptcy may go behind allocatur. Evidence to be used upon a review of taxation. proper case for counsel to attend : Tn re Chapman, 10 Q. B. D. 54. And if it is desired to impeach the amount allowed on a counsel's brref, the brief itself should be brought before the Court : T'lllett v. Stmcey. Any party who objects to the allowance on taxation must, before the allocatur is signed, deliver to the other party, and carry in before the taxing officer an objection in writing stating the items to which he objects, but not his reasons : Shniiions v. Stover, l-i Ch. D. 154. Then the taxing officer reviews his taxation on such objection, and he may then receive further evidence ; and, if required, he must state the grounds of his decision and any special facts. Then either party may apply to a judge at chambers for an order to review the taxation as to any item or part of any item which may have been thus objected to, provided it amounts to £2 in all, otherwise the taxing master's allocatur is conclusive. But where charges of improper conduct, as, for instance, that he was a party to an alleged fraud, are made against a solicitor who has had his bill taxed, the registrar in bankruptcy can go behind the allo- catur of the taxing master and investigate the charges : Jessel, M.R., Brett and Holker, L. JJ. ; see Ex parte Harper ; In re Pooley, 20 Ch. D. G87. And it is presumed that the same power exists under similar circumstances ana for similar purposes in any Court, although an exact expression of judicial opinion in so many words cannot be quoted by the writer. The evidence to be used before the judge upon a review of taxation is the same as that used before the taxing master, and no further evidence can be ad- duced unless the judge so directs : Costs 0. 6, R. 33 ; and the objections taken must be the same as those WHERE TAXING MASTER'S OPI.Niv,. ^^^AL. 157 taken before tlie taxing master in the first instance. They must, in fact, be the snbjects of the objections to his certificate : In re Snell, a soUcitor, C. A. 5 Ch. D. 835. If not, they will be too late even if otherwise valid. The taxing master can administer oaths, examine Powers of witnesses, direct production of j^apers and documents, master, and can take accounts. He can also direct what parties are to attend a taxation, and when any party neglects to bring in costs, and thereby prejudices any other party, he can allow him a nominal sum for costs. Taxing masters allow no costs which do not appear to them necessary or proper for the attain- ment of justice, or of defending the rights of the party, or which seem to have been the result of over caution, negligence, or mistake, or to have been incurred by the desire of one party only. But as between solicitor and client it would appear from The Papa de Rossa, 3 P. J). 1G3, that items cannot be disallowed which have been incurred even by the Costs in- negligence of the solicitor, though an action by the thrmio-h client might lie for such negligence against the soli- negligmce citor. They are to allow similar fees to those here- tofore allowed, unless otherwise ordered in the Judicature Act and Rules, and the old practice as to "Rules for xi • n 111 r r I'l taxation. tlie taxation ot costs and allowance oi tees which existed prior to this Act, where not inconsistent to it are to be retained. Therefore all the old rules of the Court of Chancer}^, except so far as they are altered by the rules under the Judicature Act are still binding, at all events in the Chancery Division. Jessel, M.R., in Pringle v. Gloag, 10 Ch. D. G78, i^ringh v. sajs that it is not intended that all the rules of the '""^' Common Law Courts (as to costs) which were some- times in conflict with the rules of the E(pnty Courts 158 Costs, Order VI. r. IS. Costs of unneces- .sary pro- ceeding.?. Power of the Court or taxing master to disallow. WP' xaxing master's opinion final. Direction of Court in .such cases. Scales for taxation. Parlia- mentary business. are now biuding upon the Chancery Division ; but he does not say they are not still binding on the Common Law Division. One of the most stringent rules against unneces- sary proceedings is rule IS (of Order VI. Rules of the Supreme Court, Costs,) which not only gives the Court power in any cause or matter, whether the objection is raised or not, to disallow the costs of unnecessary proceedings, or to direct the taxing master to look into the same and to disallow the costs ; but as a further safeguard gives the taxing- officer power mero motu to look into and disallow the costs of the same ; and also of evidence, although it may have been entered as read in any decree or order, and this power he should exercise : In re Worms- ley, Baincs v. Wovmsley, 47 L. J. Ch. 844, 39 L. T. 85 M. R. Before this he could not do so unless especially directed : In re Farrington, 33 Beav. 3 i6. The direction given by the Court is to look into the papers in the action, and to disallow such parts thereof as seem unnecessary as well as to ascertain the costs thereby caused and to deduct such costs from those payable: Crachudl v. Janson, 11 Ch. Div. 14. Provisions have long been made for the taxation of any items which may occur in a bill of costs upon the scale most proper for such items. Thus under the common order to tax a solicitor's bill in Chan- cery, the taxing masters would heretofore have referred any Common Law costs which occurred in the bill to the taxing master of the Common Law Court if they had any doubts, and a bill for Parlia- mentary business would be taxed upon the scale of Parliamentary allowances : In re Ludlow v. Kingdom, 11 Beav. 401. But it is to be remembered that many bills for what would be generally termed Par- WHERE TAXING MASTER S aPn,. ,, FINAL. 159 liamentary work are not taxed on the Parliamentary scale; as for instance applications to the Board of Trade for provisional orders under the Tramways Act, 1870 : In re Morley, L. E. 20 Eq. 17. In re Ditton, Ex parte Woods, 13 Ch. D. 321, Cotton, L.J., said that the Kegistrar in Bankruptcy, was entitled to deal with the taxation of a bill under the circumstances there narrated " taking the advice of the taxing master." The taxing master ajDj^ears to have uncontrolled Country- discretion as to wdiether a country solicitor may attendimr attend proceedings in London, either in the place of, proceed- or as well as, his London agent : In re Foster, Ex ''" parte Dickens, 8 Ch. D. 598 ; Bell v. Aitkin, L. R. 3 C. P. 320. His costs were not allowed in Clark v. Maljxis, 31 Beav. 554. The Court cannot interfere with the discretion of Court will the master in the absence of anything to show that f^re to he has exercised it improperlv, either as to the review . „ " . 1 • 1 taxation amount of subsistence money for witnesses detanied upon a to give evidence, or the period for which the allow- "jscretion ance is given. Ten shillings a day for eighteen months instances were allowed in Potter v. Rankin, L. R. 5 C. P. 518. "} ^'^'■''^- ' tionary See also Calvert v. Scinde Ry. Co., 18 C. B. N. S. 306. power of The Court will rarely interfere to review a taxa- master, tion upon a matter of discretion only, e.g., additional fees to counsel on additional papers laid before them : Wakefield v. Broivii, L. R. 9 C. P. 410. The Court did not interfere with the master's dis- Commis- cretion in allowing the expenses of sending a barrister to the Canaries as commissioner to examine wit- nesses : Yglesias v. Royal Exchange Assurance Cor- poration, L. R. 5 C. P. 141. A master can allow two counsel in a reference in- Number of IGO a refer- ence. Masters taxing as personse designatae. Costs of inquiry before sheriff. W"' iAXING MASTERS OPINION FINAL. volving a large sum and a long inquiry, and can increase the usual allowance to an arbitrator, though he is a barrister: Sinclair v. G. E. Ry. Co., L. R. 5 C. P. 135. Where masters tax as personse designatse, and not as officers of the Court, the Court has no jurisdiction to review their taxation: Coke's claim, Wraithhy's claim, L. R. 1 Ex. 54. Nor where costs of an inquiry before the sheriff are settled by a master under s. 52 of the Lands Clauses Consolidation Act, 1845 : Oiven v. London and North Western Rij. Co , L. R. 3 Q. B. 54. 161 CHAPTER XX. COSTS PAYABLE BY A CLIENT. The greater part of the chapter ujDon Solicitor and Client Costs was taken up in the consideration of the few instances in which costs as between solicitor and client are ordered by the Court to be paid out of a fund or by the opposite side. It is proposed here to illustrate the class of allowances that will be made by the taxing master to the solicitor when they have to be paid by his own client. The regulations con- tained in the rules of the Supreme Court (Costs) against unnecessary proceedings have reference almost entirely to taxation between party and party ; and therefore the old rules are still in force as to a ^^]^ y"'es 1 1 • • IT mil ^^'^^ ^^ taxation between solicitor and client. Ihe then force. Master of the Rolls, Lord Langdale, remarks in Stephens v. Lord Neivhorougli, 11 Beav. 403, that the rules as to the costs allowed to solicitors are on a most unsatisfactory footing. That very small re- muneration is allowed for obtaining instructions for a bill which often causes trouble and expenditure, not at all commensurate Avith the allowance made. But that on the other hand they are allowed for poing that which they never do, namely for drawing the bill. The effect of this is, that the allowance for '^y-^tcm of J 1 • 2i • , • 1 • 1 • • 1 11 p.'iviiiei\tin taking the instructions, whicli is inadef|uato, and the litigious business. 162 COSTS PAYABLE BY A CLIENT. allowance for drawing the bill, wliicli the solicitor does not do, and which is therefore more than adequate, together make up an amount which suf- ficiently pays him for his entire work. Although this was said in 1848, and strictly applies only to what was then done, the principle is not changed in 1883. The same learned judge said In re Catltn, 18 Beav. 508, in 1854, that the items in a bill of costs, and the principles on which they are allowed and disallowed, frequently involve matters of great nicety as to which a judge's previous experience and practice have afforded him little means of coming to a satisfactory conclusion. It is therefore necessary that in his bill a solicitor should set out exactly what he has done upon taking each step ; as although for some step he may be paid inadequately, for others he may be paid more than he might at first expect. Solicitor's A direct authority for the keeping of a diary is afforded by the words of Brett, L.J., see Ex parte Sivinhanks, In re Shanks, 11 Ch. D. 536. He says, It is the interest of a solicitor to keep a diary, as it is by means of it that he makes out his charges against his clients. Method of From the remarks of Baggallay, L.J., In re Snell, out biU. -5 ^li- I^- S^^' ^^ ^s to ^6 gathered that the intro- duction of items into a bill of costs, not from any contemporaneous notes in equal detail, but from concise notes taken in short hand at the time, and which were sufficient to guide the solicitor, in making out subsequently his detailed bill, does not afford a satisfactory explanation of items when challenged. Jessel, Some of the remarks of Jessel, jSLR., in the same soii^itoT^i ^^^^ when before him upon the form of a solicitor's bill of i^iii^ vvill not be here out of place. He says that a bill should disclose matters in sufficient detail to COSTS PAYABLE BY A CLIENT. 163 enable a person ordinarily acquainted with the business to tax it. There is generally too much detail in a bill, but on the other hand a solicitor must not put a wliole mass of business together, and charge a lump sum so that no one can tell "whether a proper allowance can be made for it or not, or whether he has overcharged or not. Particulars and details must be furnished, as Avithout them it cannot be ascertained whether proper charges have been made. An instance of an item which illustrates this is that given at length in the Appendix to this book. The Master of the Rolls says: " The item dis- allows itself so to speak ; it is not possible to make out what it is worth." It is true that the item was afterwards allowed by the Court of Appeal, but the strictures of his Lordship upon the form of the item are none the less entitled to the most careful con- sideration. The burden of proof relating to each item lies Burden of upon the solicitor, and supposing the only evidence each item tendered were the oath of the solicitor on the one ^^^^. ^^ , . solicitor. side, and that of the client on the other, the item would be disallowed. When a solicitor is a general agent, he is bound to Accounts . . , of solicitors keep regular accounts of his money transactions, but acting as when he is only employed for particular transactions, ^S®"*^- as to raise money on a mortgage, or to discount a bill, the client is aware of the whole nature of the transaction and should know how much he receives. Where it was the ordinary course of dealing between the parties that the costs of the particular trans- actions should be deducted at the time, and the balance handed over, the onus is not thrown on the 'solicitor to show that his costs in respect of other matters have not been paid : In re Lee, a solicitor, 164 COSTS PAYABLE BY A CLIENT. Ex parte Keville, L. R. 4 Ch. 46, judgment of Lord Hatherley. Supposing then that the solicitor has proper materials at hand, out of which he can make his bill, the next subject to be glanced at is what general Items that I'ule cau be suggested as to the items that will stand will stand taxation between solicitor and client. It may be taxation _ _ •' between premised that the higher and lower scale (Rules of and'^cHent. Court, Costs, Order V.) applies primarily to party and party taxation ; and also that the question of County Court costs has been already dealt wdth at p. 151. But see In re Emanuel, 9 Q. B. D. 408, as to the rate chargeable for work not in the County Court scale. The rules, therefore, w^hich are now proposed will be of almost universal application, in the absence of any special agreement in a taxation Rate of as between solicitor and client. And first, it may be between remarked, that in the rate of charges allowed on solicitor taxation between solicitor and client, and party and and party P^rty, there is no difference ; it is the items which and party ^yjjj j^g allowed in the one case but not in the other are the same, that the difference lies. For example, as between solicitor and client anything that the client gave special instructions for after having been properly warned by his solicitor, as for the opinion of counsel upon his chance of success during the progress of a case, or for the employment of three counsel instead of two, he would have to pay himself, although he might have got costs against his adversary ; but in Party and the taxation between party and party nothing but coste ^^^^ ordinary and necessary steps in an action (and consequently not any opinion as to the chances of success of a party during an action, and the costs, except in an extraordinary case, of more than two counsel) would be allowed. Again, no negotiations COSTS PAYABLE BY A CLIENT. 165 which may have been going on between tlie parties Negotia- before an action was begun, can be chai'ged for as before between part}" and party except one letter which ?'^*^''"v^ must have been actually written ; but the costs of such negotiations if desired by the client may properly be charged for in a bill by a solicitor to his own client. It therefore follows that even when an action is won by a client and he gets the costs of it out of his adversary, he does not get all the charges and ex- penses from him that he has to pay to his own solicitor; and it is with such charges whether rightly chargeable as against him or not — but certainly not chargeable asrainst the other side — that we have now to deal. And, first, it is only for professional work that he Profes- can charge his client. Thus, he cannot charge for work only addressing letters and documents and sending them ^^ar^ed to the post ; but he can charge if he has to prove the for. posting of a document as evidence of its being sent. ^^'^^ f James, L.J., in Ex parte Bitton, In re Woods, 13 Ch. can be D. 320. Again, he will not be allowed to charge his f^^"^^ client with proceedings in an action which were wholly Unneces- unnecessary, unless expressly authorised by the ceedin™! client to take them. See p. 184 and In re Blyth and Affidavit Fanshaiue, 31 W. R. 284. Thus, the costs of an affi- "ot entered ' _ , ' .11 the davit filed in support of a motion, but not entered in order as the order as read, will not be allowed ; nor a copy of ^^^ ' the correspondence between the parties furnished to counsel as instructions for a bill, and partially in- serted therein, because the costs allowed for instruc- tions for the bill and for drawing it should have included this. But the costs of two counsel, even in an unopposed motion made by a trustee to pay money into Court have been allowed. For the Court may consider it necessary to have an explana- tion of things which may not have been distinctly 166 COSTS PAYABLE BY A CLIENT. brought under their notice in the papers before them. Cases which seem simple in themselves may be mixed up with other matters which, perhaps, require a great deal of consideration. When briefs have been given counsel with instructions that the prayer of the petition will not be resisted, if after- wards opposition is threatened supplemental briefs with fees may be delivered : Stephens v. Lord New- Journeys. hovougJi, 11 Beav. 413. A solicitor has no right to take special journeys, or to go to foreign countries, at the expense of his client without specific instruc- tions; otherwise the client in sfivincj a retainer would authorise his solicitor to travel all over the world at his expense. As a general rule he has no right even to make journeys in England. Country solicitors have no right to come to town to conduct a suit there, or a solicitor to go from town to the assizes. If a client, however, sanctions a journey, and adopts the benefit of it, it is otherwise. Such was the opinion of Jessel, M.R., In re Snell, a solicitor, 5 Ch. D. 828, as to journeys undertaken by solicitors, and it was not disapproved of by the Court of Appeal, (although his opinion on questions of fact was over- ruled in this case), who did not express an opinion upon the rule thus laid down by him. This, there- fore, it is submitted, upon such high authority, is a correct statement of the law upon the subject of journeys undertaken by solicitors when authorised, and when not authorised, by the client. See also In re Barring, 20 Beav. 146. It was, however, held by Bacon, C. J., In re Foster Ex parte Dickens, 8 Ch. D. 598, that a country solicitor personally attending a bankruptcy appeal in London instead of employing an agent will, on taxation, be allowed the additional charges and Cotmtry solicitor attending bank- ruptcy appeal. COSTS PAYABLE BY A CLIENT. 1G7 expenses of so doing, as he is probably better ac- quainted with the subject-matter than the London agent. Even where on the trial of a cause in London County ,, , , , , 1 T T T • 1 ^'1^ town the country as well as the London solicitor attends solicitors the rule that the costs of the attendance of the attending, country solicitor will not be allowed on taxation is not inflexible : Bell v. AitJcin, L. J. 3 C. P. 320. See p. 159. "When an order to change solicitors has been Order for 1 r obtained considerable acrimony is sometimes shown soii°^ors. in taxing the first solicitor's bill, and items are not then often consented to, as they would, perhaps, be in other taxations. Some notice is, therefore, now taken of the various items which are frequently inserted in such a bill after the order to change where the solicitor to be changed is a country one. As the order to deliver a bill requires to be served personally, no service on the London agent of this order will be allowed for. On a reference to taxation of the new solicitor's Taxation bill, where a compromise as to that of the former '^^*'''^.'^*'™^ / ^ promise of solicitor has been effected by the second one, the solicitor's 1 '11 taxing master has no iurisdiction to iudfje of the -r, ' . o J J in Perusing advantage, or the opposite, to the client of such com- first solici- promise unless he has himself taken proceedings to ^?' ** !' ■ 1 • 1 1 r PI Copy bill. impeach it ; and, therefore, a sum of £2 28. has been allowed for perusing a bill of 190 folios to the first solicitor as well as £6 10s. for making a copy of such bill. Where a receiver is appointed wh(j is paid so much where per cent., no sum will be allowed for drawing out a ^^^.^^'''*^^ ' _ ° paid by scheme of the property and the holdings of the per cent- tenants whose rents he is to receive, though such apfhcmeof scheme mav be essential for the due performance of l^''"'^^'''y . " allowed. Ills duties. No charge for notices of adjournnients of proceed- Notice of 168 COSTS PAYABLE BY A CLIENT. adjonrn- ings or summonsGS before cliief clerks is allowed, proceed- because the chief clerks have themselves made ings before arrangements by Avhich they adjourn the proceedings clerks. or summonses, from time to time, and require all Fees of parties to take notice of such adjournments. Only one fee of 6s. 8d. is allowed for attending for and to file a certificate of taxation, and not 6s. 8d. to bespeak the same and 6s. 8d. for attending filing the same. Procuring Supposing a client to be liable to a solicitor for execution .^ . n ■ ^ • .^ l- c of lease by ^'^^ costs 01 perusing and procuring the execution oi tenant. ^ lease by a tenant, say two guineas, although the tenant is primarily liable, if the amount has not been paid, when the order to tax is made this charge is properly included in the client's bill. Costs when When a client requires that his papers shall be livered ^' delivered over, he must pay for the affidavits and *^^'^''' schedule of papers, though not for a list of the title deeds and of the parties named therein ; as the latter is done for the use and security of the solicitor and not of the client. Consulta- Where no fee is paid to counsel on a consultation, coiuisel ^^'^ ^^^® solicitor merely goes to counsel's chambers to when no confer Oil some small matter during the progress of a ferenje is suit for whicli couuscl does not charge a conference charged, f^^^ though the time of the solicitor is taken up he cannot charge for such attendance. Fee for The fee for instructions for brief is payable to him tions for wlio is the solicitor at the time of joinder of issue, brief. jjq^ ^q i\^q former solicitor. Where affidavits in another matter are necessary evidence in a cause, a list of the subjects, and a charge for perusing them may be made. Billcjinnot A solicitor cannot make, nor has a taxing master ^ ^ ^^^ any jurisdiction to permit any alteration or amend- COSTS PAYABLE BY A CLIENT. 169 ment to be made in a delivered bill, except by con- after dt- livery. sent: In re Catlin, 18 Beav. n20. Great care should Seep.T4'2. therefore be taken in drawing the bill in the first instance, as taxation cannot be avoided by amending it after delivery : In re Heather, L. R. 5 Ch. 094?, where a bill was delivered, objected to, and returned with suggested alterations, some of which were acquiesced in. And though an amended bill was then delivered, taxation of the original bill was ordered first by the Master of tlie Rolls and afterwards by the Court of Appeal. But where a solicitor has delivered a second Second bill of costs before the first is taxed, upon the taxa- tion of the first alone the order for delivery over of papers will not be made : Ex parte Jarman, 5 Ch. D. 840. If difficulties arise on taxation, and it seems to Taxing the taxing officer desirable to have the solicitor cross- may order examined on an affidavit made by him in support of solicitor to 1 • 1 -11 1 1 T 1 11-^® crosB- his Dili under the common order, he can order this examined. to be done. And it is the duty of the examiners to take such examination : In re Flux Argles and JRaiu- lins, 44 L. J. Ch. 375. The taxing master has himself full power to decide Taxing questions as to retainer : In re Bracey, 8 Beav. 26G ; dedd*e ^' and as to the necessity for the institution of legal questions -rt A 1 • -n ii*^f retainer, proceedings : Ke Atkinson, 2G Beav. 151 ; and he can xjseless- disallow items for work that is useless : lie Burchall, "ess of 21 L. J. Ch. 236. ""•^''"'- They also have regard to agreements as to the Agree- amount of costs to be paid by the client, as, for instance, costs out of pocket, and bills in pursuance of such agreement can be taxed : In re Ransom, 18 Beav. 220. They can allow interest on disbursements (33 & Interest. 34 Vict. c. 28, s. IG), and also take an account of all I 170 COSTS PAYABLE BY A CLIENT. moneys of the clients which have come to the hands of the solicitor, in his capacity of solicitor, and which could be applied in payment of his bill. And he may be ordered to pay interest upon any such moneys improperly retained ; but the master has no power to take an account of pecuniary matters between the parties which are quite foreign to the bill of costs : Jones v. James, 1 Beav. 307. Taxation Section 38 of the Solicitors Act, 1843, which is upon appli- cation of sometimes referred to as the third party clause, enacts parties *^^^^ \A\\^ may be taxed upon the application of third Sec. 38. parties who, though not the parties chargeable, are liable to pay, or wdio have paid the bills, refers only to costs as between solicitor and client: See In re Cowdell, W. N. 18, 1883. This section applies, there- fore, to anyone who has guaranteed the client's costs • but not to the opposite party in an action who has to pay them through being beaten. It can, therefore, apply only to taxation as between solicitor and client: Solicitor In re Heritage, Ex parte Docker, 3 Q. B. D. 729. But trustee. yet in the case of a solicitor who has acted for a trustee whose bill of costs is being taxed by one of the cestuis que trustent, the taxation under section 38 is not between solicitor and client. The solicitor should tell the trustee if anything cannot be charged against the trust estate. The princijjle upon which such a taxa- tion is conducted is, whether the things charged are proper and necessary for the administration of the estate : Lord Romilly, In re Brown, L. K. 4 Eq. 466. Benefit of The benefit of any agreement made between the rnents P^i'^J chargeable and the solicitor passes to the between persons who have obtained under the third party and client, clause the usual order to tax : In re Taylor, 18 Beav. 1G9. This was a case in which persons inter- ested in the equity of redemption taxed a solicitor's COSTS PAYABLE BY A CLIENT. 171 bill in respect of his employment as solicitor by his clients, the mortgagees. See also In re Neicman, L. K. 2 Ch. 707. And in making an order for taxa- Delivery tion under this section (s. 38), it is discretionary with "apg^a the Court whether or not to order also the delivery up of papers : Ex parte Jarman, 4 Ch. D. 835. When an order for taxation which is not obtained Order for as of course is made under section 39 by a party obtained interested in a property out of which the trustees or under sec. executors have paid or are intending to pay a bill, such taxation is taken between solicitor and client • nothing, notwithstanding, being able to be charged to the estate by the solicitor which was not necessary for its administration ; and the party interested having the benefit of any arrangement entered into by the trustees or executors and the solicitor. For the words of Lord Langdale, In re Taylor, quoted above, apply as much to a taxation under section 39 as under section 38. The words, "party interested," mean a party " Party in- interested under the trust-deed, will or intestacy. *^'"*^^*'*^"- and the trustee must be really chargeable with the bill, and is only liable on his own retainer ; except in the case of an executor, who stands in the place of his testator. An assignee does not come within the section. A trustee in bankruptcy is not a trustee for a Not trustee bankrupt ; so, although he may have obtained his ^^^^^ ' discharge and become entitled to the surplus of his estate, all the creditors having been paid in full, he is not entitled imder this section (s. 39) to obtain the taxation of a bill of costs paid by the trustee in bankruptcy : In re Leadhitter, 10 Ch. D. 388. A trustee must not derive any personal advantage Trustee from the employment of a solicitor ; and if he acts gyiiciforf l2 172 COSTS PAYABLE BY A CLIENT. liimself as a solicitor, in the absence of an express proviso to that effect enabling him in the trust-deed, he can only charge money out of pocket ; he can make no profits whatever out of the employment. Still less can he obtain advantage, whether in the shape of a fixed sum or a share in the profits, fromt the employment of another person as such solicitor : See also In re Taylor, 18 Beav. 172. See also Thomas v. Chap.xi. p^^ii^^^ 21 Ch. D. 3G5. Special circumstances must be shown when a bill has been taxed and settled for it to be re-taxed (s. 40). Client out Where a client who desires the taxation of a '.'^ *^^. solicitor's bill is out of the jurisdiction, he must jurisdic- _ . . tion desir- deposit a proper sum of money as security before his application can be heard. The undertaking of his new solicitor to pay them is not sufficient : In re Norman, 11 Beav. 402. ^ taxa' tion 173 CHAPTER XXL TAXA.TIOX AFTER TWELVE MONTHS. Paying a solicitor's bill under protest means nothing Paying bill more than that the party paying gives notice that ppofest he will avail himself of every circumstance in the case to enable himself afterwards to upset the trans- action. This he could have done just as well without any protest. Another idea, wholly without founda- tion, is that if when a bill is paid an intimation is oiven that the bill will be taxed, this is sufficient to obtain an order for taxation : In re Harrison, 10 Beav. 59. After payment, special circumstances To get tax- must be proved by the client, as pressure and over- ^*^'°" ^^^'^^ -^ *' . ^ payment charges, to get taxation. If the overcharges evidence of bill. fraud, very slight circumstances will suffice. In re J" ^^^^ *^^ Harding, 10 Beav. 250. Overcharge alone is not Over- sufficient to obtain taxation after payment ; but charge in other things, as, for instance, pressure, it is. See not sutti- In re Durnford, Sol. J., p. 277, Feb. 24, 1883. "°"^ The pressure and difficulty under which the client Pressure labours when the bill is paid must be such that he ^^^'^" could not delay the payment, even though he pays it under protest at the time: In re Stirke, 11 Beav. 304. Where there was no pressure in the case of a Woman woman cestui que trust, and the solicitor was entitled tmst! *^"^ by agreement to charge, taxation after payment within 174 TAXATION AFTER TWELVE MONTHS. Statutory provision for taxa- tion after twelve months. Special circum- stances. Rf.atters of objection appearing on the face of the bill Payment Tinder un- due in- fluence. BiU re- opened after two years. twelve months was refused : In re Wyche, 11 Beav. 209. The method of obtaining an order for taxation in the ordinary way having been already considered, it is proposed here to deal with the statutory provi- sions as to the taxation of the bill after twelve months from its delivery have elapsed. The rule is that there shall be no taxation of a solicitor's bill after twelve months have elapsed from the time of its delivery, except under special circumstances: 6 & 7 Vict. c. 73, s. 37. What special circumstances have caused the taxation of a bill, after such twelve months have elapsed, will here be considered. The old idea was that the bill could only be referred after such twelve months on the ground of new matter having come to the knowledge of the party chargeable. It was held, however, In re Robinson, L. R. 3 Ex. 4, that the special circum- stances required by the section might be matters, of objection appearing on the face of the bill, and that an imusual charge of a large amount, requiring ex- planation to justify it, was sufficient ground for referring the bill to taxation, even after the expira- tion of the twelve months. When a cHent pays a solicitor's bill under undue influence and without sufficient information, and much of the business charged for was unnecessary and improper, the lapse of nearly two years, although there is no actual proof of overcharge, is not fatal te an order that the matter be re-opened and the bill taxed. In this case the client was an old lady, and the bills of costs were arranged : Watson v. Rodwell^ 11 Ch. D. 150. But evidence of the fact of the relation of solicitor and client existing is not alone sufficient to justify an order for taxation after the TAXATION AFTER TWELVE MONTHS. 175 twelve months : In re Elmslie and Co., Ex ])QxiQ Tower Subway Co., L. R 16 Eq. 32G. Where any one ignorant of the practice as to law charges is induced to enter into an unfair bargain, the agreement, notwithstanding the lapse of the twelve months, may be reviewed. The privilege of reopening a solicitor's account Who las is, under section 137, confined to the person Avho was p^.^pg^*^ himself liable to have an action brought against him bill of for costs; and it does not apply to the case of a party in an action who, if defeated, must pay the costs; for in that case the costs are taxed as between party and party, and upon a different footing; and section 38 enacts that this privilege shall apply in the case of persons who are in the same position as solicitor and client, and who are to have the same rights as the client himself has. For example, anyone who has guaranteed the client's costs is entitled to be in no worse position than he is in: Cockburn, C.J., In re Heritage, Ex parte Docker, 3 Q. B. D. 729. Where there is a series of bills it will depend upon WTicre the circumstances of the case (as, for instance, where series of* a letter corrects the earlier bills) whether they are ^il^^- treated as one entire bill : In re Cartivrujlit, L. R. IG Eq. 469. Where this was so, taxation of the whole was directed, althougli most of the bills had been de- livered more than twelve months before the applica- tion. In re Hall v. Barker, 9 Ch. D. 538, the opposite was the order of the Court of Appeal. In that case solicitors had been retained to act for a trustee in bankruptcy, and also to protect the interests of a creditor, who afterwards, by arrangement, took over the estate. They delivered a bill up to a certain date, saying that there were some more items. 17G TAXATION AFTER TWELVE MONTHS. and afterwards delivered a second bill for subse- quent costs. Held that the second bill only could be taxed. As on obtaining the order for taxation it is neces- Applica- sary to undertake to pay the amount (In re Elmslie offidaf «'^^^ ^^'^^ ^- ^- ^ Eq. 72) which shall be found due, liquidator, which the official liquidator of a company in liquida- tion may not be able to do for some time, it does not matter in such a case that the twelve months have elapsed : In re Marseilles Extension Raihuay and Land Co., Ex parte Evans, L. R. 11 Eq. 154, Malins, V.-C. Solicitor Upon the principle that every accounting party cittor "" * n^^^st vouch his items of discharge, if a solicitor, being piyiiig' one of the executors of a testator, pays himself out of himself out c ^ ^ o ^ 1 1 of assets, the assets lor work done lor the testator, when under the decree in an administration action the accounts are brought in, the taxing master may be directed to state whether any items objected to were fair and proper to be allowed ; but an order for taxation can- not be made. This was done twenty-six years after the death of the testator in Allen v. Jarvis, L. R. 4 Ch. 61G. ]iill taxed Bills taxed on the Parliamentary scale should I'mntary^ be taxed not later than six months after the com- .scale. mittee's report, and not until one month after a bill of such costs is delivered to the party chargeable : Williams v. Swansea Canal Navigation Co., L. R. 3 Taxation Ex. 158. In bankruptcy the power of the registrars ruptcy. ' to t^^ ^o^t^ ^^ independent of the Solicitors Act of 1842, and a bill of costs may, therefore, be taxed there without any special order, although twelve months have elapsed since its delivery: Ex parte Blair, In re Mackie, L. R. 5 Ch. 482. 177 CHAPTER XXII. PARTY AND PARTY COSTS. The costs chargeable under a taxation as between party and party are all that are necessary to enable the adverse party to conduct the litigation, and no more. Any charges merely for conducting litigation more conveniently may be called luxuries, and must be paid by the party incurring them. Thus in a suit to restrain the infringement of a Example patent, in which the defendant had set up several sary ex- cases as anticipations, the costs of the drawing of Pauses, exhibits explanatory of the exhibits to the defendant's affidavits to affix to counsel's briefs are disallowed. Charges for attendance of the solicitor's clerk on the cross-examination of witnesses before the examiner, though he is stated to have been required on account of the great number of exhibits and the constant necessity to have some one to hand them up to counsel, is not allowed in addition to the costs of attendance of the solicitor. Five guineas is the Cuunsers ordinary counsel's fee per diem for the cross-exa- ^^^^ ^"'' . „ . , . cross mmation oi witnesses, but m a heavy case more may examina- be allowed ; seven guineas a day may be allowed *'^"' when there arc scientific witnesses. All these statements are made upon the authority of Smith v. Bailer, L. 11. 19 Eq. 473, V.-C. Malins, I 3 PARTY AND PARTY COSTS, When costs of three counsel allowed. Costs of counsel in a refer- ence. On trial of a writ of enquiry. Special jury fees. Copies of pleadings. Shorthand writers. which is also an authority that two counsel arc or- dinarily to be employed. It gives the i^ate also as to the allowance of refreshers after a case has lasted two days^ even where the evidence is adduced by affidavit. Where a reasonable and prudent man, however, would have employed three counsel, the costs will be allowed between party and party : Kirh- ivoocl V. Webster, 9 Ch. D. 229. In this case there were eight distinct charges of fraud and misrepre- sentation made by the plaintiff against the de- fendant. No less than three contracts relating to- ne less than five patents were in question, and other patents entered into the history of the case. One counsel only is allowed on a reference unless the master, in his absolute discretion, allows the costs of two in a heavy case : Sinclair v. Great Eastern Ry. Co., 5 C. P. 13.5. At the trial of a writ of enquiry to assess damages in an action of neglio^ence arising out of a railway accident, two counsel may be allowed by the master. Also special jury fees to a "good" jury : Vines v. London, Brighton and South Coast Ry. Co.; Frost v. The same, L. R. 5 Ex. 201. It is a question in the discretion of the taxing master whether, on an application by the defendants that part of an affidavit might be struck out, copies of the pleadings, three for the use of the Court of Appeal and one for the use of counsel, shall be allowed or not: Warner v. Mosses, 19 Ch. D. 73. In a taxation between party and party, a shorthand writer's charges and copies of shorthand writer's notes are not allowed without a special direction from the judge at the time of the trial, before the judgment is drawn up, even though there is an agreement be- tween the solicitors of the plaintiff and the defendant that a shorthand writer shall be employed at their PARTY AND PARTY COSTS. 179 joint expense : Ashivorth v. Out ram, 9 Ch, D. 486 (C.A.). This will be sanctioned only in extraordinary and exceptional cases : Jessel, M.R,., in Earl de la Warrv. Miles, 19 Ch. D. 82; Singer Manufactiinng Co. V. Loog, 31 W. R. 392. In a reference it was ordered that a plaintiff, by Costs of an accountant to be named by the arbitrator, should i^^P^ction •^ ^01 books inspect defendant's books. The accountant did so, by an ac- and gave evidence before the arbitrator. Though the award was made in his favour, with the costs of the action, reference, and award, the plaintiff was held not entitled to the costs of the preliminary examination of the books by the accountant : Nolan v. Copeman, L. R. 8 Q. B. 84. As to the scale of payments of Scale of accountants, see Meynott v. Meynott, 33 Beav. 590. of account- In the absence of an express order of a judge in ^°*^^- chambers, to whom there is an appeal from a master's appeal" decision as to the costs of such appeal, the plaintiff from is not entitled to them, though successful : Mann v. Harhord, L. R. 5 Ex. 17. A taxing master cannot allow interest on disburse- interest on ments, except in a taxation between solicitor and ^''^""'■'**^" . . . mentg. client ; and 33 & 34 Vict. c. 28, s. 17, which gives him that power, does not even apply to a taxation of costs to be paid, as between solicitor and client, out of a fund in court belonging wholly or partly to other persons than the client : Hartland v. Muii'ell, L. R. IG Eq. 285. The expense of having a model made in a patent Model in case w^ill be allowed : V.-C. Bacon, in Batley v. \^^^^ Kynock, L. R. 20 Eq. G35, where he also states the rule that exists in the Equity Courts as to allowances by taxing masters. He says the Ecpiity Courts Eule .as to require the taxing master to conform to the law of ofTaxiii''' the Court, but leave to him a wide discretion as to masters in equity. ISO PARTY AND PARTY COSTS. Expenses of wit- nssses (jualifying themselves for exami- nation. Costs of surveys and re- ports. Rule. details, reserving nevertheless the right and duty of deciding upon any question of principle. There can be no doubt that now the expenses of witnesses qualifying themselves for examination may be allowed, if they were necessary, under rule 8. Special allowances and general provisions. Rules of the Supreme Court — Costs. In the reference of an action for the recovery of some houses by reason of breach of covenant to repair, three surveyors were called as witnesses for the plaintiff who had been instructed by him to survey the houses and report upon their condition. It appeared that the surveys and reports were necessary for the proper conduct of his case. Judgment having been obtained, with costs, by the plaintiff, the fees paid to the surveyors were ordered to be taxed : MacJdey v. Chilling worth, 2 C. P. D. 273. In Churton v. Freicen, 15 W. R. 559, the expenses of an antiquarian in deciphering and translating documents were allowed by Malins, V.-C. In an action where the parties are poor and the value of the property in dispute is small, high fees paid to surveyors and heavy charges for plans and reports should be disallowed ; but, nevertheless, very considerable costs in respect of surveys and reports may sometimes be allowed if the nature of the action renders it necessary to have incurred them : Grove, J., in MacJdey v. Chillitigivorth, 2 C. P. D. 280; Lindley, J., in the same case remarking that the rule which has been long laid down in the Equity Courts has been that the wrong-doers shall bear all the costs necessarily incurred by the person injured in getting redress. He said, further, that in his opinion, in proper cases even the cost of obtaining general knowledge and of reading up books might be allowed as between party and party. The costs of an PARTY AND PARTY COSTS. 181 antiquary makinoc translations of ancient records ^®' , ^.T^7/• f -nil' 7 Searches were allowed in Duke of Beaufort v. Earl of Ash- hurnham, 32 L. J. C. P. 97. The reasonable expenses of witnesses qualifying What in- themselves to give evidence is allowed in the charge — for'brief"^ Instructions for Brief; but whether a charge may be comprises, made for correcting and revising the proofs of pro- ceedings, as well as the printing of evidence for the Court of Appeal, was not decided in Tiirnhull v. Janson, 3 C. P. D. 271, Lindley and Lopes, JJ. The expense of bringing the defendant's witnesses to London to be cross-examined in court, though counsel in the exercise of their discretion did not think fit to cross-examine them, was allowed upon a decree in favour of the plaintiff with costs : Clark V. Malpas, 31 Beav. 554. This would not have been allowed had no notice for cross-examination been given. A professional witness is entitled to his ex- Costa of penses on the scale allowed to persons of his pro- sional wit- fession, although he is not called to give professional ^^^^• evidence: Parkinson v. Atkinson, 31 L. J. C. P. 199. This is the case also before a special examiner. An auctioneer would be entitled to £1 Is. a day for his loss of time, and his travelling expenses, if any, first-class from his residence to the place of his examination and back again. And though sworn he may refuse to answer until paid these amounts : In re Working Men's Mutual Society, 21 Ch. D. 831. The costs of preparing interrogatories which were Costs of not used, owing to admissions being j)ut in, were tories not allowed as between party and party, as well as the ^sed, costs of settling an affidavit, which was an echo of the bill by counsel : Davies v. Marshall, 1 De Gex & S. 5G4. 182 PARTY AND PARTY COSTS. Interpre- Xho expense of employing an interpreter to assist the defendant (a foreigner) in preparing instructions for his answer, but not the tavern or travelling ex- penses of one specially brought to the country, can be allowed in the discretion of the taxinsr master between party and party: Earl of Shrewsbury v. Trappes, 31 L. J. Ch. 680. In an action against lessees of a colliery two breaches of covenant were assigned: (1) Non-payment of a sleeping rent ; (2) not properly working the mine. Judgment having gone by default for the plaintiffs, a writ of enquiry issued. The jury found that the plaintiffs had sustained £50 damages ; but nothing in respect of not properly working the mine. The master rightly allowed the plaintiffs the full costs of witnesses summoned to prove default in properly working the mine : Dod v, Evans, 15 C. B. N. S. 621. In an action by an engineer against an Indian railway company for wrongful dismissal without notice, a verdict was taken by consent for £200, being one quarter's salary, and £150, plaintiff's passage- money to England. On taxation plaintiff was allowed subsistence-money during his stay in Eng- land v/aiting for the trial (one and a half years), at the rate of £300 a year, and £150 for his passage out. It appears that the company justified plaintiff's dismissal, on the ground of alleged improper con- duct ; and that the trial had been delayed twelve months through the company having sent a com- mission to examine Avitnesses at Lahore, the execu- tion of which had been unnecessarily delayed, and that the plaintiff was going back to India, where he had a wife and family : Calvert v. Scinde By. Co., 18 C. B. N. S. 306. Allowance The sum allowed for instructions on brief, which Subsist- ence- money to plaintiff. TARTY AND PARTY COSTS, 183 in special cases, as, for instance, in a matter requirinof forinstruc- , . p . . „ , tions on the assistance of a scientmc person, may be con- brief, see siderable, covers attendances on witnesses to take P- ^^^' their proofs, and no special charge can be made for the execution of this duty, however onerous it may have been. At first sight this may perhaps appear to be a hard rule ; but the sum allowed for such instructions is in a proper case sufficiently liberal. In order to Affidavit get any costs allowed, which do not actually appear ° i^^^*^^^- by the proceedings in the action, an affidavit of increase, as it is called, has to be made which verifies them ; for the successful party being only entitled to costs as an indemnity, can only claim for such as he has actually paid. And although unnecessary costs Expenses (as of drawing^ briefs before notice of trial, or of ^^^' ^ ^ o _ _ ... nesses not witnesses whose evidence is inadmissible) are dis- called. allowed, yet a witness' expenses may be allowed, though he were not called, if there were reasonable grounds for believing that he would be wanted. In short, any recognised precaution tliat a reasonable man would take for his own protection his adversary is chargeable with ; but unusual precautions, and, above all, unnecessary ones, he will have to pay for himself. It is a hard thing that in an ordinary action the Agree- successful party should have to pay his solicitor any solicitor charges in respect of it, and yet in the present state ^?^ ^^ ", ^ '' ^ charge of things he must expect to do so, unless he makes solicitor an express agreement with him that he will not be ^osts! ^^" lield responsible for them. Such an express agree- ment, of course, overrides any ordinary rules of solicitor and client taxation. Indeed, in Jennings Jennings v. v. Johnson, L. R. 8 C. P. 425, it was held that an •^"^'"''''*' agreement made by a solicitor with his client to 184 PARTY AND PARTY COSTS. charge liim nothing il he lost an action, and to take nothing foi* costs out of any money that might be awarded to him in such action, need not even be in writing, for that section 4 of the Solicitors Act, 1870, which says that agreements as to charges shall be in writing, has only reference to charges in excess of those which are allowed on taxation. The wisest course for the solicitor is, before com- mencing an action, to tell his client about these charges, which laymen unaccustomed to litigation do not generally know of; as it often gives great dis- satisfaction to a litigant, who has won his case, to have to make jDayments which he did not expect to have to make, and for which he does not under- stand the reason of his liability. Indeed, with reference to any exjDenses not alto- gether usual that a solicitor incurs for a client, the rule is not only that the client must authorise them, but must do so after having been informed by his solicitor that they will not in any event in all proba- bility be allowed in the taxation between party and Solicitor party. Whether the solicitor has or has not informed tect client ^^^^ client of this in each case is the test which the against taxing master should^apply to each item in a taxation expenses. .. it p ^ f between solicitor and client ; lor the lact oi an item having been merely authorised by the client is not Rule. sufficient to prevent its being struck out. It is, in fact, the duty of the solicitor to protect his client against unnecessary expense, as well as to point out to him ill every case what charges will fall upon him, even though successful in the action. See Smith's Chancery Practice, vol. i., 7th ed., p. 1084, quoted with approval by Lindley, L.J., In re Blyth and Fanshaivc, 31 W. R. 284. Eeported also 10 Q. B. D. 207. See also the judgment of Baggallay, PARTY AND PARTY COSTS. 185 L.J., in the same case. The items there objected Shoi-thand notes and to were the expenses oi shorthand notes and experts- experts. And see In re Chapman, 10 Q. B. D. 57 and 58. As to the principles upon which parties appearing in chambers are entitled to costs, see the observations of Jessel, M.R., in Sharp v. Lush, 10 Ch. D. 473- See also Laij v. Batty, 21 Ch. D. 830. Whether a taxation is to be conducted as between party and party or between solicitor and client can hardly ever prove a subject of contention. There is, however, sometimes a difficulty in deciding whether Higher or in a taxation between party and party costs should ^^-^J be allowed on the higher or lower scale. Order VI., r. 1 (Rules of the Supreme Court — Costs), provides to what actions the higher scale applies. See Rogers V. Jones, 7 Ch. D. S^o, and In re Sandeman, 7 Ch. D. 176. R. 3 gives a judge power to allow costs in Judge Las whole or in part on the higher scale, but he cannot ^g ^o scale, delegate this power to a master : Corticene Floor Company v. Tidl, 27 W. R. 373. If a judge exercises the discretion given him under Appeal, this rule, his decision is nevertheless subject to appeal. Costs on the higher scale should not be allowed in actions other than those in which they are given by Order VI., r. 1 (Costs), unless some Special special cause is shown, as expenditure of time and skill by the solicitor to an extent which would entitle him to higher remuneration ; and it would appear that in an action which is settled they should not be allowed, nor simply because fraud is alleged : In re Terrell, 31 W. R. 209. Reported also, 22 Ch. D. 473. The Rules of the Supreme Court (Costs) apply both to chancery or common law actions, and there are not two separate systems as to scales of costs. There are many cases which can be brought 186 PARTY AND PARTY COSTS. in the Chancery or Common Law Courts, and there was no intention on the part of the framers of the rules that the higher scale should always be given when an action is brought in the Chancery Division. Bowen, A special cause must be shown in each case : Bowen, ^en-Ii "" L.J., In re Terrell It is a mistake to suppose that only charges can be allowed between solicitor and client which can be allowed between party and party, and that that which is necessarily reasonable in one case must be the limit of what is reasonable in the other. What is reasonable between party and party must be reasonable between solicitor and client, but the converse is not true : In re Blyth and Fanshawe, 10 Q. B. D. 212. 187 CHAPTER XXIIL COSTS OUT OF A FUND. It is a gi-eat matter whether costs are ordered to be paid out of an existing fund, or whether the order is made simply against an individual who may not be able to pay. It is therefore proposed in this chapter to con- sider upon what principles a particular fund can be made liable for solicitor's costs. The broad rule as Costs to costs in an ordinary litigation is that the losing follow the , ° event. party pays them, and so in the case of appeals the successful party gets his costs : Memorandum, 1 Ch. D. 41. This is the course of justice in every Court ; Chancery but the custom that the costs perhaps of various admini^ parties should be paid out of a particular fund had stration. arisen in the Chancery Courts, where there were various parties to a suit who had been necessarily brought before the Court for the purpose of the administration of a fund which the Court had under its control. Such parties, if properly brought there, were given their costs out of the fund in Court, because no other party had done them a wrong, as a penalty for which he could be made to pay their costs; and, indeed, their presence there was OAving to the existence of the fund, and it was for its administration that they were present, and there- 18S COSTS OUT OF A FUND. Statutory lien. Solicitor's fove the fund had to pay their costs. Upon such a fund the solicitor has a lien independently of the statute 23 & 24 Vict. c. 127, s. 28, generally called the Solicitors Act, 1860 ; and since that Act the Court has also the statutory ' power of declaring a solicitor entitled to a charge upon any property which can be considered as having been recovered or preserved in an action. The question of the lien which the solicitor has at common law, and which is, of course, a particular lien, is considered more fully in the chapter on Lien ; and the statutory lien, which can only be enforced by an order of the Court, under the head of Charging Orders ; but in this chapter the general principles under which a fund in court can be got at for payment of costs, and the kind and extent of costs allowed, is glanced at in a general way. The rule of the Court always has been to allow the solicitor to be paid directly out of the estate, instead of making him sue his client and then allow- ino- the client to come and ask to be indemnified and paid out of the fund. Such payment of costs out of the estate is discretionary, although it has been the custom of the Court to give trustees their costs out of an estate, when such costs have been properly incurred: 19 Ch. D. 153, Ex parte Wain- wright, In re Waiinvright, per Jessel, M.R. Under Order LV., which put costs in the discretion of the Court, there was a reservation, that nothing should deprive a trustee, mortgagee, or other person of any right to costs out of a particular fund to which he would be entitled according to the rules theretofore acted upon in Courts of Equity. If, however, they appeal unnecessarily or do anything by trustees they ouglit not, they have to bear their own costs : ■ Ex parte Bussell, In re Buttenvorth, 19 Ch. D. 588. Solicitor paid directly out of the estate. Order LV, Unneces- sary pro- ceedines COSTS OUT OF A FUND. 189 But where in the County Court a decision is in favour of a person, and in the next Court above it is not, he cannot be blamed for going to the Appeal Court : Jessel, M.R., 19 Ch. D. 152. Ex parte Wain- wright, In re Waimuright. And a trustee in bank- ruptcy should not be deprived of his costs for pur- chasing the estate of the bankrupt if he explains to the creditors that he is about to buy it. It is necessary that Person a person asking for his costs out of an estate should costs out have done no injury to the estate by his conduct. He of anestate must have acted properly towards those to whom tlie acted fund belongs, and from whom, in fact, he is seeking pay- J 'jj^ ment. Thus the solicitor to a trustee in bankruptcy estate, must not look exclusively to the interests of his client, and forget that other people have rights and interests. In Ex parte Harper, In re Pooley, Ch. D. 685, Ex parte tlie solicitor to the trustee was refused his costs, as jj^^".^"^' ' was also the trustee, out of the bankrupt's estate, Poolaj. because he had been a party to that common abuse of the bankrupt law, viz., the purchasing of debts due by the bankrupt in order to procure the appoint- ment of a trustee favourable to the bankrupt. It cannot be too strongly urged or too clearly kept in view that the right of a solicitor to costs out of an estate is simply that of his client, and that he has no independent right. And, further, that this right will be lost if either he or his client have been guilty of misconduct. Misconduct is generally acting with bad faith, and where there is no bad faith it would seem that where there is a fund the feeling of the Court is that the solicitors in an action should be paid if jDossible. The case of Ex parte Waimuright, In re Wain- Ex parte w rigid, 19 Ch. D. 140, is a good example of this. "^^J;^ j,. There the Court was obliged to arrive at the con- ^''^ ,"'"'"- 190 COSTS OUT OF A FUND. Property recovered or pre- served. Emden v. Carte, elusion that the trustee in bankruptcy was en- titled to seize the after-acquired property of the debtor, without taking into account the hardship it felt it to be upon him ; yet, although regard could not be had to that hardship in relation to the law of the case, it could as to the costs. The order was that the costs of the losing party should be paid out of the estate. The Master of the Rolls in his judgment said: "Here the trustee ruins this man, and probably deprives him and his new creditors of what they ought to have. In that position of matters he employs a solicitor to defend him. Is not that solicitor to be paid ? Is it not a case in which a solicitor should be allowed to defend him, and should not go without payment for so doing ? Having an estate to be administered, ought we not to make provision for the payment of the solicitor who has taken the opinion of the Courts?" Again, the Courts will give a liberal construction to the words " pi'operty recovered or preserved " in making an order under the 28th section of the Solicitors Act, 1860. In Emden v. Carte, 19 Ch. D. 311, it was held by the Court of Appeal that money paid into court by the defendant as black mail, to get rid of the trouble and expense of an action, was properly recovered or preserved. In that case an uncertificated bankrupt had brought an action to recover money for work done prior to the bankruptcy and subsequent to it, but before he was discharged ; and a sum was paid into court by the defendant to get rid of the action. When the trustee heard of this he got the conduct of the proceedings. The bankrupt plaintiff tried to get the sum so paid into court out, and through the assistance of his COSTS OUT OF A FUND. 191 solicitor resisted the attempts of the trustee to get hold of the fund. The order made by the Court of Appeal was that the solicitor to the bankrupt was entitled to a charging order upon the fund up to the point where the trustee intervened. If it had not been for him the money would not have been in court, and the trustee could not have got hold of it. But the solicitor had no business to oppose the claim of the trustee to the fund when that claim was advanced, and therefore directly he did so his lien on the fund ceased. The principle upon which this order was made Principle was that the trustee had taken the benefit of the v. Carte. action by adopting it, and therefore that he ought to pay the costs of the solicitor who had instituted it and brought it to a point where it was worth adopting. Where property is recovered in an action, and a Compro- compromise made with reference to it by the parties, the solicitor is entitled to a first charge upon the money paid by way of compromise : Tiuynam v. Porter, L, R 11 Eq. 181. But property must have been recovered and fraudulently paid over by the defendant to the plaintiff to make the defendant personally liable to the plaintiff's solicitor for costs. When an action was brought by a man of straw, and Ex parte a verdict obtained for £2.5, the obtaining of which bad rendered him liable to his solicitor for £100 costs, he was not prohibited from compromising with the defendant for £10, after a rule nisi for a new trial had been obtained by the defendant. Notice had been given by the plaintiff's solicitor to the defendant's solicitor of his claim, and the settlement w-as arrived at between the parties behind the backs of their respective solicitors: Ex parte Morrison, L. R. 4 Q. B. 158. 192 COSTS OUT OF A FUND. Actions between partners. Miscon- duct of partner. Admini- stration action when let- ters of admiiii- stration revoked. Creditors' actions. Costs of incum- brancers. With regard to the costs in actions between partners for taking the accounts, tliey are like all other costs of necessary administration, and must come out of the partnership assets. If, however, art action for dissolution of partnership is caused by the misconduct of a partner; as, for instance, where a partner whose duty it is to keep accounts has neglected to do so ; that partner has to pay so much of the costs as are occasioned by his misconduct. And there is no difference between the costs of the action for taking the accounts prior to the trial and the subsequent costs : Hamer v. Giles, Giles v. Hamer, 11 Ch. D. 945. In administration actions, where letters of administration are revoked, the administrator will not get his costs of an administra- tion suit instituted by him with knowledge that another person claimed to administer : Houseman v. Houseman, 1 Ch. D. 535. When an estate turns out to be insufficient to pay debts, the ordinary rule is that a creditor who brings an action on behalf of himself and all others the creditors of the deceased is entitled to his costs as between solicitor and client. This rule also applies to the case of a creditor who obtains the conduct of an action originally commenced by a legatee or next of kin. In re Richardson, Richardson v. Richard- son, 14 Ch. D. 611. But when an estate sought to be made liable for costs was, to the knowledge of the solicitor improperly bringing or defending an action,, insufficient in all probability to pay them, he may even himself be made to pay costs : Baker v. Loader,. L. R 16 Eq. 50. With regard to the costs of incumbrancers, which afford one of the exceptions to the rule that the losers in a suit pay the costs of it, there is a well-known. COSTS OUT OF A FUND. 193 rule which was alluded to by the Master of the Rolls iu the very late case of Johnstone v. Cox, 19 Ch. D. 19. It is that the costs of incumbrancers are ^^''^^i^ *h^>' ... . ci^iy be allowed to be added to their securities, if any difficult added to questions arise as to the priority of incumbrances or *jj"" ^^^^' such like things; and unless there has been some- thing vexatious or something unusual in an incum- brancer's conduct, he gets them as of course if the fund is sufficient to pay them. This is all that could be desired, unless the incumbrancer has taken a security on an insufficient fund, in which case his solicitor will only have his remedy against his own client. And although an estate may be held liable for costs, and an order made that a party have his costs out of it, it may yet be that the estate is not sufficient to pay them. This is particularly to be noticed when the costs of several parties are ordered to be paid out of the estate. The question of Priorities, priorities therefore is most material in such a case. As a rule, in bankruptcy the trustees' costs are entitled to priority, as was pointed out by Jessel, M.R., in Ex parte Waimuright, In re Wainwright, 19 Ch. D. p. 153, in which case the appeal was dis- missed ; but both parties were given their costs out of the estate all through, both in the Court of Appeal and in the Courts below; and the trustee's costs were expressly stated to have priority. And the same rule applies in the Equity Courts. In the late case of Potter v. Jackson, 13 Ch. D. 846, Admini- it was pointed out by Hall, V.-C, that in an ordinary an'd'^tmt- administration action costs are first paid out of an nership. estate ; but in a partnership action, if a balance is ^"Jg ^jj'"^ found due from the firm to one of the partners, such different, balance must be paid out of the assets in priority to the costs of the action. 194. CHAPTER XXIV. STATUTORY CHARGES. Solicitors BLACKBURN, J., once Said in a iudmnent of his ia should rely Jo upon their 1868, reported Ex parte Morrison, L. R. 4 Q. B. 158, '^llf "*' ^. that it would be more satisfactory if sohcitors relied abiuty to _ _ •' pay costs, rather upon their client's ability to pay them than upon their chances of obtaining costs from the other side as the result of litigation. That the Courts still hold this view there can be no doubt ; yet side by side with it is the feeling that the solicitor should be secured fair payment for the costs properly incurred by him in preserving or recovering property or money : Brett, L.J., Emden v. Carte, 19 Ch. D. 323. statutory Q^j^jg fg^jj. payment can be secured by obtaining charging i • i i order, lien, a chargmg Order under the Solicitors' Act, 1860, or the solicitor can rely upon his coinmon law lien for costs without such order, upon any fund that there For costs may be in Court. All that he can get are costs incurred, properly incurred, and it is the duty of the judge in making an order under the Act to limit the order to the costs properly incurred, and to direct taxation of such costs properly incurred : per Jessel, M.R., 19 Ch. D. 318. A charging order under 1 & 2 Vict. c. 110, ss. 14 and 18, cannot be obtained by persons held to be entitled under a decree for costs, charges, and STATUTORY CHARGES. 195 expenses, under the Judicature Act, Order 46, for Charging •1111 orders, costs, charges and expenses, until they have been taxed ; and a stop order is merely the consequence of the charging order : Widgery v. Tepper, Hall v. Tepper, judgment of James, L.J., 6 Ch. I). 309 ; and therefore the solicitor to such persons must not rely upon his client's being able to obtain this order as his method of securing his costs. This sort of charging order is in the nature of an execution against the property of a person ordered to pay money, and is obtained by the person to whom a judgment debt is payable, or in whose favour a decree is made, and must not be confounded with a statutory chai-ging order, or a declaration of lien made in favour of a solicitor. This subject is treated of, among other places, in the author's Hints on Practice, ed. 1, p. 259. The lien of a solicitor in a suit upon a fund in Court for his costs of suit was, however, protected by a stop order (which, when made, is made without pre- judice before taxation) under special circumstances, Avhich prevented the suit from being effectively prosecuted in Hohson v. Shearman, 8 Beav. 486. If he does not apply under the Solicitors' Act, Solicitor's 1860, s. 28, he must rely upon his particular lien, ^ot extend which needs an order of the Court to give active *" ^eal pro- effect to it, but which is not barred by the Statute of Limitations, as an order under the Act is. The common law lien, however, does not extend to real property. In order, then, to set the statute in force, a I^eclara- tion under declaration has to be obtamed by the solicitor, the Solici- which should be applied for in the Court in which **''^^' ^*^*' the property was recovered or preserved. This expression applies to a judgment for mone}^ to be k2 19G STATUTORY CHARGES. Extent of lien on fund in Court. Solicitor may be en- titled to a lien and not to a de- claration. By what Court de- claration made. paid, or to an order agreed to by the parties tliat the claim should be abandoned, and the action stayed after payment of costs. The notion is, as has been insisted on, that some benefit should have been done, through the agency of the solicitoi", to the persons entitled to the fund out of which he seeks to get his costs. And the solicitor's lien upon a fund in Court is not a general lien ; it extends only to costs in the cause or costs immediately connected with the costs in the cause ; as, for instance, the costs of successfully pro- tecting a solicitor's right to the costs in the cause : Lucas V. Peacock, 9 Beav. I8l. It will of course be noticed that it is not necessary to hold that a fund has been " recovered and pre- served " for a solicitor to have his lien upon it, which is a proceeding necessary before a declaration under the Act can be obtained ; and therefore it may well be that he may be entitled to the one but not to the other in a particular case. Again, in order to obtain his right under the statute the declaration must be made by the Court ; and that Court must be the branch of the Court to which the suit was attached, as was held by the Court of Appeal, over-ruling the judgment of Malins, V.-C, in Heinrich v. Sutton, L. R 6 Ch. SG5. Callow v. Gailow, 2 C. P. D. 862, illustrates this. There A., as administrator of his deceased mother, sued B. and C. for detinue in the Common Pleas at Lancaster and got judgment, but could not levy. Afterwards 15. and C. sued out a plaint in the County Court for administration of the estate, and brought into Court the proceeds of the goods of the intestate. The solicitor who acted for A. in the action for detinue was held to be entitled to a charge upon the fund in the hands of the STATUTORY CHARGES. 197 Registrar, and the Common Pleas Division to be the projDer Court in which to make the application. Without doubt the particular lien exists, although Lien exist* no application to or declaration by the Court is dently of made. An instance in which it was thought wise ^^tjo^*^'^' by Lindley, L. J., who was then counsel for the soli- Declara- citor, to apply for a declaration of the solicitor's lien j'°" P/"^' upon a fund in Court, and not for a statutory charge, statutory was Pritchard v. Roberts, L. R 17 Eq. 223. "L^.^^f , ' _ ^ Pritchard There the client was an infant still under age, and v, Roberts. it was thought that Boiiser v. Bradshaiu, 4 GifF. 2G0, had decided that the word in the Solicitors' Act, 18G0, s. 28, " employed," did not apply to the solicitor of an infant, because an infant could not retain a solicitor. This case is, however, further dis- cussed at the end of this chapter (p. 201), The chief advantage of the statutory lien is that it ;^pplica- applies to real property as well as to personal pro- perty, which the common law lien does not ; but on the other hand tlie Statute of Limitations applies to it, which it does not to the common law lien. The J^''^ , headed application for the order under the Act is sufficient if intituled in the action ; and the order may be Hpw ob- obtained either on summons or petition, and need not be intituled either in the matter of the Act or of the solicitor : Hamcr v. Giles, Giles v. Hariier, Austin V. JacJiSon, 11 Ch. D. 942. There was a question whether, since the passing of the Judicature Act, 1873, s. 39, the proper course was not by summons, and the objection was taken before Fry, J., in Brovm v. Trutman, 12 Ch. D. 881, but the -Brou-n v. learned judge decided that as the course of the „ . Courts had always been to make such orders upon Courts. petition, he should not deviate from that course. He decided, however, that no other party to the 198 STATUTORY CHARGES. When charging order refused. Who must action thau the client of tlie solicitor applying for the order should be served with the petition. It is stated in Mr. Cordery's Book, The Law relating to Solicitors, 1878, ed. 1, p. 233, that this application may also be made by motion, but he does not there give any authority for the assertion. It may be well to look at a few cases in which a charging order has been refused. In Foxon v. Gascoigne, L. E. 9 Ch. 654, the defendant was alleged to have built so as to obstruct the plaintiff's ancient lights, and an interlocutory injunction was gTanted against the defendant's building higher, and a mandatory injunction was asked for to pull down part of what had been already built. The suit was afterwards compromised upon the terms that the building should remain at its then height. The de- fendant became bankrupt, and his solicitor asked to have his costs made a charge upon the defendant's property to which the suit related. The Court of Appeal, affirming the decision of the Master of the Rolls, held that no property had been recovered or preserved, although the application of the plaintiff for a mandatory injunction to pull down a part of what had been built by the defendant had been Insults re- refused ; upon the ground that a suit which relates easementF. ^^^^ ^^ ^^ easement is not a suit in which it can be said that property has been recovered or preserved, even though a mandatory injunction for pulling down buildings is refused. Another case, in which it was held that no pro- perty had been recovered or preserved within the meaning of the Act, and that the solicitor therefore was not entitled to any charge, was Pinkerton v. Easton, L. R. 16 Eq. 490. The facts in that case were that in a suit by a residuary legatee against the Pinlceiion r. Easton, STATUTORY CHARGES. 199 sole surviving trustee of a testator's estate, an admin- istration decree had been made and a new trustee ordered to be appointed. The decree was carried into chambers, and the accounts brought in, when the plaintiff stopped all further proceedings in the suit. Upon this the plaintiff's solicitor petitioned that his costs might be charged upon the plaintiff's interest in the estate. Moreover, the statutory charge to which a solicitor Statutory • 11 1 r 1 • T charge ex- is entitled extends to the property oi his own client tends only only, and not to that of other persons; for instance, to Property •^ ' _ . o^ ^is own B.'s solicitor was, in Berrie v. Hoivitt, L. R 9 Eq. 1, client, held not to be entitled to a charge for costs on B.'s share of the settled property under the following circumstances. By a settlement real estate was Example, assured to the use of A. for life, with remainder to his children a.s he should by deed or will appoint, and in default of appointment, to the use of his children as tenants in common in tail, with cross remainders in tail between them. In a suit in which B. was a defendant, an appointment by A. was set aside, so that the property was left to devolve accord- ing to the limitations of the settlement in default of appointment, and B. became thereby entitled to an estate tail in certain undivided shares of the pro- perty. B. afterwards died a batchelor, and without having executed a disentailing deed ; and the shares to which he was entitled devolved under the settle- ment upon the plaintiff, and the defendants to the suits as tenants in common in tail. Thus, if B. (the client) had barred the entail and got the fee, the solicitor would have got the charge on the fee ; but as he did not, the interest of the client was gone, and there was nothing of the client's upon which he could iret the chavijo. 200 STATUTORY CHARGES. Act is to he In SchuJ ('field V. Locltoood, L. R. 7 Eq. 87, fis he LOnstrilfcd t i i • ' t> • tt • t ^ -r\ Ml Tn- T> liberally, tiitl also in Bevrie V. Ho'witt, Lord Komilly, M.K., said the Act ought to be construed Hberaliy, and that solicitors ought not to be deprived of their lien where there has been a good deal of work done. In that case the client was one of the defendants in a foreclosure suit, and upon an appeal by him the decree was varied in his favour; and he Avas also successful in resisting claims against the client in working out the decree. Before the certificate in the suit was made he became bankrupt, and it was then that the charge was asked for. It was held that if anything came out of the estate to him it could be charged. The solicitor took the charge for what it was worth. In Bailey v. BirchaU, 2 H, & M. 371, it was decided that the solicitor was entitled to a charge, although it might turn out that the client had not any interest in the property in an administration action, as in taking the accounts he was found to be a debtor to the estate. Meaningof The word " employed " too, used in the 28th section, "em- ^i^s received a liberal construction. V.-C. Wickens, ployed." in Baile v. Bailc, L. R. 13 Eq. 497, said that it must have all reasonable weight given to it ; but that to say that it did not apply to a solicitor em- ployed in good faith by a next friend on behalf of an infant, who when he comes of age adopts the pro- ceedings, seemed to him a narrow construction of it ; and that further, if a solicitor instituted proceedings on behalf of an infant, and died during the infancy, and the proceedings were continued by a second solicitor till majority, and were then adopted by the infant, the first solicitor as well as the latter must be considered as employed within the Act. See also Boiiser v. Bradshaiv, 9 W, R. 229, and Pritchard v. STATUTORY CHARGES. 201 RoherU L. R 17 Eq. 222. Of course if the infant Infant re- T 1 1 T 1 pudiating on comnig of age repudiated the proceedings taken the pro- for him, his estate is subiect to no lien in respect of f *^^<^''^g'^ 'J "■ upon such proceedings ; but a voluntary conveyance befoi-e coming of the charge is declared by the Court does not defeat ^°^' it. And the personal representatives of a solicitor can apply for a charge under the statute (same case) ; and it would appear from Heinrich v. Sutton, In re Fiddey, L. E. 6 Ch. 865, that the fact of a suit having been absolutely dismissed, is no objection to an order for a charge being subsequently made in it. One or two instances of cases in which charges Instances have been made may perhaps be noticed with orders." ° advantage here. A married woman's solicitor's costs have been charged on an annuity settled to her separate use without power of anticipation, when such costs had been incurred in defending a suit by her husband to set aside the post-nuptial settlement creating such annuity : In re Keane, Lmnlcy v. Desborougk, L. R. 12 Eq. 115. The costs of establishing an infant's title, together Pritchard with the costs of a partition suit, and of the appli- ^" cation for the charge, are costs for which his solicitor can get a charging order under the genei'al jurisdiction of the Court of Chancery. Mr. Lindley, Q.C., who aj)peared for the solicitor in Pritchard v. Roberts, L. R. 17 Eq. 223, quoted before, said that in conse- quence of Bonser v. Bradshai", 4 Giff. 2G0, which was supposed to decide that an infant could not " employ " a solicitor so as to constitute a charge imder the 28th section, a declaration of the plaintiff's lien under the general jurisdiction of the Court was asked for. Hall, V.-C, intimated that if the solicitor had sued the next friend of the infant for these costs k3 202 STATUTORY CHARGES. he would have recovered them, and that the next friend mioht have recovered them ao^ainst the infant, so that in any case the costs might have to come in a circuitous manner out of the infant's estate ; and, therefore, he ordered the declaration as prayed. Jones V, If a suit is instituted by an incumbrancer whose incumbrance turns out to be entirely valueless, the solicitor is entitled to a statutory charge upon the property, upon the title to which the supposed in- cumbrance formed a cloud : Jones v. Frost, L. R. Costs how 7 Ch. 773. These costs are generally to be taxed as between solicitor and client : Catloiu v. Catlow, 2 C. P. D. 362 ; but more will be found upon this head in the chapter upon solicitor and client costs ; and the solicitor's bill of costs may have to be paid without taxation under certain circumstances : De Bay v. Griffin, L. R. 10 Ch. 291. 203 CHAPTER XXV. PEIORITIES OF COSTS, CHARGES, ETC. Difficult questions as to priority sometimes arise with reference to a solicitor's lien for costs, and even to charges in respect of which a declaration of the Court has been made. It must never be forgotten that the What soli- right of the solicitor is merely a claim to the pro- right is, tection of the Court as to his costs, when the equit- able interference of the Court is asked for ; as, for instance, for the purpose of setting off one judgment against another. The fact that a solicitor has obtained a judgment Client and for a client, and that costs are due to him, does not ^ot^^ruste cause the relation of trustee and cestui que trust and cestui between the client and himself as to the proceeds of ^^^ such judgment. The solicitor who has conducted an action to judgment for which costs are owing to him does not stand in the position of a cestui que trust having an equitable interest in the proceeds of the judgment. This lien is, in fact, only a claim or right to ask for the intervention of the Court for his pro- tection when, after having obtained judgment for his client, he finds that there is a likelihood of his client depriving him of his costs. In an action on a judgment, a set-off of a cross- judgment could always be pleaded under the statute 204 PRIORITIES OF COSTS, CHARGES, ETC. Lien and set-off. Solicitor's lien on balance appearing in favour of his client. of set-off, and the Court could not assist the solicitor : Mercer v. Graves, L. R. 7 Q. B. 499. When, however, an application was made to the Court to allow a cross-judgment to be set-off against another judgment (an execution being taken out), the allowance of which was discretionary with the Court, the Court would say, " You who ask for equity must do equity and pay your solicitor." Lush, L.J., same case, p. 507. There is sometimes, too, a question whether, when there is a set-off, the lien comes before the set-off has been deducted or not. In fact, the point is whether the lien or the set-off first takes effect. With regard to all costs arising in the same suit or action, the right of set-ofF is sanctioned. The prin- ciple is, that where a solicitor is employed in an action he must be considered to have adopted the proceedings from the beginning to the end and to have acted for better or worse. He has only a lien upon any balance that may appear to be in favour of his client at the end : Roharts v. Biie'c, 8 Ch. D. 200. The set-off in a counterclaim is of course a set-off in the same action: see The Philippine, L. R. 1 A. & E. 309, in which case the finding on the counterclaim was for a larger sum than on the claim ; yet the j)laintiff's solicitor was held entitled to a statutory charge, as the result of the suit to the plaintiff was that he was entitled to a transfer of shares in the vessel for a less sum than he would have been if the suit had not been instituted. In The Heinrich, L. R. 3 A. & E. .505, the solicitor's lien was allowed to have priority to necessaries and the master's wages ; but the case must be referred to to be understood. This subject is more freely treated of in the chapter in vrhich costs of a counterclaim PRIORITIES OF COSTS, CHARGES, ETC. 205 are dealt with. With regard to costs of independent ^'« set-ofif proceedings, it may be broadly taken that there is independ- no set-ofF. In Barkeo^ v. Hemmina, 6 Q. B. D. 809, '^"^ 1?''°- y , ceedmgs. when before the Court of Appeal, it was pointed ont by James, L.J., that a set-off must be not merely between the same two persons, but between the same two jiarties to the same proceedings. The plaintiff in that case had got judgment against the drawer and acceptor of a bill, and had issued execu- tion thereon u23on the drawer's goods. The acceptor subsequently got the judgment set aside, with costs, by proving that his acceptance had been forged, and he claimed the goods seized. An interpleader fol- lowed, and judgment was given against the acceptor, with costs. The Court held that these costs could not be set-off by the acceptor, the proceedings in which they were incurred being separate. If by an arbitrator's award in an action a jDlaintiff Set-off of is ordered to pay money to the defendant, and the against defendant ordered to pay plaintiff a part of his costs costs of an when taxed, the defendant can set-off the debt against the taxed costs: Pringle v. Gloag, 10 Ch. D. 676. And this is the meaning of Additional Rules of Court (Costs), 1875, r. 19. But it was pointed out by James, L.J., in Ex parte Gri^n, In re Adams, 14 Ch. D. 37, that the lien of the solicitor who was the equitable owner of the costs would be prejudiced by allowing the Bankruptcy Court to permit the setting off of the costs of a proceeding in the High Court against the costs in a bankruptcy. Upon a fund in Court, the proceeds of assets in Solicitor's an administration suit, the solicitor's lien is a first cimi-'n; on charge on the principle qui potior est tempore potior o-'^^^^'^ i" . ,. ,. . , admini- cst jure ; and m partnersliip actions, unless some stration sum is found due to one of the partners, in which *^"^*' 206 PRIORITIES OF COSTS, CHARGES, ETC. case the solicitor's lien comes next. When a gar- nishee order nisi is obtained, and perhaps served before the solicitor has had his application heard in support of his lien, as the solicitor could have got a declaration of his charge either under the statute, or under the general jurisdiction of the Court, and as the garnishee order has to be made absolute, it is plain that neither party has in such a case perfected his right. Now that orders nisi will probably, under the new rules, be done away with, this may perhaps be somewhat altered ; but at present the law stands Priority of thus. If the solicitor in such a case is the " meri- declara- . „ tion of lien torious cause of the recovery ' of the sum attempted t^n credi- ^° ^® affected by the garnishee order, he has a claim tor. upon such sum in priority to the execution creditor. If, however, the execution creditor's position were perfect, the case would be otherwise, as either party in the absence of the other is entitled to be paid the money : Birchcdl v. Pugin, L. R. 10 C. P. 401. Garnishee One of the latest decisions upon this point is creates no Haniev V. Giles, 11 Ch. D. 942, in which it was held charge that a garnishee order nisi does not create a charge until ser- ... „ . . , „, . , vice. until service of it on the garnishee. There a judg- Hamer v. ment creditor of the defendant in a partnership action obtained a garnishee order nisi to attach all monies in the hands of a receiver appointed in an action, which appeared to be due to the defendant upon the taking of the accounts which had been ordered in the action. On the following day, and before the service of the order nisi, the defendant's solicitors obtained, on a summons served on the receiver, a charging order declaring them entitled to a charge for their costs upon all monies coming to the defendant under the action. On the next day, the gfarnishee order nisi was served on the receiver PRIORITIES OF COSTS, CHARGES, ETC. 207 and was subsequently made absolute. It was held that both under the Act, and independently of it, the solicitors were entitled to their costs in priority to the claim of the creditor under the garnishee order. This latter case fixes the punctum temporis When at which the garnishee order nisi takes effect, namely, °j.jgj. ^j^j upon service upon the garnishee ; and, therefore, if takes this order is served before any application for a declaration of charge is made by the solicitor, the solicitor will lose his priority owing to his own laches. However, in ShijpiJey v. Grey, 28 W. R. 877 (which Sklppey v. is said to have been decided by the Court of Appeal, following Faithful v. Ewen, quoted below), the solicitors to the plaintiff in an action against a rail- way were held entitled to a statutory charging order under these circumstances. They had signed judg- ment againt the railway for damages and costs ; but before the costs were taxed, a judgment creditor of the plaintiff obtained ex parte a garnishee order. The solicitors then gave notice to the creditor of their lien for their costs in the action against the railway company. The Court of Appeal held that they were entitled to it. See also The Leader, L. R. 2 A. »Su E. 314, where it was held that the defendant, who, after a decree against him with costs, pays money to judg- ment creditors of the plaintiff" under garnishee orders, should have apprised the judge of the existence of the plaintiff's solicitors' lien before such orders were made absolute, or should have given notice to the solicitors. If plaintiffs in a suit mortgage their interest to In moit- defendants in the suit, and the plaintiffs' solicitor pj^^ij^lgs' approves of the draft, but nothing is said by anybody interest to as to his lien, it will be taken that the defendants' ai'its, solki- charge is subsequent to the plaintiffs' solicitor's charge ^'^^'^ ^'"^"^ 208 PRTOKITIES OF COSTS, CHARGES, ETC. has for costs of suit, if lie afterwards applies for a charging order. The reason is, because the mortgagees, having necessarily notice of the suit in which they were themselves defendants, must be presumed to have known the rights of the solicitor of the plaintiffs, and that, therefore, his charge might not be post- poned to the mortgage, unless he has been guilty of misrepresentation or concealment : Faithful v. Eiven, 7 Ch. D. 495. ReMasoti But if solicitors prepare a mortgage deed for a (11/ OK ^^jg^^ ^£ ^y^q[j. Q^^yY^^ they have no priority for their lien over that of their client for the money advanced by him : In re Mason cO Taylor, 10 Ch. D. 729. 209 CONCLUSION. Perhaps at the end of a treatise like this a few words may not be out of place on the amendments in the laAv relating to the subjects of it which appear to be wanted at the present time. Without dwelling upon the question whether notions like champerty and maintenance, which are practically obsolete, while wrecking petitions unfor- tunately are not, should still be allowed to load the legal atmosphere, when such full powers have been given to the Courts to deal with agreements between solicitor and client as they may think right (Soli- citors' Act, 1870, s. 4), it may, perhaps, be fairly questioned whether sufficient freedom of contract exists between solicitors and their clients. Surely any system of protection that is not abso- lutely necessary is a mistake ; and can it seriously be argued that the average client, not being a woman, or infant, or very old person, is not quite capable of taking care of himself in these days ? Morgan v. Minett, which has been already referred Morgan v. to, was a hard case ; and it is difficult to see why, in '^^'"^''• the case of wills, it should be easier for a solicitor to obtain undue influence over a client, than the client's Disabiii- own son, daui^hter, or wife. In a word, the disabili- ^^'^^ ''^"'1 ' ° / ' responsi- ties of the profession are too great. bility. 210 CONCLUSION. Compro- mise by client. Compare the regulations as to the appointment of solicitors as justices of the peace. And at the same time the responsibilities of soli- citors are greater than is just. Why, for example, if a solicitor, out of pure kind- ness of heart, undertakes a case for a client for costs out of pocket, should he be liable for anything but for the grossest negligence ? The client, perhaps a very poor man, can get behind his back, and effect a compromise with the adversary by the payment to him of a sum of money, and then the solicitor will be unable to get even his costs out of pocket. This reminds one of the fable of the crane, who, when demanding a reward for having taken a bone out of a fox's throat, was told that he had been sufficiently rewarded by not having had his head bitten off during the transaction. Surely, in such a case, the client has the best of the situation ; and yet it is plainly to the advantage of society that solicitors should fight the battles of those who are needy, and defend the poor in proper cases. Again, is it not a hardship that his bill of costs should be taxed after payment, except in most special cases ; or that accounts stated should be reopened, except where they would as between an ordinary principal and agent ? In re Moss, L. R. 2 Eq. 347. So much for the jDrinciples of the law which appear, theoretically, to be unduly severe upon the profes- Actions for sion as regards their dealings with clients. In '^ ° ' practice, nevertheless, an action for negligence is a rare thing. The public do not know the power they possess, and the difficulties of getting evidence in such an action are, of course, enormous. Privilege And yet, although the feeling as often expressed Taxation after pay ment. CONCLUSION. 211 that the barrister has facilities which the solicitor of barris- has not ; as, for example, his universal right of audience, his immunity from responsibility, and his poAver of becoming a solicitor immediately upon passing the requisite examination ; we seldom hear any complaints as to the restraints upon the solicitor in his dealings with his client; and, consequently, we may infer that because he is, in fact, so seldom attacked, he does not object to his liability to attack. If this is so, it is unnecessary to dwell upon these subjects at greater length, and Ave may pass on to consider the amendments to be desired in the prac- tice as to costs. And, first, it Avould be Avell if the Payment system of payment by length Avere abolished in liti- gious as in non-litio-ious business. If the discretion Discretioa ° . '^ of taxing of the taxing officer under Costs, Order 6, r. 29, Avas master, more largely used, and the importance of the cause and the nature of the fund or person to bear the costs were really ascertained and considered in every case Avhere costs were taxed, although, of course, there Avould be variations in the alloAvances made, there would be a reason for them, Avhich does not at present ahvays exist. NoAV the customs of one taxing master's office are "Want of said to differ from those of another, and to depend jty. upon unAvrittcn laAvs handed doAvn in particular offices from master to master, and not upon any principle Avhich can be got at and understood. This subject has been glanced at in the chapter on solici- tors as draftsmen, and it may be shortly stated here that Avhat is Avanted is perfect uniformity in the t^niform- practice of the taxing master's offices. ■^* Also, that it should be clearly defined Avhat is the Comisers Avork of counsel and Avhat that of the solicitor Avhicli will be alloAved for in a party and party taxation. 212 CONCLUSION. Adequate payment. Appeals from tax- in" master. Costs of inter- pleader summons. Costs of adjom-n- ments. And in no case should a sum total be allowed to be made up in an illicit way ; as, for instance, by the filing of unnecessary affidavits, or taking unnecessary steps, as by insisting on discovery. The habit of straining at the gnat and swallowing the camel is too frequent in taxations. A letter or a conference is struck out, and the costs of an application for an injunction or receiver, or accounts which Avas quite unnecessary as between party and party, are allowed. It is too frequently stated that large firms with well known names are allowed to do things which unknown persons would not attempt ; and that the master's decision upon points which he has estab- lished as principles is not often enough appealed against; and the inuendo is that where there is smoke there is fire. Wherever a question is a question of discretion, as, for instance, whether in a particular case a parti- cular allowance should or should not be made, the master's discretion should of course be, as it is, almost omnipotent ; but when he says, " I shall not allow the costs of this writ being settled by counsel because there is a statement of claim for which the opposite party will have to pay in this action," this is an instance of a decision on principle which should be at once appealed from. Masters frequently refuse the costs of an inter- pleader summons, supposing that they have no power to give costs, and relying on the statements in books of practice under the old law. But see as to this, for example, Ex parte Streeter, In re Morris, 19 Ch. D., and Jessel, M.R.'s, remarks, at p. 224. Again, the costs of all adjournments in chambers ought to be looked into most carefully; and the CONCLUSION. 213 party who was the cause of tliem should pay, in any case, the costs of the day. Now it is said that it is sufficient to assert that the matter in question is an agency matter to obtain almost as of coui'se an ad- journment. These are a few crude suggestions as to the amendment of the law of costs, which are offered with great diffidence. There is, no doubt, much to be said for the existing state of things, and it is possible that some of the suggestions here made might be found, when tested, to be productive of evils which the writer knows not of. APPENDIX. THE SOLICITORS' REMUNERATION ACT, 1881. [44 & 45 Vict. c. 44.] An Act for maTcimj better 2>^'Ovislon resjoeding the Remu- neration of Solicitors in Conveyancinrj and other 7ion- cordentious BiLsiness. \22ml August, 1881.] Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : Prelimiruxry. 1. — (1). This Act maybe cited as the Solicitors' Re- Short title; muneration Act, 1881. f^^*^''* ' ^ ' mterpreta- (2). This Act does not extend to Scotland. tion. (3). In this Act— " Solicitor " means a solicitor or proctor qualified according to the statutes in that behalf: " Client " includes any person who, as a prin- cipal, or on behalf of another, or as trustee or executor, or in any other capacity, has power, express or implied, to retain or employ, a solicitor, and any person for the time being liable to pay to a solicitor, for his services, any 21 G APPENDIX. costs, remuneration, cliarges, expenses, or dis- bursements : " Person " includes a body of persons corporate or unincorporate : "Incorporated Law Society" means, in England, the society referred to under that title in the Act passed in the session of the twenty -third and twenty-fourth years of Her Majesty's reign, intituled " An Act to amend the Laws relating to attorneys, solicitors, proctors, and certificated conveyancers ; " and, in Ireland, the society re- ferred to under that title in the Attorneys and Solicitors' Act, Ireland, 1866. " Provincial law societies or associations " means all bodies of solicitors in England incorporated by Eoyal Charter, or under the Joint Stock Companies Act, other than the Incorporated Law Society above mentioned. General Orders. Tower to 2, In England, the Lord Chancellor, the Lord Chief General J^^stice of England, the Master of the Polls, and the pre- Orders for sident for the time being of the Incorporated Law Society, remunera- ^^^ ^-^^ president of one of the provincial law societies or conveyan- associations, to be selected and nominated from time to cing, 'c. ^.^g ^y. ^YyQ Lord Chancellor to serve during the tenure of office of such president, or any three of them, the Lord Chancellor being one, and, in Ireland, the Lord Chancellor, the Lord Chief Justice of Ireland, the Master of the Polls, and the president for the time being of the Incorporated Law Society, or any three of them, the Lord Chancellor being one, may from time to time make any such General Order as to them seems fit for prescribing and regulating the remuneration of solicitors in respect of business connected with sales, purchases, leases, mortgages settlements, and other matters of conveyancing, and in APPENDIX. 217 respect of other business not being business in any action, or transacted in any Court, or in the chambers of any judge or master, and not being otherwise contentious business, and may revoke or alter any such order. 3. One month at least before any such General Order Communi- shall be made, the Lord Chancellor shall cause a copy of ingQ^^o'* the regulations and provisions proposed to be embodied rated Law therein to be communicated in writing to the Council of °^"^ ^' the Incorporated Law Society, who shall be at liberty to submit such observations and suggestions in writing as they may think fit to offer thereon ; and the Lord Chancellor, and the other persons hereby authorised to make such order, shall take into consideration any such observations or suggestions which may be submitted to them by the said Council within one month from the day on which such communication to the said Council should have been made as aforesaid, and, after duly considering the same, may make such order, either in the form or to the effect originally communicated to the said Council, or with such alterations, additions, or amendments, as to them may seem fit. 4, Any General Order under this Act may, as regards Principles the mode of remuneration, prescribe that it shall be °^ yt^mune- ration, according to a scale of rates of commission or percent- age, varying or not in difficult classes of business, or by a gross sum, or by a fixed sum for each document prepared or perused, without regard to length, or in any other mode, or partly in one mode and partly in another, or others, and may, as regards the amount of the remuneration, regulate the same with reference to all or any of the following among other considerations, namely: — The position of the party for whom the solicitor is concerned in any business, that is, whether as vendor or as purchaser, lessor or lessee, mort- gagor or mortgagee, and the like ; L 218 APPENDIX. The place, district, and circumstances at or in which the husiness or part thereof is transacted ; The amount of the capital money or of the rent to which the business relates ; The skill, labour, and responsibility involved therein on the part of the solicitor ; The number and importance of the documents pre- pared or perused, without regard to length ; . The average or ordinary remuneration obtained by solicitors in like business at the passing of this Act. Security 5. Any General Order under this Act may authorise anVinter- ^^'^'^ regulate the taking by a solicitor from his client of est on dis- security for future remuneration, in accordance with any ments ^^^^^ Order, to be ascertained by taxation or otherwise, and the allowance of interest. Order to 6. — (1). Any General Order under this Act shall not Y,l^Qj.Q take effect unless and until it has been laid Houses of before each House of Parliament, and one jjjgjj^ month thereafter has elapsed. Disallow- (2). If within that month an address is presented to the Queen by either House, seeking the disallowance of the Order, or part thereof, it shall be lawful for Her Majesty by Order in Council to disallow the Order, or that part, and the Order or part disallowed shall not take effect. Effect of 7. As long as any General Order under this Act is in taxaTio^n.*° operation, the taxation of bills of costs of solicitors shall be regulated thereby. Agreements. Power for g. — (1). "With respect to any business to which the and client foregoing provisions of this Act relate, whether to agree on any General Order under this Act is in operation amount of ^^ ^*-*^' ^^ shall be competent for a solicitor to ance on address, APPENDIX. 219 make an agreement with his client, and for a remunera- client to make an agreement "witli his solicitor, before or after or in the course of the transaction of any such business, for the remuneration of the solicitor, to such amount and in such manner as the solicitor and the client think fit, either by a gross sum, or by commission or per- centage, or by salary, or otherwise ; and it shall be competent for the solicitor to accept from the client, and for the client to give to the solicitor, remuneration accordingly. (2). The agreement shall be in writing, signed by the person to be bound thereby, or by his agent in that behalf. (3). The agreement may, if the solicitor and the client think fit, be made on the terms that the amount of the remuneration therein stipulated for either shall include or shall not include all or any disbursements made by the solicitor in respect of searches, plans, traA^elling, stamps, fees, or other matters. (4). The agreement maybe sued or recovered on, or impeached and set aside, in the like manner and on the like grounds as an agreement not relating to the remuneration of a solicitor ; and if, under any order for taxation of goods, such agreement being relied upon by the solicitor shall be objected to by the client as unfair or unreason- able, the taxing master or officer of the Court may inquire into the facts, and certify the same to the Court ; and if, upon such certificate, it shall appear to the Court or judge that just cause has been shown either for cancelling the agreement or for reducing the amount jiayable under the same, the Court or judge shall have power to order some cancellation or reduction, and to give all such directions necessary or l2 220 APPENDIX. proper for tlie purpose of carrying such Order into effect, or otherwise consequential thereon, as to the Court or judge may seem fit. Eestriction 9. The Attorneys and Solicitors Act, 1870, shall not tor aT' ''^Pl'^y ^^ ^^y business to which this Act relates. 1870. APPENDIX. 221 GENERAL OEDER MADE IN PURSUANCE OF THE SOLICITOES' REMUNERATION ACT, 1881, 44 & 45 Vict. c. 44. We, the Right Honourable Roundell Baron Selborne, Lord High Chancellor of Great Britain, the Right Honourable John Duke, Lord Coleridge, Lord Cliief Justice of England, the Right Honourable Sir George Jessel, Master of the Rolls, and Enoch Harvey, Esq., President of the Incorporated Law Society of Liverpool (being four (a) of the persons in that behalf authorised by the statute 44 & 45 Vict. c. 44), do hereby, in pursuance and execution of the powers given to us by the said .statute, and of all other powers and authorities enabling us in that behalf, order and direct in manner following : — 1. This Order is to take effect from and after the 31st Scbed. I. day of December, 1882, except that Schedide L hereto ^°*j*°^^ shall not apply to transactions respecting real property registered the title to which has been registered under the Acts of *i"®^- 25 & 2G Vict. c. 53, 25 & 26 Vict. c. 67, and 38 & 39 Vict. c. 87. 2. Subject to the exception aforesaid, the remuneration For non- of a solicitor in respect of business connected with sales, b^g^jnej-g purchases, leases, mortgages, settlements, and other matters of conveyancing, and in respect of other business, not being business in any action, or transacted in any ((«) The fifth is the President of the Incorporated Law Society, and it is to be noticed that his name is conspicuously absent. 09 APPENDIX. Fales, purchases, mortgages , Fees of solicitor having conduct. Sched. I., Pt. I. Leases and agree- ments for leases. Sched. I., Pt. II. Other business and busi- ness not completed. Sched. II. Wlipn drafts pro- perty of client. Does not Court, or in the chambers of any judge or ma.ster, is to bo regulated as folloAvs, namely: — (a.) In respect of sales, purchases and mortgages com})leted, tlie remuneration of the solicitor having the conduct of the business, whether for the vendor, purchaser, mortgagor or mortgagee, is to be that prescribed in Pait I. of Schedule I. to this Order, and to be subject to the regula- tions therein contained. (h.) In respect of leases, and agreements for leases, of the kinds mentioned in Part II. of Schedule I. to this Order, or conveyances reserving rent, or agreements for the same, when the transactions shall have been completed, the remuneration of the solicitor having the conduct of the business is to be that prescribed in Part II. of such Schedtde I. (c.) In respect of business not hereinbefore provided for, connected Avith any transaction the remu- neration for Avhich, if completed, is hereinbefore, or in Schedule I. hereto, prescribed, but which is not, in fact, completed, and in respect of settlements, mining leases or licences, or agree- ments therefor, re-conveyances, transfers C)f mortgage, or further charges, not j^rovided for hereinbefore or in Schedule I. hereto, assign- ments of leases not by way of purchase or mortgage, and in respect of all other deeds or documents, and of all other business the remu- neration for which is not hereinbefore, or in Schedule I. hereto, prescribed, the remuneration is to be regulated accordmg to the present system as altered by Schedule II. hereto. 3. Drafts and copies made in the course of business, the remuneration for which is provided for by this Order, are to be the property of the client. 4. The remuneration prescribed by Schedule I. to this APPENDIX. 223 Order is not to include stamps, counsel's fees, auctioneer's include or valuer's charges, travelling or hotel expenses, fees paid counggi'-j^ on searches to public officers, on registrations, or to fees, and stewards of manors, costs of extracts from any register, po^jjet ex- record, or roll, or other disbursement reasonably and penses, , . , . , -111 except law properly paid, nor any extra work occasioned l)y changes stationer. occurring in the course of any business, such as the death or insolvency of a party to the transaction, nor is it to include any business of a contentious character, nor any proceedings in any Court, but it shall include law stationer's charges, and allowances for time of the solicitor and his clerks, and for copying and parchment, and all other similar disbursements. 5. In respect of any business which is required to be, Expedi- and is, by special exertion, carried through in an excep- *^"" ^^*^^- tionally short space of time, a solicitor may be allowed a proper additional remuneration for the special exertion, according to the circumstances. 6. In all cases to which the scales prescribed in When soli- Schedule I. hereto shall apply, a solicitor may, before ^|'^^^ ^^^^ undertaking any business, by writing under his hand, communicated to the client, elect that his remuneration shall be according to the present system as altered by Schedule II. hereto ; but if no such election shall be made, his remuneration shall be according to the scale prescribed by this Order. 7. A solicitor may accept from his client, and a client Security, may give to his solicitor, security for the amount to become due to the solicitor for business to be transacted by him, and for interest on such amount, but so that interest is not to commence till the amount due is ascer- tained, cither by agreement or taxation. A solicitor may charge interest at four per cent, per annum on his dis- bursements and costs, whether by scale or otherwise, from the expiration of one month from demand from the client. And in cases where the same are payable by an infant, or out of a fund not presently available, such demand may 224; APrEKDIX. "be made on the parent or guardian, or tlie trustee or other person lialjle. 8. In tliis Order, and the Scliedules hereto, the following Avords and expressions shall have the meaning ascribed to them in the 3rd sub-section of section 1 of the Solicitors' Eemuneration Act, 1881, viz. : — Solicitor, Client, Person. APPENDIX. 225 SCHEDULE I. Part I. Scale of Charges on Sales, Purchases, and Mortgages, and Rales applicable thereto. Scale. (3.) For the., > r^ „ ,, , n \ TT^^ ti,« (-■) Foi" tlie 4th and each ^■*-{ ^"^^ '-'^''l'- £150 ( The same payment as on a rent of £50, < and 10 per cent, on the excess ( beyond £50. ^Vllere it exceeds £150 ( The same payment as on a rent of \ £150, and 5 per cent, on the excess ( beyond £150. Where a varying rent is payable, the amount of annual rent is to mean the largest amount of annual rent. _, , , , . !■ -i r f One-half of the amoTmti)ay- Pu.;chaser s^ or hssee s sohcitor for peru- \ ^^^^ ^^ ^^^ x.i,Aov{ or sing draft and completnig | 1^^^^^..^ soUcitor. 230 APPENDIX. EULES ArPLICABLE TO PaRT II. OF SCHEDULE I. As to all Leases, or Conveyances at a Rent, or Agreements for the same, other than Mining Leases and Agi'^e- ments therefor. Abstract, 1. Where the vendor or lessor furnishes an abstract of title, it is to be charged for according to the present system as altered by Schedule II. Solicitor 2. Where a solicitor is concerned for both vendor and acting for p^ij-gj^r^ggp^ qj. lessor and lessee, he is to charge the vendor's parties. or lessor's solicitor's charges and one-half of that of the purchaser's or lessee's solicitor. Mortga- 3, Wlaere a mortgagee or -mortgagor joins in a convey- ^^J.-f'L^^o tince or lease the vendor's or lessor's solicitor is to charge joining. £1 \s. extra. Other 4. Where a party other than a vendor or lessor joins party join- ^^-^ ^ conveyance or lease, and is represented by a separate solicitor, the charges of such separate solicitor are to be dealt with under the old system as altered by Schedule II. When 5. Where a conveyance or lease is j^artly in considera- partly pre- ^-^^^ ^j ^ money payment or premium, and partly of a rent, partly then, in addition to the remuneration hereby prescribed in "^"'^' respect of the rent, there shall be paid a further sum equal to the remuneration on a purchase at a price equal to such money payment or premium. 6. Fractions of £b are to be reckoned as £5. 2^'. pe I' folio. 8d. >5 j> id. )J j> \s. 5) . 10 APPENDIX. 231 SCHEDULE II. Instructions for and Drawing and Perusing Deeds, Wills, and other Documents. Such fees for instructions as, having regard to the care and labour required, the number and lengths of the papers to be perused, and the other circumstances of the case, may be fair and reasonable. In ordinary cases, as to drawing, &c., the allowance shall be — Eor drawing - . - - For engrossing - - Eor fair copying ... Eor perusing - . - - Attendance. In ordinary cases . . - In extraordinary cases the taxing master may increase or diminish the above charge, if for any special reasons he shall think fit. Ahdrads of Title (ivhere not covered hy the above Scales). s. d. Drawing each brief sheet of 8 folios - - 6 8 Eair copy - - - - - - .34 Journeys from Home. In ordinary cases for every day or not less than seven hours employed on business or in travelling - - - - - - £5 5 Where a less time than seven hours is so cm- ployed - - - . per hour 15 In extraordinary cases the taxing master may increase or diminish the above allowance, if for any special reasons lie shall think fit. (Signed) Selborne, C. Coleridge, C.J. G. Jessel, M.R. E. IIarvey. 232 APPENDIX. REMARKS ON THE SOLICITORS' REMUNERA- TION ACT. Only one Order. Act not compul- sory. Lump sum for costs. Principle of Act. Law Society's scale. Wlicre The first thing that strikes the careful reader of the Solicitors' Remuneration Act and the Order to it already- made is, that there is a want of certainty and simplicity about it, and that as yet all has not been done that -will be done eventually under it in the way of prescribing the remuneration for non-litigious work in which settlements are not included. Possibly it Avill soon be impossible for the solicitor to contract himself out of it, as he can now do, by making his election in writing and com- municating it to the client before the business is begun; except by agreement to take a fixed sum for the work he has to do, which is specially allowed by section 8. This will, of course, be the easiest and pleasantest way of arranging his costs ; but it must not be lost sight of that this agreement may be overhauled by the taxing master, just as agreements under the Solicitors Act of 1870 now can. The principle of the Act is to change the form of the remuneration of the solicitor, and instead of paying him by length, as heretofore, to pay him by commission upon the value of the property dealt with. It must not be forgotten that a scale has long been in existence, bear- ing the authorisation of the Law Society, which has had much the same end in view ; and that this has Avorked very well in London, although in the country it is often complained of as being too high. The Act is not to apply where the vendor employs APPENDIX. 233 an auctioneer and pays him himself. This has caused auct'onecr auctioneers to complain that the solicitor is being unduly favoured at their expense. It may be noticed that the scale for mortgages applies Transfer only to transfers and further charges where the solicitor ^"^ charging for a transfer or further charge investigated the chprge?. title upon the original mortgage: Where this is not so the old method of payment remains in force. Interest at four per cent, upon costs, to run from one interest, month after a demand has been properly made, as also security for such costs, may be taken by the solicitor. An expedition fee may be charged in respect of any Order business, the completion of which is required in an un- CXLII., usually short space of time. This rule may lead to dis- putes, and great care should be taken in having the instructions of the client as to this exact and complete. All drafts and copies of documents are to belong to the R. 3 client. These are the main provisions of the Act and Order ; but for the details, as Avhere a mortgage and conveyance are to be executed at the same time, or where the same solicitor is acting for the mortgagor and mortgagee, or where there are several parties to the sale, the Order itself must be referred to. Several difficulties appear likely to arise under it, and notably under r. 11 it is probable that it will often be a moot question whether or not the solicitor has or has not arranged the sale or purchase, and the price and terms and conditions thereof. The order as to Court Fees, which came into operation on January 1 last, is given at length. 234 APPENDIX. OEDER AS TO COUET FEES. 1. The following portion of the schedule to the Order as to Court Fees made on the 28th October, 1875, is hereby- repealed ; that is to say, Lower Scale. Higher Scale. £ s. d. £ s. d. On taking acknowledgment of a deed by a married woman - -100 GOO And instead thereof the following fees shall henceforth be chargeable m respect of the matters hereinafter mentioned (namely) : Fees under the Ad 3 <£.■ 4 Will IV. c. 74 {the Fines and Recoveries Act). £ s. d. For taking the acknowledgment of a married woman by a judge of the High Court of Justice 10 To a perpetual commissioner for taking the acknowledgment of a married woman when not required to go further than a mile from his residence - - - - - -0 134 To a perpetual commissioner when required to go more than one mile, but not more than three miles, besides his reasonable travelling expenses - - - - - - -110 APPENDIX. 23') To a perpetual coinniissioner where the dis- tance exceeds three miles, besides his reason- able travelling expenses - - - - 2 2 Where more than one married woman at the same time acknoAvledges the same deed respect- ing the same property, these fees are to be taken for the first acknowledgment only, and the fees to be taken for the other acknowledg- ment or acknowledgments, how many soever the same may be, shall be one-half of the original fees, and so also where the same married woman shall at the same time acknoAV- ledge more than one deed respecting the same property. To the clerk of the peace or his deputy for every search 10 To the same for every copy of a list of commissioners, provided such list shall not exceed the number of 100 names - - - 5 To the same for every further complete number of 50 names, an additional - - 2 6 For every official copy of a list of com- missioners, provided such list shall nut exceed the number of 100 names - - - - 5 For every further complete nund:)er of 50 names, additional - - - - - 2 G For preparing every special commission - 10 For examining the certificate and affidavit, and filing and indexing the same - - - 5 Upon tlic return of a special connuission to the central oifice - - - - - -050 For every search in the registry of certifi- cates of acknowledgments of deeds hy married women - - - - - - - 1 Fur enrolling recognisances, deeds, and other instruments, per folio of 72 words, including 236 APPENDIX. £ s. (I the certificate of enrolment endorsed on the instrument, but not including maps, plans, and drawings, which are to be charged at their actual cost - - - - - - - 1 For endorsing a certificate of enrolment on a duplicate of any enrolled instrument, for each folio of the instrument if it docs not exceed 2-4 folios - - - - - -006 For the like certificate if the instrument exceeds 24 folios- - - - - -0120 For office copies of enrolled instruments, per folio of 72 words - - - - - 6 For examining copies of enrolled instru- ments and marking them as office copies, per folio of 72 words - - - - - 2 Fees wider section 48 of the Conveyancing and Law of Propertij Act, 1881. On depositing a power of attorney - - 2 On an application to search for a power of attorney so deposited, and inspecting the same, and the affidavit or other documents deposited therewith, for each hour or part of an hour, not exceeding on one day \Qs. - - - 2 6 If an office copy is required, and it exceeds 2s. Qd., the fee for search and inspection is to bo allowed. Copies of powers of attorney and other documents so deposited presented at the office and stamped or marked as office copies to be charged for as office copies, 2. The following fees, by the Order as to Court Fees, dated the 6tli August, 1880, directed to be inserted in the APPENDIX. 237 schedule to the Order as to Court Fees made on the 28th October, 1875, are hereby repealed:— Searches and Imj^ed ions. Lower Higher Scale. Scale. c£ s. d. £ s. d. For an official certificate of the result of a search in one name in any register or index under the custody of the Clerk of Enrol- ments, the Registrar of Bills of Sale, the Registrar of Certificates of Acknowledgments of Deeds by Married Women, or the Regis- trar of Judgments - - - 5 5 For every additional name, if included in same certificate - 2 2 For a duplicate copy of certifi- cate, if not more than three folios For every additional folio For a continuation search, if made within 14 days of date of official certificate (the result to be endorsed on such certificate) - 1 10 3. Instead of the fees so repealed, the following fees shall henceforth be chargeable in respect of the matters hereinafter mentioned, viz. : — Searches and Inspections. £ s. d. For an official certificate of tlic result of a search in one name in any register or index under the custody of the Clerk of Enrolments, the Registrar of Bills of Sale, the Registrar of Certificates of Acknowledgments of Deeds by Married Women, or the Registrar of Judg- ments, if not more than five folios - - 5 For every additional folio - - - G 1 1 G G 238 APPENDIX. tf. For every additional name, if included in the same certificate - - - - - 2 For an office copy of the certificate of search, if not more than three folios - - 1 For every additional folio - - - 6 For a continuation search, if made Avithin one calendar month of date of official certificate (the result to be endorsed on such certificate) 10 4. This order shall come into operation on the 1st January, 1883. APPExVDIX. 239 33 & 34 Vict. c. 28. An Act to amend the law relating to the Remuneration of Attorneys and Solicitors. \\itli Jidy, 1870. Whereas it is expedient to amend the law relating to the Eemuneration of Attorneys and Solicitors : Be it (!nacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords, spiritual and temporal, and Commons, in this present Parliament as- sembled, and by the authority of the same, as follows: PreliminariJ. 1. This Act may be cited as "The Attorneys and Soli- Short title. citors Act, 1870." 2. This Act shall not extend to Scotland. Extent of 3. In the construction of this Act, unless where the ^ Interpre- context otherwise requires, the words following have the tation of significations hereinafter respectively assigned to thein ; terms, that is to say, The words " attorney or solicitor " mean an attorney, solicitor, or proctor, qualified according to the provisions of the Act for the time being in force, relating to the admission and qualification of attorneys, solicitors, or proctors; " Person " includes a corporation ; " Client " includes any person who, as a principal or on behalf of another person, retains or employs, or is about to retain or employ, an attorney or solicitor, and any jicrson who is or may be liable 240 APPEXDIX. to pay the bill of an attorney or solicitor for any services, fees, costs, charges, or disburse- ments. Part I. Agreements hetween Attorneys or Solicitors and their Clients. The re- 4. An attorney or solicitor may make an agreement in tion of Avriting with his client respecting the amount and manner attorneys of payment for the whole or any part of any past or tors may f^iture services, fees, charges, or disbursements in respect be fixed by of business done or to be done by such attorney or soli- " ' citor, whether as an attorney or solicitor, or as an advocate or conveyancer, either by a gross sum, or by commission or percentage, or by salary or otherwise, and either at the same or at a greater or at a less rate as or than the rate at which he would otherwise be entitled to be remunerated, subject to the provisions and conditions in this part of Amount ^]^jg ^^.^ contained : Provided always, that when any such l)ayable e ^ ■ under agreement shall be made in respect of business done or to agreement j^g done in any action at law or suit in equity, the amount not to be -^ . paid until payable under the agreement shall not be received by the allowed by ^^tomev or solicitor until the agreement has been ex- taxmg "^ . officer. amined and allowed by a taxing officer of a Court having power to enforce the agreement ; and if it shall appear to such taxing officer that the agreement is not fair and reasonable, he may requii'e the opinion of a Court or a judge to be taken thereon by motion or petition, and such Court or judge shall have power either to reduce the amount payable under the agreement, or to order the agreement to be cancelled, and the costs, fees, charges, and disbursements in respect of the business done to be taxed in the same manner as if no such agreement had been made. Saving of 5. Such an agreement shall not affect the amount of, interests of ^^ ^^^ j.jg]^^g Qp remedies for the recovery of, any costs APPENDIX. 241 recoverable from the client by any other person, and any third sucli other person may require any costs payable or recoverable by him to or from the client to be taxed according to the rules for the time being in force for the taxation of such costs, unless such person has otherwise agreed : Provided always, that the client who has entered into such agreement shall not be entitled to recover from any other person under any order for the payment of any costs which are the subject of such agreement more than the amoimt payable by the client to his own attorney or solicitor under the same. 6. Such an agreement shall be deemed to exclude any Agree- inents further claim of the attorney or solicitor beyond the shall ex- terms of the agreement in respect of any services, fees, elude 1 T f . , • , -, I further charges, or disbursements m relation to the conduct and claims. completion of the business in reference to which the agreement is made, except such services, fees, charges, or disbursements, if any, as are expressly excepted by the agreement. 7. A provision in any such agreement that the attorney Reserva- or solicitor shall not be liable for negligence, or that lie *^°" -[J-T' shall be relieved from any responsibility to Avhicli he for negli- would otherwise be subject as such attorney or solicitor, S^nce. shall be Avholly void. 8. iSTo action or suit shall be brought or instituted upon Examina- any such agreement, but every question respecting the elXr^e- validity or effect of any such agreement may be examined ment of and determined, and the agreement may be enforced, or set j^gQfg aside, without suit or action on motion or petition of any person or the representative of any person, a party to such agreement, or being alleged to be liable to pay, or being or claiming to be entitled to be paid the costs, fees, charges or disbursements in respect of which the agree- ment is made by the Court in which the business, or any part thereof, was done, or a judge thereof, or if the busi- ness was not done in any Court, then where the amount payable under the agreement exceeds fifty pounds, by M £42 APPENDIX. any Suporior Court of Lnv or oquity or a judge tliercof, and wlicn sucli amount docs not excocd fifty pounds, Ijv the judge of a County Court whioli would liavo jurisdiction in an action upon the agreement. Improper 9. Upon, any such motion or petition as aforesaid, if it inents mav ^^^^^^ appear to tlie Court or a judge that such agreement is be set in all resi^ects fair and reasonaljle between the parties, the same may be enforced by such Court or judge by rule or order in such manner and subject to such conditions, if any, as to the costs of such motion or petition as such Court or judge may think fit ; but if the terms of such agreement shall not be deemed by the Court or judge to be fair and reasonable, the same may be declared void, and the Court or judge shall thereupon have power to order such agreement to be given up to l)e cancelled, and may direct the costs, fees, charges, and disbursements incurred or chargeable in respect of the matters included therein to be taxed in the same manner and according to the same rules as if such agreement had not been made ; and the Court or judge may also make such order as to the costs of and relating to such motion or petition, and the proceedings thereon, as to the said Court or judge may seem fit. Agree- 10. When the amount agreed for under any such agree- ments may -^y^Q^^^ ]^r^g been paid by or on behalf of the client, or by opened any person chargeable with or entitled to pay the same, after pay- ^^y Court or iudge having iurisdiction to examine and ment m "^ jo o j special enforce such an agreement may, uj)on application to the cases. person who has paid such amount, within twelve months after payment thereof, if it appears to such Court or a judge that the special circumstances of the case require the agreement to be re-opened, re-open the same, and order the costs, fees, charges, and disbursements to be taxed, and the whole or any portion of the amount received by the attorney or solicitor to be repaid by him, on such terms and conditions as to the Court or judge may seem just. APPENDIX. 243 When any such agreement is made l)y the client in the capacity of guardian, or of trustee under a deed or will, or of committee of any person or persons ■whose estate or property will be chargeable Avith the amount payable xmder such agreement, or with any part of such amount, the agreement shall before payment be laid before the taxing officer of a Court having jurisdiction to enforce the agreement, and such officer shall examine the same, and may disallow any part thereof, or may require the direc- tion of the Court or a judge to be taken thereon by motion or petition ; and if in any such case the client pay the whole or any part of the amount payable under the agree- ment, without the previous allowance of such officer or Court or judge as aforesaid, he shall be liable at any time to account to the person whose estate or property is charged with the amount paid, or with any part thereof for the amount so charged ; and if in any such case the attorney or solicitor accept payment without such allow- ance, any Court which would have had jurisdiction to enforce the agreement may, if it think fit, order him to refund the amount so received l)y him under the agree- ment. 11. Nothing in this Act contained shall be construed Prohibi- to give validity to any purchase by an attorney or solicitor certain of the interest, or any part of the interest, of his client in stipula- any suit, action, or other contentious procc<.'ding to be brought or maintained, or to give validity to any agree- ment by which an attorney or solicitor retained or em- ployed to prosecute any suit or action, stipulates for pay- ment only in the event of success in such suit, action, or proceeding. 12. Nothing in this Act contained shall give validity Not to to any disposition, contract, settlement, conveyance, y^lfditv to delivery, dealing, or transfer, which may be void or contracts, invalid against a trustee or creditor in bankruptcy, '^^^^' ^^^ arrangement, or composition, under the provisions of the void in laws relating to bankruptcy. ruptcy m2 244 APPENDIX. ]'*rovision in case of death or incapacity of the attorney. As to change of attorney after agreement. 13. Where an attorney or solicitor has made an agree- ment with his client in pursuance of the provisions of this Act, and anything has been done by such attorney or solicitor under the agreement, and before the agreement has been completely j)erformed by liim such attorney or solicitor dies or becomes incapable to act, an application may bo made to any Court wliich Avould have jurisdiction to examine and enforce the agreement by any party thereto, or by the representatives of any such party, and such Court shall thereupon have the same ^^ower to enforce or set aside such agreement, so far as the same may have been acted upon, as if such death or incapacity had not happened ; and such Court, if it shall deem the agree- ment to be in all respects fair and reasonable, may order the amount due in respect of the past performance of the agreement to be ascertained by taxation, and the taxing officer in ascertaining such amount shall have regard so far as may be to the terms of the agreement, and payment of the amount found to be due may be enforced in the same manner as if the agreement had been completely performed by the attorney or solicitor. 1 4. If after any such agreement as aforesaid shall have been made, the client shall change his attorney or solicitor before the conclusion of the business to which such agree- ment shall relate (which he shall be at liberty to do not- withstanding such agreement), the attorney or solicitor, party to such agreement, shall be deemed to have become incapable to act under the same within the meaning of section 13 of this Act, and upon any order being made for taxation of the amount due to such attorney or solicitor in respect of the part performance of such agree- ment the Court shall direct the taxing master to have regard to the circumstances under which such change of attorney or solicitor has taken place ; and, upon such taxa- tion, the attorney or solicitor shall not be deemed entitled to the full amount of the remuneration agreed to be paid to him, unless it shall appear that there has been no APPENDIX. 245 default, negligence, improper tlelay, or otlier conduct, on his part affording reasonaljle ground to the client for such change of attorncj' or solicitor. 15. Except as in this part of this Act provided, the bill Agree- of an attorney or solicitor for the amount due under an i^g exempt agreement made in pursuance of the provisions of this Act from taxa- shall not be subject to any taxation, nor to the provisions of the Act of the sixth and seventh Victoria, chapter seventy-three, and the Acts amending the same respecting the signing and delivery of the Ijill of an attorney or solicitor. Part IL General Provkions. 1 6. An attorney or solicitor may take security from his Security client for his future fees, charges, and disbursements, to be t^jjgn f^^ ascertained by taxation or otherwise. future 17. Subject to any general rules or orders hereafter to ^' be made, upon every taxation of costs, fees, charges or may be disbui-sements, the taxing officer may allow interest at t'^l^en for ' - y _ future such rate and from such time as he thinks just on moneys costs. disbursed by the attorney or solicitor for his client, and on moneys of the client in the hands of the attorney or solicitor, and improperly retained by him. 18. Upon any taxation of costs, the taxing officer may, Taxing in determining the remuneration, if any, to be allowed to '^^^^^ the attorney or solicitor for his services, have regard, regard to subject to any general rules or orders hereafter to bo made, ^^ services, to the skill, labour and responsi])ility involved. 19. Whenever any decree or order shall have been Revival of nuule for payment of costs in any suit, and such suit shall p.jy,„ent afterwards become abated, it shall be lawful for any person of costs, interested under such decree or order to revive such suit, and tliereupou to prosecute and enforce such decree or order, and so on from time to time as often as any such abatement shall happen. 24G APPENDIX. Tower to 20. Ymm and after the ])assiiig of tliis Act, it sliall lie &c to ' I'l^^'f^d I'oi" an attorney or solicitor to perfoini all such perform acts US appertain solely to the office of a proctor, in any acts as appertain Ecclesiastical Court other than the Provincial Courts of to office of the Archbishops of Canterbury and of York, and the Diocesan Court of the Bishop of London, without incur- ring any forfeiture or penalty, and to make the same charges -which a proctor Avould be entitled to make, niv\ to recover the same, any enactments to the contrary notwithstanding. APPENDIX. 247 SOLICITOES ACT, 1843. 6 & 7 Vict. c. 73, ss. 37—41. 37. And be it enacted that from and after the passing Attorneys of this Act no attorney or solicitor, nor anv executor, ^^^ sohci- administrator, or assignee of any attorney or solicitor, shall commence commence or maintain any action or suit for the recovery ^^ ^^*'^T.,i "' _ "^ for fees till of any fees, charges or disbursements for any business one month done by such attorney or solicitor, until the expiration of j.!r^ '' J ■> i delivery of one month after such attorney or solicitor, or executor, bills, administrator, or assignee of sucii attorney or solicitor, shall have delivered unto the party to be charged there- Avith, or sent by the post to or left for him at his counting-house, office of business, dwelling-house, or last known place of abode, a bill of such fees, charges, and disbursements, and which bill shall either be subscribed with the proper hand of such attorney or solicitor (or, in the case of a partnership, Ijy any of the partners, either with his own name or with the name or style of such partnership), or of the executor, administrator, or assignee of such attorney or solicitor, or l)e encloseil in or accom- panied by a letter subscribed in like manner, referring to such bill. And upon the application of the party cliargeable by Reference such bill Avithiii such mcjutli it shall be lawful, in case". !/' the business contained in such 1)ill or any part thereof relating to shall have been transacted in tlie High Court of Chancery, J^"'^'"''**^ " ■ ' transacted or any other Court of eijuity, or in any matter of bank- in Court or 248 APPENDIX. not, for taxation. Taxation after one month. Taxation after tWflre months, under special circum- stances. ru})tcy or lunacy, or in case no part of such business shall have been transacted in any Court of law or equity, for the Lord High Chancellor or the Master of the Eolls, and in case any part of such business shall have been transacted in any other Court, for the Courts of Queen'.s ]>ench. Common Pleas, Exchequer, Court of Common Picas at Lancaster, or Court of Pleas at Durham, or any judge of either of them, and they are hereby respectively required to refer such bill, and the demand of such attorney or solicitor, executor, administrator or assignee, thereupon to be taxed and settled by the proper officer of the Court in which such reference shall be made, without any money being brought into Court ; and the Court or judge making such reference shall restrain such attorney or solicitor, or executor, acbninistrator or assignee of such attorney or solicitor, from commencing any action or suit touching such demand pending such reference. And in case no such application as aforesaid shall be made "within such month as aforesaid, then it shall be lawful for such reference to be made as aforesaid, either upon the application of the attorney or solicitor, or the executor, administrator, or assignee of the attorney or solicitor, whose bill may have been so as aforesaid de- livered, sent or left, or upon the application of the party chargeable by such bill, with such directions and subject to such conditions as the Court or judge making such reference shall think proper ; and such Court or judge may restrain such attorney or solicitor, or the executor, administrator, or assignee of such attorney or solicitor, from commencing or prosecuting any action or suit touching such demand pending such reference upon such terms as shall be thought proper. Provided always, that no such reference as aforesaid shall be directed upon an application made by the party chargeable Avith such bill after a verdict shall have been obtained or a Avrit of inqiiiry executed in any action for the recovery of the demand of such attorney or solicitor. APPENDIX. 240 or executor, administrator, or assignee of sncli attorney or solicitor, or after the expiration of twelve months after such bill shall have been, delivered, sent or left as afore- said, except under special circumstances, to be proved to the satisfaction of the Court or judge to Avhom the appli- cation for such reference shall be made. And upon every such reference, if either the attorney or solicitor, or executor, administrator or assignee* of the attorney or solicitor, whose bill shall have been delivered, sent or left, or the party chargeable with such bill, having due notice, shall refuse or neglect to attend such taxation, the officer to whom such reference shall be made may pro- ceed to tax and settle such bill and demand ex parte. And in case any such reference as aforesaid shall he Payment made upon the application of the party chargeable with taxation, such bill, or upon the application of such attorney or solicitor, or the executor, administrator or assignee of such attorney or solicitor, and the party chargeable with such bill shall attend upon siich taxation, the costs of such reference shall, except as hereinafter provided for, be paid according to the event of such taxation ; that is to say, if such bill when taxed be less by a sixth part than the bill delivered, sent or left, then such attorney or solicitor, or executor, administrator or assignee of such attorney or soUcitor, shall pay such costs ; and if such bill when taxed shall not be less by a sixth part than the bill delivered, sent or left, then the party chargeable with such bill, making such application or so attending, shall pay such costs ; and every order to be made for such reference as aforesaid shall direct the officer to whom such reference shall be made to tax such costs of such reference to be so paid as aforesaid, and to certify wliat, upon such reference, shall be found to Ije due to or from such attorney or .solicitor, or executor, administrator or assignee of such attorney or solicitor, in respect of such bill and demand, and of the costs of such reference, if payable : Provided also, that such officer shall in all cases be at lil:)crty to ar 3 250 APPENDIX. certify specially any circumstances relating to sucli ])ill or taxation, and the Court or judge shall be at liberty to make thereupon any such order as such Court or judge may think right respecting the payment of the costs of such taxation : Provided also, that where such reference as aforesaid, shall be made when the same is not autho- rised to be made except under special circumstances, as hereinbefore provided, then the said Court or judge shall be at liberty, if it shall be thought fit, to give any special directions relative to the costs of such reference. Courts Provided also, that it shall be lawful for the said re- atttornev spective Courts and judges, in the same cases in which or solicitor they are respectively authorised to refer a bill which has Hs bill and ^'^^^'^ ^^ ^^ aforesaid delivered, sent, or left, to make siich to deliver order for the delivery by any attorney or solicitor, or the ^^ ^ *^' executor, administrator or assignee of any attorney or solicitor, of such bill as aforesaid, and for the delivery up of deeds, documents, or papers in his possession, custody, or power, or otherwise touching the same, in the same manner as has heretofore been done as regards such attorney or solicitor, by such Courts or judges respectively, where any such business had been transacted in the Court in which such order was made. Evidence Provided also, that it shall not in any case be neces- of delivery g^j.y jj^ ^j^g fjpgj; instance for such attorney or solicitor, or of bill. , ■' -, . . . o ^ the executor, administrator, or assignee oi such attorney or solicitor, in proving a compliance with this Act, to prove the contents of the bill he may have delivered, sent, or left, but it shall be sufficient to prove that a bill of fees, charges or disbursements, subscribed in the manner aforesaid, or enclosed or accompanied by such letter as aforesaid, was delivered, sent, or left in manner aforesaid ; but, nevertheless, it shall be competent for the other party to show that the bill so delivered, sent, or left was not such a bill as constituted a bona fide com- pliance with this Act. Power to Provided also, that it shall be lawful for any judge of APPENDIX. 251 tlie Superior Courts of law and equity to autliorise an judye tu attorney or solicitor to commence an action or suit for the action or recovery of liis fees, charges, or disbursements against the taxation party chargeable therewith, and also to refer his bill of piration of fees, charges and disbursements and the demand of such n^onth (as attorney and solicitor thereupon to be taxed and settled by 38 & 39 by the proper officer of the Court in which such reference ^'^^t- c 79, shall be made, although one month shall not have expired from the delivery of the bill of fees, charges, or disburse- ments, on proof to the satisfaction of the said judge that there is probable cause for believing that the party chargeable therewith is about to quit England, or to become a bankrupt, or a liquidating or compounding debtor, or to take any other steps, or do any other act, which in the opinion of the judge Avould tend to defeat or delay such attorney or solicitor in obtaining payment. 38. And be it enacted, that where any person, not the ^i'^^ may party chargeable with any such bill within the meaning upon the of the provisions hereinbefore contained, shall be liabl" application to pay, or shall have paid, such bill, either to the attorney parties, or solicitor, his executor, administrator, or assignee, or to the party chargeable with such bill as aforesaid, it sliall be lawful for such person, his executor, administrator, or assignee, to make such application for a reference for the taxation and settlement of such bill as the party charge- able therewith might himself make, and the same reference •and order shall be made thereupon, and tho same course pursued in all respects, as if such application was made Ijy the party so chargeable with such bill as aforesaid: Provided always, that in case such application is made when, inider the provisions herein contained, a reference is not authorised to be made except under special circum- stances, it shall be lawful for the Court or judge to whom such application shall be made to take into consideration any additional special circumstances a])plicable to tho ]icrson making such application, although such circum- stance might not be applicable to the party so chargeable 252 APPENDIX. witli the said Lill as aforesaid, if he was the party making the application. Lord 39_ ^nd be it enacted, that it sliall be hxv.'ful, in any Chancellor . , . , t • • may direct case in which a trustee, executor, or achiuiustrator lias be- taxation of come chargeable with any such bill as aforesaid, for the chan'-eable Lord High Chancellor or the Master of the EoUs, if in on execu- j-^^g discretion ho shall think fit, upon the application, of a party interested in the property out of which such trustee, executor, or administrator may have paid or be entitled to pay such bill, to refer the same, and such attorney's or solicitor's, or executor's, administrator's, or assignee's demand thereupon, to be taxed and settled by the proper officer of the High Court of Chancery, with such direc- tions and subject to such conditions as such judge shall think fit, and to make such order as such judge shall think fit for the payment of what may be found due, and of the costs of such reference, to or by sucli attorney or soli- citor, or the executor, administrator, or assignee of such attorney or solicitor, by or to the party making such appli- cation, having regard to the provisions herein contained relative to applications for the like purpose by the party chargeable with such bill, so far as the same shall be applicable to such cases, and in exercising such discretion as aforesaid the said judge may take into consideration the extent and nature of the interest of the party making the application : Provided always, that when any money shall be so directed to be paid by such attorney or soli- citor, or the executor, administrator, or assignee of such .attorney or solicitor, it shall be lawful for such judge, if he shall think fit, to order the same, or any part thereof, to be paid to such trustee, executor, or administrator, so chargeable with such bill, instead of being paid to the party making such application ; and Avhen the party making such application shall pay any money to such attorney or solicitor, or executor, administrator, or assignee of such attorney or solicitor, in respect of such bill, ho shall have the same right to be paid by such trustee, exe- APPENDIX. 253 cutor, or administrator so chargeable with such l>ill as such attorney or solicitor, or executor, administrator, or assignee of such attorney or solicitor, had, 40. And he it enacted that for the purpose of any such Copy of reference upon the application of the person not being the (jyii^,^.i.e,i party chargeable within the meaning of the provisions of to person this Act as aforesaid, or of a party interested as aforesaid, ™ plication it shall be laAvful for such Court or judge to order any for refer- sucli attorney or solicitor, or the executor, administrator, tg^jjj^ti'„^_ or assignee of any such attorney or solicitor, to deliver to the party making such application a copy of such bill, upon payment of the costs of such copy : Provided always, that no bill which shall have been No re- previously taxed and settled shall be again referred unless, under special circumstances, the Court or judge to whom such application is made shall think fit to direct a re- taxation thereof. 41. And be it enacted, that the payment of any such l)ill Taxation as aforesaid shall in no case preclude the Court or judge to pfiy^^ynt. whom application shall be made from referrmg such bill for taxation, if the sj^ecial circumstances of the case shall in the opinion of such Court or judge appear to require tin; same, upon such terms and conditions and subject to such directions as to such Coiu't or judge shall seem right, provided the application for such reference l)e made within twelve calendar mouths after payment. 254 APPENDIX. AN ITEM DISALLOWED ON TAXATION See page 166. In re Snell (a solicitor), L. E. 5 Cli. D. 82L August 11th to Oct. 29th. Attending at the offices of the company on jNIr. J. H. Patrick, the manager of the company, perusing the accounts of the company, and going fully into the same, and obtaining information as to the affairs of the company and the mode in whicli the business was carried on and numerous attendances on Mr. Patrick, Mr. Barber, and Mr. Walker, as to the amount of ore raised and sold from the mine and the debts and liabilities of the company, several attendances at the furnaces at Sandy, inspecting the books there and the mine and going through the same and comparing the workings with the plans and obtaining explanations from Mr. Collins and other persons as to the value of the mine, and afterwards attendances on Mr. Patrick, going fully with him into the charges made in the l)ill, which was already prepared and printed, and arranging to meet Mr. Davis, Avho he informed me was going to America for that purpose; and taking journey to Omaha, where the principal quantity of bullion ob- tained from the mine Avas sold, inspecting the books of the Omaha Smelting Company and APPENDIX. taking extracts tlierefrom showing the quan- tity of bullion received and paid for since the company was formed, antl attending with Mr. Patrick or Mr. Davis in New York discussing the position of matters fully with him at several interviews, and ultimately INIr. Davis said he was going to Salt Lake City and would look into matters and on his return to Paris he would be glad to see me and listen to any jjroposition for a settlement, l)ut he Avould have nothing to do with ]\[r. Sergeant Sleigh, INIr. Murray, or any other member of the Com- mittee, and attendances at Salt Lake City on Messrs. Easkin, the company's legal advisers there, conferring with them as to the action pending against the company and giving them particulars, and on its being decided to issue a commission to London to examine witnesses thereon and giving them names to whom to direct the commission 150 256 APPENDIX. CASES 0^ NEGLIGENCE. The following cases have been coUected from various treatises, as being therein stated to bear upon solicitors' negligence. In searching after decisions on a particular subject, a person may, by reference to some one of them, be put on the right tack. Acting Gratuitotisly. Donaldson v. Holdane, 7 CI. & E. 762. Advising Litigation. Gill V. Lougher, J C. & J. 170. Otley V. Gilby, 14 L. J. Ch. 178; 7 Beav. 602. Jacks V. Bell, 3 C. & P. 316. Re Clarke, 21 L. J. Ch. 20. Sill V. Thomas, 8 C. & P. 762. Hill V. Finney, 4 F. & F. 625, n. Agent, Negligence of. Simons v. Eose, 31 Beav. 11. Clerlx, Negligence of. Floyd V. Naugh, 3 Atk. 568. Prestwick v. Foley, 18 C. B. N. S. 806 ; 34 L.J. C. P. 159. Compensation {Courts loill not interfere summarily to comjycl). Dixon V. Wilkinson, 4 Drew, 614. Be William Jones, 1 Chit. 651. Garner v. Lawson, 1 Barnard, 101. Rex v. Few, Say Eep. 50. APPENDIX. 257 Comprcnni-ic, WIicii Solicitor hiay. Fray v. Youles, EL & El. 839. Prestwiok V. Foley, 13 W. K. 757 ; 18 C. 13. X. 8. 80G ; 34 L. J. C. P. 189. Straus V. Francis, L. E. 1 Q. E. 379 ; 35 L. J. Q. E. 153. Conduct of Actions and Suit,->: Williams V. Gibbs, 5 Ad. &E 208. Jacob V. Bell, 3 C. & P. 317. Harte v. Frame, G Clarke & F. 193. Tliwaites t\ Mackenzie, 3 C. & P. 341. Gill V. Lougher, 1 C. & J. 170. Montgomery v. Devereux, 7 CI. Sc F. 188. Longv. Orsi, 18 C. E. 619. Hunter v. Caldwell, 10 Q. E. 69 ; 16 L. J. Q. E. 274. Be Eolton, 9 Bcav. 272. Eiclley v. Tiplady, 20 Eeav. 44. Eidley v. Jolland, 8 Yes. 72. Frankland r. Cole, 2 Cr. & J. 590. Stokes V. Trumper, 2 Kay & J. 232. (lodefrey v. Jay, 7 Eing. 413. Eevins v. Hulme, 15 M. & W. 88 ; 15 L. J. 226 Ex. Godefrcy v. Jay (sjqrro). Flower r. Bolingbroke, 1 Sfe. 639. Sliilcock r. Passman, 7 Car. & P. 289. ComiRcl'M power to. Proceeding in Court whicli has 110 jurisdic- tiou. On wrougr section of Act of rarliamont. Before sviflBciently investiga- ting fact.s. Before proper pre- liminaries liave been taken. Gross mis- takes in proceed- ings. Not prose- cuting pro- ceedings witli dili- gence. Allowing judgment to go by default. Discharging defendant from cus- todj- with- outrecoiviiig satisfaction. Neglecting to set aside irregular proceed- ings. Not enter- ing vip a judgment. Not apply- ing fw prisoner's discharge from exe- cution xinder 4.S Geo. III. c. 12;), s. I. 258 APPENDIX. Neglecting Koufimiy v. Pcalc, 3 Tauiit. 484. t1. 61. Liahility, ichetlier certificated or not. Brown v. ToUey, 31 L. T. N. S. 485. Limitations, Statute of. Howell V. Young, 5 B. & C. 259. Ohligation. Fish V. Kelly, 17 C. B. N. S. 194. Westaway v. Frost, 17 L. J. Q. B. 286. Upon points of new or rare occur- rence. Must amount to lata culpa or crassa negli- gentia. Amount of negligence client must show. Liable only for particu- lar thing for which he is retained. Is with client, not with a stranger. 2G2 APPENDIX. Hubbard v. Phillips, 13 M. & W. 702. Andrews v. Hawley, 20 L. J. Ex. 323. Partner, Nerjlhjence of. Norton v. Cooper, 3 Sm. & Giff. 375. Dundonald v. Masterman, L. K. 7 Eq. 504 ; 38 L. J. Cli. 350. Bickford v. D'Arcy, L. R. 1 Ex. 354 ; 14 L. T. N. S. G29. Patent Agents. Lee V. Walker, L. H. 7 C. P. 121 ; 41 L. J. C. P. 91. Prlcltij of Contract. Must be Robertson v. Fleming, 4 Macq. H. L. 167. JaSeT'^' Eish V. Kelly, 17 C.^B. 194. Simons v. Rose, 31 Beav. 1. Allen V. Clarke, 7 L. T. 781. Precautions not talcen. Long V. Orsi, 18 C. B. 610. Cox V. Leech, 1 C. B. N. S. 617. Remedy against Solicitor. Temple w. Laughlan, 2 N. R. 136. Russell V. Palmer, 2 Wil. 235. Pitt V. Yalden, 4 Burr. 2061. Measuve of Davis V. Garrett, 6 Bing. 716. damages. _ ,^,-r -.-^-r-.-../^ Rolin V. Steward, 23 L. J. C. P. 149. Retainers. Cannot "VVadsworth V. Marshall, 2 Cr. & J. 665. throw up „.,,„« without Hoby V. Built, 3 B. & Aid. 350. notice* A^an Sandau v. Brown, 9 Bing. 402. Ends when Flower f . Bolingbroke, 1 Str. 639. judgment is -niMic\-rriorities of charges, 51, 204 charging order, how obtained, 51 next step, 51 notice when client absconds, 52 of town agent, not a general lieu, 52 of town agent as against client and as against country solicitor, 53 only a right to embarrass, 53 no bar to order upon client to produce. 54, GO no bar to right of bankruptcy trustee, 54 no bar to right of oflicial liquidator, 54 waiver of by undertaking, 54 effect of not keeping undertaking, 54 peculiarity of solicitor's lien, 57 must be for professional services, 58 does not extend to other claims, 58 solicitor ordered to give up some of the documents, 58 no lien on client's letters and copy replies, 59 on alimony, 59 how lieu may be used, GO excuse for not producing deeds, GO how lien may be lost, GO solicitor acting for mortgagee and mortgagor, GO waiver of lien, GO lost by claiming some other right, Gl cases on lien, 61 upon a fund, 6 1 28 i INDEX. Lien — continued: protected by stop order, 195 exists independently of declaration, 196, 197 See Priorities of Costs, Charges, £c., 203 — 207 LnriTATioxs, Statute of, solicitor's lien not barred by, 49, 195 in cases of solicitor's negligence, 107 statutory lien is subject to, 197 Lis pendens, solicitor neglecting to register, 110 Lower Scale, costs, 185 Magistrates, proceedings before, taxation, 77 solicitors as advocates, 94 articled clerks as advocates, 96 Married Women, retainer of solicitor by, 29 security for costs, 134 payment of costs by, 139 Master, costs of proceedings before, 123 appeals from as to costs, 133, 179 Master of the Rolls, power of over solicitors, 12 Misconduct of party claiming costs, 189 Mistakes, by solicitor, 100 in points of rare occurrence, 110 by taxing master, 153 Models, costs of in patent cases, 179 INDEX. 28i Money, of client, solicitor's lien on, 49 received by town agent, 86 paid into conrt and taken out, 130 given to solicitor for investment, 112 Mortgage of plaintiff's interest to defendant's, costs, 207 Mortgagees, Order LV. as to costs of, 33, 121 Mortgagor, solicitor acting for mortgagor and mortgagee, 41, 47, 60, 91 borrowing deeds from eciuitaMe mortgagee, 48 Motion, to set aside agreement Avith solicitor, 77 costs of abandoned motion, 131 drawing notice of, 101 to dismiss for want of prosecution, 135 Negligence of Solicitor, of town agent, 84, 87 no privity between client and counsel, 104 instructing counsel, 104, 107 solicitor cannot transfer his own liability, 104 what are questions for counsel, 104 liability of solicitor for mistakes, 105 exceeding his duty, 105 compromising against instructions, 105 must follow special directions, 105 acting under general retainer, 105 compromise for a "certain" sum, 106 extent of liability, 106 remedy of client, 106 Statute of Limitations runs from Act of, 107 right of client, 107 probable loss may be assessed by jury, 107 non-attendance at trial with witnesses, 107 legal proceedings occasioned by, 108 neglect to defend, 108 amount of negligence, 108 28(3 INDEX. Negligence of Sohicmo-R- continued. care of client's papers, 109 notices affecting client, 109 of agent or partner, 109 acting without authority, 109. See Retainer. employing counsel, 109 employing surveyor, 110 in providing evidence, 110 non-registry of lis pendens, 110 errors in points of rare occurrence, 110 failure of action through improper advice, Hi alsandoning cause Avithout notice. 111 acts which client has to answer for, 112 acting withoiit certificate, 112 moneys given to solicitor for investment, 112 costs occasioned by, 157 New Trial granted by Court of Appeal, costs, 137 Next Friend, retainer by, 29 costs allowed, 150 Next of Kin, costs of when estate insufficient, 150 Notaries, in Loudon, 10 ten miles from London, 11 stamp duty, 11 duties of, 1 1 evidence before, 11 Notice, of desire to be admitted, 9 to records and writ clerk on change of solicitors, 62 in lieu of charging order, absconding client, 52 by town agent to client not to pay money to country solicitor, 89 of motion drawing, 101 affecting client not acted upon by solicitor 109 of withdrawal, costs upon, 132 INDEX. 287 Objections to allowance of taxing master, 132, 156 Official Liquidator, application for taxation, 176 Order, charging order, 51 for production, lien of solicitor on papers, 54, 60 to give up documents on change of solicitors, 62, 67 for solicitor to give undertaking, 82, 83 by consent, and for costs, 136 for delivery of solicitor's bill, attachment, 141 waiver of personal service, 142 to review taxation, 156 for change of solicitors, 167 for examination of solicitor, 169 for taxation by party interested, 171 for declaration under Solicitors Act, 197 Parliamentary Scale, bills taxed on, 158, 176 Parties, to be served with petition for charging order, 198 taxation by interested parties, 171 Partnership Action, priority of solicitor's costs, 192, 205 differs from administration action, 193 Party and Party Costs, what they consist of, 177 counsel's fees for cross-examination, 177 where costs for three counsel allowed, 178 of counsel in a reference, 178 on trial of a writ of iiKjuiry, 178 special jury fees, 178 copies of pleadings, 178 shorthand writers' notes, 178, 185 inspection of books by accountants, 179 scale of payment of accountants, 179 costs of appeal from master, 179 288 INDEX. Party and Party Costs — continued. interest on disbursements, 179 model in patent cases, 179 discretion of taxing master in equity, 1 79 expenses of witnesses, 180 surveys and reports, 180 professional ■witnesses, 181 interrogatories prepared and not used, 181 interpreters, 182 instructions for brief, what is included, 181 subsistence money allowed to plaintiff, 182 affidavit of increase, 183 witnesses not called, 183 agreement not to charge solicitor and client costs, 183 solicitor must protect client against expenses, 1 84 higher and lower scale, 185 judges' discretion as to scale, appeal, 185 higher scale, when allowed, 185 Patents, costs in suits for iufi-ingement, 151 costs of models, 179 Petition, for charging order, 197 to set aside agreement with solicitor, 77 costs of, for taxation, 78 Plaintiff, name used without authority, 30 alloAved subsistence money, 182 creditor, insufficient estate, 192 Pleadings, drawing, 102 costs of copies of, 178 Postage, proof of may be charged for, 105 Precedents. See Acts of Parliament, 100 INDEX. 289 Priorities of Costs, Charges, &c. what solicitor's right is, 203 solicitor and client after judgment, 203 lien and set-off, priority, 204 lien on balance in favour of client, 204 costs of independent proceedings, no set-off, 205 set-off of debt against costs of an award, 205 in administration suit, 205 in partnership actions, 205 solicitor's lien against execution creditor, 206 when garnishee order nisi takes effect, 206 mortgage of plaintiff's interest to defendant, lien, 207 Privilege, foundation of, 36 privileged communications, 36 does not extend to criminal matters, 37 fraud, 37 solicitor's confidential clerk, 37 solicitor acting for two parties in a suit, 38 trustee acting for one cestui que trust against another, 38 principle in above cases, 38 residence of a ward, 39 correspondence between plaintiff and third parties, 39 inspection of papers in prior action, 39 address of client, 39 bill of costs privileged, 40 communications made to solicitors, 40 knowledge acquired by solicitor otherwise than from client, 41 documents in possession of solicitor, 41 solicitor acting for mortgagor and mortgagee, 41 must be no question of retainer, 42 inspection cannot be refused, 42 how privilege claimed, 42 secondary evidence, 43 of solicitors as advocates, 96 Privity, none between to^vn agent and client, 86, 87 none between client and counsel, 104 Proceedings, unnecessary, costs, 130, 158, 165 '290 rs'DES. PRODUCTIOX, order for, lien of solicitor, 54, 60 bankruptcy, trustee's right to, 54 hovr far lien is an excuse, 60 costs of, 132 Professiox.vl Commusicatioxs. See Pricilege, 36 — 43 Promissory Note for costs, solicitor may sue upon, Property Eecoverzd or Preserved agreement to pay commission on, 99 suits relating to easements, 198 costs, 190, 191 Protest, payment of bill of costs under, 173 Purchases, and gifts from clients, 68 of anniiity from client, 70 independent proof necessary, 71 Ee-admissiox of solicitor, 14 EeF£RE>XE, costs generally, 125 order of, silent as to costs, 127 costs of brief copies of notes. 154 costs of counsel, 160, 178 PiEFRESHERS, allowance of on taxation, 154 Eefusae to produce bUl, 139 Registrar is Bankruptcy may go behind allocator, 156 Eelator, costs of in cbaritv information INDEX. 291 EEirr::EEATio5', agreement as to, 75 Act 1882,... 75 effect of upon drafting, 97 recent changes, 98 remarks on Eemxmeraticn Act. 232 RETAiyEB OF SOLICITOK, object of, 22 written, 22 onus of proof of, 22 form of, 23 what constitutes a retainer, 2-3 by companies, 24 client ratifying solicitor's actions, 24 bv articles of association. 24 by corporations, 24 must come from client in pers-on to bring action, 25 not necessarily for defence, 25 by a firm, 25 extent of, 25 power of solicitor to issue execution, 26 to compromise, 26 joint and separate, 26 by executors, 27 appearance entered without authority, 23 by third parties under general authority, 29 by infants, 29 by married women, 29 liability of solicitor acting without, 29 innocently acting under forged retainer, 29 by wrong set of directors, 30 use of plaintiffs name without authority, 30 measure of liability, 31 provisions of Judicature Acts, 31 solicitor to declare whether writ issued with his authoritr, 32 defendant not bound to inciuire into authority, 32 undertaking to enter appearance, 32 failure to enter appearance, 32 using defendant's name without authc rity, 32 fraudulent defence by solicitor, 33 292 INDEX. Retainer of Solicitor — continued. mistake (bonS, fide) in defence, 33 remedy of client, 33 by trustee, costs, 33 employment must be legitimate, 34 restrained from acting for opposite party, 34 solicitor must be qualified, 34 duration of retainer, 35 work must be completed before thrown up, 35 reasonable causes for retiring, 35 taxing master can decide questions of, 169 Eeview, application to review taxation, 132, 156 evidence allowed, 156 Rolls, application to strike solicitor oft', 13 punishment reduced to suspension, 14 Rules for taxation, 157 Scale, costs on higher scale when ordered, 130 185 for payment of accountants, 179 for taxation, 158 Secondary Evidence, when admitted, 43 SEcuRity, for costs, when ordered, 134 applications for, 134, 136 married women, 135 insolvent appellant, 135 solicitors'. See Statutory Charges, 194 — 202 Service, effect of agreement to accept, 32 of order for delivery of bill of costs, 141 waiver of personal service, 142 INDEX. 293 Service under Articles, for five, four, or three years, 1 coupling periods of service, 1 irregular, 2 must be continuous, 5 by ten years' men, 6 definition of, 8 affidavit of due service, 10. See Articled Clerks, 1 — 10 Set-off, and lien, priority, 204 of debt against costs of award, 205 of costs of independent proceedings, 132, 205 Sheriff, taxation of costs of inquiry, 160 Shorthand Writers, costs of, 178, 185 Solicitors, as officers of the court, 12 — 21 provisions of Judicature Acts, 12 frauds by, 13 striking off the roll?, 13 money misappropriated to be restored before re-admission, 14 application for re-admission, by petition, 14 application to strike off the rolls, 14 suspension, 14 clerk equally liable, 14 answering affidavits, 15 summary jurisdiction of the Court, 15 non-payment of balance due under taxation, 15 Debtors Acts, 16 attachment, 16 notice of attachment to be served, 17 order for attachment, 17 attacliment under Judicature Act, 17 omitting to deliver briefs, 17 acting without authority, 18, 105 non-attendance in court at trial, 19j 294 INDEX. Solicitors — continued. acting as advocates, 19. See Advocates, 94 — 9G writing to public press during action, 19 improper conduct during trial, 20 not ordered out of court when witness, 20 acting for two parties in a suit, 38, 48 acting for mortgagor and mortgagee, 41, 47 to trust estate under terms of a will, 35 change of solicitors, 62 — 67 lien in case of, 46, 52 when order to give up documents necessary, 62 notice to records and writ clerk, 62 solicitor discharging himself, right to documents, 62 first solicitor's lien, 62 when solicitor deemed to have discharged himself, 63 client failing to find funds, 63 bankruptcy of solicitor, 63 bankruptcy of client, 63 what papers will be ordered to be given up, 63 papers with counsel, 63 principle when solicitor discharges himself, 64 must not desert client during action, 64 solicitor discharged by client, 64 in administration action, 65 what is discharged by client, 66 solicitor must carry on suit to the end, 66 exceptions to above rule, 66 speculative action, 66 costs of affidavit and list of documents, 67 order for change of solicitors, 67, 167 employing unqualified practitioner, 115. See Unqualijied Prac- titioners, 113 — 116 acting as agent, account, 163 as trustees, 90 — 93. See Trustees. as draftsmen, 97 — 103. See Draftinc;. retainer, 22 — 35. See Retainer. privilege, 36—43. See Privilege. lien of, 44 — 61. See Lien. disabilities of, 68 — 73. See Disabilities of Solicitors. agreements with, 74 — 79. See Agreements v:ith Solicitors. undertakings by, 79 — 83. See Undertakings. INDEX. 295 Solicitor —continued. negligence of, 10-i — 157. See Negligence. must protect client against expenses, 184 Eemuneration Act, remarks on, 232 Special Jurt fees, 178 Specific Lien, to what it attaclies, 47 Stamp Duty, on articles of clerkship, 3 in case of notary, 10 Statutory Charges, solicitor relying on result of litigation for costs, 194 modes of securing payment, 194 charging order under Solicitors Act, 1850, ...194 lien protected by stop order, 195 lien not barred by Statute of Limitations, 195 lien does not extend to real property, 195 declaration under Solicitors Act, 195 extent of lien on fund in court, 19G lien exists independently of declaration, 196, 197 by what Court declaration made, 196 declaration preferred to statutory charge, 197 statutory^ lien applies to real property, 197 are subject to Statute of Limitations, 197 application for order, 197 obtained on summons or petition, 197 parties to be served with petition, 198 cases where charging order refused, 198 suits relating to easements, 198 extend only to property of client, 199 construction of Solicitors Act, 200 employment of solicitor, what constitutes, 200 repudiating proceedings on attaining full age, 200 instances of, 201 suits by incumbrancer.^, 202 priority of solicitor's lieu. See Priorities. 29G INDEX. Steward of a Manor, solicitor, taxation of costs, 138 Striking Off the Rolls, applications, 13 reduced to suspension, 14 Subsistence money allowed to plaintiff, 182 Successful Party deprived of costs, 122 Summons, drawing special, 102 for charging order, 197 Surveyor, employment of by solicitor, 110 Surveys, costs of, 180 Suspension of solicitor, 14 Taxation, non-payment of balance due on, 15 agreement to pay more than taxed costs, 74 costs before magistrates, 77 time for, 133 Solicitors Act, 1843,. ..138 electioneering agent, 138 steward of a manor, 138 bill of town agent, 139 for non-litigious business, 139 married woman employing a solicitor, 139 refusal to produce bill, 140 time for action for costs, 140 delivery of bill, 141 bill must be signed by solicitor, 141 order for delivery of bill, 141 INDEX. 29'; T AX XTioy— continued. waiver of personal service, 142 bill cannot be altered after deli very, 142 withdrawal of bill, 142 proving bill in bankruptcy, 143 jurisdiction in equity, 143 promissory note for costs, 143 costs of taxation, 143 attendance by letter, 144 between solicitor and client, 145 — 151, 161 party and party costs, 145 costs of trustees, &c. , appeal, 145 costs not given as damages, 145 equity practice, 146 stand alone charges, 146 gifts to charities, 146 relator's costs, 147 in administration suits, 147 costs of heir-at-law, 147 costs of plaintiff legatee, 148 creditor's administration suit, 148 trustee's charges and expenses, 149 executors and administrators, 149 who may attend, 150 costs of next friend, 150 suits for infringement of patent, 151 actions in County Court under £20,... 151 counsel attending judge's chambers, 151 taxation on application of third parties, 170 on application of party interested, 171 by client out of the jurisdiction, 172 after twelve months, 173 — 176 paying bill under protest, 173 taxation after payment of bill, 173 fraud, 173 overcharge alone insufficient, 173 pressure, 173 statutory provisions, 174 special circumstances requiring, 174 matters of objection appearing in bill, 174 payment under undue influence, 174 29^ INDEX, Taxation — continued. bill re-opened after two years, 174 Avho has power to re-open bill, 175 where there is a series of bills, 175 application by official li(juiilator, 176 solicitor, executor paying himself out of assets, 176 on parliamentary scale, 176 in bankruptcy, powers of registrar, 176 Taxing Master, examining agreements between solicitor and client, 76, 169 opinion final, 152 appeals from, 152 discretionary powers of, 153, 169 gross mistakes, 153 counsel's fees, refreshers, 153, 154 brief copies of notes in a reference, 1 54 abortive garnishee summons, 154 Avhen Court will interfere, 155 Order VI. as to discretion of, 155 counsel in judge's chambers, 151, 155 costs of the day, 155 objections to items allowed by, 132, 156 application for order to review, 132, 156 registrar in bankruptcy may go behind allocatur, 156 evidence on review of taxation, 156 powers of, 157, 169 costs incurred through negligence of solicitor, 157 rules for taxation, 157 costs of unnecessary proceedings, 158 power to disallow, 158 scales for taxation, 158 parliamentary business, 158 country solicitor attending proceedings, 159 Court will not interfere on matters of discretion, 159 instances of discretionary power, 159 costs of counsel in a reference, 160 taxing as persona designata, 160 costs of iu(juiry before a sherilf, 160 INDEX. 299 Third Parties, retainer by, under general authority, 29 cannot benefit by agreements between solicitor and client, 75 costs of, 133 adjournment for third parties to be added, 134 taxation on application of, 170 Town Agent, lien of, not general, 52 as against client and as against country solicitor, 52 agreements between agents and country solicitor, 74 bill of, taxation, 138 solicitor acting as, accounts of, 1(33 country solicitor liable for negUgence of, 84, 87 agency by law stationers, 84 acting ultra vires, 85 name must appear on writ, 85 acting without London certificate, 85 must not exceed instructions, 85 work must be in ordinary course of business, 86 no privity between client and London agent, 86, 87 money improperly received by, 86 money received in ordinary course of business, 86 summary j urisdiction of the Court, 86 cannot sue client for fees, 87 accountable to country solicitor for negligence, 87 insolvency of country solicitor, 88 lien on deeds, 88 employed by two solicitors, 88 extent of lien, 88, 89 notice to client not to pay money to country solicitor, 89 employed by solicitor trustee, 89 employment by unqualified practitioner, 90 charges against solicitor trustee, 91 Town Clerk, lien on papers of corporation, 46 Trial, two trials, costs, 123 SOO INDEX. Trustees, right to costs, 33, 121, 145 in bankruptcy, right to Ijankrupt's pa]iers, 54 agi'eement Avith solicitors, 79 employing solicitor, 170, 171 in bankruptcy, priority for costs, 193 charges and expenses allowed in action, 149 solicitors as trustees, 90 — 93 acting as agent to fraudulent trustee, 90 paying money to one of two trustees, 90 acting for one cestui que trust against another, 90 cannot make profit out of trust estate unless authorised, 91, 172 member of a firm being a trustee, 91 town agent's charges to solicitor trustee, 91 appearing for self and co-trustee, 91 as mortgagor and also for trust estate as mortgagee, 91 provision in deed as to costs of, 92 work ordinarily done by executors, 92 trustee in bankruptcy, 92 general rule as to, 92, 93 Undertakings by Solicitors, liability of solicitor as agent, 80 to pay costs, 80 to pay rent on part of assignees of bankrupt, 80 evidence of intention of the parties, 80 doubtful in form, 81 solicitor with only limited authority, 81 to act as officer of the Court, 82 Court where undertaking enforced, 82 must be personal, 82 construction of order to give undertaking, 82 Statute of Frauds or Limitations no bar, 83 how enforced, 83 Undue Influence, accounts between solicitor and client opened, 09, 174 INDEX. 301 Unnecessary, expense discouraged, 13 proceedings, costs, 158, 165 parties served, 134 proceedings by trustees, &c., 188 Unqualified Practitioners, costs of, no remedy for, 113 Solicitors Act, 1874,. ..113 Stamp Act, 1870,... 113 Legal Practitioners Act, 1877,. ..114 penalties, 114 acting in litigious business, 115 gain anticipated, 115 employing agent, 115 employed by solicitor, 115 applications to strike off the rolls, affidavits, 1 1(5 no certificate, 116 Useless Litigation, costs of, 118 Vexatious Appeals, 135 Waiver of Lien. See Lieti, 44 — 61 Ward, residence of must not be concealed, 30 Will, lieu of solicitnr upon, 45 gifts to solicitois, 72 Withdrawal, costs of notice, 132 Witness, solicitor having conduct ot the case, 20 expenses of, 180 protV-ssional, 181 when not culled, 183 302 INDEX. Writ, solicitor to declare authority to issue, 32 defendant need not iuquire into authority, 32 name of agent must appear, 85 endorsements on, costs, 101 Writ of Enquiry, costs of counsel, 178 THE END. VV. I. lUOH.VRUSON, PRINTER, i AND 5, OllEAT QUEEN STREET, LONDON, W.C. Kovemher, 1883. OP LAW WORKS, PUBLISHED BY STEVENS AND SONS, 119, CHANCEEY LANE, LONDON, W.C. (A7id at 14, Bell Yard, Lincoln's Inn). Note. — All letters to be addressed to Chancery Lane, not to Bell Yard. A Catalogue of Modern Law Works {including the leading American, Indian, Irish and Scotch) ; together with a complete Chronological List of all the English, Irish and Scotch Reports, Abbreviations used in reference to Law Reports and Text Books, and an Index of Subjects (112 i)P-), ^^o, cloth lettered, may be had on application. Acts of Parliament. — Public and Loccd Acts from an early date, may be had of the Publishers of this Catalogue, toho have also on sale the largest collection of Private Acts, relating to Estates, Enclosures, Railways, Roads, d'cdx. ACTION AT LAW.— Foulkes' Elementary View of the Proceedings in an Action under the Rules of the Supreme Court, 1883.— (Founded on "Smith's Action at Law.") By W. D. I. FOULKES, Esq., Barrister-at- Law. Third Edition. [In preparation.) Prentice's Proceedings in an Action in the Queen's Bench, Common Pleas, and Exche- quer Divisions of the High CoLirt of Justice. By SAMUEL PRENTICE, Esq., one of Her Majesty's Counsel. Second Edition. Eoyall2mo. 1880. 12s. ADMIRALTY-— Roscoe's Adiniralty Practice. — A Treatise on the Jurisdiction and Practice of the Admiralty Division of the High Court of Justice, and on Appeals therefrom, with a chapter on the Admiralty Jurisdiction of the Inferior and the Vice- Admiralty Courts. With an Appendix containing Statutes, Rules as to Fees and Costs, Forms, Precedents of Pleadings and Bills of Costs. By EDWARD STANLEY ROSCOE, Esq., Barrister- at-Law. Second Edition. Revised and Enlarged. Demy 8vo. 1882. II. is. " A clear digest of the lav? and practice of the Admiralty Courts." " A con-iprehensive and useful riiaima! of practice."- Solicitors' Journal. ADVOCACY.- Harris' Hints on Advocacy. Conduct of Cases C^vil and Criminal. Clas.ses of Witnesses and suggestions for Cross-E.xaminingthem, &c.,&c. By RICHARD HARRIS, Barrister- at-Law, of the Middle Temple and Midland Circuit. SLxth Edition. (Further Revised and Enlarged.) Royal Timo. 18Svi. 7s. 6d. " Full of good sense and just observation. A very complete Manual of the Advo- cate's art in Tri.al by Jury." — Soliciton' Journal. "A book at once entertiuning and really instructive. . . Deserves to be carefully read by the yovuig barrister whose career is yet before him." — Law Magazine. [No. 32.] A 2 STEVENS AND SONS' LAW PUBLICATIONS. AGRICULTURAL LAW.— Beaumont's Treatise on Agri- cultural Holdings and the Law of Distress as regulated by the Agricultural Holdings (Eng- la ad) Act, 1883, with Appendix containing Full Text of the A(.t, and Precedents of Notices and Awards. By JOSEPH BEAU- MONT, Esq., Solicitor, lloyal 12mo. 1883. lOs. (it/. Cooke's Treatise on the Law^ and Practice of Agricultural Tenancies. — New edition, in great part rewritten with especial reference to Unexhausted Improvements, ■with Modern Forms and Precedents By G. PRIOR GOLDNEY, of the Western Circuit, and W. RUSSELL GRIFFITHS, LL.B.. of the Midland Circuit, Barristers-at-Law. Demy 8vo. 1882. 11. Is. ''In its present form it will prove of great value to politicians, lawyers and agri- culturalists." — Law Timen. " A book of great practical utility to landlords and tenant farmers, as well as to the legal profession." — Lojc Mafjazine. Griffith's Agricultural Holdings (England) Act, 1883, containing an Introduction; a Summary of the Act, with Notes; the complete Text of the Act, with Forms, and a specimen of an Award under the Act. By W. RUSSELL GRIFFITHS. LL.B., of the Midland Circuit. Uniform with " Cooke's Agricul- tural Tenancies." Demy 8vo. 1883. as. Spencer's Agricultural Holdings (England) Act, 1883, with Explanatory Notes and Forms; together with the Ground Game Act, 1880. Forming a Supplement to " Dixon's Law of the Farm." By AUBREY J. SPENCER, B.A., Esq., Barrister-at-Law, and late Holder of Inns of Court Studentship. Demy 8vo. {Jn thr prcs.y.) ARBITRATION. — Russell's Treatise on the Power and Duty of an Arbitrator, and the Law of Sub- missions and Awards; with an Appendix of Forms, and of the Statutes relating to Arbitration. By FRANCIS RUSSELL, Esq., M.A.. Barri.ster-at-Law. Sixth Edition, Br the Aiithor and HERBERT RUSSELL, Esq., Barrister-at-Law. Royal 8vo. 1882. 36*-. "The cases are carefully collected, and tlieir effect is clearly and shortly given - . . . . Tliis edition may be commended to the profession as comprehensive accurate and practical." — Solicitors' Journal, January' IS, 1883. ARTICLED CLERKS.— Rubinstein and Ward's Articled Clerks' Handbook. — Being a Concise and Practical Guide to all the Steps Necessary for Entering into Articles of Clerkship, passing the Preliminary, Intermediate, Final, and Honours Exami- nations, obtaining Admission and Certificate to Practise, with Notes of Cases, Suggestions as to Mode of Reading and Books to be read during Articles, and an Appendix. Third Edition. Bj' J. S. RUBINSTEIN and S. WARD, SoUcitors. 12mo. 1881. Ax. " No articled clerk should be without it." —law Times. ARTICLES OF ASSOCIATION.— Palmer.— FicZc " Conveyancinor." ASSETS, ADMINISTRATION OF. — Eddis' Principles of the Administration of Assets in Payment of Debts. By ARTHUR SHELLY EDDIS, one of Her Majesty's Counsel. Demy 8vo. 1880. " »5«. ATTORNEYS.— Cordery.— Fide "SoUcitors." Pulling's Law of Attorneys, General and Special. Third Edition. Svo. 1862. 18s. Smith.— The La^^^yer and his Profession.— A Series of Letters to a Solicitor commencing Business. By J. ORTON SMITH. 12mo. 1860. 4s. "White"way. — Vide "Solicitors." * * All ttandanl Law Works are kept in Stock, in law calf and other bindings^ 119, CHANCERY LANE, LONDON, W.C. AVERAGE— Hopkins' Hand-Book on Average.— Fourth Edition, 8vo. {In preparation.) Lowndes' Law of General Average. — English and Foreign. Fourth Edition. By RICHARD LOWNDES, Author of " The Law of Marine Insurance," &c. (In jireparaiion.) 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Gray's Bankruptcy Manual. — The Bankruptcy Act, 1883, with short Notes, giving Cross References and References to the corresponding Provisions of the old Statutes and of the Rules and Cases incorporated, an Introduction, showing the changes effected by the Act, an Analysis of the Act, and a full Index, furnishing a Time Table and other lists of Special Provisions. By GEO. G. GRAY, LL.D., of the Middle Temple, Esq., Barrister-at-Law. Demy 8vo. 1883. lO.?. Qd Joel's Complete and Practical Manual of Bank- ruptcy and Bills of Sale Law, with copious N'otes and Comments and the leading Cases in Bankruptcy, &c., under the 1849, 1861 and 1869 Acts, inclusive of those of 1883, and with References to tlie Conveyancing and Projjerty Act, 1881 ; the Conveyancing Act, 1882; the Settled Land Act, 1882; the Married Women's Property Act, ] 882 ; the Judicature Acts and the New Rules of Procedure, 1883. By J. EDMONDSON JOEL, Esq., of the Inner Temple and North-Eastern Circuit, Barrister-at-Law. Demy 8vo. (In the press.) Rigg's Bankruptcy Act, 188S, and the Bills of Sale Act, 1882, with Notes, &c. By JAMES McMULLEN RIGG, Esq., Barrister-at-Law. Royal 12mo. (I n the press.) Salaman's Analytical Index to the Bankruptcy Act, 1883.- By JOSEPH SEYMOUR SALAMAN, Esq., Solicitor, Author of " Bankruptcy Act, 1869, with Notes," " Liqui- dation by Arrangement," &c. Uniform with the Act, 1883. Net, 'is. Do., with Bankruptcy Act (official copy), in limp leather. Net, 9«. Do., do. do. interleaved, limp leather. Ntt,\\s. "That this Index is very full may be gathered from the fact that it occupies ou the same sized paper as the Queen's printers' copy of the Act exactly the same number of pages as the Act. It gives references to the sections and sub-sections of the Act, and is prefaced by the Board of Trade mcnaorandum. It ■^\'ill undoubtedly be found a useful addition to the Xct." —Siilicilors' Journal, September 22, 18S.'i. Williams' Law and Practice in Bankruptcy: Third Edition. By R.VA UGHAN WILLIAMS and W. VAUGHAN WILLIAMS, Esqrs., Barristers-at-Law. {In preparation.) BILLS OF EXCHANGE.— Chalmers' Digest of the Law of Bills of Exchange, Promissory Notes, and Cheques. By M. D. CHALMERS, of the Inner Temple, Esq., Barrister-at-Law. Second Edition. Demy 8vo. 1881. 15*. " In its present form tliis work contains a very comiilete digest of tlie subjects to which it relates." — Law Times. *,* All standard Law Works are kept in Stocl; in law coif and other bindings. A 2 STEVENS AND SONS' LAW PUBLICATIONS. BILLS OF LADING.— Leggett's Treatise on the Law of Bills of Lading; comprising the various legal incidents attaching to the Bill of Lading ; the legal effects of each of the Clauses and Stipulations ; and the Rights and Liabilities of Con- signors, Consignees, Indorsees, and Vendees, under the Bill of Lading. With an Appendix, containing Forms of Bills of Lading &c. By EUGENE LEGGETT, Solicitor and Notary Public. Demy 8vo. 1880. 1^. Is- BILLS OF SALE Fithian's Bills of Sale Acts, 1878 and 1882. With an Introduction and Explanatory Notes showing the changes made in theLaw with Pvespect toBillsof -Sale. ByEDWAllD WILLIAM FITHIAN, of the Middle Temple, Esq., Barrister-at- Law {Draftsman of the BUI of 1882). Royal 12mo. 188'^. hs. " Mr. Fithian's book will maintain a high place among the most practically useful editions of the Bills of Sale Acts, 1S7S and 18S2."- Laio Magazine. Joel. — Vide " Bankruptcy. ' ' Rjgg. — Vide " Bankruptcy." CARRIERS. — Bro-wne on Carriers. — A Treatise on the Law of Carriers of Goods and Passengers by Land and Water. With References to the most recent American Decisions. By J. H. B. BROWNE, Esq., Barrister-at-Law. Svo. 1873. 18s. CHANCERY, and Vide " EQUITY." Chitty's Index.— TwZc "Digests." Daniell's Chancery Practice. — The Practice of the Chancery Division of the High Court of Justice and on appeal therefrom, being the Sixth Edition of Daniell's Chancery Practice, with alterations and additions, and references to a companion Volume of Forms. By L. FIELD, E. C. DUNN, and T. RIBTON, assisted by W. H. Upjohn, Barristers-at-Law. In 2 vols. Vol. I. {with Table of Cases and an Index), demy Svo. 1882. 21. 2s. "Tliis new edition of the Standard Chancery Practice will be generally welcomed, and we are glad that we can speak favourably of the manner in which the editors have accompUshed tlieir difficult task of deciding what parts of the old work should be rejected, and of adapting the parts retained to the new practice. There is to be found, in every part of the book we have examined, evidence of great care ; the cases are not merely jotted down, but analysed and considered, and :io pains appear to have been spared to render the information given both accurate and complete. This is high praise, but v,'e think it is fully warranted by the result of our examination of the work. ... It is exactly what it jirofesses to be — a concise and careful digest of the practice." — Solicitors' Journal. "All the portions relating to the practice introduced by the Judicature Acts and Rules are well done." — Laio Timei. "The learned authors have spared no pains to make this new book of practice as comprehensive in scope and as accurate in detail as that which so long enjoyed au almost unique reputation as ' Daniell's Practice.' Indeed if any fault is to be alleged it would be that the work is perhaps somewhat too exhaustive ; a fault, however, which is on the right side in a book of practice, which is not intended to be read through, but to serve as a mine of information for ready reference whenever the practitioner may have occasion to seek for guidance." — Law Magazine. *^* Vol. II. nearly ready. Daniell's Fornis and Precedents of Proceed- ings in the Chancery Division of the High Court of Justice and on Appeal therefrom; with Dissertations and Notes. Being the Third Edition of "Daniell's Chancery Forms." By WILLIAM HENRY UPJOHN, Esq., of Gray's Inn, &c. Demy Svo. 1879. 11. 2«. *^* All standard Law Works are Jcept in Stock, in law calf and other bindiv,gs. 119, CHANCERY LANE, LONDON, W.C. g CHAtiCERY. -Continued. Haynes' Chancery Practice. — The Practice of the Chan- cery Division of the High Court of Justice and on Appeal therefrom. By JOHN F. HAYNES, LL.D. Demy 8vo. 1879. ll.be. Morgan's Chancery Acts and Orders.— With Notes Sixth Edition. Adapted to the new Practice by the Eight Hon. GEORGE OSBORNE MORGAN, one of Her Majesty's Counsel, Her Majesty's Judge Advocate General, and E. A. WURTZBURG, of Lincoln's Inn, Esq., Barrister- at-Law. {In preparation.) Morgan and Wurtzburg's Chancery Costs. — Vide "Costs." Peel's Chancery Actions.— A Concise Treatise on the Practice and ir^rocedure in Cliancery Actions under the Rules of the Supreme Court, 1883.- Third Edition. By SYDNEY PEEL, of the Middle Temple, Esq., Barrister-at-Law. Demy Svo. 1883. 8s. 6d. " Mr. Peel's little work gives a very commendable sketch of the modern practice of the Chancery Division. ... It contains some chapters upon Proceedings at Chambers and on Fui tlier Consideration, which are likely to be valuable from the extreme paucity of all pi-inted information upon these subjects ; and it is enriched with a very full list of ca^es bearing upon the practice of the Chancery Division, giving references to all the Reports. ' Laio Journal. " The book will give to the student a good general view of the effect on chancery practice of the Judicature Acts and Orders." — Solicitors' Journal. CHANCERY PALATINE OF LANCASTER.— Snow and Win- stanley's Chancery Practice. — The Statutes, Consoli- dated and General Orders and Rules of Court relating to the Practice, Pleading and Jurisdiction of the Court of Chancery, of the County Palatine of Lancaster. With Copious Notes of all practice cases to the end of the year 1879, Time Table and Tables of Costs and Forms. By THOMAS SNOW, M.A., and HERBERT WiNSTANLEY, Esqrs., Barristers-at-Law, Royal Svo. 1886. 1^. 10s. CIVIL LAW. — Bowyer's Commentaries on the Modern Civil Law.— Royal Svo. 1848. 18s. Bowyer's Introduction to the Study and Use of the Civil Law.— Royal Svo. 1S74. 5s. COLLISIONS.— Lowndes' Admiralty Law of Collisions at Sea.— Svo. 1867. 7s. 6d. Marsden on Maritime Collision. — A Treatise on the Law of Collisions at Sea. With an Appendix containing Extracts from the Merchant Shipping Acts, the International Regulations (of 1863 and 1880) for preventing Collisions at Sea ; and local Rules for the same purpose in force in the Thames, the Mersey, and else- where. By REGINALD G. MARSDEN, Esq., Barrister-at-I-aw. Demy Svo. 1880. 12s. COLONIAL LAW.— Clark's Summary of Colonial Law and Practice of Appeals from the Plantations. Svo. 1S34. 1/. 4s. COMMENTARIES ON THE LAWS OF ENGLAND.— Broom and Hadley's Commentaries on the Laws of Eng- land. By HERBERT BROOM, LL.D., and EDWARD A. HADLEY, M.A., Barristersat-Law. 4 vols. Svo. 1869. (Pub- lished at Zl. 'ie.) Net, II. Is. * „ * All standard Law Works are kept in Stock, in law calf and other bindings. 6 STEVENS AND SONS' LAW PUBLICATIONS. ^___ COMMERCIAL LAW.— Goirand's Frencn Code of Com- merce and most usual Commercial Laws. With a Theoretical and Practical Commentary, and a Compendium of the judicial organization and of the coiirse of procedure before the Tribunals of Commerce ; together with the text of the law ; the most recent decisions of the Courts, and a glossary of French judicial terms. By LEOPOLD GOIRAND, Licencit^ en droit. In 1 vol. (850 pp.). Demy 8vo. 1880. 21. 2s. Levi. — Vide " International Law." COMMON LAW.— Allen.— Firfe "Pleading." Archbold's Practice of the Queen's Bench, Com- nnon jjPleas and Exchequer Divisions of the High Court of Justice in Actions, etc., in which they have a common jurisdiction — Thirteenth Edition. By SAMUEL PRENTICE, Esq., one of Her Majesty's Counsel. 2 vols. Demy 8vo. 1879. 3?. 3s. Archibald's Country Solicitor's Practice; a Handbook of the Practice in the Queeu'.s Bench Division of the High Court of Justice ; with Statutes and Forms. By W. F. A. ARCHIBALD, Esq., Barrister-at-Law, Author of " Forms of Sum- monses and Orders, with Notes for use at Judges' Chambers." Royal 12mo. 1881. II. 5s. '• We are much mistaken if it does not become as widely used among the profession ;i3 the best known editions of the Judicature Acts. ... In every place in which we have tested the work we find it thoroughly trustworthy. . . . Its arrangement is excellent, and altogether it is likely enough to become a popular solicitors' handy- book "—The Times. Ball's Short Digest of the Common Law; being the Principles of Torts and Contracts. Chiefly founded upon the works of Addison, with Illustrative Cases, for the use of Students, By W. EDMUND BALL, LL.B., late " Holt Scholar " of Gray's Inn, Barrister-at-Law and Midland Circuit. Demy 8vo. 1880. 16s. ' " The principles of the law are very clearly and concisely stated. ' — Late Journal. Bullen and Leake. — Ftde "Pleading." Chitty.— Vide "Forms." Fisher's Digest of Reported Decisions in all the Courts, with a Selection from the Ii^ish; the cases overruled and impeached and references to the Statutes, Rules and Orders of Courts from 1756 to 1883. Compiled and arranged by JOHN MEWS, assisted by CECIL MAURICE CHAPMAN, HARRY HADDEN WICKES SPARHAM and ARTHUR HORATIO TODD, Barristers-at-Law. (In the press.) Foulkes. — Vide "Action." Prentice. — Vide "Action." Shirley. — -Vide "Leading Cases." Smith's Manual of Common Law. — For Practitioners and Students. Comprising the fundamental principles and the points most usually occurring in daily life and practice. By JOSIAH W. SMITH, B.C.L., Q.C. Ninth Edition. 12mo. 1880. 14s. COMMONS AND INCLOSURES.— Chambers' Digest of the Law relating to Commons and Open Spaces, including Public Parks and Recreation Grounds, with various ofiBcial documents ; precedents of by-laws and regulations. The Statutes in full and brief notes of leading cases. By GEORGE F. CHAM- BERS, Esq., Barrister-at-Law. Imperial 8vo. 1877. 6s. 6d. COMPANY LAW.— Palmer's Private Companies, their Formation and Advantages ; or, How to Convert your Business into a Private Company, and the benefit of so doing. With Notes on " Single Ship Companies." Fourth Edition. By F. B. PALMER, Esq., Barrister-at-Law, Author of " Company Precedents." 12mo. 1883, Net, 2s. *«* A U standard Law WorJa are Jcept in Stock, in law calf and other bindings. 119, CHANCERY LANE, LONDON, W.C. COMPANY LM1 -Continued. Palmer. — Vide "Conveyancing." Palmer's Shareholders' and Directors' Legal Companion. — A Manual of every-day Law and Practice for Promoters, Shareholders, Directors, Secretaries, Creditors and Solici- tors of Companies, under the Companies' Acts, 1862 to 1880. Fourth Edition. With an Appendix on the Conversion of Business Concerns into Private Companies. By F. B. PALMEK, Esq., Bar- vister-at-Law. 12mo. 1883. iiet,2s.Qd Thring.— Ficie " Joint Stocks." CONTINGENT REMAINDERS.— An Epitome of Fearne on Contingent Remainders and Executory De- vises. Intended for the Use of Students, By W. M. C. Post 8vo. 1878. Qs. Qd. •' The student will find a perusal of this epitome of great value to him." — Law Journal. CONTRACTS.— Addison on Contracts. — Being a Treatise on the Law of Contracts. Eighth Edition. By HORACE SMITH, Esq., Barrister-at-Law, Recorder of Lincoln, Author of " A Treatise on the Law of Negligence," &c. Royal 8vo. 1883. 21. 10s. •■ To the present editor must be given all praise which untiring industry and in- telligent research can command. He has presented the profession with the aw Iirou}»-ht down to the present date clearly and fully stated.' —£('(r Tii.ie.j. "We think that this edition of Addison will maintain the veimtation of the work as a satisfactory guide to the vast storehouse of decisions on contract law.' — Solicitms' /oor.-al. Fry. — Vide "Specific Performance." Leake on Contracts. — An Elementary Digest of the Law of Contracts (being a new edition of " The Elements of the Law of Contracts"), By STEPHEN IklARTIN LEAKE, Barrister-at- Law. 1 vol. Demy 8vo. 1878. \l. 18s. Pollock's Principles of Contract.— Being a Treatise on the General Principles relating to the Validity of Agreements in the Law of England. Third Edition, revised and partly re- written. By FREDERICK POLLOCK, of Lincoln's Inn, Esq., Barrister-at-Law. Demy 8vo. 1881. \l. 8s. The late Lord Chief Justice of England in his judgment In Metropolitan Railway Company y . Brogden and others, said, "The Law is well put by Mr. Frederick Pollock in hie very able and learned work on Contracts."— 7%« 7V>nes. •' We have nothing but praise for this (third) edition. The material recent cases have been added and the whole work has been carefully revised." — Solicitors' Jownal. "A work which, in our opinion, shows great ability, a discerning inteUoct, a Aris' County Court Prac- tice. — A Complete Practice of the County Courts, including Admi- ralty and Bankruptcy, embodying the Acts, Rules, Forms and Costs, with Additional Forma and a Full Index. Second Edition. By G. PITT-LEWIS, of the Middle Temple and Western Circuit, Esq., Barrister-at-Law, sometime Holder of the Studentship of the Four Inns of Court, assisted by H. A. De Colyar, Esq., Barrister-at- Law. In 2 parts. Demy 8vo. 1883. 11 10s. *,(.* Part I., with Table of Cases, Index, dr., sold separateli/, price 30s. lUjf This Edition deals fulhj nith the Employers' Liability A ct, and is the only County Court Practice which contains the County Courts (Costs and Salaries) Act, 1882, the important legislation [as to Married Women's Pro- perty, mils of Sale, Inferior Courts' Judgments, iL-c.) of the Session of 1882, and also the County Court Jiulcs of March, 1883. " It is very clearly written, and is always practical. The Index is very elaborate, and there is an excellent tabular Index to the County Court Acts and Kules." — Solicitors' Journal. " One of the best books of practice which is to be found in our legal literature." — Laio Times. " We have rarely met with a work displaying more honest industry on the part of the author than the one before us." — Law Journal. "Mr. Pitt-Lewis has, in fact, aimed — and we are glad to say success- fully — at providing for the County Courts' practitioner what ' Chitty's Archbold' and ' Daniell's Chancery Practice' have long been to practi- tioners in the High Court." — Laiv Magazine. •'Mr. Pitt-Lewis's work was at once admitted by the profession to the rank of a standard authority, and it must be now generally looked upon as the complete County Court Practice," — City Press. CRIMINAL LAW,— Archbold's Pleading and Evidence in Criminal Cases. — With the Statutes, Precedents of Indictments, &c., and the Evidence necessary to support them. Nineteenth Edition. By WILLIAM BRUCE, Esq., Barrister-at- Law, and Stipendiary Magistrate for the Borough of Leeds. Demy 8vo. 1878. \l. lis. Qd. Roscoe's Digest of the La^A/" of Evidence in Criminal Cases.— Ninth Edition. By HORACE SMITH, Esq., Barrister-at-Law. Royall2mo. 1878. ll.lls.Qd. Russell's Treatise on Crimes and Misdemea- nors.— Fifth Edition. By SAMUEL PRENTICE, Esq., one of Her Majesty's Counsel. 3 vols. Royal 8vo. 1877. 51. 15s. Qd. "What better Digest of Criminal Law could we possibly hope for than 'Rusaell ou Crimes ? ' " — Sir James Fitzjames Stephen's Speech on Codification. " Alterations have been made in the arrangement of the work which without interferins with the general plan are sulTicient to show that great care and thou'lit have been bestowed We are amazed at the patience, industry and skill which are exhibited in the collection and arrangement of all this mass of learning." — The Times. Shirley's Sketch of the Criminal Law. — By W. SHIRLEY SHIRLEY, M.A., Esq., Barrister-at-Law, Author of " Leading Cases made Easy," assisted by C. M. ATKINSON, M.A,, B.CL., Esq., Barri.ster-at-Law. Demy"8vo. 1880. 7s. 6d. " As a primary introduction to Criminal Law, it will be found very acceptable to Students." — Law Students' Journal DECREES.— Seton.— Fzcie " Equity." *^* All standard Law Works are kept in Stoi^, in law calf and other bindings. 119, CHANCERY LANE, LONDON, W.C. 11 DIARY.— Lawyer's Companion (The), Diary, and Law- Directory for 1884. — For the use of the Legal Profession Public Companies, Justices, Merchants, Estate Agents, Auctioneers, &c., &c. Edited by JOHN THOMPSON, of the Inner Temple, Esq., Barrister-at-Law ; and contains Tables of Costs in Convey- ancing, &c.; a Digest of Useful Decisions on Costs ; Monthly Diary of County, Local Government, and Parish Business ; Oaths in Supreme Court; Summary of Legislation of 1883; Alphabetical Index to the Practical Statutes; a Copious Table of Stamp Duties; Legal Time, Interest, Discount, Income, Wages and other Tables ; Probate, Legacy and Succession Duties ; and a variety of matters of practical utility. Pdblished Annually. Thirty-eightli Issue. (N'vw ready.) Contains the most complete List published of the English Bar, and London and Country Solicitors, with date of admission and appointments, and is issued in the following forms, octavo size, strongly bound in cloth: — s. d. 1. Two days on a page, plain .50 2. The above, interleaved for Attendances . . .70 3. Two days on a page, ruled, with or without money columns 5 6 4. The above, interleaved for Attendances . . . .80 5. Whole page for each day, plain 7 6 6. The above, interleaved for Attendances . • .96 7. Whole page for each day, ruled, with or without money cols. 8 6 8. The above, interleaved for Attendances . . . 10 6 9. Three days on a page, ruled blue lines, without money cols. 5 The Diary contains memoranda of Legal Business throughout the Year. " An excellent work."— TVie Times. '• A publication which, has long ago secured to itself the favour of the profession, and which, as heretofore, justifies by its contents the title assumed by it." — Lata Journal. "Contains all the information which could be looked for in such a work, and gives it i n a most convenient fonn and very completely. We may unhesitatingly recommer.d the work to our readers." — Solicitors' Journal. " The ' Lawyer's Companion and Diary' is a book that ought to be in the possession of every lawyer, and of every man of business." "Tho ' Lawyer's Companion ' is, indeed, wliat it is called, for it combines everything required for reference in the lawyer's office." — Law Times. " It is a book without which no lawyer's library or office can be complete."— /rirt Law Timfs. DICTIONARY Student's (The) Pocket Law Lexicon. Explaining Techuical Words, Phrases and Maxims of the English, Scotch and Eoman Law, to which is added a complete List of Law Keports, with their Abbreviations. Second Edition, Kev:sed and Enlarged. By HENRY G. KAWSON, B.A., Esq., Barrister-at- Law. {In the 2^rcss.) " A wonderful little legal Dictionary." — Indtrmaur's Law Sludcnis' Journal. " A very handy, complete, and ii.scful little work." — Saw.rday lievieic. Wharton's La'VA/' Lexicon. — Forming an Epitome of the Law of England, and containing full explanations of the Technical Terms and Phrases thereof, Ijoth Ancient and Modern ; including the various Legal Terms used in Commercial Busii e.ss. Together with a Translatiou of the Latin Law Maxims and selected Titles from the Civil, Scotch and Indian Law. Seventh Edition. By ,L M. LELY, Esq., Barrister-at-Law, Editor of " Chitty's Statutes," &c. Super-royal 8vo. 188;!. 1/. 18s. " Ou almost every point butli stiidcnt and practitioner can gather information from this invaluable book, which ought to be in eveiy lawyer's otiice." — OH'soiis Law Xota<. "as it now stands the Lexicon contains all it need contain, and to those who valuo such a work it is made more valuable still."— /.aw Times, Juno 2, ISSo. *^*AU standard Law Worlsare hcpl in Steele, in lav: calf and other hindings. 12 STEVENS AND SONS' LAW PUBLICATIONS. DIGESTS.— Bedford.— Ftde " Examination Guides." Chitty's Index to all the Reported Cases decided in the several Courts of Equity in England, the Privy Council, and the House of Lords, with a selection of Irish Cases, on or relating to the Principles, Pleading, and Practice of Equity and Bankruptcy ; from the earliest period. The Fourth Edition, wholly revised, reclassified and brought down to the date of publication by WILLIAM FRANK JONES, B.C.L., M.A., and HENRY EDWARD HIRST, B.C.L., M.A., both of Lincoln's Inn, Esqrs., Barristers-at-Law. Volume I. Roy. 8vo. 1883. II. lis. 6d. *^* This Volume contains the Titles " Abandonment" to '• Bank- ruptcy." The Title Bankruptcy is a Complete Digest of all cases, including the Decisions at Common Law. Volume II. is in the press, and will be issued shortly. The Work will be completed in 5 or 6 Volumes. Fisher's Digest of Reported Decisions in all the Courts, >A^ith a Selection from the Irish; the cases overruled and impeached and references to the Statutes, Rules and Orders of Courts from 1756 to 1883. Compiled and arranged by JOHN MEWS, assisted by CECIL MAURICE CHAPMAN, HARRY HADDEN WICKES SPARHAM, and ARTHUR HORATIO TODD, Barristers-at-Law. {In the press.) Notanda Digest in Lav/, Equity, Bankruptcy, Admiralty, Divorce, and Probate Cases. — By H. TUDOR BODDAM, of the Inner Temple, and HARRY GREENWOOD andE. W. D. MANSON, of Lincoln's Inn, Esqrs., Barristers-at-Law. Third Series, 1873 to 1876 inclusive, half-bound. Net, 11. Us. 6d. Ditto, Fourth Series, for the years 1877, 1878, 1879, 1880, 1881, and 1882, with Index. Each, net, 11. Is. Ditto, ditto, for 1883. By E. W. D. MANSON and PROCTER T. PULMAN, Esqrs., Barristers at-Law. Plain Copy and Two Indexes, or Adhesive Copy for insertion in Text-Books (without Index). Annual Subscription, payable in advance. Net, 21s. *** The numbers are issued regularly every month. Each number contains a concise analysis of every case reported in the Law Reports, Law Journal, Weekly Reporter, Lata Times, and the Irish Law Repwts, up to and including the cases contained in the parts for the current month, with references to Text-books, Statutes, and the Law Reports Consolidated Digest, and an ALPHABETiCAt INDEX of the subjects contained in each ndmbek. DISCOVERY.— Hare's Treatise on the Discovery of Evidence.— Second Edition. By SHERLOCK HARE, Bar- rister-at-Law. Post 8vo. 1877. 12s. Sichel and Chance's Discovery. — The Law relating to Interrogatories, Production, Inspection of Documents, and Dis- covery, as well in the Superior as in the Inferior Courts, together with an Appendix of the Acts, Forms and Orders. By WALTER S. SICHEL, M.A., and WILLIAM CHANCE, M.A., Esqrs., Bar- risters-at-Law. Demy 8vo. 1883. 12s. " The work will, we think, be very useful in practice, and may be confidently reoomnicnded for use in judges' chambers." — Law Times. " It will be of much use to practitioners to be able to find, as we do in the work before us, an intelligent account of the whole set of decisions." — Solicitor^' Journal. '• It is evident that this work is the result of much careful and painstaking research, and we can confidently recommend it as a careful and convenient com- pendium, and particularly as likely to be of material assistance to thoso who are much engaged in judges' chambers or in the county courts." — laia Magazine. •»* AH standard Law Works are kept in Stock, in law calf and other bindings. 119, CHANCERY LANE, LONDON, W.C. 13 OlvoKCt. — Browne's Treatise on the Principles and Practice of tlie Court for Divorce and Matrinnonial Causes :— With the Statutes, Rules. Fees and Forma relating thereto. Fourth Edition. By GEORGE BROWNE, Esq., Barrister-at-Law. Demy 8vo. 1880. 1/. is. " '^^^. ^ook is a clear, practical, and, so far as we have been able to test it, accurate exposition of divorce law and procodnm."— Solicitors' Journal. DOMICIL.— Dicey on the Law of Domicil as a branch of the Law of England, stated in the form of Rules.— By A. V. DICEY, B.C.L., Barrister-at-Law. Author of " Rules for the Selection of Parties to an Action." Demy 8va. 1879. 18*. EASEMENTS.— Goddard's Treatise on the Law^ of Easements.— By JOHN LEYBOURN GODDARD, Esq., Barrister-at-Law. Second Edition. Demy 8vo. 1877. 16s. " The buck is invaluable : where the cases are silent the author has taken pains to ascertain what the law would be if brought into question."— Z,atc Journal. "Nowhere has the subjt-ct been treated so exhaustively, and, we may add, so scientifi- cally, as by Mr. Goddard. We recommend it to the most careful study of the law student, as well as to the hbiary of the practitioner."— Lato Titnes. ECCLESIASTICAL LAW. — Dodd's Burial and other Church Fees and the Burial Act, 1880 :— With Notes. By J. T. DODD, M.A., Barrister-at-Law. Royal 12mo. 1881. 4s Phillinnore's (Sir R.) Ecclesiastical Law. — The Ecclesiastical Law of the Church of England. With Supplement, containing the Statutes and Decisions to end of 1875. By the Right Hon. Sib ROBERT PHILLIMORE, D.C.L. 2 vols. 8vo 187S-76. 3^. 7s. 6d. *,* The Supplement may be had separately, price 4«. 6d., sewed. ELECTIONS — Carter's Corrupt and Illegal Practices Prevention Act, 1833, with Notes and an Index. Edited by JOHN CORRIE CARTER, Esq., Recorder of Stamford. Form- ing a Supplement to " Rogers on Elections." Hoyal 12mo. 1883. 55. " Mr. Carter's notes are explicit, an 1 serve the useful purpose of clearly indicating all alterations in the law." — The Law Times. FitzGerald. — Vide "Ballot." Rogers on Elections, Registration, and Election Agency. — Thirteenth Edition, including Petitions and Muni- cipal Elections and Registration. With an Appendix of Statutes and Forms. By JOHN CORRIE CARTER, of the Inner 'I emple, Esq., Barrister-at-Law. Royal 12mo. 1880. II. I2s. "Petition has been added, setting forth the procedure and the decisions on that subject; and the statutes passed since the last edition are explained." — The nines. " A book of long standing and for information ou the common law of elections, of which it contains a mine of extracts from and references to the older authorities, will always be resorted to." — Law Journal ELECTRIC LIGHTING.-Cunyi-ighame's Treatise on the La^A^ of Electric Lighting, with the Acts of Par- liament, and Rides and Orders of the Board of Trade, a Model Provisional Order, and a set of Forms, to which is added a Descrip- tion of the Principal Apparatus used in Electric Lighting, with Illustrations. By HENRY CUNYNGHAME, Barrister-at-Law. Royal 8vo. 1883. 12s. 6d. " As an original work it deiiuuids csi-iecial praise, and we congratulate Mr. Cunynghame on his production." — Law Tiines. " Among the many works upon electric lighting which have come before us, we think that Mr. Cunynghame's cannot fail to gain and keep a high place." — SoUcitort' Journal. t>vlHLOYERS' LIABILITY ACT.— Macdonell. -Fzde " Master and Servant." Smith. — Vide "Negligence." *^,* All standard Law Workgare kept in Stock, in law calf aiid other bindings. 14 STEVENS AND SONS' LAW PUBLICATIONS. EQUITY, and Vide CHANCERY- Chitty's Index.— Vide " Digests." Setori's Forms ot Decrees, Judgments, and Orders in the High Court of Justice andCourts of Appeal, having especial reference to the Chancery Division, with Practical Notes. Fourth Edition. By E. H. LEACH, Esq., Senior Registrar of the Chancery Division ; F. G. A. WILLIAMS, of the Inner Temple, Esq. ; and the late H. W. MAY, Esq. ; suc- ceeded by JAMES EASTWICK, of Lincohi's Inn, Esq., Barristers- at-Law. 2 vols, in 3 parts. Royal 8vo. 1877—79. U. 10s. *^* Vol. II., Parts 1 and 2, separately, price each \l. 10s. " The Editors of this new edition of Seton desei-ve much praise for what is almost, if not absolutely, an innovation in law books. In treating of any division of their subject they have put prominently forward the result of the latest decisions, settling the law so far as it is ascertained, thus avoidmg much viseless reference to older cases. .. . There can be no doubt that in a book of practice Uke Seton, it is much more important to be able to see at once what the law is than to know how it has become what it is ; and the Editors have evidently taken gi-eat pains to carry out this principle in pre- senting the law on each division of then- labours to their readers." — The Times. " Of all the editions of ' Seton ' this is the best. . . . We can hardly speak too highly of the industry and intelligence which have been bestowed on the preparation of the notes." — Solicitors' Journal. " Now the book is before us complete ; and we advisedly say complete, because it has scarcely ever been our fortune to see a more complete law book than this. Exten- sive in sphere, and exhaustive in treatise, comprehensive in matter, yet apposite in details, it presents all the features of an excellent work . . . The index, extend- ing over 278 pages, is a model of comprehensiveness and accuracy." — Law Journal. Smith's Manual of Equity Jurisprudence.— A Manual of Equity Jurisprudence for Practitioners and Students, founded on the Works of Story, Spence, and other writers, and on more than a thousand subsequent cases, comprising the Fundamental Principles and the points of Equity usually occurring in General Practice. By JOSIAH W. SMITH, B.C.L., Q.C. Thirteenth Edition. 12mo. 1880. 12s. 6d "There is no disguising the truth ; the proper mode to use this book is to learn its pages by heart." — Law Magazine and Review. " It wiU be found as useful to the practitioner as to the stadent."— Solicitors' Journal. Smith's Practical Exposition of the Principles of Equity, illustrated by the Leading Decisions thereon. For the use of Students and Practitioners. By H. ARTHUR SMITH, M.A., LL.B., of the Middle Temple, Esq., Barrister-at-Law. Demy 8vo. 1882. 20s. " The book seems to us to be one of great value to stuAents."— Solicitors' Jom-nal. "In a moderately-sized volume, such as no lawyer who has his own advantage in view could object to 'read, mark, learn, and inwardly digest,' Mr. Smith sets forth succinctly and in due order aU the fundamental principles administered by Courts of Equity, showing how they have by recent enactment lieen engrafted on the Common and carefully abstaining from overlaying his subject-matter with multifarious details of pi-actice which might tend to confuse and mystify. . . . We must again state our opinion that this is a most remarkable book, containing in a reasonable space more infoiTnation, and that better an-anged and conveyed, than almost any other law book of recent times which has come under oiu- notice." — Saturday Review. EXAMINATION GUIDES.— Bedford's Guide to the Pre- linninary Exannination for Solicitors.— Fourth Edition. 12mo. 1874. Net, 3«. Bedford's Digest of the Prelinninary Examina- tion Questions in Latin Grammar, Arith- metic, French Grammar, History and Geo- graphy, with the Answers. Second Edition. DemySvo. 1882. 18s. Bedford's Prelinninary Guide to Latin Gram- mar.— 12mo. 1872. Net, 3s. Bedford's Student's Guide to Smith on Con- tracts. Demy 8vo. 1879. 3s. Qd. '*^* All standard Law Worhi are kept in Stock, in law calf andotker bindinyt. 119, CHANCERY LANE, LONDON, W.C. 15 EXAMINATION GWDES.-Continued. Bedford's Final Examination Guide to Bank- ruptcy. — Fourth Edition. {In preparation.) Bedford's Student's Guide to the Ninth Edition of Stephen's New Commentaries on the Laws of England.— Third Edition. DemySvo. 1883. 7s. 6d. Bedford's Final Examination Digest : containing a Digest of the Final Examination Questions in matters of Law and Procedure determined by the Chancery, Queen's Bench, ComiLon Pleas, and Exchequer Divisions of the High Court of Justice, and on the Law of Real and Personal Property and the Practice of Conveyancing, with the Answers. 8vo. 1879. 16s. " Will furnish students with a large armoury of weapons with which to meet the attacks of the examiners of the Incorporated Law Society." — Law Times. Haynes and Nelham's Honours Examination Digest, comprising all the Questions in Conveyancing, Equity, Common Law, Bankruptcy, Probate, Divorce, Admiralty, and Ecclesiastical Law and Practice asked at the Solicitors' Honours Examinations since their establishment to the present time, with Answers thereto. By JOHN F. HAYNES, LL.D., Author of "Chancery Practice," "The Students' Leading Cases," &c., and THOMAS A. NELHAM, Solicitor (Honours). Demy8vo. 1883. 15s. " Students going in for honours will find this one to their advantage." — Law Times, September 22, 1SS3. " Answers are appended which, judging from an examination of several of them, appears to be carefiil and accurate." — Solicitors' Journal, October 13, 1SS3. Shear^^^ood's Law Student's Annual. — Containing the Questions with Answers to the Solicitor's and Bar Examinations (Michaelmas Term, 1881, to Trinity Term, 1882, inclusive), with Remarks and Comments. A list of Books suggested for Students, &c., &c. Edited by JOSEPH A. SHEARWOOD, Esq., Barrister- at-Law, Author of "A Concise Abridgment of Real Property," and of " Personal Property," etc. DemySvo. 1882. 5s. •'This is a book of a thorough character. . . . Much care and labour have evidently been expended on the book, which will be found of great advantage to students." — Law Journal. "We know of no other manual which contains the same quantity of information in sucli a concise form." — Solicitors' Journal. "The remarks on the examinations are very interesting, and there are some vabiable hints as to wliat books the candidate for honours and a pass respectively should use." — Gibson's Lavj Notes. Shearwood's Student's Guide to the Bar, the Solicitor's Intermediate and Final and the Universities Lawr Examinations. — With Suggestions as to the books usually read, and the passages tlierein to which attention should be paid. By JOSEPH A. SHEARWOOD, B.A., Esq., Barrister-at-law. 8vo. 1879. 5s. 6d. " Any student of average intelligence who conscientiously follows the path and obeys the instructions given him by the author, need not fear to present himself as a candidate for any of the examinations to whicl; this book is intended as a guide." — Laio Journal. EXECUTORS.— Macaskie's Treatise on the Law of Executors and Administrators, and of the Adminis- tration of the Estates of Deceased Persons. With an Appendix of Statutes and Forms. By STUART CUNNINGHAM MA- CASKIE, of Gray's Inn, Estf., Barrister- at-Law. 8vo. 1881. 10s. 6d. "An able summary of the law of administration, now forming one of the subjects set for the general examination for call to the bar. ' "Students may read the book witli advantage as an introduction to 'Williams,' and by practitioners not possessing the larger work it will undoubtedly be found useful." — Load Juarnal. ,' All standard Law WorLt are kept in Stock, in la/w calf and other bindings. 16 STEVENS AND SONS' LAW PUBLICATIONS. EXECUTORS.— Con^inuetf. Williams' Law of Executors and \dminis- tPatOPS.— By the Rt. Hon. Sir EDWARD VAUGHAN WILLIAMS, late one of the Judges of Her Majesty's Co\3rt of Common Pleas. Eitrhth Edition. By WALTER VAUGHAN WILLIAMS and ROLAND VAUGHAN WILLIAMS, Esqrs., Barristers-at-Law. 2 vols. Royal 8vo. 1879. 3L 16s. " A treatise which occupies an unique position and ■^^hich is recognised by the Bencli and the profession as liaving paramount authority in the domain of law with which it deals. " — Law Journal. EXTRADITION — Kirchner'sL'Extradition.— RecueilRenfer- mant in Extenso tous les Trait^s condus jusqu'au ler Janvier, 188-3, entre les Nations civilis^es, et donnant la solution precise des difficult^s qui peuvent surgir dans leur application. Avec une Pre- face de McGEORGES LA.CHA.UD, Avocat h la Cour d'Appel de Paris. Public sous les auspices de M. C. E. HOWARD VINC ENT, Dii-ecteur des Affaires Crim'nelles de la Police M^tropolitaine de Londres ; Membre de la Facultt^ de Droit et de la Soci^t^ G^n^rale des Prisons de Paris. Far F. J. KIRCH NER, Attach^ k la Direc- tion des Affaires Criminelles. In 1 vol. (1150 pp.) RoyalSvo. 2l.2s. FACTORY ACTS.— Notcutt's Law relating to Factories and Workshops. Second Edition. 12mo. 1879. 9s. FARM. LAW OF.— Cooke.— Fide "Agricultural Law." Dixon's l^aw of the Farm. — A Digest of Cases connected . with the Law of i he Farm, and including the Agricultural Customs of England and Wales. Fourth Edition. By HENRY PERKINS, Esq., Barrister-at-Law and Midland Circuit. Demy 8vo. 1879. 1?. 6s. " It is impossible not to be struck witb the extraordinary research that must have been used in the compilation of such a book as this." — Law Journal. *^* Supplement to above, containing the Agiicultural Holdings (Eng- land) Act, 1883, with explanatory Notes and Forms; together with the Ground Game Act, 1880. By AUBREY J. SPENCER, Esq., Barrister-at-Law. Demy 8vo. 1883. (In the press.) FOREIGN JUDGMENTS,— Piggott's Foreign Judgnnents their effect in the English Courts. Part I. The English Doctrine, Defences, Judgments in Rem. Status.— By F. T. PIGGOTT, M.A., LL.M., of the Middle Temple, Esq , Barrister-at- Law. Royal 8vo. 1879. 15s. Part II. — The Effect of an English Judgment Abroad. Service on Absent Defendants. Royal 8vo. 1881. 15*. F O R M S .—A 1 1 e n ,— Firfe " Pleading." BuUen and Leake. — Vide "Pleading." Chitty's Forms of Practical Proceedings in the Queen's Bench, Common Pleas and Ex- chequer Divisions of the High Court of Jus- tice: with Notes containing the Statutes, Rules and Practice relating thereto. Eleventh Edition. By THOS. WILLES CHITTY, Esq., Barrister-at-Law. Demy 8vo. 1879. 11. 18s. Daniell's Forms and Precedents of Proceed- ings in the Chancery Division of the High Court of Justice and on Appeal therefronn ; with Dissertations and Notes, forming a complete guide to the Practice of the Chancery Division of the High Court and of the Couits of Appeal. Being the Third Edition of "Daniell's Chancery Forms." By WILLIAM HENRY UPJOHN, Esq., of Gray's Inn, &c., Ac. Demy 8vo. 1879. 21. 2«. *^,* All standard Law Works are kept in Stock, in tew ealfand- other bindingg. 119, CHANCEliY LANE, LONDON, W.C. 17 FRENCH COMMERCIAL LAW .-GoiPand.-ricZe"CommercialLaw." HIGHWAYS -Baker's Law of Highways in England and Wales, including Bridges and Locomotives. Comprising a succinct code of the several provisions under each head, the statutes at length in an Appendix ; with Notes of Cases, Forms, and copious Index. By THOMAS BAKER, of the Inner Temple, Esq., Barrister-at- Law. Royal 12mo. 1880. 15s. "This is distinctly a well-planned book, aud cannot fail to be useful, not only to lawyers, but to those who may be locally engaged in the management of highways." — Law Journal. " The general plan of Mr. Baker's book is good. He groups together condensed statements of the effect of the provisions of the different Highway .\cts relating to the same matter, giving in all cases references to the sections, which are printed in full in the appendix. To each condensed section, or gr^nip of sections, he appends a note, stating concisely the effect of the decisions." — Solicitors' Journal. Chambers' Law relating to Highways and Bridges, being the Statutes in full and brief Notes of 700 Leading Cases; togeth^^r with the Lighting Act, 1833. By GEO. F. CHAMBERS, Esq., Barrister-at-Law. 1878. 12«. IN JUNCTIONS.— Seton.— Vide " Equity." INLAND REVENUE CASES.— Highmore's Summary Pro- ceedings in Inland Revenue Cases in England and Wales. By NATHANIEL JOSEPH HIGHMORE, of the Middle Temple, Esq., Barrister-at-Law, and of the Inland Revenue Department. Royal l'2mo. 1882. 6s. " A complete treatise on procedure applied to cases under the Revenue Act, and as a book of practice it is the best we have seen."^7'/ie Justice of the Peace, Jan. 28, 1882. INSURANCE. — Arnould on the Law of Marine Insu- rance.— Fifth Edition. By DAVID MACLACHLAN, Esq., Barrister-at-Law. 2 vols. Royal 8vo. 1877. 3^ " As a text book, ' Arnould ' is now all the practitioner can want, and we congratulate the editor upon the skill with whieh he has incorporated the new decisions." — Lata Timet. Lowndes on the Law of Marine Insurance. — A Practical Treati.se. By RICHARD LOWNDES. Author of "The Law of General Average," &c. Second Edition. (In preparation.) " It is rarely, indeed, that we have been able to express such unqualified approval of a new legal wor^."— Solicitors' Journal. INTERNATIONAL LAW — Amos' Lectures on Inter- national Law.— By SHELDON AMOS, M.A., Professor of Jurisprudence (including International Law) to the Inns of Court, &c. Royal 8vo. 1874. IDs. 6d. Dicey. — Vide "Domicil." Kent's International Law. — Kent's Commentary on International Law. Edited by J. T. ABDY, LL.D., Judge of County Courts. Second Edition. Revised and brought down to the present time. Crown 8vo. 1878. 10s. 6d. "Altogether Dr. Abdy has performed his task in a manner worthy of his reputation. His book will be useful not only to Lawyers and Law Students, for whom it was primarily intended, out also for lay men." — Solicitors' Journal. Levi's International Commercial Law. — Being the Principles of Mercantile Law of the following and other Countries — viz. : England, Ireland, Scotland, British India, British Colonies, Austria, Belgium, Brazil, Buenos Ayres, Denmark, France, Germany, Greece, Hans Towns, Italy, NetherlandB, Norway, Portugal, Prussia, Russia, Spain, Sweden, Switzerland, United States, and Wurtemberg. By LEONE LEVI, Esq., F.S.A., F.S.S., Barrister-at-Law, &c. Second Edition. 2 vols. Royal 8vo. 1863. II. 15s. *,* All standard Lom Works are kept in Stock, in law ealf and other bindings. 18 STEVENS AND SONS' LAW PUBLICATIONS. INTERNATIONAL Lk^N -Coniinucd. Vattel's Law of Nations.— By JOSEPH CHITTY, Esq. Koyal 8vo. 1834. \l. Is. Wheaton's Elements of International Law; Second English Edition. Edited with Notes and Appendix of Statutes and Treaties, bringing the work down to the present time. By A. C. BOYD, Esq., LL.B., J.P., Barrister-at-Law. Author of " The Merchant Shipping Laws." Demy Svo. 1880. \l. 10s. " Mr. Boyd, the latest editor, ha« added many useful notes ; he has inserted in the Appendix public documents of permanent value, and there is the prospect that, as edited by Mr. Boyd, Mr. Wheaton's volume will enter on a new lease of life." — Tlie Times. " Both the plan and execution of the work before us deseives commendation. . . . The text of Wheatou is presented \vithout alteration, and Mr. Dana's numbering of the sections is preserved. . . . The Index, which could not have been compiled without much thought and labour, makes the book handy for reference." — Law Journal, "Students who require a knovsrledge of Wheaton's text will find Mr. Boyd'a volume very convenient."— Zato Magazint. INTERROGATORIES.-Sichel and. Chance.— Firfc "Discovery." JOINT OWNERSHIP.-Foster.— Fide "Keal Estate." JOINT STOCKS. — Palmer. — Vide " Conveyanciug " and "Company Law," Thring's (Sir H.) Joint Stock Companies' Law.— The Law and Practice of Joint Stock and other Companies, including the Companies Acts, 1862 to 1880, with Notes, Orders, and Rules in Chancery, a Collection of Precedents of Memoranda and Articles of Association, and all the other Forms required in Making, Administer- ing, and Winding-up a Company ; also the Partnership Law Amend- ment Act, The Life Assurance Companies Acts, and other Acts relating to Companies. By Sm HENRY THRING, K.C.B., The Parliamentary Counsel. Fourth Edition. By G. A. R. FITZ- GERALD, Esq., M.A., Barrister-at-Law. Demy 8vo. 1880. 11. 5s. " This, as the work of the original di-aughtsinan of the Companies' Act of 1862, and well-know n Parliamentary counsel, Sir Henry Thring, is naturaUy the highest authority on the subject." — The Times. " One of its most valuable features is its collection of precedents of Memoranda and Articles of Association, which has, in this Edition, been largely increassd and im- proved." — Law Journal. Jordan's Joint Stock Companies. — A Handy Book of Practical Instructions for the Formation and Management of Joint Stock Companies. Seventh Edition. 12mo. 1881. Net, 2s. &d. JUDGMENTS.— Piggott. — Vide "Foreign Judgments." Walker's Practice on Signing Judgment in the High Court of Justice. With Forms. By H. H. WALKER, Esq., of the Judgment Department, Exchequer Division. Crown 8vo. 1879. 4s. M. "The book undoubtedly meets a want, and furnishes information available for almost every branch of practice." " We think that solicitors and their clerks will find it extremely useful." — Lmo Journal. JUDICATURE ACTS.— "Whiteway's Hints on Practice ; or Practical Notes on the Judicature Acts, Orders, Rules and Regula- tions of the Supreme Court. Illustrated by the Latest Cases. Together with the Eules of the Supreme Court, 1883. With an Introduction, References, Notes, and Index. By A. R. WHITE- WAY, M.A., of the Equity Bar and Midland Circuit, Author of " Hints to Solicitors." Second Edition. Royal 12mo. 1883. 14s. Sold separately " Hints on Practice," with Cases and Index, 7s. Qd. The Rules, edited with Notes, Cross References, and Index, limp leather, 7s. 6d. "An excellently printed edition of the new Rules, with notes containing cross refer- ences and stating the sources of the Rules." — Solicitors Journal, October 13, 1883. • • All standard Law Works are kept in Stock, in law calf and other bindings. 119, OHANCEKY LAMB, LONDON, W.C. 19 JUDICATURE ACTS -Co7itinued. Wilson's Supreme Court of Judicature Acts, Rules of the Suprenie Court, 1883, and Fornis. With other Acts, Orders, Rules and Regulations relating to the Supreme Court. With Practical Notes. Fourth Edition. By M. D. CHALMERS, of the Inner Temple, and M. MUIR MACKEN- ZIE, of Lincoln's Inn, Barristers-at-Law. Royal 12mo. 1883. 25s. *^* A LARGE PAPER EDITION FOR MARGINAL NOTES. ROYAL 8V0. 1883. 30s. Extract from P'-eface to the Fourth Edition. — The jaresent edition contains the Rules of the Supreme Coiu-t, 1S83, with notes and comments. Where a repealed rule is reproduced without alteration a reference to its former Order and number is given in the margin. Where a repealed rule is rejaroduced with modifications the marginal reference to it is preceded by the prefix cf. Where a rule is new it is stated to be so in the note, and reference is made to any statute, consolidated order, or common law or Admiralty rule upon which it appears to be founded. This edition fiu'ther includes the provisions of the Bankruptcy Act, 1SS3, in so far as they relate to or affect the Supreme Court, and the Statute Law Revision and Civil Procedure Act, 1SS3, &c. The Editors have also entirely re-constructed the Index. " Wilson's 'Judicature Acts' remains what it always was, one of the most handy as weU as one of the best appreciated editions of the Acts." — Law Magazine. "Wilson's 'Judicature Acts' is now the latest, and we think it is the most con- venient of the works of the same class. . . . The practitioner wiU find that it supplies all his wants."— /.aw Times. Woodfall. — Vide " Rules of the Supreme Court." JUSTINIAN, INSTITUTES OF.-Mears.— Ftrfe "Roman Law." Ruegg's Student's " Auxilium " to the Institutes of Justinian. — Being a complete synopsis thereof in the form of Question and Answer. By ALFRED HENRY RUEGG, of the Middle Temple, Barrister-at-Law. Post 8vo. 1879. 5s. " The student will be greatly assisted in clearing and arranging his knowledge by a work of this kind." — Law Journal. JUSTICE OF THE PEACE.— Burn's Justice of the Peace and Parish Officer. — Edited imder the Superintendence of JOHN BLOSSETT MAULE, Esq., Q.C. The Thirtieth Edition. Five large vols. 8vo. 1869. 71. Is. Stone's Practice for Justices of the Peace, Justices Clerks and Solicitors at Petty and Special Sessions, in Summary matters, and Indictable Offences, with a list of Summary Convic- tions, and matters not Criminal. With Forms. Ninth Edition. By WALTER HENRY MACNAMARA, Esq., Barrister-at-Law. Demy 8vo. 1882. 25s. " A very creditable effort has been made to condense and abridge, which has been successful, whilst the completeness of the work has not been impaii-ed." — Lavi Times. Wigram's Justices' Note Book. — Containing a short account of the Jurisdiction and Duties of Justices, and an Epitome of Criminal Law. By W. KNOX WIGRAM, Esq., Barrister-at- Law, J.P. Middlesex and Westminster. Third Edition. Corrected and revised to December, 1882. With a copious Index. Royal 12mo. 1883. 12s. 6d " We have found in it aU the information which a Justice can require as to recent legislation." — Tlie 2'iincs. " This is altogether a capital book. Mr. Wigram is a good lawyer and a good justices' lawyer." — Law Journal. " We can thoroughly recommend the volume to magistrates." — Law Timet. * , * All stonda/rd Law Works are kept in Stock, in law calf and. other bindings . 20 STEVENS AND SONS' LAW PUBLICATIONS. LAND ACT,_5ee "Settled Estates."— Middleton. LAND TAX. — Bourdin's Land Tax. — An Exposition of the Land Tax ; its Assessment and Collection, with a statement of the rights conferred by the Redemption Acts. By MARK A. BOUR- DIN (late Registrar of Land Tax). Second Edition. 1870. 4s. LANDLORD AND TENANT.— Woodfall's Law of Landlord and Tenant. — With a full Collection of Precedents and Forms of Procedure. Containing also an Abstract of Leading Pro- positions, and Tables of certain Customs of the Country. Twelfth Edition. In which the Precedents of Leases have been revised and enlarged, with the assistance of L. C G. Robbins, Esq. By J. M. LELY, Esq., Barrister-at-Law. Royal 8vo. 1881. 11. 18*. "The editor has expended elaborate iudustry and systematic ability in making the work as perfect as possible." — Solicitori Journal. LANDS CLAUSES ACTS.-Jepson's Lands Clauses Con- solidation Acts; with Decisions, Forms, & Table of Costs. By ARTHUR JEPSON, Esq., Barrister-at-Law. Demy 8vo. 1880. IBs. " The work concludes with a number of forms aud a remarkably good index." — Law Times. " As far as we have been able to discover, all the decisions have been stated, and the effect of them correctly given." — Law Journal. LAW LIST. — Law List (The). — Comprising the Judges and Officers of the different Courts of Justice, Counsel, Special Pleaders, Draftsmen, Conveyancers, Solicitors, Notaries, &c., in England and Wales ; the Circuits, Judges, Treasurers, Registrars, and High Bailiffs of the County Courts ; Metropolitan and Stipendiary Magistrates, Law and Public Officers in England and the Colonies, Foreign Lawyers with their English Agents, Sheriffs, Qnder-Sheriffs, and their Deputies, Clerks of the Peace, Town Clerks, Coroners, &c., &c., and Commissioners for taking Oaths, Conveyancers Practising in England under Certificates obtained in Scotland. So far as relates to Special Pleaders, Draftsmen, Conveyancers, Solicitors, Proctors and Notaries. Compiled by WILLIAM HENRY COUSINS, of the Inland Revenue Office, Somerset House, Registrar of Stamped Certificates, and of Joint Stock Companies, and Published by the Authority of the Commissioners of Inland Revenue. 1883. {Net Cash, 9s.) lOs. 6d. LAW REPORTS. — A very large Stock of second-hand and new Reports. Prices on application. LAW STUDENT'S ANNUAL.— F?de "Examination Guides." LAW SUIT.— The Humourous Story of Farmer Bump- kin's Law^ Suit. By RICHARD HARRIS. Barrister-at- Law, of the Middle Temple and Midland Circuit, Author of " Hints on Advocacy." Second Edition. Royal 12mo. 1883. 6s. " Most of the standing grievances of suitors find a place in this book." —Laic Times. " He was obviously quite as eager for a good battle in court as ever was Dandy Dinmont."— Sadtrdav Review, September 15, 1883. LAWYER'S COMPANION.— Fide "Diary." LEADING CASES.— Haynes' Student's Leading Cases. Being some of the Principal Decisions of the Courts in Constitutional Law, Common Law, Conveyancing and Equity, Probate, Divorce, Bankruptcy, and Criminal Law. With Notes for the use of Students, By JOHN F. HAYNES, LL.D. Demy 8vo. 1878. 16s. " Will prove of great utility, not only to Students, but Practitioners. The Notes are clear, pointed and concise." — Laio limes. " We think that this liook will supply a want the book is singularly well arranged for reference." — Law Journal. ** All tUvndard Law Works art kept in Stock, in law eaif and other bindingi. 119, CHANCERY LANE, LONDON, W.C. 21 Shirley's Leading Cases. — A Selection of Leading Case3 in the Common Law, with Notse, and a Sketch of some of the prin- cipal changes introduced by the Rules of Supreme Court, 1883. By VV. SHIRLEY SHIRLEY, M.A., B.C.L., Esq., Barrister-aft-Law. Second Edition. Demy 8vo. 1883. 15s. "The book is deserving of high praise, and we commend it in all confidence." Gibson's Law Notes, April. 1SS3. "The selection is very large, though all are distinctly 'leading cases,' and the notes are by no means the least meritorious part of the work." — Law Journal. "Mr. Shirley writes well and clearly, and evidently understands what he is writing about." — Law Timet. LEGACY DUTIES.— FtcZe "Taxes on Succession." LEXICON.— Fide "Dictionary." LIBEL AND SLANDER.— Odgers on Libel and Slander.— A Digest of the Law of Libel and Slander, with the Evidence, Pro- cedure and Practice, both in Civil and Criminal Cases, with Precedents of Pleadings. With Appendix of Statutes including the Newspaper Libel and Registration Act, 1881. By W. BLAKE ODGERS, M.A., LL.D., Barrister-at-Law. Demy Svo. 1881. 24s, " We have rarely examined a work which shows so much industry. . . So good is the book, which in its topical arrangement is vastly superior to the general run of law books, that criticism of it is a compli- ment rather than the reverse."— Z^aiw Journal. "The excuse, if one be needed, for another booiJ on Libel and Slander, and that an English one, may be found in the excellence of the author's work. A clear head and a skilled hand are to be seen throughout. "—£'xA/^n, as it exists at Common Law, and as modified by the Factors' Acts, the Pawn- brokers' Acts, and other Statutes. By FRANCIS TURNER, Esq., Barrister-at-Law. Second Edition. 8vo. 1883. 12s. Turner's Pawnbrokers' Act, 1872. — With Explanatory Notes. By FRANCIS TURNER, Esq., Barrister-at-Law. Third Edition. 1883. Net, 28. 6d. PERPETUITIES.— Marsden's Rule against Perpetui- ties. — A Treatise on Remoteness in Limitation ; with a chapter on Accumulation and the Thelluson Act. By REGINALD G. MARSDEN, Esq., Barrister-at-Law. Demy 8vo. 1883. 26s. " Mr. Mai-sden's work is entitled to be called a new one both in treatment and in design. He has handled a difficult subject with intelligence and clearness." — Law Times. PERSONAL PROPERTY.— Shearwood's Concise Abridg- ment of the Law of Personal Property; showing analytically its Branches and the Titles by which it is held. By J. A. SHEARWOOD, Esq., Barrister-at-Law. 1882. 6s. 6d. " Will be acceptable to many students, as giving them, in fact, a ready-made note book." — Indermaur's Law Students' Journal. Smith. — Vide " Real Property." PLEADING. — Allen's Forms of Indorsements of Writs of Summons, Pleadings, and other Proceed- ings in the Queen's Bench Division prior to Trial, pursuant to the Rules of the Supreme Court, 1883 ; with Introduction, showing the principal changes introduced by these Rules, and a Supplement of Rules and Forms of Pleadings applicable to the other Divisions. By GEORGE BAUGH ALLEN, Esq., Special Pleader, and WILFRED B. ALLEN, Esq., Barrister-at-Law. Royal 12mo. 1883. 18s. Bullen and Leake's Precedents of Pleadings, with Notes and Rules relating to Pleading. Fourth Edition. By THOMAS J. BULLEN, Esq., of the Inner Temple, and CYRIL DODD, Esq., Barrister-at-Law. Part I. (containing (1) Introductory Notes on Pleading ; (2) Forms of Statements of Claim in Actions on Contracts and Torts, with Notes relating thereto). Royal 12mo. 1882. (Part II. in the press.) 11. 4s. " Mr. Thomas BuUt-n and Mr. Cyril Dodd have done their work of adaptation admirably." — Law Jcrnrnai. POISONING. — Reports of Trials for Murder by Poisoning ; by Prussic Acid, Strychnia, Anti- mony, Arsenic and Aconitine; including the trials of Tawell, W. Palmer, Dove, Madeline Smith, Dr. Piitchard, Smethurst, and Dr. Lam son. With Chemical Introductions and Notes on the Poisons used. By G. LATHAM BROWNE, of the Midland Circvit, Barrister-at-Law, Author of "Narratives of State Trials in the Nineteenth Century," and C. G. STEWART, Senior Assistant in the Laboratory of St. Thomas's Hospital, &c. Demy 8vo. 1883. 12s. 6rf " The work will be found alike useful to the lawyer as to the medical man." — Laio Timc.1. " As a guide to barristers anxious to post themselves up in points to ask, and to scientific witnesses to see the possible pitfalls to avoid, it will be invaluable." — T/ie Analyst, August, 1883. •,* All standard Law Worhs are kept in Stock, in law calf and other bindings. 119, CHANCERY LANE, LONDON, W.C. 25 POWERS. — Farwell on Powers. — A Concise Treatfee on Powers. By GEORGE FARWELL, B.A., of Lincoln's Inn, Esq., Barrister-at-Law. 8vo. 1874. II. Is. " We recommend Mr. Farwell's book as containing within a small compass what would otherwise have to be sought out in the pages of hundreds of confusing reports." — The Laic. PROBATE. — Browne's Probate Practice : a Treatise on the Principles and Practice of the Court of Probate, in Contentious and Non-Contentious Business. Revised, enlarged, and adapted to the Practice of the High Court of Justice in Probate business. By L. D. POWLES, Barrister-at-Law. Including Practical Directions to Solicitors for Proceedings in the Registry. By T. W. H. OAKLEY, of the Principal Registry, Somerset House. 8vo. 1881. 1'. 10s. " This edition will thus supply the practitioners in both branches of the profession with all the information that they may require in connection with the probate of wills."— TAe rimes. " In its present fonn this is undoubtedly the most complete work on the Practice of the Court of Probate This is strictly a practical book. No principle of law, statute or form which could be of .service to the practitioner in the Probate Division appears to have been omitted."— TAe Law Times. PUBLIC HEALTH.— Chambers' Digest of the Law re- lating to Public Health and Local Govern- ment. — With Notes of 1260 leading Cases. The Statutes in full. A Table of Offences and Punishments, and a Copious Index. Eighth Edition (with Sujjplement corrected to February 8, 1883). Imperial 8vo. 1881. II. 14s. Or, the above with the Law relating to Highways and Bridges. 21. PUBLIC MEETINGS.— Chambers' Handbook for Public Meetings, including Hints as to the Summoning and Manage- ment of them. By GEORGE F. CHAMBERS, Esq., Barrister- at-Law. 12mo. 1878. Net, 2s. 6d. QUARTER SESSIONS.— Leeming & Cross's General and Quarter Sessions of the Peace. — Their Jurisdiction and Practice in other than Criminal matters. Second Edition. By HORATIO LLOYD, Esq., Judge of CountT Courts, and H. F. THURLOW, Esq., Barrister-at-Law. 8vo. 1876. II. Is. Pritchard's Quarter Sessions. — The Jurisdiction, Practice and Procedure of the Quarter Sessions in Criminal, Civil, and Appellate Matters. By THOS. SIRRELL PRITCHARD, of the Inner Temple, Esq., Barrister-at-Law, Recorder of Wenlock. 8vo. 1875. 21. 2s. RAILWAYS.— Browne and Theobald's Law of Rail- way Companies. — Being a Collection of the Acts and Orders relating to Railway Companies, with Notes of all the Cases decided thereon, and Appendix of Bye-Laws and Standing Orders of the House of Commons. By J. H. BALFOUR BROWNE, Esq., Registrar to the Railway Commissioners, and H. S. THEOBALD, Esq., Barristers-at-Law. Demy 8vo. 1881. 1?. 12s. "Contains in a very concise form the whole law of railways." — The Times. " A marvel of wide design and accurate and complete fulfilment. . . A complete and valuable repository of all the learning as to railway matters." — Saturday Revietc. " As far as we have examined the vohime the learned authors seem to have pre- sented the profession and the p)tlblic with the most ample information to be found whether they want to know how to start a railway, how to frame its bye-laws, hovr to work it, how to attack it for injury to person or property, or how to wind it up." — Eam Times. RATES AND RATING.— Castle's Practical Treatise on the Law^ of Rating. By EDWARD JAMES CASTLE, of the Inner Temple, Esq., Barrister-at-Law. Demy 8vo. 1879. 1/. Is. "Mr. Castle's book is a correct, exhaustive, clear and concise view of the law." — Law Tillies. *.• AU statKba/rd Law Works are kept in Stock, in law calf and other bindings. 26 STEVENS AND SONS' LAW PUBLICATIONS. RATES AND RkTmC-Continued. Chambers' Law relating to Rates and Rating ; with especial reference to the Powers and Duties of Rate-levying Local Authorities, and their Officers. Being the Statutes in full and brief Notes of 550 Cases. By G. F. CHAMBERS, Esq., Barrister-at-Law, Imp. 8vo. 1878. Reduced to 10s. REAL ESTATE. — Foster's Law of Joint Ownership and Partition of Real Estate. By EDWARD JOHN FOSTER, M.A., late of Lincoln's Inn, Barrister-at-Law. 8vo. 1878. 10». M. REAL PROPERTY.— Greenw^ood's Real Property Sta- tutes. Second Edition. By HARRY GREENWOOD, M.A., Esq., Barrister-at-Law. [In the press.) Leake's Elementary Digest of the Law of Pro- perty in Land. — Containing : Introduction. Part I. The Sources of the Law.— Part 11. Estates in Land. By STEPHEN MARTIN LEAICE, BarrLster-at-Law. 8vo. 1874. \l. 2s. ''J* The above fi irms a complete Introduction to tho Study of the Law of Real Property. Shear^A'OOd'b Real Property. — A Concise Abridgment of the Law of Real Property and an Introduction to Conveyancing. Designed to facilitate the subject for Students preparing for Examination (incorporating the changes effected by the Convey- ancing Act). By JOSEPH A. SHEARWOOD, of Lincohi's Inn, Esq., Barrister-at-Law. Second Edition. Demy 8vo. 1882. 7s. 6rf. '"We heartily recommend the work to students for any examination on rual pro- Ijerty and conveyancing, advising them to read it after a perusal of other works and shortly before going in for the examination."— Zau" Student's Journal, Api-il 1, 1SS2. " A very useful little work, particularly to students j\ist before their examination." — Gibson's Law Notes, May, 1882. "' Excellently adapted to its purpose, and is in the present edition brought well down to date."- XauJ i/aA^ Rules and Prac- tice. — Being a Synopsis of the Rules of the Supreme Court, 1863, with Notes and References to Cases overruled and illustrative. 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