«1 SELECTION OF 'ASES Affecting Solicitors i\cr! fkjfvci THOSc REPORTED T^^ the REPRINTED MARCH 19C0 189T ;.AW SOCl r 1991 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY i. ■ 2i S>election OF CASES AFFECTING SOLICITORS INCLUDING THOSE REPORTED TO THE END OF TRINITY TERM 1806 [Reprinted March 1900] INCORPORATED LAW SOCIETY OF THE UNITED KINGDOM CHANCERY LANE 1897 T TABLE OF CONTENTS. List op Cases Retainer and Authorities Duties Privileges General Lien Particular Lien Solicitor-Trustees Dealings between Solicitor and Partnership Authorities... Agency Solicitor and Client Costs Summary Index ... . Hole, 1 Doug. 287 (1779) In re West, King & Adams, 1892, 2 Q.B. 102 ; 61 L.J.E. Q.B. 639 ; 40 W.E. 644 ; 67 L.T.E. 57 PAH. 291 858' 836 [125] [192] [297] [268] [48] [139] 124 178' 820; [227] [227] [5o: ^117" ■318" 166" 107' 293; [241 [118J [414] [322] [328] 285] :292] [156] [41] 365 396" 131' [96 [170; [403] LIST OF CASES, 17 PAS. West of England Bank v. Batchelor, 51 L.J. Ch. 199 ; 30 W.K. 364 ; 46 L.T.R. 132 (1882) [149] Westacott ^;. Bevan, 1891, 1 Q.B. 774 ; GO LJ.E. Q.B. 536 ; 39 W.R. 3G3 ; 65 L.T.R. 263 [234] In re Wheatcroft, 6 Ch.D. 97 ; 46 L.J.R. Ch. 669 ; 26 W.R. 69(1877) [66] ^Vhite V. Pearce, 7 Hare 276 ; 18 L.J.R. Ch. 462 (1849) [175] ^Vhiteman v. Hawkins, 4 C.P.D. 13 ; 27 W.R. 262 ; 39 L.T.R. 629 (1878) [68 Whitnev r. Smith, 4 Ch. 513 (1869) [246 Wiggins t'. Peppin, 2 Beav. 403 (1837) [3 Wilkinson v. Grant, 25 L.J. C.P. 233 ; 18 C.B. 319 (1856) [12 SxTJaWeWilland, 11 C.B. 544(1851) [55 In re WiUiams, 65 L.T.R. 68 (1891) [400 „ Williams, 3 D. F. & J. 104 ; 30 L.J.R. Ch. 610 ; 9 W.R. 393 ; 4 L.T.R. 103 (1861) [129] Williams v. Qnebrada Railway, 1895, 2 Ch. 751 ; 65 L.J.R. Ch. 68 ; 44 W.R. 76 ; 73 L.T.R. 397 ... [99] WiUiams v. Williams, 17 Ch.D. 437 ; 44 L.T.R. 573 (1881) [69] WiUiamson v. Moriarty, 19 W.R. 818 (1871) [270] Wilson V. Hood, 33 L.J.R. Ex. 204; 3 H. & C. 148 (1864) [183] WUson V. Rovmd, 4 Giff. 416 ; 12 W.R. 402 ; 9 L.T.R. 675 (1863) [182] WorraU v. Johnson, 2 J. &. W. 214 (1820) [102] Wray v. Kemp, 26 Ch.D. 169 ; 53 L.J.R. Ch. 1020 : 32 W.R. 334 ; 50 L.T.R. 552 (1884) [36] Ex parfe Yalden ; In re Austin, 4 Ch.D. 129 ; 46 L.J.R. Bank 59 ; 35 L.T.R. 720 (1876) [144] Young V. EngUsh, 13 L.J.R. Ch. 76 ; 7 Eeav. 10 (1843) [110] Young V. Wallingford, 52 L.J.R. Ch. 590 ; 31 W.R. 838 ; 48 L.T.R. 756 (1883) [72] A SELECTION OF CASES AFFECTING SOLICITOES. I.— RETAINER AND AUTHORITIES. [1] The Court refused to restrain a defendant's solicitor from acting for him, on the alleged ground that he had, in the character of solicitor for the defendant and others interested (jointly with the plaintiff) in a Chancery suit, in attendance upon a Master, obtained a knowledge of the plaintiffs case, and of the evidence upon which it was to be supported, the defendant's solicitor deposing that he had not thereby obtained any further knowledge of the plaintiffs case than would be disclosed by a particular of demand. Grissell v. Peto, 2 M. & Scott 2 (1832). [2] Where an attorney has been employed in a cause and is afterwards discharged by his client, not on the ground of misconduct, the Court will not restrain him from acting for the opposite party, unless it clearly and distinctly appears that he has obtained infor- mation in his former character which, if communicated to the other side, would be prejudicial to the cause of his former client. Johnson v. Marriott, 2 C. & M. 183 (1834). [3] The retamer of a solicitor need not be in writing ; but if he neglects taking the precaution of having a written retainer, and his retainer being afterwards questioned, there is nothing but assertion against assertion ; he must bear the costs of the risk he thus undertakes. Wiggins v. Pej^pin, 2 Beav. 403 (1837). [4] An attorney who was the ordinary attorney for a borrower also acted in the matter of a particular loan for the lender, but did not make any charge against the lender for his services. Held, that he was properly charged as an attorney acting on the retainer and employment of the lender, and was in that character liable to an action for damages for the loss suffered through the insufficiency of the security. Donaldson v. Haldane, 7 C. & F. 762 (1837). RETAINER AND AUTHORITIES. 19 [5] A solicitor retained by beneficiaries acted generally in relation to the trust estate, and brought actions for specific per- formance against purchasers, andalso actions of ejectment to recover parts of the estate. To these actions otlier beneficiaries, from whom the solicitor had no retainer, were made parties. These latter bene- ficiaries never acknowledged the retainer of the solicitor ; they, how- ever, knew that their names had been used as plaintiffs, and took no active steps to have them removed from the record, and they shared in the benefit derived from the action for specific performance. Held, that, though they could not avail themselves of the benefit ot the actions without contributing to the expenses, that fact did not establish the relationship of solicitor and client either in these par- ticular actions, or in the actions of ejectment or the general busi- ness of the trust estate. Hall v. Laver, 1 Hare 571 (1842). [6] An attorney aiithorised to appear in an action has implied authority to consent to an order referring the matter to arbitration. Smith v. Troui), 18 L.J.K. C.P. 209 (1849). [7] The solicitor in an action has authority to order the sheriff to withdraw from possession \inder a fi. fa. Levi v. Abbott, 19 L.J. Ex. 62 (1849). [8] If the attorney of a lessor who is not attorney for the lessee prepares the lease, the lessor is the person liable to pay the attorney for it, and the lessor can recover over against the lessee ; and this is so whether the lessee takes up the lease or refuses to do so. Baler v. Merijweather, 2 C. & K. 737 (1849). [9] The same attorney was severally retained by the defen- dants in actions brought against them severally by the same plaintiff. A consolidation order was made by consent of all parties, and one action was tried. Held, that it might be inferred from these facts that the several retainers were withdrawn as from the date of the consolidation order, and a joint retainer given to the attorney by all the defendants as to future proceedings. Anderson v. Boynton, 13 Q.B. 308 (1849). [10] A solicitor acted for one Dr. Ford and three other defen- dants in a Chancery suit. There was no evidence as to the nature of the retainer, i.e.., w'hether it was joint or several, nor any circum- stances from which its nature might be inferred. The bill of costs, made out and deUvered to Dr. Ford, contained some few items for services performed on behalf of other defendants not immediately connected with the common defence of the suit ; but, for the most part, the charges were the same as would have been made against a single defendant, except where the disbursements at the public ofl&ces were increased by reason of the number of the defendants. Dr. Ford obtained the common order for taxation. The principle on which the Taxing Master proceeded was that Dr. Ford, being one of several defendants represented by the same solicitor, was bound to pay only a proportional part of the general costs of the suit. It was submitted on behalf of tlie solicitor that each and every of the defendants was, as between himself and the solicitor, liable to pav the full ordinary costs of suit when the same were not b2 20 RETAINER AND AUTHORITIES. increased by reason of the step being taken on behalf of more than one defendant. Held, that the principle on which the Taxing Master proceeded was correct. In re Colqiihoun, 23 L.J.E. Ch. 515 (1854). [11] A solicitor received a retainer authorising him " to proceed against the trustees and executors of my late father's will, to obtain the probate, and to take such proceedings as may be considered expedient to obtain an account of the trust property under my said father's will." Held, that probate having been obtained and an account rendered in the probate suit, though not such as the Court of Chancery would require, the solicitor was not authorised, after an interval of three years and without further consultation with his client, in fihng a bUl for an account. AtMnson v. Abbott, 3 Drew 251 (1855). [12] A proposed mortgagee's soHcitor has no clairn for his charge against the proposed mortgagor where the negotiation for the mortgage goes otf through the default of the latter ; he must look to the person who retains him, leaving him to his remedy (if any) a-^ainst the party who occasioned the fruitless expenses. Wilkinson v. Grant, 25 L.J. C.P. 233 (1856). [IB] A suit for redemption was instituted by a solicitor on behalf of clients, one of whom had given no written retainer. The evidence as to retainer was to the effect that the solicitor had, before the institution of the suit, seen the managing clerk of the plaintiff in question and explained the matter to him, and had received his authority to use his employer's name as one of the plaintiffs, and also that he had subsequently several times spoken to the plaintiff himself on the subject of the suit and the proceed- ings therein. The plaintiff, having been apphed to for payment of certain costs of the defendants, applied to the sohcitor for_ informa- tion, denied the latter's authority to use his name as plaintiff, and required an indemnity. This the solicitor refused to give. Held, that, although the plaintiff was cognisant of the existence of the suit, yet, as there was no sufficient evidence of retainer, the soHcitor was bound to give the indemnity required. Norton v. Cooper, 3 Sm. & Giff. 375 (1856). [14] If a client repudiates the retainer of his attorney to conduct a suit, the latter is entitled to bring an action for his costs without waiting for the final completion of the suit. Eawkes v. Coitrell, 27 L.J.E. Ex. 369 (1858). [15] Slight evidence will render a lessee liable directly to the lessor's attorney for the costs of preparing the lease ; as, for instance, if it be understood between them that the lessee shall pay the attorney direct, or if there are any instructions given by the lessee which tend to show such an understanding between them. Smith V. Clegg, 27 L.J.R Ex. 300 (1858). [16] An attorney retained to conduct a cause, and having express directions from the client not to enter into a compromise, has no power under such retainer to enter into any compromise, even though reasonable and bond fide, and for the benefit of the RETAINER AND AUTHORITIES. 21 client; and if he does so, ho is Hable to an action for damages, though the damage actually sustained is nominal ; and it is no defence to such action that the compromise was entered into by the advice of counsel employed by the attorney under his retainer for the conduct of the cause. A solicitor has, however, an implied authorit}' under a general retainer to compromise an action, but that authority may be withdrawn bv the client at any time. Fray V. Vowles, 28 L.J.R. Q.B. 232 (1859). [17] Under the ordinary retainer to bring or defend an action an attorney has authority from his client to effect a reasonable compromise, unless he be expressly forbidden by the client to do so. Choion V. Parrott, 32 L.J.E. C.P. 197 (1863). [18] On the occasion of settling personal property upon a marriage, it is the professional usage for the lady's solicitor to draw the settlement, and for the husband to pay for it, although the only property settled is the husband's ; and where nothing has taken place to exclude such usage, the husband is legally liable, in the event of the marriage, to pay the lady's solicitor his costs of the settlement if the retainer was by the lady, or else to indemnify whoever on her part has properly incurred expense bj' retaining a solicitor to prepare such settlement. Helps v. Clayton, 34 L.J. C.P. 1 (1864). [19] In an action to recover the price of a piano, the plaintiff's attornej' agreed to compromise the action on terms that the defendant returned the piano and paid a siim for costs. Held, that the attorney had authority to effect the compromise. Prestwick V. Poley, 34 L.J.R. C.P. 189 (1865). [20] An agreement between a client and a solicitor that the solicitor shall be paid a fixed yearly salary, to be clear of all expenses of his office, and to include all emoluments, he paying to the client any surplus which might arise of receipts over payments, is not opposed to the provisions of the Attorneys and Solicitors Acts, nor to the policy of the law, where it is also a term of the agree- ment that the sohcitor is not to transact professional business for any other client. If a client and his solicitor were to agree that the solicitor should be paid a fixed salary, and should receive no costs beyond disbursements, it is a question whether an adverse party in a suit on being ordered to pay costs could be compelled to pay the client any costs beyond the solicitor's disbiu'sements. Galloivay v. Corporation of London, 4 Eq. 90 (1867). [21] If the plaintiff in an action continues the retainer of his attorney after judgment by allowing him to proceed to obtain satisfaction, he confers on him a general authority to compromise the action. Butler v. Knight, 2 Ex. 109 (1867). [22] The Court will not exercise its siimmary jurisdiction over an attorney simply because he has, from improper motives, given information which might be used against a former client. There must be actual misconduct qua attorney by the adverse use of in- formation, while the relation of attorney and client is still subsist- 22 RETAINER AND AUTHORITIES. ing, or by the betrayal of secrets relating to the client's business obtained by the attorney while acting in a confidential capacity and acquired also in consequence of his so acting. The test for deter- mining whether the Court has or has not jurisdiction is, whether, if the attorney had been called as a witness, the Coiurt would or would not have held him justified in refusing to answer on the groimd of privilege. In re Cutis, 16 L.T.E. 715 (1867). [23] The solicitor of a lessor who has prepared a draft lease cannot recover for his services fi-om the intended lessee unless there is a privity of contract between them. In re Ipstone Park Colliery Compamj; Brough's Claim, 18 W.E. 285 (1870). [24] Solicitors filed a bill on behalf of a limited company on the authority of two gentlemen who claimed to be directors of the company. The solicitors were aware of the circumstances under which their clients claimed to be directors. The Court, having held that the alleged directors had acted without a colour of right, ordered the biU to be taken off the file with costs to be paid by the solicitors. Wandsioorth Gas Company v. Wright, 18 W.R. 728 (1870). [25] An attorney retained for the conduct of an action has no implied authority after judgment in favour of the cUent to enter into an agreement on his behalf to postpone execution, though he may have authority to accept payment of the judgment in a parti- cular mode ; for instance, by instalments. Lovegrove v. White, 6 C.P. 440 (1871). [26] The solicitor appointed by an official liquidator has no claim against the official liquidator personally for the costs of the winding up, even though an order has been made on the applica- tion of the official liquidator that the costs should be taxed and paid by him to the solicitor. In re Anglo -Moravian Hungarian Junc- tion Railway Company, Ex parte Wathin, 1 Ch.D. 130 (1875). [27] Four defendants having given to an attorney a retainer which the Court held to be a joint retainer : Held, that the attorney could demand payment from one defendant of the whole costs incurred on the joint retainer. Burridge v. Belleiu, 32 L.T.R 807 (1875). [28] A company's articles of association contained a clause stating that the plaintiff should be solicitor to the company, and should transact all the legal business for the usual and accustomed fees and charges, and should not be removed fi-om his office unless for misconduct. The plaintiff acted as solicitor to the company for some time, but ultimately the company ceased to employ him, and employed other solicitors. The plaintifi" brought an action against the company for breach of contract in not employing him as solicitor to transact their legal business on the terms of the articles. Held, that the articles of association did not create any contract between the plaintiff and the company. Eley v. Positive Government Seciority Life Assurance Society, 1 Ex.D. 88 (1876). EETAINER AND AUTHORITIES. 23 [29] A solicitor had a retainer to act generally for a company, and also a special retainer to conduct a Chancery suit on behalf of the company. Being employed by another client to go to America, he took the opportimity of collecting infonuation on behalf of the company in furtherance of their suit, but without special instruc- tions from the company to do so. His other business took him to the place where most of this information was obtained. On his retiu-n to England, he reported to the company what he had done, and they made use of the information he had obtained. He after- wards took three journeys to Paris to conduct negotiations for a compromise of the same suit without instructions from the com- pany, but with the knowledge of some of the directors, and on two of the journeys he was accompanied by the chairman. Held, tliat under the special circumstances of the case the solicitor was entitled to charge the company for his professional services m America as being within his retainer, and also for his professional services and expenses on his journeys to Paris, since, although the journeys had been taken without instructions, the directors had adopted and acted on what he had done. In re Snell, 5 Ch.D. 815 (1877). [30] Notwithstanding the rule that a solicitor must not use in- formation acquired in his professional capacity in any subsequent proceedings against his former client, a soUcitor who has acted in the formation of a company and been discharged may act for a petitioner to wind up the same company, when all the facts upon ^\•hich the petition is based might have been ascertained by any person in the position of the petitioner. In re Holmes, 25 W.R. 603 (1877). [31] Sohcitors were retained to act for a trustee in bankruptcy, and also to protect the interests of a particular creditor who subse- quently purchased the whole of the estate and undertook to pay the trustee's costs. A convenient break in the business having occurred on the completion of the purchase, the solicitors delivered their bill of costs to date. Some months afterwards they delivered a second biU following on the first. Within twelve months after the delivery of the second bill, but more than twelve months after delivery of the first, the client applied to tax both bills. Held, that the retainer of a solicitor in such a matter as a bankruptcy, an ad- ministration, or a winding up does not constitute an entire contract, so as to deprive the soHcitor of his right to payment till the whole matter is completed, and that taxation of the first bill must be refused. In re Hall d Barker, 9 Ch.D. 538 (1878). [32] The plaintififs had taken a mortgage of a reversionary share in a testator's estate, and gave notice of the encumbrance to a firm of solicitors who were acting for the trustees and executors in a Chancery suit to which the testator had been a party, and were employed in all matters relating to the testator's estate in which professional assistance was required. The solicitors wrote accept- ing the notice on behalf of the trustees. Held by the Court of Appeal, that notice to the sohcitors was not good notice to the trustees. That the solicitors, in accepting service of the notice on behalf of the trustees, were not guilty of a misrepresentation of fact for which they coidd be made liable, but were acting under an opinion common to both parties, but erroneous in point of law, that 24 RETAINER AXD AUTHORITIES. their employment as solicitors enabled them effectually to accept service of the notice. Saffron Walden Builddng Society v. Bayner, 14 Ch.D. 406 (1880). [33] A direction in a will appointing a particular person soli- citor to the trust estate imposes no trust or duty on the trustees of the will to continue such person their solicitor in the manage- ment and affairs of the estate. Foster v. Elsley, 19 Ch.D. 518 (1881). [34] An execution creditor may be liable, in respect of an erro- neous endorsement made by his solicitor on the writ oifi.fa., causing the sheriff to levy on goods not belongmg to the execution debtor. It is a question of fact whether a seizure of particular goods under a fi.fa. was directed by the execution creditor so as to make him liable for the act of the sheriff. Apart fi'om the direction endorsed on the writ, it is not within the scope of the implied authority of the soli- citor of an execution creditor to direct the sheriff to seize particular goods. Smitli v. Keal, 9 Q.B.D. 340 (1882). [35] The solicitor of a limited company is not an officer of the company within the meaning of the Companies Act 1862, section 165. In re The Great IVheal Polgooth Company, 53 L.J.E. Ch.D. 42 (1883). [36] A retainer to a coimtry solicitor does not justify an action in which his London agents are the solicitors on the record. Wray V. Kemj), 26 Ch.D. 169 (1884). [37] By order on further consideration the defendant was ordered to pay money into Court. The defendant went abroad without complying with the order. On appeal the order was varied by ordering the defendant to pay the money to the plaintiff, who was then to pay it into Court, such an order being capable of being better enforced against the defendant's property than the order as originally framed. The notice of appeal was served on the defend- ant's solicitors, who stated that they had ceased to act for him, but they were still his solicitors on the record. Held, that, as the order on further consideration had not been worked out, they still repre- sented him for the purposes of the action, and that service of the notice on them was good service. Lady de la Pole v. Dick, 29 Ch.D. 351 (1885). [38] A solicitor retained by three several clients may decline to continue to act for one of them, and cannot be restrained from acting for the others. In re Flint, 29 Sol. Jo. 651 (1885). [39] A summons was taken out imder the Companies Act 1862, section 165, by the official liquidator of a company against the solicitor of the company, who had been employed by the promoters as their solicitor in the promotion of the company, the object of the sum- mons being to make the solicitor liable to repay a sum received by the promoters as profit on a sale to the company. Held, that the solicitor was not an officer of the company within the meaning of section 165. In re Great Western Forest of Dean Coal Consumers Company, Carter's Case, 31 Ch.D. 496 (1886). RETAINER AND AUTHORITIES. 2o [40J A solicitor employed in trust business is the solicitor of the trustees personally, and has no direct claim on the trust estate for costs. Solicitors for a trustee had received a sum of i-'GOO which they knew to be part of the trust estate, and by the direction of the trustee they applied it in part-payment of their bill of costs. An order was made on the trustee to pay certain other moneys and the balance (if any) of the iGOO, after pajTnent of his taxed costs, into Court, and on his default the Court ordered the solicitors to pay the £600 into Coiu-t ; but declined to make a similar order as regards other moneys received by them from the trustee without notice that they were part of the trust estate. Staniar v. Evans, 34 Ch.D. 470 (188G). [41] Durmg a period in which there was no personal represent- ative of the estate of a deceased testatrix, a solicitor, acting upon the instructions of a relative of the deceased, rendered professional services beneficial to the estate. The administrator subsequently appomted refused to pay for the services in question. Held, that he was not botxnd to do so. In re Watson ; Ex parte Phillixys, 19 Q.B.D. 234 (1887). [42] A solicitor who has recovered judgment for a client under an ordinary retainer has no authority', without special instructions, to engage in proceedings in interpleader. James v. BicJinell, 20 Q.B.D. 164 (1887). [48] Where a solicitor applied to his client for fimds to carry on an action under a special stipulation in the retainer that such funds should be supplied, and, on the client refusing to pay, decUned to continue the suit or deliver up the papers until his taxed costs were paid : Held, that this was a discharge by the sohcitor, and that he might be called upon to deliver to new solicitors the papers relating to the matters in question in the action. BlucTc v. Lovering, 35 W.R. 232 (1887). [44] WTien local solicitors are retained by the Treasury to con- duct prosecutions on their behalf, such local soUcitors are agents for the Treasury, and are therefore bound to accoimt to the Treasiury for any sums of money received in respect of costs, and to pay over to the Treasury the difference between the sums so received as costs and the sum allowed them on taxation. In re Parkinson, 56 L.T.R. 715 (1887). [45] A deed containing a receipt must, in order to be an authority for payment to a solicitor, be produced by the solicitor who is acting for the person sought to be charged. The ability to produce the deed is not equivalent to the production of it. Day v. Woolwich Equitable Building Society, 40 Ch.D. 491 (1888). [46] During the course of proceedings in Court, the client for •whom solicitors acted died, but they did not receive notice of his death for three weeks afterwards, and in the interval they took certain steps in the proceedings, charges for which they included in ther bill of costs. Held, that such charges must be disallowed, as he retainer ceased on the death of the client. Pool v. Pool, 58 LJ.E.. P. 67 (1889). 26 DUTIES. [47] The fact that a solicitor has acted for a client in all matters connected with a trust does not authorise him to enter an appear- ance for the client as defendant to an originating siimmons for an account taken out against the chent by one of the beneficiaries. In re Gray ; Gray v. Coles, 65 L.T.E. 743 (1891). [48] The contract of a solicitor who accepts a retainer in a common law action is, in the absence of agreement to the contrary, an entire contract to conduct the case of the client until the action is concluded, and he is not entitled on reasonable notice only and with- out good cause to put an end to the contract. The failure of the client on request to find money for necessary disbursements justi- fies the solicitor in putting an end to the contract on reasonable notice and suing for his costs already incurred. It is a question whether on the death or incapacity of the solicitor there is any right of action. Underivood v. Leiuis, 1894, 2 Q.B. 306. II.— DUTIES. [49] If an attorney pays into his banker's hands money of his client, mixing it with his own, and the bankers fail, the attorney is liable to make good the loss. Bobinson v. Ward, 2 C. & P. 59 (1825). [50] An attorney who has undertaken a cause is not bound to proceed without adequate advances from time to time by his client for expenses out of pocket, and therefore the Coiu't will not compel an attornej', even after notice of trial, to carry the cause into Court, unless the client supplies him with sufficient funds to pay the ex- penses out of pocket thereby inciirred. Wadsivortli v. Marshall, 1 L.J.E. Ex. 250 (1832). [51] The Court will not interfere summarily to try the question of negligence on the part of an attorney towards his client. Brazier v. Brijant, 2 Dowl. P.C. 600 (1834). [52] If attorneys employed by a vendor to settle on his part the assignment of a term allow him to execute an unusual covenant without explaining the liability thereby incurred, they are respon- sible to him for consequent loss, notwithstanding he is himself at the time of the assignment aware of the fact in respect of which he afterwards incurs liability on his covenant. Stannard v. UllitJwrne, 10 Bing. 491 (1834). [53] Title-deeds were entrusted to an attorney by his client, who wished to raise a loan on mortgage of the property comprised in them. The attorney disclosed a defect which he discovered in the title to another of his clients, who was lUvely to be benefited by the disclosm-e. Held, that the attorney was guilty of a breach of duty to the client who had entrusted him with the deeds. Taylor V. BlacMotv, 3 B.N.C. 235 (1836). [54] If a sohcitor who is conducting a cause does not commu- nicate to his client an offer of compromise made by the other party, DUTIES. 27 but goes on with the action, to put costs into his own pocket, he cannot charge his client with the costs incurred ; but as it is the duty of a soUcitor to communicate such an ofier to his cUent, it must be presumed that he did so till the contrary is shown, ^iill V. Thomas, 8 C. & P. 762 (1839). [55] A judge's order having been made directing an attorney to deliver up deeds to a client, the Court granted an attachment against him lor refusing to deliver them up unless the client would pay him for a schedule thereof to be kept by the attorney. Ex parte Willand, 11 C.B. 544 (1851). [56] It is the duty of an attorney, when duly called upon by his client to deliver him the papers of which he has the charge, to deliver them in a reasonable condition. The question whether the condition in which they are delivered is reasonable is for the jury. London d- North Western Bailioay Company v. Sharp, 24 L.J. Ex. 44 (1854). [57] On payment of a solicitor's bill the client is entitled to the possession of letters written to the solicitor by third parties, but not to copies of letters written by the solicitor to third parties unless they are paid for by the client. In re Thompson, 24 L.J.R. Ch. 599 (1855). [58] A solicitor having an authority in writing to sell property on behalf of one client entered into a contract for the sale of it to another client. The solicitor did not communicate the purchaser's name to the vendor, nor the fact that the piurchaser was a client of the solicitor. In an action for specific performance by the pur- chaser against the vendor : Held, that a solicitor acting for opposing parties should disclose to them both the whole nature of the deal- ing, and that such disclosure not having been made the Court would not pronounce a decree for specific performance of the con- tract. Hesse v. Briant, 6 De G. M. & G. 623 (1856). [59] An attorney, assuming from his client's instructions that foreign bills of which they sent copies were endorsed so as to enable them to sue in their own names, commenced proceedings on the bills without inspecting the originals, or making inquiries to ascer- tain exactly what the endorsement was. The bills were not, as a fact, properly endorsed, and the proceedings had to be discontinued. Held, that the attorney was guilty of such negligence as to disen- title him to recover the costs of the abortive proceedings. Long v. Or si, 26 L.J.R. C.P. 127 (1856). [60] An attorney who has received his client's deed to keep for him and has lost it, there being no evidence of the circumstances under which the loss incurred, cannot set up such loss as a defence to an action for detinue. Beeve v. Palmer, 28 L.J.R. C.P. 168 (1859). [61] A solicitor acted for a client in various matters, and par- ticularly in raising money for him on mortgages and bills of ex- change. He also acted as receiver of the client's rents. The course 23 DUTIES. of business, when money was raised, appeared to have been that on each occasion the soHcitor received the money retamed out of it a si^aoreed upon for his costs of the particular tran^ction and Sed over the balance. The rents which he received had been accountedfor, and the accounts in respect of them had been settled and thev did not include any items for costs. After the dea^ of the solicitor a biU of costs was sent m which was referred for taxation The Taxin- Master having taxed the bill required an account of the monevs raised on mortgage and i^othe'-ways^but^ no sufficient materials for such an account existed and he certified that nothing was due to the soUcitor. masmuch as he had received large sums of money, of his disposal of which no account was furnished. Held, that the biU of costs as taxed must be paid, for as regarded moneys received by the soUcitor, other than rents which had been accounted for. he was not a general agent, and, however blameable he might be in not having kept accounts, he was not guilty of a breach of duty such as ought, in the absence of fraud, to be visited with the consequences of fraud. In re Lee; Ex parte Ari-i//^, 4 Ch. 43 (1868). r62] A soHcitor employed by a company ha^-ing required security for costs.'received a charge on some debts. About five weeks after this a winding-up petition was presented against the company on which a winding-up order was made. The charge had not been re^nstered. Held, that, though under the Compamcs Act 1862 section 43. the want of registration did not make the charge void 'yet the soHcitor could not avail himself of the charge, since it was hi« dutv. as being the soHcitor of the company in the transac- tion, to see that the directions of the Legislature as to registration were obeyed. In re Patent Bread Machinery Company ; Ex parte Valpy dt Chaplin, 7 Ch. 289 (1872). [63] A soHcitor is Hable to an action for negHgence if he omit to refuster a lis pendens according to 2 & 3 Vic. s. 11, c. 7. Plant y. Pe°arman, 41 L.J.R. Q.B. 169 (1872). [641 A cHent verbaUy agreed with his soHcitor for the sale of land to' him. This agreement, which was never reduced to writing, provided that the soHcitor should bear aU expenses of making out the title, that possession should be given at once, and that the purchase -money should be paid at a fixed date \\-ith interest. In the meantime 'the soHcitor entered into possession, but took no further steps in completion of the purchase, and before the purchase- monev became due he died. In a suit for specific performance against his executor : Held, that the soHcitor ought to have had an agreement in writing prepared, and that the executor was bound to complete the purchase and pay the costs of the suit. Brafield v. Scriven, 22 ^Y.R. 202 (1874). [65] The surviving trustee of a fund having, against the advice of his soHcitor, decided on appointing a sole trustee of part of the fxmd, which he was legaUy competent to do. the soHcitor prepared the necessary documents. ' The appointment resulted in the loss of the fund. Held, that the soHcitor could not be held responsible as a constructive trustee unless some of the property had passed into DUTIES. 29 his hands, or unless he were cognisant of a dishonest design on the part of the trustee. The Court discourages the practice of making soUcitors who are not primarily liable for the loss of property, and who ought to be made witnesses, defendants to a suit for the purpose of charging them with costs. Barnes v. Addi/, 9 Ch. 244 (1874). [66J A soUcitor is not bound to dehver to his client, on the termination of his retainer, letters addressed to him by his client, nor copies in his letter-book of his own letters to his chent. In re WJieatcroft, 6 Ch.D. 97 (1877). [67] In an action for the rectification of a marriage settlement, the solicitor who prepared the settlement was made a defendant. A decree for rectification was made, and the solicitor was ordered to pay the costs of the action, on the ground that he had by his neglect and misconduct caused the litigation. Held, on appeal by the soUcitor, that there was no jiirisdiction to make him pay the costs, as he had not been guilty of participation in a fraud. ClarJc V. Girdwood, 7 Ch.D. 9 (1877). [68] The plaintiff, who held a mortgage for £4,600 upon lands belonging to a third party, agreed to make him a further advance of £400 upon ha%-ing an additional piece of land, which he had subsequently acquired, added to the former secm-ity. The defen- dant, who acted as the plaintiffs solicitor in the transaction, omitted to ascertain (as the fact was) that there was an equitable charge to the extent of £46 upon this additional piece of land, in consequence of which the plaintiff, upon the sale of the property, was unable to convey without paying the £46. Held, that this was negligence for which the defendant was liable, and that, in the absence of e%idence to reduce the amount, the £46 so paid was the proper measure of damages. Wliiteman v. Haiukins, 4 C.P.D. 13 (1878). [69] A settlement of land in Wales, the property of the husband, was executed in 1863, shortly after a marriage which took place in India. The husband and vrde went to reside in "Wales, and the husband, in 1867, employed a solicitor there to make his will and afterwards to sell part of the land. The sohcitor inquired whether any marriage settlement had been executed, and was informed by the husband that there had been a memorandum prepared, but that it arrived too late for signature. The husband died in 1879, leaving his widow trustee and executrix, and directmo' his debts to be paid out of his estate. The widow employed the same solicitor to sell other part of the land, and the sohcitor received the purchase-moneys and applied them in payment of the debts of the husband. The deed of settlement had been in the possession of the wife, but had been given by her to the husband. There was no evidence as to what had become of it. but after the sales had been made a copy was found in the office of the solicitors in India who had prepared it. The sohcitor acting in the sale had concluded from what he had been told by the husband that there had been no settlement; and though, before all the sales were completed, his clerk had been told by the wife that there had been 30 DUTIES. H'zrSThough the solicitor might have been neghgent m that character he could not be held to have had such notice of the settlement as to be treated as constrtTCtively a tnistee and therefore Hable for tiae money which had passed through his hands. Tl dham, V. Williams, 17 Ch.D. 437 (1881). [701 A solicitor was employed by the plaintiff in an action, and, at a tiie when it was evident that judgment for at least part of the clSm would be given in the plaintift's favour, another chent consvS he solicitm- as to leaving m the defendant's possession certahi property he had piurchased from him. The solictor advised ?S s?cond^client,and there was evidence to show that by reason of the advice given the plaintiff was prejudiced m obtaining satisfaction of the judgment afterwards pronounced m his fa^our. Held, that the plaintiff had a right of action against the solicitor on thegi-ound of negligence if the latter acted in ipnorance of his dntv • or on the around of misconduct and breach of duty if he wefe'aware of it. ^Barber v. Stone, 50 L.J.R. Q.B.D. 297 (1881). [711 Where a solicitor proposes to incur imusual expense in the course of an action, such as taking shorthand notes of the evidence, or procuring the attendance of experts and scientific witnesses, it is his duty to point out to his client that such expense might not be aUowed on taxation as between party and party, and might therefore have to be borne by the cUent, whatever might be the result of the trial. Therefore, where the solicitor hatl omitted such duty, he was not allowed on taxation, as between solicitor and cUent, the costs of shortliand notes of the evidence, although the chent authorised him to employ a shorthand writer to take such notes, and used and otherwise availed himself of them after they had been so taken. In re Bhjth .f Famhaive, 10 Q.B.D. 207 (1882). [72] A chent entrusted money to his solicitor to invest on mortgage, trusting to representations by the solicitor that theproperty was of freehold tenure and free from encumbrances. Twelve years afterwards the soUcitor died, and the client then discovered that the representations were only partially correct. In an action to make the sohcitor's estate hable for the deficiency of the security : Held, that the action was an action ex delicto, and could not bo maintained against the executors of the deceased. Young v. Wallingford, 52 L.J.R. Ch. 590 (1883). [73] A solicitor was consulted by lessee of premises with refer- ence to the building of a wall, to the erection of which on the demised premises his lessee objected. The lease was shown to the sohcitor. The solicitor made no inquiries as to whether there was any objec- tion to building the wall other than what might be contained in the lease. The land was subject to a restrictive covenant against any such erection in favour of the original vendors of the freehold, and the wall after erection had to be pulled down. Held, that the DUTIES. 31 solicitor had been guilt3' of no negligence. Pitman v. Francis 1 C. & E. 355 (1884). [74] Even if a solicitor has obtained his client's sanction to the emplojiiient of a third counsel on appeal, the costs will not be allowed on taxation between solicitor and cUent unless the solicitor has also explained to the client that the costs will probably not be allowed as between party and party, and that, even if he succeeds on his appeal, he may have to pav the costs of the third counsel himself. In re Broad, 15 Q.B.D. 420 (1885). [75] An order was obtained by the solicitor for the plaintiff that a purchaser should pay his purchase-money into Court, and that the money when paid in should be invested "in consols. The money was paid into Court by the purchaser, but the plaintiffs solicitor omitted to leave with the paymaster a request for its investment, and consequently the investment was not made. Held, that the solicitor was responsible, not only to his client, but to the Court, for the due discharge of his duty, and that he must make good the loss of interest subject to a set-off in his favom-, owing to the fact that the price of consols had fallen since the time when the investment ought to have been made. Batten v. Wedgwood Coal d Iron Company, 31 Ch.D. 346 (1886). [76] A soUcitor acting for a client in advancing money on mortgage may be employed (1) to invest in a particular mortgage ; (2) to find securities to be approved by the cUent and then invest the money ; (3) to find seciurities and invest the money, the cHent taking little or no part in the business. In an action for negligence against the solicitor, the Statute of Limitations is a good defence in the first case, and also in the second case if the chent has approved of the mortgage, for no relation of trustee and cestui que trust then exists between them. Dooby v. Watson, 39 Ch.D. 178 (1888). [77] A solicitor, who had acted for tnistees paying legacies of £500 and £7,000 into Court imder the Trustee Relief Act, some years afterwards acted as solicitor on a petition dealing with the £7,000 legacy, whereon an order was made which, by mistake, mcluded the £500. The legatee entitled to the £500, on attaining her majo- rity, presented a petition asking that the estate of the other legatee, which had profited by the mistake, might be made primarily liable for the loss which she had suffered, and that the soHcitor might be made liable for any deficiency. Held, that the sohcitor, as an officer of the Court, had been guilty of negligence in not seeing that all the facts relating to the funds were brought before the Court when the order was made, and that he must, after the peti- tioner had exhausted the estate of the other legatee, make good any deficiency, and, in any event, pay the costs of the petition. In re Dangafs Trusts, 41 Ch.D. 178 (1889). [78] Where a change of soHcitors has taken place after a cause has been set down for trial, it is the duty of the new solicitor, not only to file notice of the change in the Central Office and to give notice to the other side, but also to intorm the Associate of the change, in order that the name of the solicitor responsible for the 32 PRIVILEGES. conduct of the cause may appear on the record. Hunt v. Finehurg, 22 Q.B.D. 259 (1889). [79] A mortgagee's soUcitors noticed, when examining the title, very considerable variations in the prices at various times paid for the property, and pointed this out to the valuers, who, notwith- standing, adhered to their valuation on behalf of the mortgagee. The solicitors, knowing that the mortgagee would rely on the opinion of the valuers, did not call the mortgagee's attention to the variation. Held, that the sohcitors had not failed in their duty to the mortgagee. Sclioles v. Brooli, 64 L.T.R. 674 (1891), [80] The Court of Appeal has expressed an opinion that there is no duty incumbent on a soHcitor to keep a diary or day-book. Hope V. Hope, 37 Sol. J. 242 (1893). [81] Sohcitors took instructions from one partner, acting within the scope of his authority, to defend an action against the firm. Judgment was given against the firm, and execution was levied on the "goods of another partner. The latter brought an action for negligence against the sohcitors for not mformmg him of the judg- ment. Held, that the sohcitors' duty was to keep the partner who had instructed them informed of the proceedings in the action, and that they were not bound to inform the other partners. Tomlinson V. Broadsmith, 1896, 1 Q.B. 386. III.— PEIVILEGES. [82] Information obtamed from a third party by a solicitor while acting professionally for a client is not privileged from disclo- sure. Greenough v. Gaskell, 1 Myl. & K. 98 not followed. Ford V. Tennant, 32 L.J.E. Ch. 465 (1863). [83] No solicitor is at liberty, m consequence of any privilege of his client, to conceal any fact which will enable the Court to discover the residence of its ward. Bamsbotham v. Senior, 8 Eq. 575 (1869). [84] A witness, who was being examined under the Bankruptcy Act 1861, was asked where the bankrupt's father was residing. The witness, who was the father's solicitor, declined to answer, and stated that " the place of residence of my said client came to my knowledge in my professional capacity, and in the course and in consequence of the professional employment in which I was engaged on his behalf, and in no other way." Held, that the witness had not made a case for excusmg himself from answering on the ground of professional privilege. What a solicitor is privileged from dis- closing is that which is communicated to him hy his client for the pm'pose of obtainmg his professional advice and assistance. The knowledge of the chent's residence is usually a mere collateral fact, which the soHcitor knows without anytliing like professional con- fidence. If, however, the chent's residence was being concealed ; if he was in hiding for some reason or other, and the solicitor had said " I only know my client's residence because he has communi- PRIVILEGES. 3H catecl it to me confidentially, as his solicitor, for the pm-pose of being advised by me, and he has not communicated it to the rest of the world," tlien the client's residence would have been a matter of professional confidence. Ex parte CampheU ; In re Cathcart, L.B. 5 Ch. 703 (1870). [85] The Court will not, m the exercise of its jurisdiction over its own officers, make an order upon a solicitor compelling him to disclose the address of his chent (a defendant) who has absconded, and whom plaintiff seeks to serve with a subpoena duces tecum to compel his appearance at the hearing with documents material to the plaintiff's case. Heath v. Crealoch, 15 Eq. 257 (1873). [86] Communications between solicitor and cUent to which privilege once attaches are always privileged, whether they have been rnade with reference to the existing action or to a previous one. A fortiori they are privileged when the question in dispute is the same in the second action. Bullock v. Corrie, 3 Q.B.D. 356 (1878). [87] A soHcitor employed to obtain the execution of a deed, who is one of the witnesses, is not precluded on the ground of a breach of professional confidence from giving evidence as to what passed at the time of execution by which the deed may be proved invalid. Craivcour v. Salter, 18 Ch.D. 30 (1881). [88] No action will lie against an advocate for defamatory words spoken with reference to, and in the course of, an inquiry before a judicial tribimal, although they are uttered by the advocate mahciously and not with the object of supporting the case of his client, and are irrelevant to every issue of fact which is contested before the tribmial. The rule applies to a sohcitor acting as advo- cate. Munster v. Lamb, 11 Q.B.D. 588 (1883). [89] Solicitors were made parties with other defendants to an action, the statement of claim in which showed no reasonable cause of action as against them. Ileld, that they were entitled to an order dismissing the action as against them with costs and striking their names out of the proceedings. To make solicitors or others parties to an action without seekmg any relief against them, except payment of costs or discoverv, is vexatious. Burstall v. Bej/fus, 26 Ch.D. 35 (1884). [90] Where an action is brought against a solicitor who defends it in person and obtains judgment, he is entitled upon taxation to costs as if he had employed a solicitor, except in respect of items which the fact of his acting directlj^ renders imnecessary. London Scottish Benefit Society v. Charley, 13 Q.B.D. 872 (1884). [91] All commimications between a solicitor and his client are not privileged from disclosure, but only those passmg between them in professional confidence and in the legitimate coiu-se of pro- fessional employment of the solicitor. The evidence of a solicitor whom a client had consulted for the purpose, as it afterwards proved, of being guided in the commission of a crime, was admitted 34 PRIVILEGES. on the trial of the cHent to prove what passed at the interview at which he had been consulted. The Queen v. Cox, 14 Q.B.D. 153 (1884). [92] In an action against a married woman judgment was given for the plaintiff, and an inquiry was directed before a Master as to her separate estate. On the defendant's marriage a settlement had been executed to the trustees, of which the appellant was soHcitor, and as such was in possession of the deed. The appellant appeared before the Master on a subjjoena duces tecum, and was called upon to produce the deed, but refused to do so or to give the names of the trustees, on the gi'ound of privilege as a sohcitor, although he admitted that he knew them. Held, first, that the appellant was bound to produce the deed, inasmuch as his clients, the trustees, could not have withheld it ; secondly, that he was bound to give the names of the trustees, on the ground that, the privilege of the solicitor being the privilege of the client, the solicitor is bound to state the names of those for whom he claims the privilege, and on the further ground that the appellant's knowledge of the trustees might have been obtained otherwise than by means of confidential commimications from his clients. Bursill v. Tanner, 16 Q.B.D. 1 (1885). [93] In an action for libel against solicitors the latter pleaded justification of which they gave particulars. They were interro- gated as to certain matters pleaded in justification, and claimed privilege on the ground that they had no personal knowledge of the matters referred to in the interrogatory, and that their information and beUef was founded on information procured by them as solicitors for certain clients for the purpose of Utigation either pending or threatened between the plaintiff and such clients. It was argued that the solicitors, having in their pleading disclosed these confidential communications in part, they were bound to do so more fully. Held, that they were not bound to answer the interrogatory, the privilege claimed not being then- privilege, but that of their cUents. Proctor v. Smiles, 55 L.J.K. Q.B.D. 527 (1886). [94] After the commencement of an action in the Probate Division four anonymous letters relating to the matter in dispute were received, two by the plaintiff, one by her solicitor, and another by her counsel in the action. Held, that the letters to the plaintiff must be produced, but that the letters to the sohcitor and counsel were privileged, for they must be taken to have been sent to them for the purposes of the action, and by reason of their being the plamtiff's legal advisers in the action, and the privilege was not lost because they were not sent in consequence of any request by the solicitor and counsel, nor obtained bv their exertions. In re Holloivay ; Young v. Holloiuay, 12 P.D. 167 (1887). [95] A solicitor having been summoned as a witness before the registrar of a County Court in a bankruptcy proceeding, and ha\ing received only his travelling expenses, brought an action against the official receiver by whom he was summoned for the amount allowed by the appendix to the Cotmty Court Rules to a profes- sional witness. Held, that he was entitled to recover. Chamber- lain V. Stoneham, 21 Q.B.D. 113 (1889). GENERAL LIEN. 35 [96] At a private examination of the solicitor to a debtor, the soUcitor was in effect asked when he was first employed by the debtor. Held, that he could not decUne to answer on the ground that he would disclose communications made to him for the purpose of obtaining his professional advice. In re Wells ; Ex parte The Trustee, 9 M.B.R. 116 (1892). [97] An action was brought against a solicitor for an alleged libel. The alleged Ubel was contained in a letter which the soli- citor, acting for a client, wrote when the plaintiflfs property was being put up for sale. The letter gave notice to the auctioneer that the plamtiff had committed an act of bankruptcy, and warned him not to part with the proceeds of the sale. The solicitor was acting on behalf of a creditor of the plaintiff, and was instructed by the creditor to see that the debt due to him was not put into jeopardj' of being lost. Held, that it was within the ordinary duty of a solicitor to see that nothing happened according to law which might make legal process futile. That the sohcitor therefore was acting in the ordinary course of his dutj' as a solicitor in -nTiting the letter, and that the publication of the alleged libel was pri- vileged. Balcer v. Carrick, 1894, 1 Q.B. 838. [98] In an action brought agamst a certain firm and their solicitors to recover damages for an alleged libel, it appeared that the firm alleged that a debt was due to them from the plaintiff, and instructed their solicitors to take steps to obtain payment of that debt. The solicitors wrote a letter to the plaintiff demanding payment of the alleged debt, and making statements defamatory of the plaintiff^ This letter was dictated by the solicitors to a shorthand clerk by whom it was transcribed ; it was then copied by another clerk into the letter-book. At the trial the jury found that the defendants honestly and &o?i(5 ./?(7e believed in the truth of the statements made in the letter. A verdict was found for the plaintiff with damages, and judgment was entered accordingly. The defendants applied for judgment, not asking for a new trial. Held, that, if a solicitor in the discharge of his duty to and in the in- terests of his cHent dictates a defamatory letter to one clerk which is copied by another clerk, the ptiblication to the clerks is upon a privileged occasion, because it is reasonably necessary and usual in the course of a solicitor's business. Boxsius v. Goblet Frires, 1894, 1 Q.B. 842. [99] In an action in which fraud was alleged against the defendants they claimed pri^■ilege for communications between themselves and their solicitor as to the subject-matter of the alleged fraud. Held, that the communications were not privileged, there being no distinction in that respect between a crime and a civil fraud, and that it was immaterial whether the solicitor was or was not a party to the alleged fi-aud. Williams v. Quchi-ada Bailway, 1895, 2 Ch. 751. IV.— GENERAL LIEN. [100] An attorney having had papers delivered to him for the purpose of preparing a mortgage claimed afterwards to retain them c2 .^(5 GENERAL LIEN. for his general bill. Held, that he was entitled so to ^o. K the ntentimi is to deposit papers for a particular purpose and not to be subject to the general lien, that must be by special agreement. Ex parte Sterling, 15 Ves. 257 (1809). noil A client gave his solicitors two promissory notes, payable with interest three years after date, for the aggregate amount of Their biUs of costs against him. Subsequently the solicitors did further work for him. Before the notes became payable he changed his solicitors and applied for delivery of his papers to his new soUcitors on payment only of the costs subsequent to the gmng of the promissory notes. The soHcitors clamied a lien for the whole of their costs. Held, that the solicitors had waived their hen as to the costs for which the promissory notes had been given. CoiuelL V. Simpson, 16 Sim. 275 (1809). [1021 Money due in respect of a mortgage-deed on which solicitors had a lien having been paid into Court : Held that the Court would not assist the mortgagee m obtaining payment of it without satisfying the hen. A sohcitor's hen does not extend to general debts, but only to what is due to him in the character ot sohcitor. Worrall v. Johnson, 2 J. & W. 214 (1820). [103] A solicitor having a lien for costs on & patent in his possession proved for the amount of such costs in the client's bankruptcy without deducting the value of the patent or offering to give it up. Held, that he had abandoned his lien, and he was ordered to deliver up the patent. In re Aubusson, 1 Glyn & J. 25 (1821). [104] A solicitor has no lien upon the will of his client. Batch V. Symes, 1 Turn. & Euss. 87 (1823). [105] A plaintiffs solicitor sold his business and gave notice to his cHent that he had done so, and at the same time handed over the papers in the cause to the purchaser. The client declined to employ the latter, and requested that the papers should be given up to the sohcitor he proposed to employ.. His former sohcitor dechned to comply with the request imtil his lien on the papers had been satisfied. He stated that he intended to continue to superintend the business. Held, that the sohcitor had discharged himself, and that therefore the client was entitled to have his business conducted with as much ease and celerity and as little expense as if the connection of solicitor and client had not been dissolved. Ordered, that the papers be delivered up to the plaintifPs new sohcitor, the latter undertakmg to hold them subject to the former sohcitor's hen. Colegrave v. Manley, T. & E. 400 (1823). [106] Every attorney has a right to hold papers until his bill is paid ; but where a party has a pressing necessity for papers the Court will order them to be delivered over upon a deposit being made which will cover, not only what is due upon the biU, but what may be due for the costs of taxation. Clutton v. Pardon^ T. & E. 301 (1823). GENEKAL LIEN. 37 [107] A plaintiff was trustee of real estate directed by decree in a suit to be sold. The title-deeds, which were in the possession of the plaintiffs solicitor for the purposes of the suit, were directed to be produced and deposited in Court. The solicitor refused to produce them, and claimed a lien on them for his costs of the suit. Held, that, as the solicitor claimed no lien on the deeds anterior to the suit, and they were in his hands for the purposes of the suit, he must comply with the terms of the decree. Baker v. Henderson, 4 Sim. 27 (1830). [108] An intended borrower on a mortgage of land delivered the title-deeds to the intended mortgagee for examination, and said that he would pay all expenses. The latter handed the deeds to his own solicitors, in order that they might investigate the title. The negotiation went off, and the sohcitors being requested by the intended borrower to return the deeds, refused to do so until he paid their bill of costs. Held, that they had no lien on the deeds as against the intended borrower, who was not their client ; and that, supposing him to be liable to their cHent, the latter could not com- municate to his own solicitors a lien upon the deeds. Pratt v. Vizard, 5 B. & Ad. 808 (1833). [109] A defendant in a suit was by the decree directed to deliver Tip some deeds to the plaintiff. The defendant's solicitor claimed a lien on them for costs. Held, that, inasmuch as by the decree they were directed to be delivered to the plaintiff, they must be taken to have been his property from the first, and consequently no lien could have attached to them on the part of the defendant's solicitor. Bell V. Taylor, 8 Sim. 216 (1836). [110] A testator devised his estates to trustees to receive the rents and profits, and pay and apply two-thirds of them to the plaintiff and one-third to his widow during her life, and after her decease he devised the estates to the plaintiff in fee. The trustees deposited the deeds with an attorney for purposes connected with the trust, who claimed to detain the deeds as a lien for his charges incurred in respect thereof. Held, that he was not entitled to detain them from the plaintiff on the death of the widow, as the debt incurred was the personal debt of the trustees. Light foot v. Keane, 1 M. & W. 745 (1836). [Ill] The solicitor for a plaintiff refused to proceed with the suit unless his client would pay hhu the costs then iiicurred in the suit, and also the costs of an action at law. The costs not having been paid, he took proceedings to recover them. Held, that the solicitor was not justified in demanding the costs of the action as well as the costs of the suit, and that, having regard to that and the other cu:- cumstances, he had discharged himself, and he was ordered to de- liver up to the new soUcitor, subject to his lien, the documents necessary for the further conduct of the suit. Heslox> v. Metcalfe, 7 L.J.R. Ch. 49 (1837). [112] A solicitor having a lien on a policy of assurance immedi- ately payable, filed a bill against the parties entitled to receive the assurance moneys, praying that his lien on the pohcy and the 38 GENERAL LIEN. moneys payable thereunder might be declared and secured, and that the said defendants might be restrained from taking any pro- ceedings for recovery of the said moneys, and he obtained an ex 2)arte injunction restraining proceedings. Held, on appeal, that the injunction must be dissolved. Stedman v. Webb, 8 L.J.R. Ch. 193 (1839). [113] A solicitor who had been employed by an administratrix in the administration of a deceased's estate was also employed by her as soUcitor in a creditor's administration suit, subsequently instituted, in which a decree was made and a receiver of the estate appointed. Papers relating to the estate had come into the solicitor's possession, not for the purposes of the suit only, but for those and other purposes, and he claimed a lien on them for his costs of the siiit and for other business. Held, that he could not be ordered to deliver them up to the receiver. Wm-burton v. Edge, 9 Sim. 508 (1839). [114] A solicitor having paid a sum due to a conveyancer who had a lien for the amount on deeds belonging to the solicitor's client, gave a receipt for the deeds in the name of the client, and allowed the client to take credit for the payment in accounts rendered by her to the Court. Held, that he had no lien on the deeds for the amount paid. Christian v. Field, 2 Hare 177 (1842). [115] Wliere a chent has employed as his solicitors in a cause a firm consisting of two solicitors in partnership, the retirement of one of the partners operates as a discharge of the client, and the client is entitled to have his papers delivered to his new solicitor upon the usual undertaking to i^reserve the lien of the former solicitor. Griffiths v. Griffiths, 12 L.J.E. Ch. 397 (1843). [116] A mortgagor who had borrowed the title-deeds from his equitable mortgagee for the purpose of enabling him to effect a sale of the property, handed them to his solicitor, with instructions to do what was necessary for carrying the sale into effect. The solicitor, when the deeds were handed to him, had no notice of the equitable mortgage, but before the agreement for sale was signed he received notice from the mortgagee's soUcitors which should have put him on inquiry as to the nature of their cUent's claim. The equitable mortgagee acquiesced in the sale. The mortgagor's soli- citor claimed a lien on the deeds, not only for his costs relating to the sale, but also for other costs payable by the mortgagor. Held, that his lien extended to the costs of the sale only. Young v. English, 13 L.J.R. Ch. 76 (1843). [117] A mortgagee of lands handed over the deeds to his solicitor. The mortgagor paid the principal and interest, and the lands were reconveyed to him. Held, that the soHcitor could not retain the deeds against him as a security for the expenses of the transaction due from the mortgagee. Wakefield v. Neivbon, 6 Q.B. 276 (1844). [118] In an action for the price of paper supplied for a book, the defence was that the paper was of inferior quality. Copies of the book were delivered on the defendant's behalf to his solicitors for the purpose of being exhibited to witnesses on the trial of the GENERAL LIEN. 39 action. The solicitors claimed a lien on the books for their costs of defending the action. Held, that they were entitled to the lien claimed. Friswell v. King, 15 Sim. 191 (184G). [119] After a chent had employed, as his solicitors, a firm con- sisting of two members, they took a third member into partnersliip, and the client employed the new firm. In the course of that em- ployment papers belonging to him came into their possession. Held^ that the original partners had no lien on such papers for costs owed to them before they took the third member into partnership. In re Forshaw, 17 L.J.K. Ch. 61 (1847). [120] A solicitor in' a suit obtained an order which he passed. He was then discharged by his chent, and refused to produce the order for entry on the ground that he had a lien on it for costs. Held, that he must produce it. Clifford v. Turrill, 2 De G. & S. 1 (1848). [121] A solicitor's lien on documents is a dormant security, in which it differs from a mortgage ; but a soUcitor may assign a debt due to him for costs, with the benefit of any lien he may have for such costs. Bull V. Faultier, 2 De G. & S. 772 (1848). [122] A purchaser of property subject to a mortgage made, before completion, a second mortgage, and subsequently a third. Then the purchase was completed ; the first mortgage was paid off and transferred to a trustee for the purchaser, and the deeds of the property were handed to the purchaser's solicitors. The solicitors took a transfer to themselves of the third mortgage, having no notice of the second mortgage. The conduct of the second mort- gagee was such that his security was held to be postponed to that of the third mortgagees. The solicitors claimed a lien on the deeds for costs payable by the pm-chaser. Held, that, whether as regards the costs relating to the purchase or other costs, their lien could not prevail against the second mortgagee, inasmuch as at the time the deeds came into the soUcitors' possession they were subject to rights in the mortgagee's favour created by the purchaser. Pelli/ V. Wathen, 18 L.J.R. Ch. 281 (1851). [123] On a lease being granted, the lessee deposited it with the lessor's solicitors, who acted for all parties, together with a bill of exchange by way of security for the costs of preparmg the lease which the lessee was to pay. The lessee afterwards mortgaged the lease, and the solicitors, who then acted for him, in order to obtam the lease, paid the costs of the lessor's solicitors and obtained from them the lease and the bill of exchange. The bill of exchange having thus come into their hands, they claimed a general hen on it for their costs. Held, that the bill of exchange having been de- posited with the lessor's sohcitors for a specific purpose, and on an express contract, the other solicitors could not, without the sanc- tion of their chent, obtain any better or higher right than that of the original holders. Gibson v. Matj, 4 De G. M. & G. 512 (1853). [124] Two sohcitors in partnership had a bill of costs against a client. On the dissolution of the partnership, those costs were 40 GENERAL LIEN. transferred to one of them, who afterwards, at the request of the chent, paid a debt, to secure which she had deposited title-deeds, and he took up and retained the deeds. He afterwards continued to act as her solicitor, and costs were incurred. Held, that, as to the partnership bill of costs, he could have no lien, inasmuch as the deeds on which the lien was claimed never came into the possession of the partnership. And that, as to his separate bill of costs, he was not entitled to a lien, as he became possessed of the deeds not as solicitor but as mortgagee. Vauglian v. Vanderstegen, Annesley's Case, 2 Dr. 409 (1854). [125] The solicitor of an executrix held in that character title- deeds of the testator's leaseholds. He acted for the executrix in an administration suit instituted agauist her by some of the benefi- ciaries. On her death, before decree, an administratrix de bonis non of the testator applied for the deeds. The solicitor, however, claimed a Uen on them for costs incurred on behalf of the executrix in the suit. Held, that he had a lien to the extent to which her estate was entitled to be indemnified against the costs of the suit. Turner v. Letts, 24 L.J.R. Ch. 638 (1855). [126] A deed, alleged to be material to the case of defendants in a suit, was in the custody of the solicitor of some of the parties to the deed, and he claimed a lien on io for costs. "H-e yf&s subpoe- naed to produce it by the defendants, who were not his clients or parties to the deed. His clients were not before the Court. Held, that the deed must be produced, but without prejudice to the ques- tion whether the parties requiring production must not serve a subpoena on, or give notice to, the parties entitled to the deed, sub- ject to the lien. Hope v. Liddell, 7 D. M. & G. 331 (1855). [127] In a creditor's administration suit, deeds relating to the real estate of the testator were handed by the defendants, his trus- tees and executors, to their solicitor, for the purpose of completing sales directed in the suit. The solicitor claimed a lien on them for his costs incurred as solicitor for the defendants in the administra- tion and trusteeship of the testator's estate, both antecedent and subsequent to the institution of the suit. Held, that he was entitled to a lien only so far as regarded costs incurred antecedent to the suit. Home v. Shepherd, 3 Jvu-. N.S. 807 (1857). [128] A client who employs a firm of solicitors is entitled to the services of all the members, and a dissolution of partnership amounts to a discharge of the client. For the purpose of complet- ing any business in hand at the time of the discharge, the client's papers must be given up to his new solicitor, subject to the lien of the old firm. It is proper, in such a case, to make a schedule of papers on their being handed over, and such schediile should be at the expense of the partv requiring the papers. Baivlinson v. Moss, 30 L.J.R. Ch. 797 (186i). [129] A solicitor was insolvent, and had been ordered to deliver up all deeds and documents m his possession or power relating to the affairs of the client applying. He complied with the order so far as he was able, but some of the documents were in possession GENERAL LIEN. 41 of counsel, who claimed a lien on them for fees, and some were in the possession of law stationers, who claimed a lien on them for charges. Held, that the non-delivery of (the documents in question did not afford a ground for attaching the solicitor for disobedience to the order. In re Williavis, 3 D. F. & J. 104 (1861). [130] "Where a solicitor carries on a suit fairly, and no miscon- duct is proved against him, or refusal on his part to proceed, he does not discharge himself by the fact that he becomes embar- rassed, and keeps out of the way, though capable of being commu- nicated with. Although in such a case it may not be desirable that he should continue to act, he will not, on a change of solicitors, be deprived of his lien. In re Smith, 9 W.K. 396 (1861). [131] Where a solicitor agrees with a client to carry on a suit up to hearing without being supplied with funds, that means the original hearing, and subsequently to that period he has a right to refiise to proceed without funds. On a change of solicitors imder such circumstances, the former solicitor will he ordered to deliver to the new solicitor such documents in his possession as may be necessary for the purpose of an appeal without prejudice to his lien, and on an undertaking by the new solicitor to restore them when the aj^peal is disposed of. An order to change solicitors is equivalent to the discharge of a solicitor by his client. "When the Court orders a solicitor to deliver up documents which are to be returned to him, the time to be named for delivery is within three days from the making of the order, and the time to be named for return of the docimients is within ten days after the purpose for which they have been delivered up has been answered. Webster v. Le Hunt, 9 W.K. 804, 827 (1861). [132] Solicitors acted on the instructions of the directors of an insurance company in business relating to marine insiurance which they knew the company had no power to carry on. Held, that they could have no lien on the papers of the company in respect of their charges for such business. In re The Phcenix Life Assurance Company ; Howard and Dolman's Case, 1 Hem. and M. 433 (1863). [133] Pending the taxation of his solicitor's bill of costs, a client appHed for delivery of his papers on which the solicitor claimed a lien. Held, that he was entitled to delivery without prejudice to the lien on payment into Court of a sum named, and undertaking to produce the papers before the Taxing Master as required. In re Jewitt, 34 Beav. 22 (1864). [134] Solicitors delivered to a client at his request their biU of costs, amounting to £84, all of which except i'l were costs incurred more than six years before the delivery of the bill. They had deeds in their possession belonging to the client. The client obtained the common order to tax, and on taxation raised the objection that the solicitors' right to recover the costs incurred more than six years previously was barred by the Statute of Limitations. The Taxing Master admitted the objection, and declined to tax or allow such costs, and certified that £1 only was due to the solicitors. On motion made on behalf of the solicitors 42 GENERAL LIEN. that the Taxing Master might be ordered to tax the earlier costs, or that the taxation order might be discharged or varied by ouiittiu" the usual direction for the solicitors to deliver up the client's" papers on payment of the amount found due to the solicitors, it was admitted that the Taxing Master ought to have taxed the earUer costs. Held, that the solicitors could not be deprived of their Hen, and ordered that, notwithstanding the taxation order, they should not be bound to deliver up the deeds except on payment of the amoimt secured by the lien. In re Murray, W.N. 18(57, 190. [135] On repayment of a mortgage, the mortgagee's solicitor, in whose custody the deeds were, claimed to retain them in respect of a general lien for costs for work previously done on behalf of the mortgagor. Held, that he ought to have delivered up the deeds to the mortgagor on payment of the costs due in relation to the mortgage. In re Moseley, 15 W.R. 975 (1867). [136] Although a solicitor who discharges himself cannot set up a lien for costs as a reason for not delivermg up papers necessary to enable his client to proceed with pending matters in litigation to which they relate, yet a sohcitor who has been discharged by the client may set up such lien, and will not be ordered to produce or deUver up to the client the papers on which he claims the lien, although his not doing so will embarrass the client in prosecuting or defending his claims. Such lien is a general one, and extends to all costs due from the client to the solicitor. In re Faithfull and In re London and Brighton and South Coast Bailivay, 6 Eq. 325 (1868). [137] The plaintiff in a suit became bankrupt, and the suit was revived by his assignee, who employed a different solicitor. _ A decree was afterwards made. Held, that the solicitor of the original plaintiff must produce the documents in his possession which were necessary for drawing up the decree, notwithstanding his lien on them for costs, even though the documents were not strictly in evidence in the cause. Simmonds v. Great Eastern Railway Co., 3 Ch. 797 (1868). [138] Under the Companies Act 1862, the solicitors of a company may be compelled, on a summons obtained by the official liquidator in the winding up, to produce documents relating to the company without prejudice to their lien for costs. In re South Essex Estuary and Reclamation Co. ; Ex parte Paine S Layton, 4 Ch. 215 (1869). [139] The solicitor to an official liquidator has no lien for his costs on documents which it is the duty of the official liquidator to place on the file of proceedings in the winding up. In re Union Cement and Brich Co. ; Ex parte PulbrooJi, 4 Ch. 627 (1869). [140] A solicitor is entitled to a general lien for costs on papers deposited with him by his client for a particular purpose only, imless that general hen is excluded by a special agreement. Cohner v. Ede, 40 L.J,R. Ch. 185 (1870). GENERAL LIEX. 43 [141] Where a solicitor applied to his cHent for funds to carry on a suit, and, upon the chent not furnishing any, decHned to continue the conduct of the htigation, the chent appointed fresh sohcitors : Held, that this was a discharge by the solicitor, and that he might be called upon to deliver to the new solicitors the papers relating to the matters in question in the suit, on their undertaking to hold them without prejudice to his lien ; 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 carrj'ing on an action for his costs. liohins v. Goldiyigham, 13 Eq. 440 (1872). [142] Solicitors for the tnastees of an estate which is under the administration of the Court have not, after their discharge, such a lien for costs and money advanced in the suit as will enable them to refuse production of documents which are required by the receiver for the management of the estate. Belaney v. Ffrencli, 8 Ch. 918 (1873). [143] On a change of solicitors, the former solicitors to a limited company were paid their costs, but objected to deliver up the com- pany's documents to the new solicitor on the ground that other parties besides the company were interested in some of the docu- ments, and claimed delivery of them. Held, that they were bound to deliver them up to their clients, the chairman of the company undertaking to abide by the order of the Court as regards any docu- ments to which any special claim was set up. In re Emma Silver Mining Co., 24 W.E. 54 (1875). [144] The trustee of a bankrupt's estate appointed solicitors, whose appointment was confirmed, and they transacted much professional business for the trustee. After several years the trustee was removed by the creditors, and a new trustee was ap- pointed, who called upon the solicitors to hand over all docmnents relating to the estate to himself or his solicitor. The solicitors of the old trustee opposed this application on the groimd that they had a lien on them for their costs ; they, however, offered to produce them for inspection. Held, that the solicitors had a lien upon all documents the fruits of their own labour or expense. Ex parte Yalden', In re Austin, 4 Ch.D. 129 (1876). [145] A company having issued a debenture loan, a deed was pre- pared by their solicitor mortgaging their property to two of the directors as trustees for the debentm-e-holders, the same solicitor acting also for the trustees. The mortgage contained a power of sale and the usual covenant against inciunbrances. The company afterwards passed a resolution for a voluntary winding up, where- upon the trustees, acting under their power of sale, contracted to sell the mortgaged property to a purchaser, and applied to the solicitor for the company's title-deeds, which were in his possession. He, however, refused to give them up, claiming a lien upon them for costs incurred by the company prior to the mortgage. Upon a petition by the trustees and a debenttire-holder, praying that the soUcitor might be ordered to deliver up the title-deeds to them : Held, that the solicitor was not entitled to a hen on the deeds, and ^4 GENERAL LIEN. that they must be delivered up to them. In re Snell, 6 Ch.D. 105 (1877). [1461 A client mortgaged to his soHcitors property which was at the timi subject to a first mortgage. The sohcitors prepared the mortgage-deed to themselves. Afterwarcls the mortgagor made a third mortgage to another person. Beld,in an action by the sohcitors against the first and third mortgagees and the mortgagor, that they had no Hen on the mortgage-deed for the costs ot its preparation or other costs due to them from the mortgagor mas- much as the deed was their own property and not that of the client. Sheffield v. Eden, 10 Ch.D. 291 (1878). [1471 A solicitor is not on the ground of his Uen on documents of a bahlmipt, in respect of professional services before the bank- ruptcy, entitled to refuse to produce such documents for ex- amination by the trustee. In re Toleman S England ; Ex parte Bramble, 13 Ch.D. 885 (1880). [148] A mortgage-deed and the title-deeds to the mortgaged property were deposited by the mortgagees with their solicitors for safe custody. Afterwards the mortgagor mstructed the same sohcitors to sell the property, and they employed an auctioneer for the purpose, and made use of the deed.^ ua preparmg particulars and conditions of sale. The property was put up for sale, but was not sold. The mortgagor then filed a liquidation petition, and the trustee contracted to sell the mortgaged property with the con- currence of the mortgagees. Held, that the soHcitors had no hen on the deeds as against the trustee in respect of their costs of the abortive sale. Ex ])arte Fuller, 16 Ch.D. 617 (1881). [149] Notice of a soHcitor's lien on a policy of assurance need not be given to the assurance company in order to preserve its priority against assignees of the pohcy who give notice. The West of England BanTi v. Batchelor, 51 L.J. Ch. 199 (1882). [150] Solicitors, defendants m an action brought against them by persons claiming title imder one of their clients not a party to the action, objected to produce documents on the ground that they had a lien on them for costs due from such client. Held, that the lien of the solicitor did not prevent the chent from inspecting the documents, and that therefore the solicitors must produce them. Lockett V. Gary, 10 Jm-. N.S. 144 (1864). The right of taking copies follows from the right of inspection. {Lockett v. Cary dis- approved on this head.) Pratt v. Pratt, 51 L.J.E. Ch. 840 (1882). (See, however. In re Biggs d Boche, 41 Sol.J. 277, 1897, dissenting from the above.) [151] The sohcitor for the parties to an administration action win not, on a change of sohcitors, be allowed to assert his lien for costs on papers in his possession in such a way as to embarrass the proceedings in the action, there being creditors still unpaid. In re Boughton ; Boughton v. Boughton, 23 Ch.D. 169 (1888). [152] An order having been made for winding up a company applications were made by the official liquidator against a solicitor GENERAL LIEN. 45 employed by the company before the winding up that he might be ordered to deUver up the following documents : (1) The share register and minute book which were in his hands before the commencement of the winding up ; (2) Other documents which came to his hands after the presentation of the winding-up petition, but before the winding-up order ; (3) Documents relating to allot- ments of shares which had come to his hands before the presentation of the petition. The soHcitor resisted the application on the ground of his lien. Held, that the share register and minute book must be delivered to the liquidator, subject to the lien, if any, for that the directors had no power to create any lien on them which could interfere with their being used for the purposes of the company. Held, also, that the same rule applied to class 2, for that a solicitor could not assert against documents which came to his hands pending the winding up any such lien as would interfere with the prosecution of the winding up. Held, as to class 3, that the winding-up order could not defeat any valid lien existing at the time when the winding-up petition was presented. In re Capital Fire Insurance Association, 24 Ch.D. 408 (1883). [153] The Court will not smnmarily order a solicitor to deliver up a deed to his client unless it be clearly shown, not only that the solicitor has no lien upon it, but that he is holding it for the applicant alone, and as his solicitor. Ex parte CobeldicJc, 12 Q.B.D. 149 (1883). [154] Solicitors acting for mortgagor and mortgagee in the pre- paration of a mortgage, and retaining the deeds in their custody, hold them as solicitors for the mortgagee, and have no lien on them for costs due to them from the mortgagor. In re Nicholson ; Ex parte Quinn, 53 L.J.E. Bank. 302 (1883). [155] In the course of a suit instituted by a debenture-holder in a company, on behalf of himself and the other debentiu-e-holders, against the company, the original plaintiff became bankrupt, and another debenture-holder was substituted for him as plaintiff. An order was made that the solicitors of the first plaintiff should with- out prejudice to their lien (if any) deliver up to the solicitor of the second plaintiff all dociunents in their possession relating to the conduct and prosecution of the suit. The fund for payment of costs was insufficient. Held, that the sohcitors of the first plaintiff had no lien on the documents which could entitle them to priority in respect of then- costs. Batten v. Wedgtvood Coal d Iron Co., 28 Ch.D. 317 (1884). [156] On the death of a testatrix her executor renounced probate, and administration with the will annexed was granted to her two sisters, who died before the estate had been fuUy administered. An administrator de bonis nan was then appointed. The same solicitor had acted for the testatrix and for her representatives, and four bills of costs were owing to him — one for work done for the testatrix, two for work done for the administratrixes jointly, and one for work done for the survivor. The administrator de bonis non claimed deUvery of the documents relating to the testatrix's estate on payment only of the bill against the testatrix. Held, that 46 GENERAL LIEN. there was a privity of estate which passed at law from a first administrator to an administrator de bonis non, and that any liabihty must also be transmitted with it, and that therefore the administrator de bonis non was not entitled to the documents in question without paying what was due to the solicitor for work done for the administratrixes. In re Watson, 53 L.J.R. Ch. 305 (1884). [157J The Court has jurisdiction, upon payment into Court or giving security for a sum sufficient to answer the solicitor's demand, to order, before taxation, delivery up by a solicitor of the client's papers, where retention by the solicitor of the papers on which he claims a lien would embarrass the client in the prosecution or defence of pending actions. This lien is confined to what is due to the solicitor in that character, and does not extend to general debts. In re Galland, 31 Ch.D. 296 (1885). [158] A lien cannot be acquired by a company's solicitor iipon books, which by the articles of the company or the Companies Acts ought to be kept at the registered office of the company. In re Anglo-Maltese Hydraulic Dock Company, Limited, 54 L.J.R. Ch. 730 (1885). [159] On a dissolution of partnership between solicitors a re- tiring partner took away with him, without authority, documents on which the firm had a lien for costs. The claim in respect of which the lien arose was barred by the Statute of Limitations. Held, that the lien was not destroyed by reason of the involuntary loss of possession, and that, althoiigh the remedy by way of action was barred by Statute, the remedy by way of lien was not ' barred. In re Carter, 55 L.J.E. Ch. 230 (1885). [160] An administration action was commenced on behalf of infant plaintiffs by their next friend. Another next friend was by order of the Court substituted for the original one, against whom, however, no impropriety was alleged, and the new next friend employed his own solicitor. The estate was large, the costs inciirred by the former solicitors were heavy, and the proceedings were likely to continue for several years. The former solicitors claimed a lien on the documents in their possession relating to the action until their costs were paid. They were, however, ordered to deliver up, on oath if required, to the new solicitor such of the documents as might from time to time be necessary for the conduct of the proceedings to be held by the new solicitor, subject to the lien, and, under the circumstances, an immediate taxation of their costs was ordered. In re Hutchi7ison, 34: W.R. 637 (1886). [161] A transfer of the business premises and " goodwill " of a solicitor's business does not, in the absence of express stipulation, include the right to the possession of title-deeds and papers belong- ing to clients and stored on the premises. James v. James <& Bendall, 23 Q.B.D. 12 (1889). [162] A solicitor is entitled to a lien on his client's documents for all his taxable costs, charges, and expenses incurred by him as the solicitor of the client, but he has no lien for ordinary advances GENERAL LIEN. 47 or loans made to the client. His taxable costs would not exclude advances, such as the payment of fees to counsel which were tax- able by the Taxing Master — that is, which he could moderate, and not merely require to be vouched. Whether the taking of security is a waiver of a lien must depend on the intention of the parties, taken in connection with all the circumstances of the particular case. When solicitor takes security from his client, the ^jrujut facie inference is that he intends to waive his lien, unless he says something to the contrary, bearing in mind that it is the duty of a solicitor to advise his client as to his position. In re Taylor, Stileman, <& Underwood, 1891, 1 Ch. 591. [163] A solicitor, who whilst a mortgage was subsisting had on behalf of the mortgagee offered the mortgaged property for sale, claimed to have a lien on the title-deeds for the costs so incurred as against the mortgagor, who had paid the mortgagee all moneys owing imder the mortgage, and had obtained from him a release. It was not suggested that this was done in order to defeat tb.e solicitor's lien. Held, that the lien could not be sustained, for tlie right of the mortgagor to have back from the mortgagee his deeds on payment of principal interest and costs prevailed against the solicitor's lien claimed in right of the mortgagee. In re Llewellin, 1891, 3 Ch. 145. [164] After decree in a partition action in respect of property to which the plaintiff and the defendant were entitled in moieties, an inquiry as to encumbrances was directed, and the plaintiff then changed her solicitors. The discharged solicitors claimed a lien for costs. Held, that they were bound to deHver up to the new solicitors, subject to their lien, such documents as had come to their hands since the commencement of and for the purposes of the action. Boden v. Hensby, 1892, 1 Ch. 101. [165] A corporation issued debentures, without the interven- tion of trustees for debenture-holders, charging all its property present and future) by way of " floating security, but so that the corporation is not to be at liberty to create ajiy mortgage or charge in priority to the said debentures." Default having been made on the debentures, a debenture-holders' action was commenced, in which the solicitor of the corporation claimed to have a lien on papers and documents of tlie corporation for costs incurred by the corporation after the issue of the debentures, but before ,the commencement of the action. Held — distinguishing In re Snell [145] — that, inasmuch as a solicitor's hen w^as a right given by the general law, and not a "charge created" by the company, the lien in question was valid as against the debenture-holders and their receiver. Brunton v. Electrical Engineers' Corporation, 1892, 1 Ch. 434. [166] During the continuance of an action a client had changed his solicitor, and applied to have the documents handed over to the new solicitor, subject to the lien of the former solicitor, as was done In re Boughton [151], and Boden v. Hensby [164]. In those cases third parties were interested in the litigation, or would be em- barrassed by the enforcement of the lien ; but in the case under 48 PARTICULAR LIEN AND CHARGING ORDERS. consideration the interests of third parties were not involved. Held that the client was not entitled to the documents without discharging the lien. In re Walher, 37 Sol. J. 242 (1893). [167] Policies of assurance were assigned to a solicitor as trustee for mortgagees. The solicitor acted both for the mortgagor and the mortgagees. Held, that, subject to the rights of the mortgagees, he was entitled to a lien on the policies for costs due to him by the mortgagor. In re Waller ; Meredith v. Walker, 68 L.T.E.5i7 (1893). [168] A solicitor who has prepared a marriage settlement on the instructions of the intended husband and subsequently retams it in his possession has no Hen upon it as against the trustees for his costs payable by the husband. In re Lawrance ; Boivker v. Atistin, 1894, 1 Ch. 556. [169] Judgment was given against a plaintiff in an action, and he consulted his solicitor as to appealing, and the solicitor declined to appeal. The client thereupon employed another soUcitor to conduct the appeal. Held, that there was a discharge by the client, and that the solicitor was not bound to hand over the papers mitil his costs were paid. Aiistin v. Macnamara, 40 S.J. 71 (1895). v.— PARTICULAR LIEN AND CHARGING ORDERS. [170] A plaintiff having recovered judgment against a defendant, a writ of error was brought. Pending the \vrit of error, the plaintiff personally compromised the debt with the defendant and executed a release, accepting one-half the amoimt of the judgment in satis- faction of debt and costs. The plaintiff's attorney, not having been paid, appUed that the defendant might be ordered to pay his costs. Held, refusing the order, that the defendant having neither express nor implied notice that the attorney had not been paid, and, col- lusion on his part not having been proved, was at liberty to effect a compromise with the* plaintiff personally without seeing that the attorney's costs were paid. Welsh v. Hole, 1 Doug. 237 (1779). [171] A plaintiff having recovered judgment against the defen- dant, threatened to take the defendant in execution imless the debt and costs were immediately paid. Whereupon the defendant's attorney, after notice from the plaintiffs attorneys not to pay the plaintiff personally because their biU was not satisfied, paid the whole sum to the plaintiff. The plaintiff's attorneys applied that the defendant's attorney should be ordered to pay them the amount of their costs. Held, that the payment to the plaintiff having been made in violation of the notice, his attorneys were entitled to the order. Bead v. Duppa, 6 T.E. 361 (1795). [172] An action having been referred to arbitration, the arbi- trator awarded a sum to the plaintiff payable by two instalments. The plaintiff's attorney, having been informed that the parties intended to settle the matter between themselves for the purpose PARTICULAR LIEN' AXD (.'HARGING ORDERS. 49 of onsting liim of his lien for costs, served the defendant with notice to pay the amount of tlie award to liim, and not to settle witli the plaintiff. The defendant, notwithstanding', paid the first instahnent to the plaintiff and obtained from him a receipt in full of all de- mands. Held, that the defendant nmst pay to the plaintiff's attorney the amount of the first instalment forthwith, and the second instal- ment when due. Ormerod v. Tate, 1 East, 4(54 (1801). [173] A solicitor who had been discharged by his client volun- tarily produced in a suit in which he had formerly acted as his solicitor a deed on which he had a general lien for costs, and thereby enabled the client to prove his title to a fund in Court. Tho solicitor claimed a general lien on the fund recovered. Held, that his general lien on the deed remained, biit that his lien on the fund recovered extended only to the costs of the suit. Bozon v. BoUand, 9 L.J.R. Ch. 12i! (lS39j. [174] Money was brought into Court in an administration suit, and to part of it one of the defendants Mas declared entitled. He afterwards changed his solicitor, and presented a petition for taxa- tion of his bills, and by consent an order was made that all matters in difference should be referred to a named arbitrator. By the latter' s award, the client w'as ordered to pay the solicitor his costs of the reference and the award. The costs of the award were paid, and the solicitor's other costs, including costs not relating to the suit, having been taxed, he applied that the client's share of the fund in Court might be applied in satisfaction of what was due to him. Held, that he was entitled to be paid thereout only so far as his costs were costs in the cause, or costs immediately connected with his costs in the cause, including the costs of the client's petition for taxation, and the reference so far as they related to costs in the cause. Lucas v. Feacoch, 9 Beav. 177 (1846). [175] The solicitor for the plaintiff in a foreclosure suit in which a decree for sale had been made by consent prosecuted the suit to the settlement of the particulars and conditions and appointment of the day of sale, and then the plaintiff and the defendant by his solicitor, having notice of the lien for costs claimed by the plaintiff's solicitor, compromised the suit on the terms of the plaintiff being paid a sum of £300 in satisfaction of £360 certified to be due to him. The plaintiff's solicitor applied that the plaintiff or the defendant might be ordered to pay his costs out of the moneys paid. It was not disputed that the compromise was bond, fide. Held, that the solicitor had a lien on what had been paid in compromise of the suit. White v. Pearce, 7 Hare 276 (1849). [176] A plaintiff recovered judgment in an action brought by him, but, being defendant in another action in which judgment was recovered against him, the judgment debt in the first action M-as attached to answer the judgment in the second action. The i)lain- tiff's solicitor in the first action claimed a lien for his costs on the judgment debt in priority to the claim of the judgment creditor in the second action. Held, that h« had no such priority. Hough v. Edwards, 26 L.J.R. Ex. 54 (1856). Cf. North v. Stewart, 15App. Cas. 452 (1890) ^nd [201] irifra. ^ 50 PARTICULAR LIEN AXD CHARGING ORDERS. ri77l A solicitor has (apart from the Solicitors Act 1860) no lien on real estate recovered for a client in respect of the c^sts and expenses incurred in recovering it^ He has a hen only «« the deeds and documents in his hands. Shaw v. Neale, 21 h.J.lA. Ch. 444 (1858). ri78l A Bohcitor's lien (apart from the Solicitors Act 18G0) is noc a lien on a fund in Court generally, though brought m by his exertions, but onlv on what may on the issue of the suit belong to hi cHent. Verit], v. Wyhlc, 4 Drew 427 (1859). [179] The parties to cross-actions, the plaintiff in each case havin^ obtained judgment, compromised the actions after notice to 'one of them and his attorney from the attorney of the other not to do so in prejudice of the latter's lien on his chent's judgment. Ihe result of tlie comnromise was that the client of the attorney claim - in^ the hen had to pav a smaU sum. Held, that, as there was no e\'idence of collusion, the lien of the attorney could not be sustained. Brunsdon v. Allard, 2 E. & E. 19 (1859). [1801 On an application for a charging order under the Solicitors Act 1860 on an infant's real estate, the same counsel appeared for the solicitor, the infant, and the next friend. Held, that the Court would not deal with the application unless it were substantially opposed on behalf of the infant. Bonser v. Bradshaw, 10 W.R. 481 (1862). [181] At the trial of an action a verdict was taken for the plain- tiff for £100, subject to a point reserved. Ir was afterwards arrano-ed that the action should be compromised on terms that the point reserved was to be given up, and that the tlOO was to be accepted by the plaintiff for debt and costs. The plaintiff agreed for value to assign the proceeds of the action to a third party. On an appli- cation by the plamtiff's attorney to have the ilOO applied in pay- ment of"^his costs : Held, that, as there was no attempt to interfere in favour of the attorney with a honci fide compromise between the plaintiff and the defendant, the Coiurt was at liberty to lay hold of the fruits of the action for the benefit of the attorney. Slater \. Mayor of Sunderland, 33 L.J.R. Q.B. 37 (1863). [182] A solicitor having obtained a foreclosure decree on behalf of a client who was a mortgagee of real estate, applied under the Sohcitors Act 1860 for a charge for his costs on such estate. At the date of the application the chent was dead, and his estate was being administered in Court in a creditor's suit. Held, that the solicitor was entitled to the charge. Wilsoji v. Bound, 4 Giff. 41G (1863). [183] In March 1862 a plaintiff recovered judgment in an action of ejectment. Ho died in June 1863, and an action for the adminis- tration of his estate in Chancery was commenced. His attorney's costs of the ejectment action remained unpaid, and the attorney applied for a charging order on the property recovered. Held, that he was entitled to the order, notwithstanding the lapse of time and the fact that the client's estate was being administered in Chancery. Wilson V. Hood, 33 L.J.E. Ex. 204 (1864). PARTICULAR LIEK AN'D CnARGIXCi ORDERS, 51 [184] Judgment having been signed for costs payable to the plaintiff, the latter revoked his attorney's authority and gave notice to the sheriff not to execute any process on the judgment. The attorney' took out a summons, supjjorted by evidence of collusion between the plamtiff and the defendant, asking that the plaintiff or the defendant might be ordered to pay the costs to him, and an order was made as asked. On a rule to show cause why the words " or the defendant " should not be struck out : Held, tha,t the order was right. Ex parte W. Games ; In re Williams dt Lloyd, 33 L.J.R. Ex. 317 (18G4). [185] A plaintiff in a suit to whom a defendant had been ordered to pay costs obtamed a charging order nisi upon a share of a fund in Court belonging to the defendant. The fund had been recovered through the exertions of the defendant's solicitor. Held, inde- pendently of the Solicitors Act 1860, and notwithstanding the doubt suggested by the words in section 28, " unless made to a bond fide piu'chaser for value without notice," that the charging order should only be made absolute subject to the lien for taxed costs of the defendant's solicitor. The Act does not deprive the solicitor of anv benefit he previously enjoyed. Haymes \. Cooper ; Cooper \. Jenkins, 33 L.J.R. Ch. 488 (1864). [186] A legatee- and her husband filed a bill, as plaintiffs, against the executors and next-of-kin of a testator, praying a receiver of the personal estate pending ijrobate proceedings, and an injunction to restrain the defendants from selling or otherwise dealing with the testator's estate. An order for a receiver was made by consent of all parties, but no receiver was appointed. An order was after- wards made for taxation and payment of costs, including those of the plaintiff's, which were to be paid to them. The plaintiffs' solicitor applied for a charging order for his costs on the personal and (if necessary) on the real estate of the testator. Held, that he was entitled to an order as asked. Bailey v. Bircliall, 2 H. & ]\I. 371 (1865). [187] A proctor's lien on a fimd in Court is not affected by a garnishee order, and he is entitled to be paid his costs in priority to the claim of the holder of the garnishee order. The " Jeff Davis,'' 2 A. & E. 1 (1867). [188] The plaintiff having obtained a decree for payment by the defendant of a sum of money and costs, the defendant's solicitors paid part of the sum to judgment creditors of the plaintiff under the authority of two garnishee orders. The plaintiff's solicitors had a lien for their costs at the time the garnishee orders were made, but no notice had been given to them previous to the application for the garnishee orders, nor was the existence of their lien men- tioned to the judge who made the order. The defendant's solicitors were aware of the facts, and were themselves solicitors for the creditors who obtained the garnishee orders. Held, that the defen- dant ought to have caused notice to be given to the solicitors, or ought to have apprised the jiidge of the existence of the lien before the orders were finally made, and that the pajTuent under the garnishee orders was not a satisfaction of the judgment of the Court. The " Leader;' 2 A. & E. 314 (1868), n2 52 PARTICULAR LIEX A\D CHARGING ORDERS. [ISO] A plaintiff recovered a verdict for £25 against a defendant for personal injuries caused by the negligence of the defendant's servants. The plaintiff's attorney informed the defendant's attorney that he had a large claim against the plaintiff for costs, and had a lien for the same upon the damages recovered in the action. Sub- sequently a rule orisi for a new trial was granted, on the ground that the Verdict was against the weight of evidence. The plaintiff and the defendant, without the knowledge of their respective attorneys, settled the action, the defendant paying £10 to the plaintiff in discharge of all claims for damages and costs. Held, on the application of the plaintiff's attorney that his costs should be paid by the defendant, that the plaintiff's attorney was not entitled to compel the defendant to pay his costs, as the result of the proceedings was doubtful at the time of the settlement, and there was therefore no existmg fund or security upon which anv lien for the attorney's costs had attached, and the settlement was not shown to be fraudulent. Sullivan v. Pearson, 4 Q.B, 153 (1808). [190] A defendant in a foreclosure suit established his right to a second mortgage. He afterwards became insolvent, and his solicitors applied for a charging order on his interest. Held, that the interest in question was propertj^ recovered or preserved within the meaning of the Statute, and that the solicitors were entitled to the order. Sclwlefield v. LocMvood, 17 W.E. 184 (1869). [191] A solicitor acting for a creditor established the latter's claim in an administration suit. A dividend had become payable in respect of the claim, and a cheque for the amount was ready to be delivered out of the Accoimtant-General's Office. The solicitor's costs remained unpaid, and by reason of the client having left his usual place of residence the solicitor was unable to effect service of a petition under the Solicitors Act 18G0. He applied ea- ^m ;-^e for an injunction restraining the payment of the dividend and delivery of the cheque until the petition could be served and heard. Held, that he was entitled to an injunction, as asked, giving the usual undertaking as to damages. • Gerrard v. Dawes, 18 W.R. 32 (1869). [192] In a suit by a beneficiary against a trustee for manage- ment and sale of real estate prajdng for an accoimt and reconvey- ance, a receiver was ordered to be, and afterwards was, appointed adversely to the defendant. Notice of motion for decree was served, but before the time for closing evidence had arrived the plaintiff, without consulting her solicitor and without his knowledge, entered into an agreement with the defendant for a compromise of the suit on the terms, first, that a sum of cash should be paid to the plaintiff, then that the mortgages on the property should be paid off, and then that the costs of all parties, estimated at a fixed sum, should be paid. Upon hearing of the compromise, the plaintifi^s solicitor applied to the plaintiff and to the defendant's solicitors for the terms of it, but was refused all information. They thereupon applied for a charging order. Held, that the solicitor was entitled to a first charge for the amount of his taxed costs, as between solicitor and client, upon the property of the plaintiff, aa having been recovered and preserved through his instrumentality. Twynan v. Porter, 11 Eq. 181 (1870). PARTICULAR LIEX AND CIIAKGINO ORDliRS. 53 [193J The defendant in an administration suit was entitled Under the will of the testator in the suit to a life interest in the residue of his property. Subject thereto, the plaintiff in the same suit was entitled absolutely. The plaintiff charged the defendant with having possessed herself of the testator's ])roperty, and of claiming to hold it beneficially. This the defendant denied, and submitted to tlie Court liow far she was a trustee for the defendant of the testator's residuary estate. By order, on further considera- tion, the defendant was directed to pay the costs of the inquiries directed at the hearing, and, subject thereto, an order was made for payment to her of the dividends on a sum in Court. Her solicitor applied for a charging order on the dividends, claiming that the defendant's life interest was property preserved within the meaning of the SoHcitors Act 1860. Held (the defendant not appearmg), that the solicitor was entitled to the order as asked. Smith V. Winter, 18 W.K. 447 (1870). [194] A solicitor applied before Malins, V.C, and obtained a charging order in respect of costs inciUTcd in an action heard before the Master of the Rolls. Held, on appeal reversing the decision of Malins, V.C, that the application must be made in the branch of the Court to which the suit was attached. Heinrich v. Sutton ; In re Fiddcy, 6 Ch. 805 (1871). [195] A husband took proceedings to set aside a post-nuptial settlement whereby funds were assigned to trustees to secure an annuity to his wife for her separate use without power of anticipa- tion. The wife was made a party to the proceedings. Judgment having been given in favour of the settlement, the wife's solicitor applied for a charging order on the annuity. Held, that he was entitled to an order. In re Keane; Lumleij v. Desborough, 12 En. 117 (1871). [196] The bill in a suit was filed on June 15, 1863, by the next friend of an infant plaintiff claiming a guardian ; directions as to the maintenance of the plaintiff and the defendants his brothers and sisters ; accounts of the estate of the testator ; and a receiver. On July 4 a decree was made directing inquiries as to the testator's real estate, and on February 6, 1864, the chief clerk made his certificate that the real estate was worth about £350 per annum. On March 2, 1864, an order was made for the appointment of a guardian and receiver, and allowing a sum of £220 per annum for the maintenance of the plaintiff and the defendants. On August 10, 1866, the solicitor retained by the next friend died. On October 14, 1867, the infant plaintiff attained twenty-one. In November 1867 he disentailed the real estate, of which he was tenant-in-tail under the testator's will. In June 1868 he obtained an order to discharge the receiver, and on February 10, 1872, procured an order to change his solicitor. On a petition presented, under the Solicitors Act 1860, by the personal representative of the deceased solicitor to establish a charge on the real estate for his costs : Held, that the suit was properly instituted, and the solicitor duly "employed " on behalf of the infant ; that the property was " preserved "in the suit for the benefit of the infant tlirough the in- strumentality of the solicitor ; that the infant had, on attaining 54 PARTICULAR LIEN AND CHARGING ORDERS. twenty-one, adopted the suit ; that the Statute of Limitations was not a bar to the claim ; that the personal representative of the soli- citor could present the petition, and that an order should be made upon it. Baile v. Baile, 13 Eq. 497 (1872). [197] A solicitor is entitled to a charge for his costs on property the subject of a successful suit conducted by him against an inciun- brancer, although the incumbrance be entirely valueless, provided it formed a cloud upon the title. It is no objection to an apphca- tion for such a charge that it is made in a suit which isno longer pending, nor that the property has before the application of the soUcitor been sold to a purchaser with notice of the suit. Jones v. Frost ; In re Fiddey, 7 Ch. 773 (1872). [198] An adjudication in bankruptcy was set aside, and the petitioner was ordered to pay to the respondent his taxed costs. The petitioner then executed an assignment to trustees for his creditors. The costs were afterwards taxed. The respondent, at the date of the deed, owed the petitioner a sum exceeding the amoimt of the taxed costs. If the respondent, who had not acceded to the deed, was reckoned as a creditor of the petitioner for the amount of taxed costs, the deed was not assented to by the requisite majority of creditors. The respondent's solicitor had not been paid his' bill of costs in the bankruptcy proceedings, and claimed a lien on the costs payable by the petitioner. Held, that the soUcitor was entitled to a lien on the costs, and that, therefore, the debt due from the respondent to the petitioner could not be set-off against them. Mercer v. Graves, L.R. 7 Q.B. 499 (1872). [199] In a suit by a residuary legatee against the sole surviving trustee of a testator's estate, an administration decree was made, and it was ordered that a new trustee be appointed. The decree was carried into Chambers, and the accounts were brought in, and then the plaintiff stopped all further proceedings in the suit. On a petition by tlie solicitor who had acted for the plaintiff, praying that his costs might be charged on the plaintiff's interest in the estate under the Solicitors Act 1860 : Held, that there_ had been no " property recovered or preserved " within the meaning of the Act on which the solicitor could be entitled to a charge. Pivler- ton V. Easton, 16 Eq. 490 (1873). [200] A bill was filed alleging that the defendant had built so as to obstruct the plaintiff's ancient lights, and was proceeding to build so as further to obstruct them, and asking for an injunction against further building, and a mandatory injunction to pull down part of what had been built. An interlocutory injmiction was granted agamst building higher, and the suit was afterwards coin- promised on the terms that the building should remain of its then height. The defendant having become banla-upt, his solicitor peti- tioned to have his costs made a charge on the defendant's property to which the suit related. Held, that no property had been re- covered or preserved within the meaning of the Solicitors Act 1860. A suit which relates only to an easement is not a suit m which it can be said that property is recovered or preserved, even though a mandatory injunction for pulling down buildings is refused. Foxon V. Gascoigne, 9 Ch. 654 1874). PAETICULAR LIEN AND CHARGING ORDERS. 55 [201] A defendant in one action, having recovered a sum of money in another action in which he was plaintiff, his attorney in that action appHed for an order charging liis costs of action upon the sum recovered. The plaintiff in the second action afterwards, having recovered judgment, obtained an ex jyarte garnishee order attaching the sum recovered by the defendant in the first action. Held, that the defendant's attorney was entitled to a charging order on the sum recovered in the previous action in priority to the gar- nishee creditor. Birchall v. Pugin, 10 C.P. 397 (1875). [202] By an order made in an administration suit the costs were ordered to be taxed, and the plaintiff's costs to be paid to his solicitor out of a specified fund in Court, liefore the costs had been taxed, the plaintiff obtained an order to change his solicitor. Held, that the solicitor was entitled to a charging order upon the mterest of his client in the funds in Court, notwithstanding the prior order for payment out of a specified fund, but that such order ought not to extend to directing a sale, but nuist be limited to giving the par- ties libertv to applj'. Pilcher v. Arden ; In re Brook, 7 Ch.D. 318 (1877). [203] In an administration action a decree was made against a defendant, and he was ordered to pay costs. He changed his soli- citor, and subsequently a motion made by the plaintiffs was refused with costs, to be paid by them to the defendant. The solicitor then acting for the defendant gave notice to the plaintiffs' solicitor that he claimed a lien on such last-mentioned costs. The plaintitis claimed a set-off, notwithstanding sucli lien. Held, allowing the set-off, that, in regard to all costs arising in the same suit or action, the right of set-off was sanctioned, and that the practice was the same, notwithstanding a change of solicitors. Robarts v. Btiee, 8 Ch.D. 198 (1878). [204] The plaintiffs in a suit mortgaged their interests in the estate, the subject of the suit, to two of the defendants. This mort- gage was sent to the solicitor of the plaintiffs for his perusal and approval on their behalf, and he sanctioned their executing it. Nothing was said by any party about any claim by the plaintiffs' solicitor for the costs of suit. The solicitor aftei'wards obtained a charging order for his costs on the interests of the plaintiffs. Held, that, as the mortgagees had notice of the suit, they must be pre- sumed to have known the rights of the solicitor of tlie plaintiffs, and that his charge ought not to be postponed to the mortgage, he not having been guiltv of anv misrepresentation or concealment. Faithfull V. Ewcn, 7 Ch.D. 495 (1878). ■^205] An action was tried before Hawkins, J., and a verdict w'as found for the plaintiff. An order having been made by Field, •T., on the application of the plaintiffs solicitor, charging the sum recovered with his taxed costs, a motion was made to set aside the order on the groimd that it was not competent for Field, J., to make it. Held, that the application for a charging order must be made before the judge who tried the cause. Higgs v Scliradcr, 3 C.r.D. 252 (1878). 56 PARTICULAR LIEN AND CHARGING ORDEll [2061 A beneficiary entitled to a share of real estate undet a tviU sold it to another'beneficiary who was also the trustee, and he toort^a^ed it. After this the vendor, having discovered deeds under which she claimed to be tenant-in-tail of the whole estate by a title toaramount to the will, filed a bill against the purchaser and his mortgagee, praying that the sale might be set aside ; that she might be declared entitled as tenant-in-tail ; and that the mortgage, so far as it affected her interest, might be declared void. The bill was dismissed. Held, that the whole property was preserved tor the persons entitled under the will by the defence conducted by purchaser's sohcitor, and that the sohcitor was entitled to a charg- ing order for his costs upon the whole estate, and not merely upon the vendor's beneficial interest in it. BuUey v. Bullci/, « Ch.D. 479 (1878). [207] In a creditor's administration action, the deceased's estate was insufficient for payment of the creditors, and the defendant, the deceased's widow and sole executrix, was unable to pay her solicitors' costs. Held, that her solicitors were not entitled to be paid out of the estate in priority to the creditors. Chick v. Nicholls, 26 W.E. 231 (1878) [208] By an arbitrator's award in an action, the plaintiff was ordered^to pay a sum of money to the defendant, and the defendant was ordered to pay the plaintiff a part of his costs when taxed. Held, that the defendant was entitled to have the debt set-off against the taxed costs, and that the right of set-off in such a case was not interfered with by the solicitor's lien for costs. Pringle v. Gloag, 10 Ch.D. 676 (1879). [209] By a decree made in an action for the recovery of land, it was declared that the plaintiffs were entitled to one undivided third of the share of the land and of the rents thereof, and that the defendants were entitled to the remaining two-thirds. _A sale was ordered instead of a partition, and the proceeds were directed to be paid into Court. An account of rents was ordered to be taken, and it was also ordered that the plaintiffs' costs of action up to and including the hearing be costs m the action, and further consideration was adjourned. Before the accounts had been taken or the property sold, the plaintiffs' solicitors presented a petition under the Solicitors Act 1860, alleging that the plaintiffs threatened to change their solicitors and compromise the action without making any provision for their solicitors' costs, and that their one-third share was not sufficient to pay those costs. They therefore prayed for an order charging the entirety with their party and party costs, and the plaintiffs' share with the additional costs as between soli- citor and client. Held, that no order having been made for pay- ment of the costs of the action out of the proceeds of sale, the Court could not anticipate such order, and that the solicitors could only be treated as having a lien on the plaintiffs' share recovered by them in the action. An injunction was granted restraining the plaintiffs from receiving any money in the action, or by way of compromise, without notice to the solicitors. Lloyd v. Jones, 27 W.E. 655 (1879). £210] A charging order ia sufficient if intituled in the action ; Particular lien and charging orders. 57 il hiay he obtained either on summons or petition, and need not be intituled either in the matter of the Act or of the soHcitor. Hamer Vv Giles, 11 Ch.D. 942 (1879). [211] An application by a solicitor for a charging order is, not- withstanding section 39 of the Judicature Act 1873, properly made by a petition in the action; but the other parties to the action ought not to be served with the petition. Brown v. Trotman, 12 Ch.D. 880 (1879). [212] The plaintiffs were the solicitors in an action in which their client recovered a sum of money. The defendant was a judg- ment creditor of the client, and obtamed, ex parte, on the day that judgment was signed, a garnishee order attaching all debts due to the client. On the taxation of costs on the same day, the plaintiffs for the first time learned of the defendant's claim, and then gave notice to the defendant in the action in which their client was plaintiff of their claim of lien, and within five days applied for an order declaring that they were entitled to a charge on the money recovered. Held, that the plaintiifs had a lien for their costs on the sum recovered ; that they were entitled to the order sought for ; and that the garnishee order obtained by the defendant did not take priority over that lien. Sliipiieij v. Grey, 49 L.J.K. C.P. 524 (1880). [213] A solicitor's lien does not extend to alimony pendente lite paid over to him for the purpose of the wife's maintenance, unless he hold her direct written authority to him to receive it as her agent under rule 94 of the Divorce Rules. Cross v. Cross, 43 L.T.K. 533 (1880). [214] After the defendant had paid money into Court in an action, the plaintiffs solicitor declined to proceed further except on terms to which tlie plaintiff would not agree. Thereupon the plain- tiff retained fresh solicitors, and obtained an order for a change of solicitors. After the order had been made, the late solicitor ob- tained an order at Chambers charging the money in Court v/ith his costs in the action. There was nothing in the evidence to show that the solicitor had wrongfully discharged himself. Held, that a Judge in Chambers has jurisdiction to make a charging order in a pending action ; that the money in Court was " property recovered or preserved " ; that tlie order was valid, though the plaintiff's soli- citor had ceased to be such when it was made, there being no proof that he had discharged himself wrongfully or improperly. Clover V. Adams, G Q.B.D. 622 (1881). [215] An undischarged bankrupt, without the knowledge of the trustee in his bankruptcy, brought an action claiming renumeration for services rendered by him as an architect to the defendant, and damages for wrongful dismissal. The defendant, without admitting any legal liability to the plaintiff, paid £360 into Court. The plain- tiff took out a summons to have the money paid out to him, but before the summons was heard the action came to the knowledge of the trustee, and he obtained an order joining him as co-plamtiff in the action on the ground that the remuneration and damages 58 PARTICULAR LIEN AND CHARGING ORDERS. clainied were his property. The bankrupt's solicitor then appHed for a charging order on the £360 in respect of his costs, charges, and expenses^of or in reference to the action. Held, that he was entitled to a charging order for his costs i;p to the time of the in- tervention of the trustee. Money paid into Court by a defendant, although accompanied by a defence denying legal liability, may be taken out of Court by the plaintiff, and is therefore property " re- covered or preserved '" within the SoHcitors Act 1860. Emilen v. Carte, 19 Ch.D. 311 (1881). [216] A sum of money having been paid into Court for the benefit of the defendant, his solicitor obtained a charging order for costs upon it. The sohcitor then took out a summons to show cause why the si:ni of money paid into Court should not be paid out to him in part satisfaction of his taxed costs. This summons could not be served upon the defendant, who appeared to be wil- fully evading service of it. Held, that substituted service of the summons shoidd be allowed. Hunt \. AtisHn ; Ex parte il/aso/i, 9 Q.B.D. 598 (1882). [217] In an Admiralty action for wages the i:)laintiffs and the defendants compromised the action by payment to each of the plain- tiffs of a sum in discharge of the claim and costs. The plaintiffs loft the country Avithout paying their solicitors' costs. Held, that, as there was no evidence that the parties had made the settlement with the intention of depriving the plaintiffs' solicitors of their lien for their costs, the defendants ought not to be ordered to pay the plaintiffs' taxed costs. The " Hojw," 8 Adm. D. 144 (1888). [218] A charge under the Solicitors Act 1860 in favour of a solicitor is hi the nature of salvage, and may be made on tlie in- terest of persons who did not employ the solicitor, and were not parties to the suit, if they adopt the benefit obtained in the suit. It makes no difference that the persons whose interests are charged are infants ; but the Court will not make the order until the infants have an opportunity of being heard on it. Grccr v. Young, 24 Ch.D. 545 (1883). [219] Under the Solicitors Act 1860 the Court can declare a solicitor entitled to a charge for costs on the whole of the property recovered or preserved through his instrumentality, and not merely on the interest of his own client in the property. Charlton v. Charlton, 52 L.J.R. Ch. 971 (1883). [220] The proceeds of a fi.fa. issued on behalf of the successful plaintiff in an action svere attached in the hands of the sheriff h\ a garnishee summons. The plaintiff's solicitor, who had received notice of the service of the garnishee summons, subsequently obtained a charging order for the costs of the action remaining due to him. Held, that such order was rightly made, and that the solicitor was entitled to priority over the claim of the judgment creditor of the plaintiff under the garnishee summons. Dallow v. Garrold, 14 Q.B.D, 543 (1884). [221] A decree for administration of a testator's estate was mad at the suit of an infant who was entitled to a contingent reversionary PARTICULAR LIEN AND CHARGING ORDERS. 69 share in the estate. One sohcitor acted for the plaintiff and for two of the persons entitled to the other shares. After decree he ceased to be solicitor for these parties, and obtained an order directing taxation of his costs as their solicitor in the action, includhig the costs of the application, and charging their shares in the estate with the payment of such costs, with liberty to apply to have them raised. Before the action had been heard, on further consideration, the solicitor applied to have the costs raised by a sale of the shares charged. Held, that the application was premature, and that no order ought to be made for raising the costs until the action was heard on furtlier consideration. In re Green ; Green v. Green, 26 Ch.D. 16 (1884). [222] A respondent upon a petition for the appointment of new trustees obtained an order for the payment of his costs out of the trust fund. At the time the order was made, the respondent was indebted to the trust estate. The amount had not then been ascertained, but it was subsequently ascertained in an action against him by the trustees. The trustees claimed a set-off in respect of the amount found due from tlie respondent, and the costs of the action which were also payable by him. Held, that, except as to the costs of the action, they were mititled to the set-off, notwithstanding the lien of the respondent's solicitor. In re Harrald ; Wilde \. Wal/ord, 53 L.J.E. Ch. 505 (1884). [223] An action had been brought to determine the priorities of debenture-holders, and the plaintiffs, who sued on behalf of them- selves and all other debentuve-'holderB of the same class, had succeeded in establishing their priority. Their costs as between party and party had been paid out of the fund. Their solicitors applied for a charging order on the fund for the difference between party and party and solicitor and client costs. It was not suggested that the plaintiffs were unable to pay. Held, refusing the order, that the Solicitors Act 1860 was intended for the benefit and protection of sohcitors only, and that the Court would not sanc- tion the use of it for the purpose of enabling parties to an action to charge the property recovered or preserved in the action with the payment of costs for which they themselves are liable and which thev are able to pay. Harrisonx. Cornwall Minerals Bailiuay Co., 53 L.J.R. Ch. 596 (1884). [224] In a partnership action a receiver appointed at the instance of the plaintiff realised assets and paid into Court a fund representing the proceeds of the realisation. The plaintiff's solicitors applied for a charging order on the fund for their costs. A creditor of the partnership was before the Court. No evidence was given as to the plaintiff's inability to pay the costs in (juestion. The Court being of opinion that the creditors were sufficiently represented : Held, that the solicitors were entitled to a charge on the fund in priority to the creditors, and not merely to a charge • on the interests of the partners in the fimd after payment of the debts, and gave the solicitors liberty to apply as to raising the costs. Jackson v. Smith ; Ex parte Dighij, 53 L..T.K. Ch. 972 (1884). [225] An action having been brought to recover a sura of £727, one of the defendants con ntercl aimed against the plaintiff for the 60 rARTiouLAR Lien and charging oeUers. sum of £700. The defendant in question presented also a petition in bankruptcy against the plaintiff, who was ordered to bring into Court a sum of £300. The action and proceedings in bankruptcy ultimately were referred to an arbitrator, who by his award found that the plaintiff was entitled to judgment in the action for £157 ; that no debt was due fi'om the plaintiff to the defendant ; and that the sum of £300 must be paid out to the plaintiff. The plaintiff's solicitors having applied for a charging order on the sum of £300 for their costs in the action : Held, that the £800 in question was not so directly affected by the litigation as to be property preserved within the meaning of the Act. Pierson v. Knutsforcl Estates Co., 13 Q.B.D. 666 (1884). [226] The Court upon an application to set-off cross-judgments in distinct actions is entitled, notwithstanding Order LXV., Kule 14, to order that the set-off shall be subject to the lien for costs of the solicitor of the opposite party ; for, assuming that Kule 14 applies to a set-off in distinct actions, it leaVes the Com-t a discretion to allow the set-off either subject to, or notwithstanding, the solicitor's lien, and if it has no application the Court has the same discretion by the practice previous to Reg. Hil. Term, 1853, Rule G3, which since the repeal of that rule by the new rules is revived. Edwards v. Ho2)e, 14 Q.B.D. 922 (1885). [227] A solicitor may obtain a charging order for the amount of his costs upon property recovered in an action where he has acted for the successful parties, although his client may have discharged liim before the trial of the action. In such a case his charge will be subject to the lien for costs of the client's solicitor for the time being. But, when a party has been compelled to pay money into Court as security for costs, this cannot afterwards be looked upon as property recovered or preserved in the action, so as to enable the Court to give the solicitor of the party paying it in a charging order Upon it for the amount of his costs. In re Wadsiuorth ; Rhodes v. Sugden (No. 1), 29 Ch.D. 517 (1885). In re Wadsworth; llhodes V. Sugden (No. 2), 34 Ch.D. 155 (1886). [228] Costs paid under order of the Court below, and ordered by the Court of Appeal to be refunded, are property recovered within the meaning of the Act. An action was dismissed with costs, which were taxed at £295 and paid. On appeal, this judgment was reversed, and the defendants were ordered to repay to the plaintiffs the costs they had received, and to pay their costs of the appeal, which were taxed at £1G5. After this the plaintiffs became bank- rupt. Held, on the application of the solicitors who had acted for the i)laintiffs in the appeal, that they were entitled to receive from the defendants the £165, and also^as against the trustee in bank- ruptcy, to receive from the defendants out of the £298 the difference between the £165 and the j)laintiffs' costs of the appeal taxed as between solicitor and client. Guy v. Churchill, 35 Ch.D. 489 (1887). [229] While a suit for redemption of a mortgaged estate was pending, the plaintiff' mortgaged his interest in the estate. The plaintiffs solicitor in the suit acted for both mortgagor and mortgagee. A company had given notice to take the property PARTICULAR LIEN AND CHARGING ORDERS. Gl compulsorily, but the in-ice had not been ascertained. On the dav of the execution of the mortgage, the phiintiff wrote to his soHcitors and their London agents a letter directing them to pay the mortgage debt ont of the first money that should come to their hands from the companj^ and the solicitors handed this letter to the mortgagee with the mortgage-deed. After this the price of the land was ascertained in an arbitration in which the London agents acted as the jilaintiffs solicitors, and the price was carried over to the credit of the redemption suit, and left a balance after paying off the original mortgage debt. After this the sohcitors and their London agents applied for an order charging the fund with their costs in the action and in the arbitration. Held, that the mere fact that the solicitors acted for the mortgagee as well as for the plaintiff did not disentitle them to priority. (In re Snell [145] distinguished.) But held that the plaintiffs letter was a direction to the solicitors that moneys to come to their hands from the propertj' were to be applied in the first place in paying the mortgagee, and that the,\ , in forwarding this letter to him, were bound by the direction, and could not set tip a claim of their own in opposition to it. Held, also, that the London agents had no right to a charge for costs of the action, as they were not the solicitors employed by the client, nor to a cbarge for the costs of the arbitration, as it was not a proceeding in a court of justice. Macfarlane v Lister, 37 Ch.D. 88 (1887). [230] A decree for dissolution of marriage havmg been made on the wife's petition, an order was made under 20 and 21 Vic. c. 85, section 32, directing her husband to secure to her for life the annual sum of £130. Held, that such annual sum was " property recovered or preserved by the solicitors" ; but the Court refused, in the exercise of its discretion, to make a charging order, on the ground that the wife, having only separate estate subject to restraint on antici- pation, could not be presumed to have entered into a contract with the solicitors so as to bind her separate property ; that the husband was therefore 2^'>'i^nd facie responsible, and for anything that appeared the costs could be recovered from him. Harrison v. Harrison, 13 P.D. 180 (1888). [231] In an action for the dissolution of a partnership, a receiver was appointed and sold goods belonging to the partnership which might have been distrained for rent. The plaintiff's solicitor obtained a charging order for his costs on the moneys thus realised. Before the order was made, the landlord gave the receiver notice of his claim for rent, but he had never made any attempt to distrain. Held, that the landlord, not having distrained, had no lien on the funds in the hands of the receiver in priority to the soHcitor. In re Suffield ; Ex parte Brown, 20 Q.B.D. 693 (1888). [282] The defendant in an action paid £50 into Court in satisfac- tion of the plaintiff's claim. Before trial an agi-eement was entered into between the defendant and his solicitors on the one hand, and the plaintiff in person on the other hand, whereby the action was compromised upon the terms that the plaintiff' should accept the £50 in Court in discharge of all claims. The plaintiff then gave notice to bis solicitqr that he intended to appear in person, and 62 PARTICULAR LIEN AND CHARGING ORDERS. the solicitor gave notice to the defendant's solicitors not to pay the plaintiff any money until the sohcitor's costs m the action had been paid. After the receipt of this notice, the defendant _s solicitors obtained payment to themselves of the /50, and paid it over to the plaintiff. Held, first, that the £50 paid under the pressure of and in order to settle the action must be treated as the fruit of the action. Held, secondly, that the defendant s solicitors, having received out of Court and handed over the £50 to the plaintiff after express notice of his solicitor's hen for costs, must themselves satisfy that lien ; and Held, thirdly, that, as the defendant had neither received notice of the hen nor authorised the payment to the plaintiff, he was not liable to satisfy the hen. Bossv. Buxton, 42 Ch.D. 190 (1889). [2331 A plaintiff's solicitors obtained an order under Order XIV. that the defendant should, as a condition of leave to defend, pay the amount claimed into Court. Subsequently the plaintiff, without the knowledge of his solicitors, and without making any provision for their costs, compromised the action, and discharged them from their employment. The defendant then applied for an order for the payment out to him of the money in Court, and produced the plaintiff's consent to such order bemg made; but the Master being of opinion that the compromise was collusive, refused to make the order. The solicitors then applied for a charging order upon the money in Court. Held, that the money in Court was under the circumstances " property preserved " withm the meaning of the Act, and that there was jurisdicdon to make a charging order. Mocon v. Slieppanl, 24 Q.B.D. 627 (1890). [234] In an action for work done under a contract to repair a ship, the defendants paid £500 into Court with a denial of liability. They also counterclaimed for damages. The i^laintiff proceeded with the action, and in the result, upon the report of a referee, the plaintiff recovered £465 on his claim, and the defendants £210 on their counterclaim. Pending the delivery of the referee's report, the plaintiff's solicitor obtained a charging order upon the sum paid into Court. Held, on appeal, that the whole fund m Court was not property recovered or preserved ; that when claim and counterclaim arose out of the same contract they were to be taken to be one and not two actions ; and that in the action in question the defendants might set-off the amount recovered by them on their counterclaim against the amount found due to the plaintiff on his claim. Accordingly the charging order to which the plaintiff's solicitor was entitled was limited to the sum of £255, the net result of the action in the plamtiff's favour. Westacott v. Bevan, 1891, 1 Q.B. 774. [235] Where a plaintiff in person and a defendant by his solicitors compromise an action with the knowledge that they are so acting as to deprive the plaintiff's solicitor of his costs, though they have no express notice of his lien, such solicitor is entitled to an order for the payment of his taxed costs of the action by the defendant, or for continuance of the action for the recovery of such costs. Price v. Crouch, 60 L.J.E, Q.B. 767 (1891). PARTICULAR LIEN A>fD CHARGING ORDERS. 63 [236] A difference exists between the lien of a solicitor on a fund recovered for his client in an action and on deeds coming into his possession, inasmuch as in the former case he has no lien for all costs due to him from his client, but only for the costs of recovering that particular fund ; and even where the solicitor actually gets the fund into his possession, he obtains no greater lien than if it had remained in Court. Mackenzie v. Mackintosh, 64L.T.R. 706 (1891). [237] In proceedings to establish the title to a deceased's real estate, the person claiming to be heir-at-law employed different solicitors at different stages of the proceedings. In the result he ' established his title. There was a fund in Court representing rents of the real estate, and, as between the solicitors claiming charging orders on this fund, it was Held that the solicitor last employed was entitled to be paid first; then the solicitor employed before him, and so on. In re Knight, 1892, 2 Ch. 368. [238] In an action to restrain the sale of a house alleged to have been sold to the plaintiff, an order was made directing the conveyance thereof to him. Prior to the action he liad mortgaged his interest, but the mortgagee declined either to release her charge or to concur in the proceedings. The solicitors for the plaintiff applied for a charging order on the house for their costs of the action. Held, that they were entitled to the order, and that it had priority over the mortgage. Scholey v. Feck, 1893, 1 Ch. 709. [239] A solicitor had acted for the plaintiff in an action which was compromised by the defendant agreeing to pay a sum of money to the plaintiff by instalments, judgment being given for the plaintiff. The plaintiff then, for valuable consideration, assigned the money payable to him to a person who had been a witness in the action. The solicitor for the plaintiff subsequently obtained a charging order for his costs. It was not proved that express notice of the solicitor's lien in respect of which he obtained the charging order had been given to the assignee, iff W, that the assignee was not a bond fide purchaser for value without notice within the meaning of the Act. Cole v. Eley, 1894, 2 Q.B- 350. [240] An application to remove to the High Court an action commenced in the County Court was refused with costs to be paid by the defendants. The action was tried in the County Court, and dismissed with costs. The plaintiffs solicitor claimed a lien on the costs in the High Coui't payable by the defendants. Held, that a set-off, notwithstanding his lien, should not be allowed. Hassell v. Stanley, 1896, 1 Ch. 607. [241] An action was compromised on terms that a sum to be fixed by an arbitrator should be paid by the defendants to the plaintiff. Before the arbitrator made his award, the plaintiff authorised the defendants' solicitors to apply the money to be received from their clients in payment of debts owing by him to persons whom they represented. After the award and the Q4 SOLICITOR-TRUSTEKS. application of the money as directed, the plaintiff's solicitors applied for a charging order. Held, that the defendants' solicitors, and the persons represented by them, had notice of the lien of the plaintiff's solicitors, and that the latter were entitled ta a charging order. The " Paris,'' 1896, P. 77. VI.— SOLICITOR-TRUSTEES. [242] The rule that a solicitor, being also a trustee and a party to a cause, is not entitled to charge costs, exceptcostsout of pocket, does not extend beyond his acting as solicitor for himself alone. Cradoch v. Piper, 19 L.J.R. Ch. 107 (1850). [243] The rule which allows a solicitor, being also a trustee and a party to a cause, to charge full costs where he acts in the suit for a "body of tnistees of which he himself is one does not apply to the case of a solicitor being a trustee and acting as solicitor for himself and liis co-trustees in the administration of the trust estate out of court. Lincoln v. Windsor, 20 L.J. Ch. 531 (1851). [244] A solicitor was appointed executor, and was to be at liberty to charge for his professional services. Held, that he was only entitled to charge for services strictly professional, and not for matters which an executor ought to have done without the in- tervention of a solicitor, such as for attendances to pay premiums on policies, attending at the bank to make transfers, and attend- ances on proctors, auctioneers, legatees, and creditors. Harbin v. Darby, 29 L.J. Ch. 622 (1860). [245] A trustee-solicitor is entitled to be allowed profit costs where he has agreed with his partner that such partner shall act as solicitor to the trust and receive the profits for his own benefit. Clack V. Carlon, 30 L.J. Ch. 639 (1861). [246] A trustee, who was a solicitor, sold out stock forming part of the trust estate and invested it on mortgage. He acted as solicitor for the trust estate as well as for the mortgagor, but his services were paid for by the mortgagor exclusively. In an ad- ministration action it was sought to charge the trustee with the profit made by him in the transaction. Held, that he could not be charged with such profits, as thev were not fairly the produce or profit of the trust estate. Whitneij v. Smith, 4 Ch. 513 (1869). [247] The appointment of a member of the plaintiff's solicitors' firm as receiver in an action is improper, for that such an appoint- ment makes it impossible to secure the proper checking of the receiver's accounts. In re Lloyd ; Allen v. Lloyd, 12 Ch.D. 447 (1879). [248] In a creditor's administration action brought against the administrator of an intestate (the defendant being a solicitor and a member of the firm of solicitors who were acting for the plaintiff), after judgment for administration had been pronounced, an order was made, on the application of the plaintiff by his solicitors, for SOLICITOR-TRUSTEES. 65 the appointment of a specified person, "upon his giving security," to receive the rents of the intestate's real estate, and to collect and get in his outstanding personal estate. On the apphcation for this order, the defendant made an affidavit, stating his approval of the person proposed. Before the receiver had perfected his security, some money arising from the sale of furniture belonging to the intestate was received by the defendant's firm and appropriated by him, and he claimed to retain out of it a debt due to him by the intestate. Held, that, by reason of the relation in which the defen- dant stood to the plaintiff as a member of the firm of solicitors who were acting for him, the defendant stood m no better position than he would have stood after the receiver had perfected his security, and that the defendant could not under the circumstances exercise his right of retainer. In re Birt ; Birt v. Burt, 22 Ch.D. 604 (1883). [249] The Court will not appoint the solicitor for the tenant-for- life a trustee for the purposes of the Settled Land Acts, for his position as such sohcitor renders him unsuitable for an office the duties of which required him to check the proceedings of the tenant-for-life. In re Kemifs Settled Estates, 24 Ch.D. 485 (1883). [250] A testator, by his will, authorised any trustee thereof who might be a solicitor to make the usual professional or other proper and reasonable charges for all busuiess done and time ex- pended in relation to the trusts of the wUl, whether such busmess was usually within the busuiess of a solicitor or not. _ On the further consideration of an action for the administration of the testator's estate, an order was made for the taxation of the costs, charges, and expenses of the trustees, and it was directed that the Taxing Master should have regard to the terms of the will as to the costs of the trustees. Held, that the Taxing Master had power to allow to a trustee who was a solicitor the proper charges for business, not strictly of a professional nature, transacted by him in relation to the trust estate. In re Ames ; Ames v. Taylor, 25 ■Ch.D. 72 (1883). [251] On the retirement of one of two trustees of a will, the contmuing trustee, who was the solicitor to the trustees, appointed his son, who was his partner in his business, to be a new trustee. The trusts of the will were being administered by the Court. Held, that, without any personal reference to the fitness of the son, by reason of his position, the appointment was one which the Court ought not to approve, though it would not have been invalid if the Court had not been administering the trusts. In re Norris ; Allen V. Norris, 27 Ch.D. 333 (1884). [252] A testatrix by her will appointed her solicitor, who pre- pared her will, one of her two executors and trustees, and, stating that it was her desire that he should continue to act as sohcitor in relation to her property and affairs, and should " make the usual professional charges," expressly directed that, notwithstanding his acceptance of the office of trustee and executor, he should be en- titled to make the same professional charges and to receive the same pecuniary emoluments and remuneration for all business done by 66 SOLICITOR-TEUSTEES. him, and all attendances, time, and trouble given and bestowed by him in or about the execution of the trusts and powers of the will, and the management and administration of the trust estate, real or personal, as if he, not being himself a trustee or executor, were em- ployed by the trustee or executor. Under this direction the solicitor- executor dehvered bills of costs which included charges for all busi- ness done by him, whether such business was strictly professional •or could have been transacted by a lay executor without the assist- ance of a solicitor. Held, that all items which were not of a strictly professional character ought to be disallowed. In re Chappie ; Neivton v. Chapman, 27 Ch.D. 584 (1884). [253] A testatrix appointed a solicitor one of the executors of her wiU, and declared that he should be entitled to charge and to receive payment for all professional business to be transacted by him under the will in the same mamier as he might have done if he had not been an executor. The solicitor was an attesting witness to the will. His co-executrix proved the will. A creditors' action was instituted against her, and she employed the solicitor's firm as her solicitors in the action. The solicitor afterwards proved the will and was made a defendant. When the action came on for further consideration, the Court declared that the solicitor was not entitled to claim payment of profit costs by virtue of the declaration in the will, he being one of the attesting witnesses thereto, but the declaration was made without prejudice to his rights apart from the clause in the will. The Taxing Master disallowed the solicitor's profit costs of action on the ground that, being a trustee, he was not entitled to make a profit out of his trust. Held, on a summons to review the taxation, that he was entitled to profit costs of action, but that he was not entitled to profit costs for business not done in the action, and that the rule applied as well to costs incurred before as after he proved the will. In re Barber ; Burgess v. Vinicome, 34 Ch.D. 77 (1886). [254] A partner in a firm of country solicitors was one of two trustees of a will which contained no power to charge for profes- sional ser^^ces. He and his co-trustee were respondents to an application for maintenance under the sunimary procedure of the Court, and his firm, throiagh their London agents, acted as solicitors for the trustees, and made profit costs. Held, that his firm were entitled to receive those profit costs as coming wthin the exception laid down in Cradoch v. Piper [242]. Although that case has been often disapproved, it has been so long acted on as a binding autho- rity that it ought not now to be overruled. The exception applies, not only to proceedings in a hostile suit, but to Mendly proceedings in Chambers, such as an application for maintenance of an infant. After the death of his co-trustee the solicitor was made defendant to an administration action in which a receiver was appointed, and his firm, through their London agents, acted for the receiver and made profit costs. Held, that these profit costs could not be retained by the firm, on the principle that a trustee must not place himself in a position in which his interest conflicts with his duty. Tlie trustee and his firm made profit costs by preparing leases and agreements for leases of portions of the trust estate, which costs were paid by the lessees. Held, that, although the costs were paid DEALINGS BETWEEN SOLICITOR AND CLIENT. 67 by the lessees, the solicitors were employed on behalf of the trust estate, and that the trustee and his firm must account to the estate for the costs. The solicitor and his co-trustee appointed his partner steward of a manor which formed part of a trust estate, and fees for manorial business were paid to the steward by the tenants, and brought into the partnership account. Held, that the fees not being received by the steward in his character of solicitor, were not liable to be accoimted for to the trust estate. In re Corsellis ; Lawton v. Elives, 34Ch.D. 675 (1887). [255] A testatrix appointed a solicitor to be one of the executors and trustees of her will, and declared that any trustee of her will who should be a sohcitor should be entitled to charge for all busi- ness done in relation to the estate as if he had been a solicitor em- ployed by the trustees. The sohcitor was one of the attesting witnesses. Held, that he was not entitled to any profit costs for business done by him in relation to the estate, for that the right to make professional charges could only be claimed under the will, and was a beneficial interest under it, and could not be taken by an attesting witness. In re Pooley, 40 Ch.D. 1 (1888). [256] Trustees on their own responsibihty agreed to make an advance on mortgage, the security being one which their solicitors advised might be a breach of trust. The amount to be advanced was handed by the trustees to the sohcitors, and was apphed by them in accordance with their instructions. In an action to make the sohcitors liable for the insufficiency of the security : Held, that they merely had carried out the instructions of their chents, and were not, vmder the circumstances, hable as trustees or con- structive trustees. Brinsden v. Williams, 1894, 3 Ch. 185. [257] A solicitor-trustee had power under a will to make the usual professional charges for the business in the same manner in all respects as if he had not been a trustee. Held, that the power extended only to charges which the trustee could properly make in his capacity as a solicitor. Otway v. Beamish, 100 L.T. 609 (1896). VII.— DEALINGS BETWEEN SOLICITOE AND CLIENT. (a) Sales and Purchases. [258] A chent having the next right but one to present to an advowson of which the existing incumbent was in the prime of hfe and in good health, and the next intended presentee was a boy of the age of fourteen, offered to sell to his sohcitor his right of pre- sentation for i'lOO, to be apphed by the latter in part satisfaction of his costs not then made out, which it was assumed exceeded £100, but as a fact they then amounted to £91 only. This pomt was, however, not taken by the chent. The sohcitor had no know- ledge of the value of the right of presentation, and it was admitted to be purely speculative, though at the trial valuations were put in ranging from £150 to £751. The sale was carried out, and after- wards the solicitor having done other work which brought his costs e2 68 DEALINGS BETWEEN SOLICITOR AND CLIENT. up to £145, the client paid them, taking credit for the £100. Four years after the sale the existing incumbent was aocidentaUy killed, and, the intended presentee not being of age, a man aged sixty was presented, and the right of presentation sold for £100 became worth some £4,000. Held, that there was no ground for setting aside the sale. Montesquieu v. Sandys, 18 Ves. 301 (1811). [259] A bill was filed to set aside a sale of property made, it was alleged, at a great undervalue to the defendant, who at the time was solicitor to the plaintiff, and when the plaintiff to the know- ledge of the defendant was in embarrassed circumstances. The transaction took place eighteen years before the bill was filed, and the delay on the plaintiff's part was not satisfactorily accounted for. Held, that the bill must be dismissed on the ground of delay, but without costs, as the soUcitor had not satisfied the Court that he had paid that price for the property which, in the exercise of his professional duty, he would have advised his client to accept from a third person. Champion v. Blghy, 1 Euss. & M. 539 (1830). [260] A party to the sitit who was also a soUcitor, and had the conduct of a sale decreed by the Court, purchased at the sale in the name of a nominee. After the sale had been confirmed it appeared that the solicitor was the actual purchaser, and the Court ordered the estate to be again offered for sale at the price at which he had purchased it, and that if there should be no higher bidder he should be held to his bargam. Sidny v. Banger, 12 Sim. 118 (1841). [261] A client desirous of selling an estate expressed his readi- ness in a letter to his solicitor to accept £13,650 for it. The estate consisted of two portions, and a land valuer, whose valuation was not shown to have been communicated to the client, put upon the two portions separately values which together exceeded £13,650. The solicitor sold part of the estate for a sum exceeding the valuation of that portion, and then purchased the other portion for a sum much less than the amount of its valuation, but one that added to the other purchase-money just made up £13,650. The sohcitor pre- tended that the latter pvu'chase was made by one of his relatives, but, as appeared by deeds prepared by him, it was really made on his own behalf. These facts were not discovered till thirty-seven years afterwards, and then the client filed a bill against the representa- tives of the solicitor, who had died seventeen years before, to set aside the conveyance. Held, that the circimastances of the transaction were of a fraudulent nature, and therefore furnished an answer to the objection arising from the length of time during which the transaction had remained miimpeached. Charter v. Trevelyan, 11 CI. & Fin. 714 (1843). [262] A client being indebted to his solicitor for the costs of legal proceedings, gave hun a mortgage on two farms for the amount due, and a year or two afterwards sold him the equity of redemption. The client was not separately represented. The solicitor had no special knowledge of the value of the farms in question, and it was proved that the purchase and mortgage moneys were together equivalent to thirty years' purchase of the highest DEALINGS BETWEEN SOLICITOR AND CLIENT. 69 rent the client had ever received for the farms. It was known to both parties that minerals existed rmder the farms. Shortly after the sale the value of the minerals was considerably increased owing to a railway then contemplated having been formed in the imme- diate neighbourhood. The relation of solicitor and client ceased foiu- years after the sale. Eleven years after the sale the client filed a bill to set aside the sale of the farms on payment to the BoUcitor of what should be foimd due to him. Held, that the bill must be dismissed. The contemplated formation of the railway was a mere speculative advantage, the communication of which to his client the solicitor was not bound to prove, the parties being in the same situation with reference to the means of formmg an opinion upon it. Edwards v. Meyricli, 12 L.J.R. Ch. 49 (1842). [263] A solicitor purchased property from his client. The con- sideration expressed in the deed was a sum of £600 then paid, but the actual consideration was in part a previous debt for costs and such an amiuity as the balance of the pm-chase-money of £600 would have purchased, according to the Government tables, for a healthy life of the age of the client. The client was a man of indolent and intemperate habits. It did not appear that the solici- tor had endeavoured to obtain a higher annuity for the client on that accoimt. The chent died three and a half years after the transaction. The expectation of life for a healthy man of his age was ten years. Held, that the purchase must be set aside. In deal- ings between solicitor and client no more is required than that the client should be fully informed and duly and honestly advised, and that the price should be just. Holman v. Loynes, 23 L.J.E. Ch. 529 (1854). [264] "^Tien a solicitor purchases from a client he must show that he has taken no advantage of his professional position, but has done as much to protect the client's interest as he would have done in the case of the client dealing with a stranger. Savory v. King, 25 L.J. Ch. 482 (1856). [265] An attorney, having the conduct of an action in which a. verdict for damages had been given in his cUents' favoiir, at their request pmrchased their mterest, not in order to enable them to carry on the action, but because they were in want of money. The purchase was made after the verdict, but prior to entry of judgment. On a question between the attorney and the defendant, who claimed a set-off for costs payable to hun in another action : Held, that the purchase in question, being a purchase by the plaintiffs attorney of the subject-matter of the action before judgment, was against the policy of the law and could not be recognised, and that under the circumstances the set-off should be allowed subject to the attorney's lien for costs. Simpson v. Lamh, 26 L.J.E. Q.B. 121 (1857). [266] A purchase by a sohcitor from his client having been set aside on the ground that the sufficiency of the consideration was noG estabHshed, an inquiry was durected with a view to ascertaua whether the purchase-money had actually been paid. No e\'idence was adduced on the inquiry to prove the payment except the acknowledgment in the body of the deed and the indorsed receipt. 70 DEALINGS BETWEEN SOLICITOR AND CLIEN Held, that the acknowledgment and receipt were not sufficient evidence as against parties claiming under the cUent, and that the purchase-money must be considered as not having been paid. Whether the transaction between solicitor and client be one of purchase or mortgage, it is incumbent on the soUcitor to prove the consideration by evidence other than that of the deeds themselves. Gresley v. Mousley, 3 D. F. & J. 433 (1862). [267] Solicitors purchased from their clients the equity of redemp- tion of property mortgaged by them to other clients. The pm-chase was made at a period of depression, and under representations on the part of the sohcitors that the mortgagees were urgent for payment of interest and threatened a sale. The sohcitors had the manage- ment of the securities for the mortgagees, but had received no instructions to warrant the representations in question. About three weeks before the agreement for purchase was signed another solicitor was employed by the mortgagors, and acted for them in the business. The pm-chasing solicitors did not fully inform him of the state of the mortgagors' affairs, nor did he make proper inquii'ies as to it, nor endeavour to ascertain the value of the property. After the contract the purchasing solicitors offered to abandon the same in favom- of the mortgagors' creditors if the latter would undertake to pay a lump sum for their costs, particulars of which had not been delivered, and the mortgages and interest. This offer was declined. On the evidence it appeared that the purchase was made at an undervalue. Held, that it must be set aside. If it appears that a solicitor purchasing from his late client is aware of a neglect of duty, or takes advantage of any neglect of duty in the new adviser, and especially if he vidthholds or suppresses from the new adviser any information of importance, the transaction is vitiated. Gihhs V. Daniel, 10 W.E. 688 (1862). [268] A solicitor had a private arrangement by which he was to share the profit to be obtained from the sale of property. In his character of solicitor he acted for clients in the piurchase of the larger portion of that property, never communicating to his clients the fact of his having an interest in it. Held, that he was to be treated as a trustee for his clients in respect of his share of so much of the property as they had actually purchased, it being an esta- blished rule that a solicitor shall not in any way whatever, in respect of any transactions in the relation between himself and his chent, make gain to himself at the expense of his client beyond the amount of his just and fair professional remuneration. Tyrrell v. Bamk of London, 10 H.L. Cas. 26 (1862). [269] Property sold in a foreclosure suit was purchased by a solicitor whose name appeared on the particulars of sale as one of several sohcitors from whom particulars of sale could be obtained. He was not sohcitor to any of the parties to the suit, and had never been consulted about the sale, and did not know what was the amount of the reserved bidding. Held, that he being in other respects not disqualified from purchasing, the mere fact of his name appearing on the particulars of sale as a person from whom copies might be obtained was not a disqualification. Guest v. SmytJie, 5 Ch. 551 (1870). DEALINGS BETWEEN SOLICITOR AND CLIENT. 71 [270] When a solicitor acting on behalf of both parties prepares a conveyance to himself containing an absolute covenant for title on the part of the vendor, when lie knows, or must be taken to have known, that his title was defective, he will be restrained by perpetual injunction from proceeding with an action on the cove- nant. The relation of solicitor and client carries with it all its consequences, whether it arises from an aheady existing relation or is only created for the purpose of a particular transaction ; but if it does not exist previously, and first arises in the particular trans- action, it must be definitely established, and is not necessarily to be inferred. Williamson v. Moriarty, 19 W.R. 818 (1871). [271] The Com-t does not hold that an attorney is incapable of purchasing from his client, but watches such a transaction with jealousy, and throws on the attorney the onus of showing that the bargain is, speaking generally, as good as any that could have been obtained by due diligence from any other purchaser. The circum- stances of the employment may be considered and the amount of influence estimated. The Court expressed an opinion that an attorney purchasing from his client ought to insist on the inter- vention of another professional adviser. Fisani v. Attorney -General for Gibraltar, 5 P.C. 516 (1874). [272] The disabihties of a solicitor purchasing from his client extend to the case of a purchase by a solicitor from the trustee in bankruptcy of his chent. A solicitor having for some years acted as receiver of an estate, had acquired an intimate knowledge of it, and had formed the opmion that it was of greater value than the rental indicated, and that his chent's interest, created by an obscurely worded will, was greater than coimsel had advised that it was. On the bankruptcy of the client the solicitor was employed to negotiate, on behalf of the bankrupt's family, for the pin-chase of the interest in question from the trustee. He, however, purchased it on his own account, and without disclosing his information or opinion either to the trustee or to the bankrupt. His opinion as to the extent of the bankrupt's interest was confirmed by the Court. In an . action by the trustee in bankruptcy to set aside the sale : Held, that the trustee in bankruptcy stood in the place of the bank- rupt as regards the purchase ; that the bankrupt's sohcitor coixld not be allowed to hold, as against the trustee, an advantage obtained in the purchase by means of the knowledge which he had gained whilst acting as solicitor for the bankrupt. Luddy's Trustee v. Peard, 33 Ch.D. 500 (1886). [273] The sohcitor for a defendant in an administration suit obtained leave to bid at a sale by auction of part of the property being administered. The property was not sold at the auction, but was subsequently purchased by the solicitor on behalf of himself and others by private treaty. Nine years afterwards an action was brought to set aside the sale on the ground of concealment of facts by the solicitor. The Court of Appeal set aside the sale, laying down the proposition that a person desirous of buying property which is being sold mider the direction of the Court must either abstain from laying any information before the Court in order to obtain its approval, or must lay before it all the information he 72 DEALINGS BETWEEN SOLICITOR AND CLIENT. possesses which it is material that the Court should have to enable it to form a judgment on the subject under its consideration. On appeal to the House of Lords : Held, that this proposition was too broadly stated. It does not follow that because information on some material point or pomts is offered, or is given on request, by a purchaser under the Court it must therefore be given on all others as to which it is neither offered nor requested, and concern- ing which there is no impHed representation, positive or negative, direct or indirect, in what is actually stated. The decision of the Com-t of Appeal was therefore reversed. Coalis v. Bosivell, 11 App. Cas. 232 (1886). [274] The plaintiff, a solicitor, was the assignee of the amoimt for which the assignor had obtained a verdict, and the deed of assignment contained a covenant for further assurance in terms held to include the whole fruits of the litigation. A new trial was obtained, and the assignee then became the sohcitor for the assignor, and the action terminated in a verdict for the same amount as before. A judgment creditor of the assignor obtained a garnishee order attaching the amount recovered in the action. In the inter- pleader to determine whether the plaintiff as assignee, or the de- fendant as garnishee, was entitled to the fruits of the judgment : Held, that the rule that a solicitor conducting an action cannot purchase the subject-matter of the suit did not apply, as the assign- ment preceded the employment as solicitor. (Simj^son v. Lamb [265] approved and distinguished.) Davis v. Freethy, 24 Q.B.D. 619 (1890). (b) Mortgages. [275] An account, for which a client had given security to his sohcitor, included an item of £600 for costs, for which no bill had been delivered. It was admitted that the bill, if delivered, would have amounted to about £525 only. It was alleged, however, that the extra £75 was an additional remuneration charged at the client's request, but no sufficient evidence of this was given. Held, that the error was not one that could be set right by a decree to surcharge and falsify, but that the account must be treated as an open account. Coleman v. Mellersh, 2 M. & G. 309 (1850). [276] A client filed a bill against his solicitor to set aside a security for the estimated amount of past costs in a suit, executed pending the suit, and without the intervention of another solicitor. There was no evidence of pressure or improper conduct on the part of the sohcitor, or of any specific error in the bill of costs, which had been delivered within the time agreed. The bill of costs ex- ceeded the estimate, and had been delivered five and a half years before the biU was filed, and the plaintiff had had ample opportu- nity of discovering the errors, if any. Held, dismissing the bUl, that a client seeking to set aside a security for the amount of a bill of costs must show one of two things : either improper dealing on the part of the sohcitor in the concoction and obtaining of the secu- rity, or else error, amounting to evidence of fraud, in specific charges which are made the foundation of the security. Blagrave v. Bouth, 26 L.J.K. (Ch, 86 1856). DEALIXGS BETWEEN SOLICITOR AXD CLIENT. 73 [277] The principle which throws on a solicitor dealing with his client the burden of proof of the fairness of the transaction does not apply to a case where the solicitor is in the hostile attitude of an urgent creditor. Johnson v. Fesemeyer, 3 De Gex »t J. 13 (1858). [278] A mortgage from a client to his solicitor contained clauses restricting the right of the mortgagee to call in the money, and of the mortgagor to redeem the mortgage for a period of twenty years. It was in evidence that the mortgagor himself inserted the word " twenty " in the draft mortgage in a space left for the purpose, and that the effect of the clauses was explained to him. Within four years after the execution of the mortgage, the mortgagor filed a bill to redeem. Held, that he was entitled to redeem, for the re- striction on the right of redemption for so long a period as twenty years was a disadvantageous one for the client, and he had no inde- pendent advice and assistance in the matter. Coivdry v. Day, 1 Giff. 316 (1859). [279] A solicitor took a mortgage from his client to secure monej's alleged to have been advanced and a sum for costs. It appeared that no biU of costs had been delivered, and that no accoimts showing how the amount was made up had been fur- nished when the security was taken, and that the solicitor had kept no record of the transactions. Held, that the mortgage must stand as security only for what, on taking a general account, should be fovmd due. Davis v. Parry, 1 Giff. 174 (1859) ; Morgan v. Higgins, 1 Giff. 270 (1859). [280] The plaintiff, an unmarried woman, about fifty years of age, became surety for her brother-in-law in respect of various siuns owed by the latter to the defendant, a certificated conveyancer. It was in evidence that the plaintiff had consulted defendant in 1853 as to her will, but there was some doubt about this. The first suretyship was undertaken in 1854, and was of comparatively small amount as compared with the plaintiffs fortune. Between the dates of the first suretyship in 1854 and the second in 1857, the defendant prepared the plaintiffs will, in which he was appomted one of the trustees, and actively interfered in the plaintiffs behalf in the investigation of the accounts of her father's trustees, and became acquainted with the particulars of her fortune. He was also aware that the principal debtor had no means. The third siu-etyship was in 1860. The second and third suretyships rendered the plaintiff hable to the extent of nearly the whole of her fortmie. Part of the amount for which the plaintiff became surety consisted of sums paid by the defendant at the request of the plaintiff and her brother-in-law to persons to whom they were already indebted on joint and several promissory notes. Between the dates of the second and third suretyships it appeared that the only business transacted by the defendant for the plaintiff was the payment off of certain of the said promissory notes. It was proved that the plain- tiff acted freely and volmitarily, and without solicitation on behalf of the defendant ; that the contents of the various documents were fully explained to her by him ; and that she perfectly understood them, and their natm-e, purport, and effect, and the consequences of her signing and executing them. The various sums due to the 74 DEALINGS BETWEEN SOLICITOR AND CLIENT. defendant were paid out of the plaintiffs fortune in January 1862, she being then represented by an independent solicitor, and in July 1863 she filed a bill for repayment of the sums paid to the de- fendant. Held, even if it were a fact that the plaintiff had con- sulted the defendant in 1853, it was a single and separate transaction, and not sufficient to constitute such a confidential relationship as would affect a subsequent transaction occurring upwards of a year afterwards, and that the plaintiff was not entitled to repayment of the amount for which she became surety in 1854 ; that a confi- dential relation existed at the dates of the transactions of 1857 and 1860, and that the plaintiff was entitled to repayment of the amounts for which she became surety at those dates, except so far as they were made up of sums paid by the defendant to take up the pro- missory notes. In judging of the validity of transactions between persons standing in a confidential relation to each other, the mate- rial point to be considered is whether the person conferring a bene- fit on the other had competent and independent advice. The age or capacity of the person conferring the benefit are of but little importance in such cases ; they are important only where no such confidential relation exists. Where a confidential relation is esta- blished, the Court will presume its continuance, tmless there is distinct evidence of its determination. The Court wiU not undo a trifling benefit conferred by one person on another standing in a confidential relation to him unless there be mala fides. Bliodes v. Bate, 1 Ch. 252 (1866). [281] "Where a solicitor-mortgagee took a conveyance from the mortgagor, a day labourer, who had no independent legal advice : Held, that the deed was not valid imless the circumstances were aU explained to the mortgagor, and that the onus of showing that this was done lay on the solicitor. Frees v. CoTce, 6 Ch. 645 (1871). [282] Stipulations for commission on receipt of rents and con- version of arrears of interest into principal inserted by a solicitor- mortgagee in a mortgage deed prepared by himself, and insisted upon by him as the condition of any further advance to his client, wiU not be allowed in taking the account between the sohcitor, as mortgagee in possession, and his client in a foreclosure suit. Eyre v. Hughes, 2 Ch.D. 148 (1876). [283] A solicitor advanced money to his cHent on a second mortgage, in which was inserted a power of sale exercisable at any time without the usual proviso requiring that notice should be given or some interest shoidd be three months in arrear, and it was not shown that he explained to the client that the power was not in the usual form. The solicitor afterwards took possession, and for several years received the rents, which altogether, with some payments made by the mortgagor, exceeded the interest on both mortgages. He then sold the property without notice. Held, that the omission from the power of sale of the usual qualifying clause was a breach of duty, and that the mortgagee was liable in damages as for an improper sale, unless it cotdd be shown that some interest was three months in arrear ; and whether the absence of explanation did not make it improper even if there was interest in arrear, qucere. Cockbum v. Edwards, 18 Ch.D. 449 (1881). DEALINGS BETWEEN SOLICITOR AND CLIENT. 75 [284] The plaintiff was a lady who was entitled to a life interest in leasehold property, which she had mortgaged to various persons. The defendant acted as her solicitor, and with her sanction, in order to release her from embarrassment, bought up several of the in- cumbrances with his own money, and took a transfer of them to himself, having j)reviously taken a mortgage of the life interest, to seciure his past costs and the costs which he might incur in paj-ing off the incumbrances. Afterwards the plaintiff discharged the de- fendant and employed another solicitor, who applied to the defen- dant for information respecting the seciurities transferred. The defendant refused to give this information unless the payment of what was due to him was guaranteed, and threatened to proceed to a sale of the property. The plaintiff then brought an action to impeach the secmrities and to restrain the sale of the property, and moved for an injimction till the hearing. Held, that, considering all the circumstances, an injunction ought to be granted on the plain- tiff paying into Court such a sum as the Court considered would cover the amount actually advanced by the defendant, and amend- ing the writ so as to make it a simple action for redemption and injunction. The ordinary nile that the Court will not grant an interlocutory injimction restraining the mortgagee from exercising his power of sale except on the terms of the mortgagor paying into Court the sum sworn by the mortgagee to be due for principal, interest, and costs does not apply to a case where the mortgagee at the time of taking the mortgage was the sohcitor of the mortgagor. In such a case the Court will look to aU the circumstances of the case, and will make such order as will save the mortgagor from oppression without injuring the security of the mortgagee. Macleodv. Jones, 24 Ch.D. 289 (1883). [285] Accoimts between mortgagor and mortgagee, which had been stated for more than thirty years, were reopened on the grounds that the mortgagee was a nominee of the mortgagor's soUcitor, who was himself the actual lender ; that the accoimts were signed with- out examination or explanation, and that they contained improper items. Ward v. SJiar2}, 53 L.J.E. Ch.D. 313 (1884). [286] In. a. mortgage by a cHent to his solicitor the power of sale was without the qualification that the power shoiUd not be exercised_ unless interest were in arrear for three months, or unless theprincipal were not repaid at the expiration of six months after notice given. The omission was not proved to have been explained to the mortgagor. Held, that there had been a breach of duty on the part of the solicitor which vitiated the power of sale, and that it could not properly be exercised, notwithstanding three months' interest was in arrear. Craddock v. Boners, 53 L.J.E. Ch. 968 (1884). [287] A client owed a sum of £450 to his sohcitor, who was pressing for payment, and at the request of the sohcitor he signed an agreement to mortgage to him his interest in a railway. The agreement contained a provision that if the debt were not paid on a date named the mortgagee should be at liberty to sell the pro- perty without notice. The agreement was drawn by the solicitor, and the mortgagor had no independent advice. Default having 76 DEALINGS BETWEEN SOLICITOR AND CLIENT. been made, the solicitor sold without giving snch notice as ia required in the common form of power of sale. Held, that, as it was not an ordinary mortgage transaction, but an arrangement for giving the client time for payment of a debt presently payable, the doctrine of CocJcburn v. Edwards [283] did not apply ; that it was not incumbent on the solicitor to explain to the mortgagor the imusual form of the power of sale, and that the sale could not be impeached on the ground that it was not authorised by the common form of power. Fooley's Trustee v. Wlietman, 33 Ch.D. Ill (1886). [288] In 1868, upon the death of the mortgagor, the mortgaged property was sold by the mortgagee under his power of sale. The balance of the proceeds after payment of the mortgage debt was retained by the solicitor, who in effecting the mortgage had acted as solicitor for both parties, and who conducted the sale on behalf of the mortgagee. There was in the mortgage-deed the usual provision that the surplus proceeds should be paid to the mortgagor, his heirs or assigns. The mortgagor had died mmiarried and intestate, and, being illegitimate, left no next-of-kin. Administration had not been taken out to his estate. The mortgagee died in 1877, and in 1881 his legal personal representative claimed from the solicitor the balance of the proceeds of sale. Held, that the sohcitor having received this balance in a fiduciary character as agent for the mortgagee, and with full knowledge that he was an express trustee of the balance for the mortgagor, and in the circumstances liable to a claim by the Crown, the Statute of Limitations could not be set up as a bar to the claim. In re Bell ; Lake v. Bell^ 34 Ch.D. 462 (1886). [289] A young man in poor circumstances was defendant in a probate action in which he claimed a share of real estate as co-heir of the deceased. To enable him to conduct his defence, he borrowed money from a solicitor, to whom he executed a mortgage, whereby he covenanted to employ a particular person as his solicitor in the action, and, if he should be successful, to pay the mortgagee £225 "by way of bonus"; and it was provided that the mortgagee should make such fiurther advances as and when he should think fit to meet any further necessities of the mortgagor, or to be appUed in or towards the costs of the action. The deed then charged the mortagagor's interest in the real estate in question with present and futm-e advances, and interest at 5 per cent, and the £225 bonus. The mortgagor received a further advance, making a total of £100 for advances, and was ultimately successful in establishing his claim in the probate action. Held, in an action by him to redeem, that the mortgage was tainted with champerty, and accordingly redemption was decreed on payment only of the sums actually advanced with interest. James v. Kerr, 40 Ch.D. 449 (1889). (c) Gifts. [290] In 1812 a client executed a voidable conveyance in favour of his attorney. By a codicil dated in 1820, after reciting the conveyance and the fact that one of his relations had threatened that it should be disputed, he ratified the conveyance, and by way DEALINGS BETWEEN SOLICITOR AND CLIENT. 77 of further assurance devised the property to the grantees absolutely. Held, in a suit to set aside the transaction, that a plea of ratifica- tion by the codicil was a sufficient answer. Stump v. Gaby, 2 De G. M. & G. 623 (1852). [291] A client who was proved to have entertained feelings of peculiar personal regard for his solicitor conveyed to him real estate by a deed — on the face of it a purchase-deed — the considera- tion was £100 ; the real value of the estate upwards of i.1,200. The solicitor produced evidence to show that no money passed ; that the transaction was never intended to be a purchase, but a gift. The client had no independent advice. . Held, in a suit to administer the client's estate, that the rule was absolute that a soHcitor could not sustain a gift from his client made pending the relationship of solicitor and cUent ; and the deed was set aside. Tomson v. Judge, 3 Drew 306 (1855). [292] In August 1842 a client executed a voidable conveyance in favour of her attorney, and by a codicil, executed in the follow- ing November, confirmed the sale and gave the property to the grantee absolutely. Held, in a suit to set aside the transaction, that, in the absence of evidence that the testatrix was aware that the sale was voidable, there was no confirmation of the sale, and declared the attorney to be a trustee for the plaintiffs. Waters v. Tliorn, 22 Beav. 547 (1856). [293] A testatrix made her will on June 22, 1857. The will had been prepared by the defendant, her solicitor, from instruc- tions in the handwriting of the testatrix, and contained legacies to the defendant, his wife, and his children. The defendant was sole executor, and his two clerks were attesting witnesses. Shortly afterwards it was alleged that the testatrix gave the defendant some East India stock, and it was transferred into his name on September 18, 1857. On September 28, 1857, she executed a power of attorney to enable him to receive the dividends on her 3 per cents., which she directed him to apply for her. On October 29, 1857, the testatrix died. The residuary legatees filed a bill im- peaching the whole of the dispositions in favour of the defendant and his family. There was no evidence of imdue intluence. Held, that as to the legacies there was clear evidence of the testatrix's intention to benefit the defendant and his family ; but that as to the stock the facts were consistent with the transfer being made to the defendant as trustee and not beneficially, and that, as he had failed to show by independent evidence that the gift of the stock was an absolute gift, it must be set aside. WalTier V. Sm,ith, 29 Beav. 394 (1861). [294] It is agamst the poHcy of the law not only that a solicitor shall take a present or gratuity from his client over and above the amotmt of his costs, but that he shall enter into any stipulation to become solicitor on the terms of getting a greater benefit than he would get by the costs, which, according to the rules of law, he is entitled to charge. Strange v. Brennan, 15 L.J.R. Ch. 389 (1846) ; Pince v. Beattie, 32 L.J.K. Ch. 734 (1863). 78 DEALINGS BETWEEN SOLICITOE AND CLIENT. [295] The influence which is "unduej" incases oi giits inter vivos is very different from that which is required to set aside a will. In the case of gifts or other transactions inter vivos, it is con- sidered by the Courts of Equity that the natural influence which a relation such as that of solicitor and client involves is an undue influence. The law regarding wills is different. The natural in- fluence of the solicitor over the client may lawfully be exerted to obtaia a wUl or legacy so long as the testator thoroughly under- stands what he is doing, and is a free agent. The influence which will set aside a wUl must amount to force and coercion destroying free agency. Parfitt v. Lawless, 2 P. & D. 462 (1872). [296] A soHcitoV received fr'om his chent by way of gift two releases of debts owing by him, and the cUent also by wUl gave various legacies to him and his family. On the occasion of the client desiring to make a codicil to his will, an independent solicitor was called in, who at a private interview with the client explained the nature of the releases and ascertained that he thoroughly understood them, and that it was his intention to give the releases in addition to the legacies. The amounts comprised in the releases were moderate, having regard to the means of the client. Held, that the releases must be set aside. It is not sufiicient to support a gift from client to solicitor that the chent should thoroughly understand what he is doing. The law requires a severance of the confidential relationship in the first place. It also requires that in consequence of that severance some indepen- dent advice may be obtained by the donor. Morgan v. Minett, 6 Ch.D. 638 (1877). [297] A lady made a gift of £1,000 to her solicitor in considera- tion of the success attending his efforts in an action in which she had been plaintiff. It was stated in the evidence of the solicitor and his clerk that after the relationship of solicitor and client had ceased she had verbally confirmed the gift. There was, however, no entry in the sohcitor's diary to this effect, nor was the alleged confirmation referred to in a letter subsequently written by him on the subject of the gift. The lady died three years after the date of the gift, and about one year after the relationship of solicitor and client had ceased. Her administrator brought an action to recover the £1,000. The Court, holding that the evidence of confirmation was insuflicient, ordered a return of the £1,000 with 4 per cent, interest as from the date of the gift. Where a gift is made by a client to a sohcitor at a time when the relationship of sohcitor and client exists between them, the gift is voidable ; but after the relation has come to an end, and any influence arising from such relation has ceased, the client may, provided he was advised of and knew of his right to impeach and recall the gift, ratify what he has done. The Court, however, will require clear evidence of the ratification, and that the donor knew of his rights and intentionally determined to forego them, and that the donor at the time of the alleged ratification was a free agent, the relation of solicitor and client, and all influence arising from such relation, having deter- mined. Tyars v. Alsop, 37 W.E. 339 (1889). [298] In an action by a client to set aside a deed of gift in favour of her niece who w^as the wife of her solicitor, it was found PARTNERSHIP AUTHORITIES. 79 by the Court that there had been no undue influence on the pai-t of the solicitor ; that the matter had been thoroughly explained to the plaintiff, and that the deed as executed carried out the plaintififs then wishes. Held, by the Court of Appeal, that, inasmuch as the plaintift" had not had any independent advice, the deed must be set aside. The presumption of undue influence in such cases was a presiimption of law, which could not be met or refuted by any facts if the client did not have independent advice. Liles v. Terry, 1895, 2 Q.B. 679. VIII.— PARTNERSHIP AUTHORITIES. [299] Two solicitors having entered into partnership, each of them continued to attend to the business of his former clients, but on the partnership account ; and one of the partners havmg proposed to invest a sum of money belonging to a client in a named mort- gage, the proposal was agreed to by the client, and the money was paid to the joint account of the partnership for the purpose of investment. The negotiations for the mortgage were broken off by the mortgagor, but the partner who attended to the business repre- sented that the investment had been made, and thenceforth continued to pay interest as if it had actually been done. Five years after the receipt of the money from the client, the partnership was dissolved, and ten years after the dissolution the fraud was discovered. In a suit brought by the client to recover from the other partner the amount paid to the firm's accotmt : Held, that he was originally liable to the plaintiff for the money received by the firm ; that his original liability was continued as well after as before the dissolution of partnership by the fraudulent representations of his former partner ; and that time did not begin to run in bar of the claim until the client discovered the fraud. Blair v. Bromley, 5 Hare 542 (1846). [300] A firm of solicitors were acting on behalf of a defendant in an administration suit. The defendant was required to pay money into Court, and, being requested by the partner attending to the business to remit a cheque for the amount to the firm, drew the cheque in favour of the individual partner, and corresponded with him exclusively. The partner in question misappropriated the money. In an application by the client under the summary jurisdiction of the Court to make the firm liable to repay the moneys misappropriated : Held, that the application must be refused, as the cUent had by his own acts and conduct so conducted himself that he did not give the other partners the opportunity of knowing what was going on between himself and the particular partner. In re Laurence, 23 L.J.R. Ch. 791 (1854). [301] One of two solicitors in partnership instituted a suit without sufticient authority from the i)laintiff. The firm's name appeared on the record as solicitors for the plaintiff. The plaintifl! was ordered to pay costs, and applied to be indemnified by the solicitors. Held, that both partners were liable. In re Manhy and Hatoksford, 8 Jur. N.S. 259 (1857). go PARTNERSHIP AUTHORITIES. [302] It is not within the ordinary business of a solicitor to receive money from a client for the purpose of investment generally without any particular security being specified, and one partner is not liable for the misapplication of money received for that purpose by his co-partner without his privity. Bourdillon v. Boche, 27 L.J.R. Ch. 681 (1858). [303] Where one of a firm of solicitors received from a client a sum of money for which a receipt was given in the name of the firm, stating that part of the money was in payment of costs due to the firm, and that the residue was to be applied in making arrange- ments with the client's creditors, and the solicitor misappropriated the money : Held, that the transaction with the client was withm the scope of the partnership business, and that the partners in the firm were jointly and severally Uable to make good the amount. AtUnson v. Mackreth, 2 Eq. 570 (1866). [304] A member of a firm of attorneys has no implied authority to bind his co-partners by a post-dated cheque drawn in the name of the firm. Forster v. Mackreth, 2 Ex. 163 (1867). [805] One of the partners of a firm of solicitors acting for a mortgagor dehvered an abstract which to his knowledge did not mention prior mortgages afifectmg the property to be mortgaged. Held, that the estate of the co-partner was liable to a claim on behalf of the mortgagees in respect of any deficiency there might be in their security. Sawyer v. Goodwin, 36 L.J.R. Ch. 578 (1867). [306] The plaintiff, being entitled to a fimd in Coiurt, executed a joint and several power of attorney to the partners in the firm of solicitors who had acted for him in the matter to enable them to receive the money. The plaintiff sent the power to one of the partners, who received the money and signed the receipt in his own name. He paid the money into his own private banking account, and shortly afterwards absconded with it. The letters on the subject of the power of attorney and the costs of stamping it were charged for in the bill of costs of the firm. Upon a bill seeking to make the other partner liable to repay the money : Held, that the money must be treated as having come mto the hands of the firm in the course of their business as solicitors, and that the defendant was liable for its repayment with interest. St. Auhyn v. Smart, 3 Ch. 646 (1868). [307] Money received by one member of a firm of solicitors in the course of the management and settlement of the affairs of a client of the firm is money paid to the firm in the course of their professional business, and consequently the members of the firm are Uable to make good any loss occasioned by the negUgence or dishonesty of their partner by whom such money was received. Earl of Dundonald v. Masterman, 7 Eq. 504 (1869). [308] A client handed a sum of £1,700 to one of two solicitors in partnership on the representation of him alone that it would be invested on mortgage of real estate of another cUent. He, however, misappropriated it. Held, that the dealing with the £1,700 was not PARTNERSHIP AUTHORITIES. 81 part of the regular business of the soHcitors, and that the receipt of it by one partner alone did not make the other liable. Plumer V. Gregory, 18 Eq. 621 (1874). [309] In an administration action, real estate was sold by auction under an order of the Court, and the auctioneer received the purchaser's deposit. Before the result of the sale had been certified a member of the firm of solicitors who had the conduct of the sale wrote in the name of his firm, and obtained from the auctioneer the amount of the deposit, and absconded without paying it into Court. Held, that it was fairly within the scope of a solicitor's authority to apply to the auctioneer for tlie amount of the deposit for the purpose of paying it into Court, even before the result of the sale had been certified, and therefore his partners were liable to make good the defalcation. Biggs v. Bree, 51 L.J. Ch. 263 (1882). [310] It is not within the ordinary scope of a solicitor's business to undertake the custody of bonds to bearer ; and to make solicitors liable for misappropriation of such bonds by their co-partner it must be shown either that the partners had agreed between them- selves that undertaking the custody of bonds to bearer should be within their partnership business, or that by their acts they had led their clients to suppose it to be part of their business. If they have done neither of these things, the party claiming to make the other partners liable must show that they had given authority to their co-partner to take charge of the bonds, or had ratified what he did with respect to them, or that they had so far closed their eyes to his acts as to make it fair to conclude that they meant to ratify his acts whatever they were. Letters and entries in bills of costs relied on to render the other partners liable must contain statements not consistent with the bonds being in the custody of their co-partner only. Cleather v. Twisden, 28 Ch.D. 340 (1884). [311] Between the years 1867 and 1874 the plaintiff paid various sums of money to her solicitors for the purpose of invest- ment. Representations were from time to time made to the plaintiff on behalf of the firm that her money had been invested, and interest was paid to her by the tinn down to 1877, when one of the partners died, and by the siu:viving members of the firm from that date to 1886. In 1886 it was discovered that, with one exception, no mvestment had been made on the plaintiffs behalf, but that the money paid by her had been embezzled by a clerk of the firm. In 1887 one of the two surviving partners died, and in 1890 the last surviving partner died, having previously been adjudi- cated bankrupt. Shortly after the death of the last surviving partner the plaintiff brought her action against the personal repre- sentatives and the trustee in bankruptcy, claiming a declai-ation, amongst other things, that, so far as the joint estate was insuf- ficient, the plaintiff was entitled to recover from the separate estates of the respective partners the moneys paid by her to the firm and not invested. The representative of the partner who died in 1877 rested his defence on the Statute of Limitations and the Trustee Act 1888, s. 8 (1). Held, following Blair v. Bromley [299], that the plaintiff was entitled to the relief claimed. Moore v. Knight, 1891, 1 Ch. 547. P 82 AGKNCY. [312] Money subject to the trusts of a settlement came into the custody of a firm of "solicitors with notice of the trusts, and was advanced by them in the names and with the approval of the trustees on a mortgage which was afterwards declared by the Coiu't to be one which the solicitors should have known was an improper investment for the trustees. One of the partners attended to the business, and the others had no personal knowledge of the transaction. The firm received payment for the work done in connec- tion with the mortgage. The beneficiaries recovered judgment against the partner who had acted in the transaction, but such judg- ment had not been satisfied, and they commenced proceedings against the other partner and the representatives of a deceased part- ner to recover the loss from them. Held, that the transaction was within the scope of the partner's authority, and that the co-partners were implicated in the breach of trust. Held, also, that the liability of the members of the firm arising out of a breach of trust was joint and several, and that the judgment already recovered against the one partner did not operate as a discharge of his co-partners. Bhjth x.Fladgate (1891), 1 Ch. 337. [313] It is not within the scope of the business of a solicitor to constitute himself a constructive trustee so as to bind his partner and make him also liable as a constructive trustee, although he is not awai'e of the deaUngs by which the constructive trust is established. Dicta of C.A. ; Mara v. Broivne (1896), 1 Ch. 199. IX.— AGENCY. [314] A country solicitor became bankrupt, being indebted to his London agents for business transacted in an action then pending and for other business. The agents claimed a lien on the papers in the action for the general balance of then' accotuit against the country solicitor to the extent of the latter's lien against his client. Held, that they were entitled to the lien claimed. Bray v. Hine, 6 Price 203 (1818). [315] A solicitor agreed to give to a Writer to the Signet in Scotland who was not on the roll of English solicitors a share of the profits arising from business which the latter had introduced to him. Held, that the solicitor had not thereby rendered himself liable to the penalty prescribed by 22 Geo. IL c. 46, s. 11. Thi section is in etfect re-enacted by section 32 of the Solicitors Act 1843, which refers to solicitors acting as agents for unqualified persons or permitting their names to be made use of in actions upon account of, or for the profit of, unqualified persons. Gordon v. Dalzell, 21 L.J.R. Ch. 206 (1852). [316] An agreement between a certificated conveyancer and an attorney, whereby the attorney agi-eed to pay the conveyancer a commission on business introduced by him, is not such a permitting by the attorney of the use of his name for the profit of an un- qualified person as was intended to be provided against bv section 32 of the Solicitors Act 1843. Scott v. Miller, 28 L.J.R. Ch. 584 (1859). Ar.F.KCY. 83 [317] A solicitor on his own behalf as creditor of an intestate had brought a snit for the administration of the latter's estate, and the usual order on further consideration for taxation and payment of costs had been made. He also acted in the suit as solicitor for the heir-at-law. On an application by his London agent, under the Solicitors Act 1860, for a charge for his agency costs on the fund in Court to the extent of the solicitor's interest therein : Held, that the London agent was entitled to the charge so far as regarded his costs incurred in the suit. Tardreio v. Howell; Parry v. Howell, 31 L.J.H. Ch. 57 (18G1) ; Cf. [327]. [318] Joint solicitors not in partnership may appear for a plaintiff by a common agent. Waldon v. TJwmjpson, 6 Eq. 7 (1868). [319] By a decree in a suit the costs of the defendant were ordered to be paid out of a fund in Court to the London agents of the country solicitor employed by the defendant. The comitry solicitor had in his hands a sum of money belongmg to the defendant which exceeded the amount of costs and, subsequently to the decree, he executed a deed under the Bankruptcy Act. Held, upon petition by the defendant, that the amoiuit due for costs to the coimtry solicitor by the defendant mi;st be deemed to be satisfied by the money in his hands, and that the costs so ordered to be paid to the London agent must be paid over to the defendant himself. Peat field v. Barlow, 8 Eq. 61 (1869). [320] A client paid her country solicitor his bill of costs before receiving any notice that the town agent of the solicitor claimed a lien upon the documents in his possession for a balance alleged to be due to him from the country solicitor on accounts stated between them. Held, that the town agent's lien did not attach, and that he must deliver up all the documents in his possession. Vyse v. Foster, 23 W.E. 413 (1875). [321] A London solicitor acting as agent for a country solicitor has a general lien against the coimtry solicitor upon any money recovered in an action for all costs for agency business and dis- bursements due from the comitry solicitor whether in the particular action or in any other proceedings ; but as between the town agent and the client the lien of the former extends only to the costs of the particular action in which he is engaged. Laivrence \. Fletcher, 12 Ch.D. 858 (1879). [322] The relationship between a London agent and the coimtry solicitor employing him is not that of solicitor and client within the meaning of the Solicitors Act 1870. Ward v. Eyre, 15 Ch.D. 130 (1880). [323] The proceedings in an action were conducted for the plaintiff through the town agent of a country solicitor. The town agent, as such, and without any other authority or instructions from the country solicitor or client, received the debt and costs from the sheriff, and claimed to have a hen upon the debt recovered for other costs due to him from the country solicitor. The client applied to the Court to order payment of the amount of the debt. F 2 84 AGENCY. The Master, to whom the matter was referred, reported the general practice to be as follows : " I find the general practice between country solicitors and their town agents to be that, where the writ of execution is issued by the town agent, the town agent receives the proceeds of such execution on behalf of the country solicitor ; that the town agent is not entitled to retain any debt or any part of a debt so recovered ; that he has a lien upon, and is entitled to retain, the costs so recovered for any costs that may be owing to him by the country solicitor on his general agency account ; that the London agent is entitled to the same lien, and no greater than the country solicitor ; and therefore if the country solicitor could not retain the debt recovered as aforesaid against his client, so neither can the London agent retain it." Held, that the London agent must pay the amount of the debt to the client. Ex parte Edwards ; In re Johnson, 7 Q.B.D. 155 (1881). [324] A solicitor's London agents had, during a period of seven years, been accustomed to render him detailed agency bills at the end of each year, together with a cash accoimt in which he was credited with all moneys received from him or on his behalf, and debited with the amoimts of the delivered bills. The balance due from him on each account, except the last, was carried forward to the next account. One of the actions to which the bills related had continued during the seven years, and was not concluded. On an application by the coi;ntry solicitor for taxation of the whole of the delivered bills : Held, that only the bills that had been delivered within twelve months could be taxed, and that the fact that the London agents had charged the counti-y solicitor with fees to coiuisel still remaining unpaid, for the payment of which the country solicitor had not remitted sufficient funds, was not a special circumstance justifying taxation after twelve months. In re Nelson, 30 Ch.D. 1 (1885). [325] London solicitors, acting for country solicitors duly autho- rised, obtained an order, of course, for taxation of costs. The London solicitors endorsed the petition for taxation with their own name without the name of their principals, and it was not shown on the petition that they were acting as agents. Held, that the order was irregular, and it was discharged on the motion of the client. In re Sclioles d So7is, 32 Ch.D. 245 (1886). [326] A solicitor, the London agent of a country solicitor, made default in payment of a sum ordered to be paid by him in an action for an account of his agency. Held, that the defendant was liable to imprisoninent, under section 4, sub-section 3 of the Debtors Act 1869, as a person acting in a fiduciary capacity, but not liable under section 4, sub-section 4 as a solicitor ordered to pay in his capacity of ofacer of the Court. Litchfield v. Jones, 36 Ch.D. 530 (1887). [327] London agents joined with their principals in applying, under the Solicitors Act 1860, for a charging order for their costs. Held, on appeal, that the London agents were not solicitors em- ployed by the client, and therefore were not entitled to a charge for costs. Macfofrlane v. Lister, 37 Ch.D. 88 (1887). [328] A solicitor agreed to act as London agent on the usual agency terms, except that he was not to call for payment of any of SOLICITOR AND CLIENT COSTS* 85 his agency bills until payment had been made by the client. There was difficulty in obtaining? payment from the client, but after litiga- tion lasting eleven years the bill of costs was paid with a consider- able sum for interest. The London agent claimed to participate in the interest. Held, by tlio Court of Appeal, that the usual agency terms being that the agent should be repaid liis disbursements and receive, not half the profits, biit half tlie profit charges, whether they were paid by tlie client or not, he was entitled to nothing more, and could not claim to participate in the interest ; for that, although his suspending his ri^dit to payment would have made a stipulation for interest reasonable, tlie Court could not import such a stipulation. Ward v. Lawson, 43 Ch.D. 353 (188'J). [329] A country solicitor is a "client" of his London agent within the meaning of a covenant by an articled clerk not to transact business with cHents of his master's firm. Ward v. E^jre [322, observed upon. Beid v. Burrows, 1892, 2 Ch. 413. [330] A London firm acted as agents for a country firm in winding-up proceedings. Two partners were common to the two firms. Held, that charges for close copies and agency term fees could not be allowed on taxation. In re Borough Commercial and Building Society, 1894, 1 Ch. 289. X.— SOLICITOR AND CLIENT COSTS. [331] The disbursements which a solicitor is entitled to include in his bill of costs as opposed to his cash account are those payments only which are made in pursuance of the professional duty undertaken by the solicitor, or which are sanctioned as professional payments, such as Court fees, counsels' fees, payments to witnesses, stamp duties on conveyances and mortgages, and the charges of agents, stationers, or printers emploj'ed by the solicitor ; but such disbursements should not include payments such as for purchase-money, money paid into Court, damages or costs to opponent parties, bills of solicitors to trustees, mortgagees, or other parties, or legacy or residuary duties. In re Bemnant, 18 L.J.R. Ch. 374 (1849). [332] Solicitors not in partnership were jointly retained to defend proceedings. The evidence as to the arrangement between them for the division of costs was conflicting. One of them with- out communicating with the other delivered a bill of costs for such part of the business as he had himself transacted, The other, on hearing of this, protested against the delivery of a separate bill, and afterwards delivered a bill of the costs not contained in the bill first delivered. Held, that a different agreement not having been proved, the sums received from the clients ought, after payment of out-of-pocket expenses and agents' charges, to be divided equally between the solicitors. Bobinson v. Anderson, 7 De G. M. & G. 239 (1855). [338] In the absence of express evidence that an attorney intended to incur personal liability for the charges of a professional 86 SOLICITOR AND CLIENT COSTS. witness, the client and not the attorney is liable to pay them. The fact that the attorney has had communications with the ^yitness in the course of the business, and has asked him to send in his charges at its conclusion, does not amount to such evidence. Lee v. Everest, -17 L.J.K. Ex. 335 (1857). [334] Bills of costs of solicitors acting for mortgagor and mortgagee were produced on the completion of the mortgage out of the proceeds of wliich they were paid, and the amount of them was included in the cash accoimt then also produced to and signed by the mortgagor. The bills and cash account were left with the sohcitors in order that they might be placed with the mortgagee's papers. The mortgagor subsequently^ applied to the solicitors for the bills, but they did not comply with his request. They, however, sent them to him by a clerk who explained them to him, but did not leave them. A petition for delivery and taxation of the bills was presented, but fraud or overcharge was not alleged. Held, that there had been no sufficient delivery of the bills. Held, also, that the fact that the petitioner had not the bills, or had an opportunity for examining them, rendered it unnecessary for him to show items of overcharge. In re LouglihorougJi, 28 Beav. 439 (1857). [335] "Where a solicitor by arrangement with his client retired from the conduct of a suit and another solicitor conducted it to its conclusion, and there was a deficiency of the fund applicable to the payment of costs : Held, that the latter solicitor had priority in payment. Cormach v. Beislij, 3 De G. & Jones 157 (1858). [336] A solicitor delivered a general estimate of the costs due to him lip to a date without specifying the particulars. The client signed a memorandum agreeing to the amomit, and it was paid on his behalf. Three years afterwards the client applied for delivery and taxation of the bills of costs relating to the matters referred to in the statement. He alleged, biit was unable to prove either, fraud or ilagrant overcharges. Held, that the application must be dismissed with costs. Turner v. Hand, 27 Beav. 561 (1859). [337] It is sufiSeient delivery of an attorney's bill if it be delivered to one of several ioint contractors. Mant v. Smith, 28 L.J.E. Ex. 234 (1859). [338] In an action to set aside a settlement, the plaintiffs obtained an order appointmg the solicitor to the suitor's fee fund guardian ad litem of an infant defendant. The solicitor to the suitor's fee fund appeared for two other defendants sued in forma pawperis. The plaintiffs were ordered to pay the infant's costs. It was contended on their behalf that, on the authority of re ColquJioun [10], in ascertainuig the infant's costs, an apportionment of the general costs of suit should be made between the three defendants. Held, distinguishing re Colquhoun, that the costs were not apportionable. The case of re Colquhoun was decided on the question of retainer, but in the present case no such question arose. The solicitor was not retained for the infant, but at the plaintiffs' request was ordered to appear for him. Frazer v. Thompson, 1 Gitl". 339 1860^. SOLICITOR AND CLIENT COSTS. 87 [339] A contract between an attorney and an intended plaintift', whereby the attorney was to act in the contemplated htigation and to advance money for carrying on the same, the plaintiff being unable to do so, and that in consideration thereof the plaintiff should, if successful, pay the attorney a sum of money over and above his legal costs and charges, was held void on the ground of maintenance. Earle v. Hopwood, 80 L.J.R. C.P. 217 (18G1). [340] On an application to tax a bill of costs, the solicitor will not be allowed to add to it a sum which by mistake has been omitted from a bill previously paid. In re Gregg, 31 L.J.R. Ch. 632 (1861). [341] The fact that an attorney has not delivered a signed bill of costs one month before action does not affect his right of set-off in an action brought against him by his client. Brown v. Tibbits, 31 L.J.E. C.P. 206 (1862). [342] Charges for counsel's fees and stamps, in respect of which moneys had been specifically paid by the client as they were required, are properly included in the solicitor's bill of costs, and will be taken into account in calculating whether or no a sixth has been taxed off. In re Metcalfe, 30 Beav. 406 (1862). [343] A solicitor who has included in his bill of costs a gross or lump sum may, on taxation, supply a detailed statement showing how the sum is made up ; and the Taxing Master may allow such of the items contained in the detailed statement as are proper, not exceeding in the aggregate the gross sum originally charged. In re Tilleard, 32 L.J.E. Ch. 765 (1863). [344] A solicitor will not be permitted during taxation to withdraw items from his bill of costs. In re Blahesley d BeswicJc, 32 Beav. 379 (1863). [345] A mortgagor may tax the bill of the mortgagee's solicitor in the same manner as the mortgagee himself might do. But if the mortgagee has bound himself, as regards his solicitor, in such a manner as to prevent his taxing the bill, neither can the mortgagor tax it as against the solicitor. The case is the same as between execiitors and the residuary legatee. In re Baler, 32 Beav. 526 (1863). [346] An order of course to tax a solicitor's bill incurred by three persons jointly, obtained on the application of two of them, is irregular, and will be discharged. In re Ilderton, 33 Beav. 201 (1863). [347] An agreement to be carried into effect in this country, which would bo void on the ground of champerty if made here, is void notwithstanding it is made in a country where it would be legal. Grell v. Levy, IG C.B.B. N.S. 73 (1864). [348] The Court will, on the application of the client, and before the completion of taxation, order the solicitor to deliver up the client's papers upon payment into Coixrt of the accoimt claimed, or 88: SOLICITOR AND CLIENT COSTS. in case it appears from the solicitor's own account that a balance sufficient to secure the costs of taxation is due to the client. In re Bevan & Whitting, 33 Beav. 439 (1864). [349] A bill cannot be taxed on the application of a third party more than twelve months after payment, unless there are eircimistances that would entitle a client to taxation. In re Fress d- Inship, 35 Beav. 34 (1865). [350] In taxing a bill under the third party clause, a beneficiary stands in the place of his trustee, but with the qualification that charges not necessary in the administration of the trust estate, though for work expressly directed by the trustee, will be disallowed. In re Broivn 4 Eq. 464 (1867). [351] The "special circiuxistances " required by the Solicitors Act 1843 to entitle a client to have his solicitor's bill referred to taxation, after the expiration of twelve months from its dehverj^ may be matters of objection appearing on the face of the bill such as an unusual charge of a large amount requiring explanation to justify it. In re Bobinson, 3 Ex. 4 (1867). [352] In the winding up of a company the petitioner's costs are the first charge upon the estate in priority to the costs of the official liquidator. As between solicitors successively emploj^ed by the official liquidator, the assets, if not sufficient to pay their costs in full, are to be applied in paj'ment of them ^ro rata. In re Audley Hall Cotton Sjnnnijij Comjmmj, 6 Eq. 245 (1868). [353] A client deposited with his solicitors title-deeds as security for a bill of costs due to them by him, and afterwards became bankrupt. The solicitors did not prove for the amount of the biU. The assignee, however, obtained a copy of it from them, and applied for an order for taxation, without prejudice to the security, on an undertaking to pay to them a dividend on the amount due to them rateably with the other creditors. Held, that he could not have an order for taxation without gi\ang an undertaking to pay the whole amoimt of the bill. In re Elmslie d Co., 9 Eq. 72 (1869). [354] The solicitors employed by an official liquidator are entitled to be paid their costs of the liquidation out of the assets of the company in priority to payments to the liquidator for his remu- neration. In re Freehold Land and Brickmaking Company, 9 Eq. 367 (1870) [355] A solicitor sold property and retained the amount of his biU of costs out of the proceeds, paying the balance to the clients who, before the bill of costs had been delivered, signed an account in which the total amount of the costs was an item, and gave a receipt for the balance. Held, that there had been no payment of the biU within the meanmg of the Solicitors Act 1843. In re Street, 10 Eq. 165 (1870). [366] Three months after a solicitor to a company had delivered his bill of costs, the company was ordered to be wound up. Sub- sequently he delivered a further bill to the official hquidator. More SOLICITOR AND CLIENT COSTS. 89 than twelve months elapsed and the solicitor carried in a claim for paj-ment of both bills. No special circumstances were alleged. Held, that the official liquidator was entitled to an order for taxation of both biUs. In re Marseilles Extension Bcuilway and Land Com- imny, 11 Eq. 151 (1870). [357] A solicitor having delivered a bill of costs to the persons chargeable, correspondence took place as to various items. The solicitor admitted some of the objections and disputed others, and finally delivered an amended bill. The clients obtained an order for taxation of the original bill. Held, that such order was right. In re Heather, 5 Ch. 694 (1870). [358] A liquidator appointed under a resolution to wind up a company voluntarily is not personally responsible for costs to the solicitor employed by him in the affairs of the liquidation in the event of the assets being insufficient. In re Trueman' s Estate, 14 Eq. 278 (1872). [359] The 17th section of the Solicitors Act 1870, which enables the Taxmg Master, upon a taxation of costs, to allow interest on moneys disbursed by a solicitor for his client, is intended to apply only as between soUcitor and his own client, and does not applj' to a taxation of costs as between solicitor and client, to be paid out of a fond in Court belonging wholly or partly to persons other than the client. Hartland v. Murrell, 16 Eq. 285 (1873). [3G0] Sohcitors delivered bill of costs in November 1871 ; their retainer was withdrawn in October 1872, and a summons for taxa- tion was issued in February 1873. The continuance of the relation of solicitor and client down to October 1872 was alleged to be a "special circumstance" within the Solicitors Act 1843 sufficient to justify a reference for taxation after the expiration of twelve months from the deUvery of the bill of costs. Held, that an order for taxation must be refused. In re Elmslie d Co. ; Ex parte Tower Subway Co., 16 Eq. 326 (1873). [301] A solicitor having delivered successive bills of costs relating to the same suit and on the same retainer, and having received from his client payments on account, though not in dis- charge of any one bill, sent a signed letter to the client, making additions to some of his former charges. Held, that, under the circumstances of the case, the letter, being a correction of the earlier bills, must be treated as bringing them down as one entire bill to that date, and that taxation of the whole must be directed, though most of the bills had been delivered more than twelve months before the application, and no special circumstances had been proved. In re Cartwright, 16 Eq. 469 (1873). [362] By an agreement between clients and solicitors the solicitors were, in the event of their succeeding in recovering property for the clients, to receive 10 per cent, of the value of the property. The agreement was submitted to the Taxing Master before the solicitors had taken any steps in the matter, and he certified that it was in contravention of section 11 of the Solicitors Act 1870, but requh-ed the opinion of the Court to be taken thereon 90 SOLICITOR AND CLIENT COSTS. under section 4 of the same Act. Held, that the opinion of the Court on the vaHdity or fairness of the agreement could not be required until somethmg was payable under the agreement, but, for the guidance of the parties, Jessel, M.E., expressed his opinion that the agreement in question was invalid on the ground of champerty. In re Attornerjs & Solicitors Act 1870, 1 Ch.D. 673 (1875). [363] A document containing the terms of an agreement as to the amount of costs in criminal proceedings, which has been assented to by the client, but has been signed by the solicitor only, is not an " agreement in writing " within the Solicitors Act 1870, and the solicitor may be required to deliver a detailed bill of costs to be taxed in the ordinary way. In re E. D. Lewis, 1 Q.B.D. 724 (1876). [364] The defendant in an action agreed through his solicitor to pay the plaintiff's solicitor a fixed sum for his costs and for his trouble in promoting a composition between the defendant and his creditors. Eleven months after payment of the amount, the defen- dant took out a summons for the delivery by the plaintiffs solicitor of a bill of costs. The plaintiff alleged that the amovmt paid was more than treble what could have been charged in an ordinary bill of costs, but failed to prove fraud or vmdue pressure. Held, that, even assuming that the plaintiff "was a person entitled to make the application, there were no "special circumstances" within the meaning of the Sohcitors Act 1843 to warrant the application. In re Heritage, 3 Q.B.D. 726 (1878). [365] The Court having found that a settled amount between solicitor and cUent had been procured by the undue influence of the solicitor, ordered the account to be opened, and the bills of costs included therein to be taxed nearly two years after payment of them. Watson v. Bodwell, 11 Ch.D. 150 (1878). [366] A solicitor tendered a proof for costs in the bankruptcy of a client, which was admitted by the trustee for a reduced amount only. The solicitor appealed, and the Registrar, after consulting the Taxing Master, affirmed the trustee's decision. Held, that the Registrar had jurisdiction to determine the amount due, and that the solicitor had no statutory right to have the ainount of his charges ascertained by taxation only. Ex parte Ditton ; In re Woods, 13 Ch.D. 318 (1880). [367] The debt of a creditor petitioning to wind x\p a company having been paid, the company's solicitors arranged that the petition should be withdrawn on payment of the petitioner's costs as between party and party, and they gave their personal imder- taking to pay such costs, the amount to be ascertained by taxation in case of difference. The amoimt of the costs not being agreed upon, the company obtained ex imrte an order to tax mider the third party clause of the Solicitors Act 1843, and served it on the solicitors of the petitioning creditor. Held, on motion to discharge the order, that the undertaking was a personal undertaking to pay the costs as between party and party ; that the clause had reference only to the taxation of costs as between solicitor and client ; that the order therefore was irregular, and must be discharged with SOLICITOR AND CLIENT COSTS. 91 costs to be paid by the company. In re Grundy, Kershaw S Co., 17 Ch.D. 108 (1881). [368] In an action for administration by beneficiaries against their trustees, the sohcitors of the trustees were made defendants, and the rehef asked for a^'ainst them was that their bills of costs paid by the trustees might be taxed. The solicitors demurred. Held, that there was no jurisdiction, except under the Solicitors Act 1843, to order a taxation on the application of third parties. In re Spencer, 51 L.J.R. Ch. 271 (1881). [369] The right of the solicitor to a trustee in banlvruptcy to be paid his costs oiit of the bankrupt's estate is only the right of his cUent the trustee; he has no independent right. If either the trustee or the soUcitor has been guilty of misconduct, the Court can refuse to allow the solicitor's costs to be paid out of the estate, and this notwithstanding that the costs have been taxed and an allo- catur has been made bv the Taxing Master. Ex parte Harper ; In re Pooley, 20 Ch.D. 685 (1882). [370] Where twelve months have elapsed since payment of a solicitor's bill of costs by his client, such bill, although not signed by the solicitor, cannot, under section 41 of the Solicitors Act 1843, be referred to taxation. In re Sutton d Elliott, 11 Q.B.D. 377 (1883). [371] A married woman, by her next friend, applied to tax the bill of costs of her solicitors incurred in a suit relatmg to her separate estate. After the Taxmg Master's certificate had been filed, an order was made, on the application of the sohciiors, directing an inquiry of what the separate estate consisted at the date of The filing of the certificate, capable of being reached by the judgment and execution of the Court, and appointing a person to receive it until the amount found due on taxation was paid. Held, that this order was proper, and one that might be made in proceedings then pending. In re Peace d Waller, 24 Ch.D. 405 (1883). [372] A sohcitor agreed in consideration of a fixed procuration fee to obtain a loan for a person not his client. The loan was obtained from persons for whom the solicitor did not act. _ The borrower obtained the common ex parte order for the delivery and taxation of the solicitor's bill of costs. The sohcitor denied that the remimcration was for professional work. Held, that imder the circmnstances the order was irregular. In re Inderwick, 25 Ch.D. 279 (1883). [373] A country solicitor making journeys to London in order to attend counsel, and otherwise to conduct the proceedings in an action, should obtain a special authority from his chent to do so, inasmuch as his charges therefor will not be allowed, simply on the ground of his bemg better acquainted with the subject-matter than his London agent. In re Storer, 26 Ch.D. 189 (1884). [374] A solicitor at the time of delivery of his bill ofi"ered to accept a named sum, less than the full amount, in settlement. On 92 SOLICITOR AND CLIENT COSTS, taxation, more than one-sixth of the fall amount of the bill, but less than one-sixth of the sum the solicitor had offered to accept, was taxed off. Held, that the bill as delivered was that for the full amount, and that tlie solicitor must pay the costs of taxation. In re Cartheiv, 27 Ch.D. 585 (1884). [375] Pending the hearing of a bankruptcy petition, and with notice of the act of bankruptcy on which it was founded, the solicitor of the petitioning creditor, as his agent, received from the debtor various sums of money as consideration for successive adjom'nments of the hearing of the petition, and these sums he paid over, or accounted for, to his client the petitioning creditor. Afterwards an adjudication was made on the petition. Held, that the solicitor, having received the money with notice of the act of bankruptcy, to which the title of the trustee related back, the payment by him was a wrongful act, and he was liable to repay the money to the trustee, and was not discharged by the payment to his own principal. Ex parte Edwards ; In re Chapman, 13 Q.B.D. 747 (1884). [376] The Court has a general jurisdiction to prevent pro- ceedings before it being made the vehicle of scandal, and wiU order solicitors who have delivered a bill of costs containing scandalous matter to withdraw it and to deUver an amended biU not containing the entries complained of. In re Miller, 54 L.J.R. Ch. 205 (1884). [377] Since the Solicitors Act 1870, an oral agreement by a client to pay his solicitor a hmap sum in discharge of past costs is not binding on the client. In re Bussell, Son dt Scott, 30 Ch.D. 114 (1885). [378] A solicitor may, when sending in his bill of costs to his client, reserve to himself the riglit to withdraw or alter it on condition, provided the condition is a lawful one, and that the solicitor has stated to his client that which will prevent the condition being made use of for fraud. A firm of solicitors, on being pressed by their clients to send in their bill of costs, delivered a biU accompanied by a letter, saymg that there were charges which, owing to haste, had not been included in the biU, but that they were willing to accept a stated sum in full discharge, though, if such sum were not paid within eight days, they reserved to themselves the right to withdraw the bill and deliver another. There was evidence that the solicitors were aware that the bill contained serious overcharges. Held, that the condition was one which the solicitors could not impose on the client, and that they were not entitled to withdraw the bUl. In re Thompson, 30 Ch.D. 441 (1885). [379] On the presentation of a "bankruptcy petition against a debtor, an order for the appointment of an interim receiver having been made, the debtor instructed his soUcitor to oppose the petition, and to move to rescind the interim order, and then paid to such sohcitor, at his request, £25 on accoimt of costs, counsel's fees, and other expenses. The application to rescind the interim order was SOLICITOR AXD CLIENT COSTS. 93 dismissed, and the debtor was subsequently adjudicated bankrupt. The trustee in the bankruptcy thereupon claimed £25 from the soHcitor as money received by him from the debtor with knowledge of the act of bankruptcy on which the receiving order was made. Held, that the ai)plication of the trustee must be refused, notwith- standing that the solicitor received the money with knowledge of the acts of bankruptcy on which the proceedings were foi;nded, for a debtor would be practically defenceless if money paid to a solicitor for services rendered on such an occasion could afterwards be recovered by the trustee. In re Sinclair; Ex parte Payne, 15 Q.B.D. 616 (1885). [380] An action having been dismissed with costs, a sum of money which had been paid into Court as security for the defendant's costs was ordered to be paid out to the solicitors for the defendant in part-payment of the defendant's costs. The judgment was reversed by the Court of Appeal, with costs against the defendant. The plaintiffs asked for an order against the defendant's solicitors for repayment of the amount they had received out of Court. Held, that the Court had no jurisdiction on the appeal to order the defendant's solicitors to refmid the money, as the solicitors were not before it, nor did it appear to the Court that such an order would have been made if the solicitors had been served with notice of the application. Lydncij d Wiyj^ool Iron Ore Co. v. Bird, 33 Ch.D. 85 (1886). [381] Bills of costs delivered by a solicitor contained the following charges : — i.735 for the cost of a reference lasting six days ; £83 for witnesses' expenses, none of which had been paid by the solicitor, and £71 for shorthand notes of the proceedings at the reference. No professional shorthand writer had been employed, but the clerk to the solicitor had taken the notes, and it did not appear that the solicitor had given his clerk any part of the £71 charged. It was admitted that £71 was the amount that would have been charged by a professional shorthand writer. More than twelve months had elapsed since the bills were delivered. Held, that these charges constituted " special circumstances " within the meaning of the Solicitors Act 1843, which justified an order for taxation of the bill. In re Norman, 16 Q.B.D. 673 (1885). [382] Clients obtained a common order to tax a bill, and on taxation objected to a considerable part of it as being for work done without any retainer. The Taxing Master allowed the objection, and taxed off the items objected to. Held, on a summons to review, that, while it was not open to the clients to dispute the retainer as to the whole bill, they might do so as to any particular items, or as to any head of charges. In re Herbert, 34 Ch.D. 504 (1887). [383] "Where a client obtains a common ex parte order for the taxation of a solicitor's bill of costs, he cannot dispute his retainer as to the whole of the bill, though he may do so in respect of particular items in the bill, the practice being to require the client, on his application for the order, to make an admission of the retainer ; but where a solicitor obtains the common ex parte order, the client is not bound by the allegation of retainer contained in 94 SOLICITOR AND CLIENT COSTS. the petition, and, consequently, may object to every item in the bill on the ground of there having been no retainer. Consequently it is no objection to the common order, when obtained by a solicitor, that he knew that the clients disputed his retainer as to the whole bill. In re Jones, 36 Ch.D. 105 (1887). [384] From 1874 to 1879 a solicitor had acted for a married woman, and during that period had woimd up her former husband's estate, collected her rents, lent her money, and negotiated mort- gages for her. No bills of costs were delivered by the solicitor ; but in his accounts of receipts and payments he included sums for his costs. The client signed the accounts in August 1879 without having any independent advice, but it was alleged that the accoimts were explained to her. In 1887 she applied under the Solicitors Act 1843 for delivery and taxation of the solicitor's bills of costs. Held, following In re Street [355], that there could be no payment within the meaning of section 41 of the Act before the bills had been delivered, and the client had had an op- portunity of seeing the items, and that she was entitled to the usual order. In re Stogdon, 56 L.J.K. Ch. 420 (1887). [385] A biU of costs having been taxed on the client's applica- tion, a four-day order was made directing the client to pay the amount for which the allocatur had been given. He declined to pay, alleging that he had a claim for negligence against the solicitor. Held, on appeal, that the order was right, and that if the client had any claim for negligence against the solicitor he must bring an action in respect thereof. Ex parte Ford, 33 Sol. J. 155 (1888). [386] An administration action which had been commenced in 1875 was heard upon second further consideration in 1887 before Kay, J. The judge found that the costs would probably amount to nearly the whole value of the estate, and, believing that there had been imreasonable delay in the conduct of the proceedings, directed the Taxing ]Master to inquire and report under Order LXV., rule 11, as to the delay and the costs occasioned thereby. The Taxing Master reported that there had been great delay in the suit caused by the conduct of the solicitor for the plaintiff, and allowed for costs considerably less than the amount claimed. Held, that the Taxing Master's certificate was not conclusive of the amount to be allowed against the estate, and that the judge might allow a portion only of such costs against the estate notwithstanding such certificate. Brown v. Burdett, 40 Ch.D. 244 (1888). [387] In order that a solicitor of a trustee may be debarred from accepting payments out of the trust estate in respect of costs properly incurred, it must be proved that he is either party to a fraud or to a breach of trust on the part of the trustee such as would preclude him altogether from resorting to the trust estate for payment of costs. So when a trustee allowed his solicitors to retain costs out of the trast estate at a time that the solicitors had notice that the trustee had committed a breach of trust in secretly buying for himself part of the trust estate, and the trustee afterwards made default in payment into Court of a balance found to have come to his hands : Held, that the solicitors could SOLICITOR AND CLIENT COSTS. 95 not be compelled to pay in the sums i-eceived by them out of the estate. In vc Bhmdell ; Bbindcll \. BlundeU, 40 Ch.D. 370 (1888). [388] A solicitor issued a specially indorsed writ against a client for the amount of imtaxed bills of costs, and an appearance having been entered applied for judgment imder Order XIV. The only dispute was as to the amount of the bills. Held, by the Court of Appeal, that the plaintiff was entitled to an order in the following form, viz.: " It is ordered that the bills of costs on which this action is brought be referred to the Taxing Master pursuant to the Solicitors Act 1843, and that the plaintiff give credit at the time of taxation for all sums of money received by him from, or on account of, the defendant. And let the plaintiff be at liberty to sign judgment for the amount of the Master's allocatur in the said taxation, and costs to be taxed." The rights of the parties under the SoUcitors Act 1843 are not affected. Smith v. Edwards, 22 Q.B.D. 10 (1888). [389] Where a trustee in banki'uptcy has, with the authority of the committee of inspection, employed a solicitor to assist him in distributing the assets, giving notices, and winding up the estate, the soUcitor must not charge solicitor's charges for purely ad- ministrative work, but only fair and reasonable charges, having regard to the work done. In re Prijor, 59 L.T.E. 256 (1888). [390] An administratrix with the will annexed, who was also tenant-for-life under the will, paid out of the general estate the charges of her solicitor in relation to the administration, including, as was alleged, charges, payable by the tenant-for-life personally. It was suggested that the solicitor knew he was being paid in breach of trust. Certain of the beneficiaries applied by originating summons instituted in the matter of the solicitor, and in the matter of the estate, but not in the matter of the Solicitors Act, for taxation of the bill of costs. The administratrix was the sole defendant, but the summons was also served on the solicitor. HcJd, that there was no jurisdiction except imder the Solicitors Act 1843 to order a taxation on the application of third parties. In re JacTcson, 40 Ch.D. 495 (1889). [391] Solicitors brought an action for the amount of their bill of costs delivered shortly before the commencement of the action. The defendant by his pleadings denied the retainer, alleged negligence, and counterclaimed for damages on the groimd of negligence. He did not appear at the trial, and the plaintiffs proved their case. Kay, J., declined to make any other order than an order referring the bill for taxation, reserving the costs of the action and adjourning the further hearmg. Held, on appeal, that the plaintiffs were entitled to have the coimterclaim dismissed with costs, and to have judgment with costs for the smu which should be foimd due on taxation. Lumley v. Broohs, 41 Ch.D. 323 (1889). [392] Solicitors claimed to prove, in an action for administration of their client's estate, for a smn of £221, the balance which they alleged to be due to them by him in respect of bills of costs which had been delivered to him more than a year before his death. Ha 96 SOLICITOR AND CLIENT COSTS. had never raised any objection to the bills, and had before his death paid the solicitors £200 on account of them. The executors objected to some of the items in the bills, but alleged no special circumstances justifying taxation after twelve months. The judge ordered that the Taxing Master should inquire and state vv'hether any of the disputed items in the bills were fair and proper charges, and whether they should be allowed. Held, that such order was right, notwithstanding that an order for taxation could not have been made under the Solicitors Act. In re Parle; Cole v. Parli, 41 Ch.D. 326 (1889). [393] A plaintiff issued an originating summons against his late solicitor for the delivery and taxation of his biU of costs and the delivery up of deeds and other documents. The summons did not contain any submission by the plaintiff to pay what might be found due on the taxation. On this summons an order was made for delivery and taxation, and for payment of the sum certified to be due from the plaintiff to the defendant, or the defendant to the plaintiff. It was directed that the plaintiff was to have such costs only as he would have been entitled to had he proceeded by petition of com-se. On the taxation, the Taxing Master struck out certain items (without considering their propriety) on the ground that having regard to their dates they were barred by the Statute of Limitations. Held, that it was the duty of the Taxing Master to tax all the items of the bill without regard to the Statute of Limitations. Curwen v. Milhurn, 42 Ch.D. 424 (1889). [394] A purchaser of copyholds at a sale by auction wrote to the solicitor who he believed had the sole conduct of the sale, requesting that the copyholds might be enfranchised before conveyance, and undertook to pay his charges and expenses for so doing. The solicitor in question was in fact one of two solicitors jointly acting, and he wrote to the other solicitor instructing him to do what was necessary. The second solicitor completed the enfranchisement, made out his bill to his own clients, and sent it to the first solicitor, who handed it to the purchaser. The purchaser obtained an ordinary third party order for taxation on a petition of course containing the usual allegation as to delivery of the bill. The bill having been taxed in the absence of the solicitor, he moved to discharge the order. Held, that the allegation as to delivery was a material allegation, and that, as it had not been made out in point of fact, the order should be discharged. Service on the solicitor of an order of course for taxation obtained by the client is unnecessary. In re Eohertson, 42 Ch.D. 553 (1889). [395] A payment for probate duty made by a solicitor on behalf of his client is a "disbursement" within the meaning of section 37 of the Solicitors Act 1843, and is properly included in his bill of costs, and in this respect differs from legacy duty. In re Lamb, 23 Q.B.D. 5 (1889). [396] A solicitor was appointed trustee in a bankruptcy at a remuneration to be fixed by the committee of inspection. The committee resolved that his remuneration should be his proper professional charges as a solicitor for attendances and work done and SOLICITOR AND CLIEXT COSTS. 97 expenses incurred by him in or abont the proceedings in the bank- ruptcy. Held, that tlie resohition was inoperative inasmuch as section 72 of the Banki'uptcy Act 1888 provided that the remuneration should be in the nature of a commission or percentage ; and although section 73 provided that where the trustee was a solicitor he might contract that the remuneration for his services as tiaistee should include all professional services, still such remuneration must be in the nature of a connnissionor percentage by virtue of section 72. The result was that no remuneration had been voted to the trustee, and he must therefore send in his bill for taxation imder section 72 (4), which provided that where no remuneration had been voted to a trustee he should be allowed such proper costs and expenses incurred by him in or about the ])roceedings of tlie bankruptcy as the taxing officer might allow. In re Wayman, 51) L..J.K. Q.B. 28 (1889). [397] Under the Solicitors Act 1843, the Court has no power to direct that one item or one brancli of a bill of costs delivered shall be taken and remitted to the Taxing IMaster for taxation, but by virtue of its jurisdiction over its own officers the Court may direct that part of a bill shall be taxed where the circi;mstances make it right that such jurisdiction should be exercised, and upon such terms as will prevent any injustice being done. Storcr v. Johnson d- Weathemll, 15 App. Cas. 203 (1890). [398] Solicitors to trustees delivered to their clients bills of costs for work done for them as trustees, and they were paid with- out taxation. The solicitors did not inform their clients that if administration proceedings were subsequently brought and the bills were moderated in those proceedings the trustees would have to pay out of their own pockets the amounts by which the bills were reduced on moderation. It was admitted that the amounts charged were honest and not excessive. Between six and seven years after delivery of the bills the trustees applied for taxation. Held, that the fact of the solicitors not having given the information in question was not a special circumstance justifying taxation after payment, unless it were shown that the bills were excessive and would be reduced on moderation. In re Layton, Steele d Company, 38 W.E. 652 (1890). [399] Solicitors were instructed to bring an action in the County Court on a promissory note for £15, of which their client was the indorsee. He alleged that ho was entitled to the full amount, and the action was accordingly commenced and the necessary fees paid on the scale of the amount claimed. When the case came on for hearmg, the plaintiff admitted, on cross- examination, that he had only given £5 for the note, and he recovered jud,gment for that amomit alone. The costs as between party and party were taxed on the lower scale at £2. 13s. iSd., and were paid by the defendant. The plaintiffs solicitors sent in to him their bill of costs, which were calculated on the higher scale, and amounted to £9. 14s. ^d., of which £5. 2s. 6(7. were costs out of pocket. The plaintiff' took out a sunmions to tax the bill, whicli came before a Taxing Master of the Queen's Bench Division. The Master considered himself bound by the County Court Kules to tax the bill according to the lower scale, and accordingly reduced it to o 98 SOLICITOR AND CLIENT COSTS. £2. 13s. 6^. The case was taken eventually to the Court of Appeal, and it was Held, that, in cases in which the claim and the amount recovered were both under £10, the solicitor was entitled to costs on the lower scale only, unless the judge had certified for costs on the higher scale, or the chent had agreed in writing to pay other costs ; but that in cases in which the amount claimed was over £10, and the amount recovered was under that sum, the Master had a discretion to give more costs than were allowed by the lower scale, but he could not give more than were given by the higher scale, and he must exercise his discretion on the circumstances of each case. In re Langlois, 1891, 1 Q.B. 349. [400] A client paid his solicitor's bill of costs expressedly subject to his right to tax, and the solicitor gave a receipt without reference to such condition. Held, that the condition constituted " special circumstances," and that the client was entitled to an order for taxation, notwithstanding the payment. In re Williains, 65 L.T.R. 68 (1891). [401] There is no rigid rule defining the special circumstances which justify an order to tax a solicitor's bill of costs after payment. In each case the question is one for the discretion of the Court or a judge ; and where there are special circumstances the Coiu't of Appeal wUl not readily overrule the decision of the Court below as to their suflficiency. In re Cheesman, 1891, 2 Ch. 289. [402] A firm of solicitors retained, out of money in their hands belonging to their cUent, the amount of their costs for professional work. They kept a running account with their client, crediting him with money received, and debiting him from time to time with the amount of the costs. The accounts were fi-om time to time balanced and signed by the client as having been " settled and approved " by him, but no bills of costs were then delivered. Four years after the last settlement of accounts the client brought an action for an account and for delivery of proper bills of costs. At the trial the chent abandoned his claim for an account, but contended that he was entitled to have his bills taxed as of right. There was no evidence of firaud, pressm-e, or gross overcharge. Held, refusing a taxation, that if a bill of costs is delivered after a settlement of accounts which include items for costs, the Court may look at the whole circumstances and hold that the pajnnent which has been made is referable to the bill which is siibsequently delivered, and in that case, in the absence of special circumstances, it is not a matter of course that the bill shotdd be taxed. Hitchcock V. Stretton, 1892, 2 Ch. 343. [403] Solicitors were retained to do work partly contentious and partly non-contentious, and the chent deposited with them a smn to cover their costs. No bUl of any kind was deUvered, but the costs were orally agreed at a sum less than the amount deposited. The client became bankrupt, and the solicitors handed to his trustee in bankruptcy the balance of the money after deducting the amount of their costs. The trustee apphed for delivery and taxation of the solicitor's bill of costs. Held, that the agreement being oral only was not binding on the trustee ; that no bill having been delivered there could be no payment within section 41 of the Soli- , SOLICITOR AND CLIENT COSTS. 99 citors Act 1843, and that in any case a mere retainer, apart from any settlement of accounts between the parties, did not amount to payment. In re West, King d Adams, 1892, 2 Q.B. 102. [404] A document which in other respects amovmted to an agreement within section 4 of the Solicitors Act 1870 was signed by the client only, she being the party contesting the agreement. Held, dissenting from the dictum of Coleridge, C. J., in In re Lewis [363], that there was a sufficient agreement. In re Thompson, 1894 1 Q.B. 462. [405] A debtor consulted his solicitor as to calling a meeting of creditors, but the sohcitor declined to act until he was paid a sum of £15 to cover his services. After services to the amount of £3 had been rendered, the debtor committed an act of bankruptcy by executing an assignment of his property for the benefit of his creditors. Afterwards other services were rendered which were sufficient to account for the balance. The debtor was adjudged bankrupt, and the trustee applied for repayment of the balance of the £15 after deducting the £°3. Held, that the circumstances imder which the £15 was paid did not create a necessity such as would arise in the case of a payment to defend a debtor from a bankruptcy petition, and that the sohcitor was not entitled to retain the balance m payment of services rendered after the act of bank- ruptcy was committed. In re Pollitt ; Ex parte Minor, 41 W.R. 89 (1892). [406] A defendant in lunacy proceedings employed a sohcitor to tax the petitioner's costs, two-thirds of which the defendant had been ordered to pay. She signed an agreement with the sohcitor as follows : " I agi-ee to pay you 5 per cent, on all costs taxed off" the bill in question. The solicitor agi-eed to and signed this agi-eement, not ha\-ing at the time seen the bill of costs. The petitioner's sohcitors carried in their bill of costs at about £5,000, of which about £2,000 was taxed oif, consisting for the most part of refreshers to counsel in excess of the maximum amomit allowed by the rules. The defendant apphed to set aside the agreement. Held, that an agreement under the Sohcitors Act 1870 must not only be fair in the sense that it is fully understood and appreciated by the cHent, but the remmieration thereunder must be reasonable in amount having regard to the work done, and that the agreement in question was mireasonable in the latter respect, and must be set aside. In re Stiiart, 1893, 2 Q.B. 201. [407] If a solicitor is retained in a civil action primA facie his contract is an entire one, and he has no right to send in his bill and msist upon payment until the conclusion of the business. ]3ut in the case of a comphcated litigation which may last a considerable time, the solicitor may send in his bill at a reasonable break in the proceedings and demand payment of it. "Where in the coiu-se of jjroceedings several bills of costs have been sent in at different times, it is a question, partly one of law and partly one of fact, whether they are different chapters of one bill, or eacli a complete bill in itself— that is to say, whether there was such a break in the proceedings as would entitle the sohcitor to send in a final bill, and whether he in fact did so. In re Eomcr, 1893, 2 Q.B. 286. g2 100 SOLICITOR AND CLIENT COSTS. [408] A solicitor made an agreement in writing with a client against whom a coroner's jnry had fovmd a verdict of wilful mm-- der, whereby, in consideration of a lump sum then paid by the client, the solicitor undertook to conduct his defence and to provide for all the necessary expenses. The client a few days afterwards com- mitted an act of bankruptcy of which the solicitor had notice. The solicitor continued to act in the defence, and the client was ulti- mately found guilty of manslaughter. The trustee in bankruptcy applied that the solicitor should repay all moneys representing work done by him for the bankrupt after notice of the act of bankruptcy. Held, that the agreement was one for definite services in considera- tion of the payment of a hmip sum, and not an agreement giving the solicitor merely security for his remuneration, and that the trustee was not entitled to return of any part of the sum paid. In re Charhvood, 1894, 1 Q.B. 643. [409] A solicitor having delivered ten bills of costs to a client, the latter obtained an order to tax the ten bills. The order contained no reservation of a right to dispute the solicitor's retainer. One of the biUs referred to an isolated transaction, and was properly delivered as a separate bill. The Taxing Master certified that in his opinion the transaction had been carried out without the previous authority of th'^ client, but that it was a prudent transaction, and one highly beneficial to the client. The client sought to dispute the solicitor's retainer as to that particular transaction. Held, that it was not open to him under the terms of the order to dispute the retainer as to the whole bill. In re FrajJe, 1894, 2 Ch. 290. [410] A solicitor delivered a biU amounting to £44. 2s. 8d., but at the foot of the bill was " by allowance £7. 2s. 8d.," thus reducing the biU to £37. Held, that the bill must be taxed as a bill for £44. 2s. 8^. In re Mackenzie, 41 W.E. 530 (1894). [411] Solicitors obtained in the Chancery Division an order for taxation of their bill of costs in the common form which does not contain any direction for payment by the client. The Taxing Master, having certified that there was a balance due to the solicitors, they applied by summons for an order for payment by the client. Held, that such order could not be made, and that the proper coiu'se was for the solicitors to proceed by action against the client. In re Dehenliam k Walker, 1895, 2 Ch. 430. [412] An application to set aside an agreement as to costs under the Solicitors Act 1870, when such costs relate to business in police courts and at Quarter Sessions, should be made to the High Court. In re J. H. Joyies, 1896, 1 Ch. 222. [413] A judgment in a plaintiff's favour havmg been reversed on appeal, the defendant's solicitors applied to the plaintiff for payment of their taxed costs. The plaintiff declined to pay them, unless the solicitors would give an undertaking to refund in the event of the judgment of the Com-t of Appeal being reversed on an appeal to the House of Lords then pending. The solicitors declined to give the undertaking, and threatened to issue execution, SOLICITOR AND CLIENT COSTS. 101 whereupon the plaintiff paid the costs. The House of Lords reversed the judgment of the Court of Appeal, and the plaintiti applied to the Court of Appeal for an order that the defendant, or in default the defendant's solicitors, should refund the costs paid. The sohcitors were before the Court. Held, that the solicitors having given no undertaking, and having been guilty of no misconduct, an order on them personally must be refused. Hood-Barrs v. Hcriot, 189G, 1 Q.B. 611. [414] A solicitor delivered seven bills relating respectively to seven matters in which he had acted. He had been paid on account sums sufficient to satisfy six out of the seven bills, and the clients did not desire to have those six taxed. They obtained an order of coiu'se for taxation of the seventh bill, and afterwards wrote inforiximg the solicitor that the other bills were agreed. Held, that, imder the chcumstances, the order of course was not irregular. In re Ward, 1896, 2 Ch. 31. [415] For a period of over ten years ending 1894, a solicitor acted for a client, more particularly in procuring him money loans, and it was verbally agreed between them that the solicitor's charge was to be a percentage on the smns advanced. Out of the sums advanced the solicitor deducted the percentage agreed, and handed the balance to his chent, from time to time rendering him cash accounts in which the sums deducted were entered as "costs," or " costs as agreed," or "legal charges." These accounts were signed by the client as " examined and approved." More than twelve months after the last pajonent the client took out a summons for delivery and taxation of the solicitor's bills of costs. It appeared from the evidence that the solicitor had all the necessary materials for making oi:t his bill. Held, that a settled account where no proper bill has been delivered does not amount to payment within section 41 of the Solicitors Act 1843 ; that, inasmuch as it was admitted that the agreement between the parties was a verbal one, the term " costs as agreed " in the signed accounts was a mere reference to a verbal agi'eement, and not an agreement in itself ; and that, as it appeared that the solicitor had the necessary materials for preparing a bill of costs, there was no ground for refusing taxation by reason of delay on the part of the client ; and an order for delivery and taxation was made accordingly. In re BaijUss, 1896, 2 Ch. 107. [416] A client obtained the common order for taxation of the bills of costs, six in number, that had shortly before been de- livered to her by her sohcitors. Before the Taxing Master the client objected to the taxation of one of the bills on the ground that the items in it were wholly barred by the Statute of Limita- tions. The Taxing Master, however, taxed the bill. Held, that he was right in so doing, and that the client, having, according to the form of the common order, submitted to pay what should be found due, was bound to pay the bill as taxed. In re Margetts, 65 L.J.R. 479 (1896). 102 SUMMARY. SUMMAKY. I.— EETAINER AND AUTHORITIES. The retainer of a solicitor need not be in writing [3]. A retainer may be joint or several [10] [27], and may arise by implication [5] [9] [13] [29]. A company is not bound to em- ploy a solicitor nominated by its articles [28], nor are executors bomid to employ a solicitor nominated by the will [33].^ The solicitor of a limited company is not an official of the company [35] [39]. The soHcitor of a lessor has no direct claim against the lessee for the costs of preparing the lease [8] [15] [23] ; nor has the mortgagee's soUcitor a direct claim against the mortgagor [12]. As regards marriage settlements, the husband is liable to pay the costs of the wife's solicitors [18]. A soKcitor acting without a retainer, whether knowingly or unknowingly, cannot claim payment for his services, and may have to pay costs [24] [41] [46]. The retainer of a solicitor in such a matter as a bankruptcy, an administration, or a windmg up does not constitute an entire con- tract [31] ; it is different in a common law action [48]. An ordinary retainer does not authorise the institution of pro- ceedings in Court [11]. As to defending proceedings, see [47]. A solicitor's retainer in an action authorises him to consent to a reference to arbitration [6], to accept a reasonable compromise [16] [17] [19] [31], to order a sheriff to withdraw [7]. It does not authorise him to agree to postpone execution [25], to engage in mterpleader proceedings after judgment [42], to direct the sheriff to seize particular goods [34]. A solicitor may be restrained from accepting a retainer to the prejudice of a former client [1] [2] [30] [38]. II.— DUTIES. A solicitor should keep proper accounts of his client's moneys coming to his hands, and he may incur liability if he mix them with his own money in his bank accoimt [49] [61] ; but he is not under the obligations of a general agent as regards keeping accounts [61]- There is apparently no duty incumbent on a solicitor to keep a diary or a day-book [80]. It is the duty of a solicitor, when duly called on to deliver up his client's papers, to deliver them in a reasonable condition [56] ; he must deliver to the chent letters addressed to him by third parties [57], but not letters addressed to him by the client, nor SUMMARY. 103 copies in his letter-book of letters addressed by him to his client [66]. He cannot insist on the client jiaying for a schedule r55]. An unexplained loss of papers is no defence to an action of detinue [601. A solicitor has been held guilty of negligence for permitting his client to execute an imusnal covenant without explanation [52], for disclosing a defect in title [53], for not ascertaming the existence of an eqiiitable charge [68], for not informing his client of an ofifer of compromise [54], for not registering an action as a lis jicndens [63]. If a solicitor is instructed by one partner on behalf of the firm to defend an action, he need only keep that partner informed of the proceedings [81]. It may be negligence on the part of a solicitor to omit to verify the correctness of his client's instructions [59] [69] [73]. It is the duty of a solicitor as an ofUcer of the Court to see to the investment of funds, the investment of which the Court has ordered [75] ; to see that the Court is in possession of the facts before making an order under the Trustee Eelief Act [77] ; to inform the associate's department of a change of solicitors after an action has been entered for trial [78]. Before a solicitor incurs an vinusual expense in an action, he should not only obtain his client's sanction thereto, but explain to him that it will probably be disallowed on taxation [71] [74]. An action of negligence against a solicitor is an action ex delicto [72], and will not be tried by the Court imder its summary juris- diction over its officers [51] ; the Statute of Limitations may usually be pleaded [76]. The Court discourages the practice of making solicitors defendants where costs only are asked for against them [65] [67]. A sohcitor acting for opposing parties should disclose to them both the whole nature of the dealing [58]. III.— PRIVILEGES. The privilege from disclosure of communications between soli- citor and client does not entitle the solicitor to withhold informa- tion that will enable the Court to trace its ward [83], or the com- mission of a crime [91], or of a h'aud [99] ; nor, as a general rule, to withhold the name [92] or residence of his cUent [84] [85], or the date of his first employment [96]. No action will be against a solicitor for defamatory words spoken by him while acting as an advocate [88], or contained in a letter written in the ordinary coiu'se of his duty and business [97] IV.— GENERAL LIEN. A solicitor is entitled to a lien on his client's documents for all taxable costs, charges, and expenses [102] [114] [132] [157] [162] [168] ; it is a right given by the general law and not a charge created by the client 1 165], and is a dormant security, in which it differs froui a mortgage [112] [121] ; it remains notwithstanding JQ4 SUMMARY. that the right of action for the costs is stacute-barred [134J [159] ; it is not destroyed by reason of an involuntary loss of possession of the documents [159], and, if the hen extends to a policy of assurance, no notice of it need be given to the assurance company in order to preserve its priority [149]. ,. . . ^, , , .,„,. All documents delivered to a solicitor m that character [124] are subject to his hen, even though delivered for a special pur- pose [140], such as the preparation of a mortgage [100], or as exhibits in an action [118]. They must, however, be held on account of the client liable for the costs [108] [110] [117] [122] [125] [127] [135] [145] [146] [148] [154] [156] [163] [167]. The lien may be excluded by express [100] [140] or implied agreement [123], or by the nature of the documents; for instance, a^solicitor has no lien on his client's will [104], or on the register of a company [152] [158], or on documents which it is the duty of a hquidator to place on the file of proceedings [139]. Documents in an action, or which have been placed in a solici- tor's hands for the purposes only of an action, are subject to the order of the Court, which may give effect to the hen or not as it sees fit [107] [109] [113] [120] [130] [136] [137] [142] [151] [160] [164] [166] [169]. ^ ^. The cases deciding that, notwithstanding the hen, the client may inspect and take copies of the documents have virtually been over-ruled [150]. If the chent be discharged, he is entitled to have the documents handed to his new sohcitors subject to the lien [105] [111] [115] [128] [131] [141]. . Changes in the members of a solicitor's partnership affect the question of lien [119] [124]. If a solicitor takes security from a chent for his costs, the prima facie inference is that he intends to waive his lien [101] [162] ; "so also if he proves for his debt in the chent's bankruptcy without deducting the value of his lien [103]. The Court wiU, in urgent cases, order delivery of documents before taxation on the client giving security or paying into Court sufScient to cover the costs and the costs of taxation [106] [133] [157]. v.— PARTICULAR LIEN AND CHARGING ORDERS. By common law a solicitor has a lien for his costs of action [236] on the fruit of the action not being real estate [177] to the extent of his chent's interest thereni [173] [174] [178] [232] ; and under the Sohcitors Act 1860 he may obtain a charging order for his costs of suit on aU property recovered or preserved tTirough his instrumentality. The charge mider the Act is in the nature of a salvage charge, and may extend beyond the interest of the party represented by the sohcitor [206] [218] [219] [224]. Its object is to protect the solicitor, and not to relieve a client who is able to pay the costs [223] [230]. The following are examples of property recovered or preserved within the meaning of the Act, viz., property in respect of which the solicitor had obtained a foreclosure decree [182], the appoint- SUMMABY. 105 ment of a receiver [186] [192] [196] [224], a declaration of title [190] [238] or the discharge of an adverse claim [197] [206], an annuity disputed but supported [195], money paid into Coiurt by defendant which the plaintiff may take out [214] [215] [234], costs ordered on appeal to be repaid [228], alimony [230]. In the following cases it was held that no property had been recovered or preserved, viz., an administration action, in whicli a decree had been made, the appointment of a new trustee ordered, and accounts brought in [199] ; a suit affecting ancient lights [200] ; alimony pendente lite, unless received with the wife's express authority [213] ; money brought into Court pending a reference to arbitration [225] ; money paid into Court as security for costs [227]. A solicitor who has obtained a charging order for costs has priority over a garnishee creditor [185] [187] [188] [201] [212] [220], also over mortgagees [204] or assignees [239] [241] of the fund recovered who have notice of the suit [204], or a landlord omitting to distram prior to the sale of the property recovered [231]. The solicitor for the executor in a creditor's administration action has no lien in priority to creditors [207], and a solicitor may forfeit his lien by acquiescence [229]. As between various solicitors claiming liens, the solicitor last employed has priority [227] [237]. A solicitor's lien may be defeated by a bond fide compromise between the parties [170] [179] [189] [217], but not by a collusive compromise [184] [233] [235]. On the other hand, it may attach to the sum received by way of compromise [175] [181]. A defendant against whom judgment has been recovered, having express notice from the plaintiffs attorneys that they claimed a lien for costs, does not discharge himself by paying the plaintiff [171] [172]. It is in the discretion of the Coui't whether to allow a set-off subject to a solicitor's lien or not [198] [203] [208] [222] [226] [240]. An application for a charging order may be either by petition or summons [210] [211], and either by the solicitor or his representatives [196]. It may be made by the solicitor after his discharge [214], and in a suit no longer pending [197]. The right is not barred by lapse of time only [183]. The application should be made to the judge who tried the action [194] [205]. Substituted service will be allowed [216]. Before making an order against an infant's property the Court wiU require the infant to be represented substantially [180] [218]. VI.— SOLICITOE-TRUSTEES. Inasmuch as a trustee is not entitled to make a profit out of his trust, a solicitor-trustee is not entitled to charge the estate with profit costs for work done in connection with the trust [243], unless expressly authorised so to charge [244] [250] [252] [257], or unless acting as solicitor for himself and co-trustees in pro- j^Q5 SUMMARY. ceedin'^s in Court, whether friendly or hostile, to which they are parties°[242] [253] [254]. , . , ^ -. . i i. „ The right to make i^rofessional charges, if conterred by a will, is a beneficial interest which is forfeited by the solicitor being an attesting witness [253] [255]. . , , r xi, A soUcitor-trustee has been held not to be accountable tor tne foUowmg, viz., costs for work done by a partner, of which the latter has the exclusive benefit [245], costs paid by a mortgagor to the trustees when the solicitor acted for all parties [246], steward's fees [254]. . u , ^ On the other hand, a trustee has been held accountable tor lessor's costs paid by lessees of portions of the trust estate [254] . The sohcitor for parties before the Court will not, as a rule, be appointed a trustee [247] [249] [251]. VII.— DEALINGS BETWEEN SOLICITOR AND CLIENT. Sales and Purchases. In dealings for value between soUcitor and client, no more is requu-ed than that the chent should be fully informed and duly and honestly advised, and that the price should be just [263] [264] [2711. A purchase will be vitiated by reason of (a) conceal- ment of material facts [261] [268] [273] ; {b) madequacy of the consideration [259] [263] [266] ; (c) the purchase being on behalf of a soUcitor having the conduct of a sale under the Court [260] ; {d) by reason of the purchase being of the subject-matter of a pending suit [265]. The intervention of another sohcitor is advisable [271], but not an absolute protection [267]. A soUcitor is under the same disabiUty as regards purchases from the trustee in bankruptcy of a client as he is as regards purchases from the cUent [272]. Accidental advantages derived by the soUcitor will not by themselves justify the avoidance of a transaction [258] [262], and a client may forfeit his remedy by delay [259] [261]. Mortgages. The Court will not give effect to unusual clauses in a mortgage from a client to his soUcitor [278] [282] [283] [286] unless the cir- cumstances are special [277] [287], nor wiU it impose the ordinary conditions as to payment into Court when the mortgagor applying for an injunction to restrain the exercise of the power of sale is a client of the mortgagee [284]. A client seeking to set aside a security for the amount of a biU of costs must show improper dealings by the solicitor in obtaining the security, or error amounting to evidence of fraud, in the specific charges which are made the foundation of the security [276]. Gifts. Gifts from client to solicitor while the relationship continues iare voidable [291] [293] [294] [296] [298], but are capable of con- firmation after the relationship has ceased [292] [298]. Undue SUMMARY. 107 influence durinjc the relationship is a presumption of law [298]. There is a material distinction between " undue influence " as affecting gifts iiiter vivos and " undue influence " as atfecting wills [295]. "The Court will not undo a trifling beneflt unless there be mala fides [280J. VIII.— PARTNERSHIP AUTHORITIES. It is within the scope of the ordinary business of solicitors to receive money for investment on specific securities [299] [311] [312], to receive money for the pui-pose of making arrangements with creditors [307], to receive money out of Court [306], to receive money to pay into Court [309], to commence proceedings [301], to deduce title [305] ; and a solicitor in such cases is liable for the fraud or negligence of his partner, imless it can be shown that the client has dealt with defaulting partner to the exclusion of the firm [300]. It is not within the scope of the ordinary business of solicitors to receive money for investment generally [302] [308], toimdertake the custody of bonds to bearer [310], to constitute themselves constructive trustees [313]. In cases not within the scope of the ordinary business of solicitors, a solicitor may render himself liable for the acts of his co-partner by acquiescence and in other ways [310]. IX.— AGENCY. As between the London agent and the client, the former's lien, whether particular or general, depends on the state of accounts between the client and his solicitor, and, if the sohcitor has no lien, so neither has the London agent [314] [317] [319] [320] [321] [323] [327]. London agents are not solicitors for the client employing the coimtry solicitor, and are not entitled to join with the country solicitor in applying for a charging order [327]. They should not appear on the record as the client's solicitors [36] [325]. The relationship between a London agent and the solicitor em- ploying him is a fiduciary one [326], but not strictly that of solicitor and client within the meaning of the Solicitors Act 1870 [322], though it may be so in a more general sense [329]. The fact that charges relating to a particular matter extend tlirough a series of agency biUs does not of itself entitle the country sohcitor to tax the bUls delivered more than twelve months [324]. The usual agency terms do not entitle the London agent to participate in interest on costs paid by the client, notwithstanding that he agrees to suspend his right of payment [328]. Joint solicitors not in partnership may be represented by a common agent [318]. London agents who are employed by solicitors and have a partner common to the two firms cannot charge for close copies or agency term fees [330]. A solicitor does not render himselfliable to the penalties imposed by the Solicitors Act 1843, section 32, on solicitors acting as agents 108 SUMMARY. for unqualified persons, by giving to a writer to the signet, or to a certificated conveyancer, a share of the profits of business introduced by him [315] [316]. X.— SOLICITOE AND CLIENT COSTS. A solicitor's bill of costs should be in detail ; but if he has included therein a lump sum, he may on taxation supply a detailed statement showing how the sum is made up [343]. There should be included in the bill, as opposed to the cash account, disburse- ments such as Court fees, comisel's fees, payments to witnesses, stamp duties on conveyances and mortgages, printer's charges [331], probate duties [395], whether such disbursements have been specifically provided for by the chent or not [342]. Disbursements such as payments for purchase-money, costs to other jjarties, legacy or residuary duties should not be included in the bill [331]. The bill should be signed by the solicitor, his partner, executor, administrator, or assignee, or be accompanied by a letter so signed and referring to it, and be delivered to the party chargeable. An action for recovery of costs cannot be commenced until the expiration of one month after such delivery ; but the rule does not aft'ect the solicitor's right to set-off costs due to him if an action be brought against him by his client [341]. If a solicitor be retained in a civil action, prima facie his con- tract is an entire one, and he is not entitled to deliver his bill until the conclusion of the business [48] [407] ; but in the case of a complicated business such as a bankruptcy, an administration, or a winding up, which may last a considerable time, he may deliver his bill at a reasonable break in the proceedings [31] [407]. Delivery may be enforced by order imder the SoUcitors Act 1843. Delivery to one of several joint contractors is sufficient [337]. Showing and explaining a bill to the party chargeable, if the biU be not left in his possession, does not amount to delivery [334]. An order maj^ be made for the taxation of a bill of costs as between solicitor and client [367] [372], either by virtue of the Solicitors Act 1843, or by virtue of the Court's jurisdiction over its own officers [397], and a bOl may be moderated without taxation [366], and even if it be not liable to taxation [392]. Except by virtue of its jurisdiction over its own officers, the Court cannot direct taxation of part of a bill [397]. Within one month after delivery of the bill the party chargeable can obtain an order for taxation as of course, and after the expiration of the month the Court may make an order for taxation either on the application of the party chargeable or of the solicitor. But if the party chargeable applies for taxation after the expiration of twelve months from delivery of the biU [351] [381], or after pajaiient of it [365] [400], he must show special circumstances to entitle him to the order. There is no rigid rule defining "special circumstances" [401]. The following are examples of special circumstances, viz., an unusual charge of large amount requiring explanation [351] [381], undue influence [365], an express reservation of the right to tax [400]. SUMMARY. 109 The following are examples of circumstances held not to be special, viz., the continuance of the relationship of solicitor and client [3C0], an allegation of excessive charges without proof of fraud or undue pressure [^04], the absence from tlie bill of the solicitor's signature [370], acceptance of payment from trustees without informing them that bills not shown to be excessive might become liable to moderation [898]. A settlement of accounts between solicitor and client when the solicitor has received moneys from or on behalf of the client, and has taken credit for the amount of his charges, but has not delivered a bill of costs, does not amount to pavment of his bill so as to preclude taxation [334] [355] [384] [402] [403] [415]. The bill to be taxed is, unless the dehvery were conditional [378], the bill originally delivered, and, on taxation, the solicitor will not be allowed either to add items [840] or to witlidraw them [344] [357] ; and a bill will be taxed as a bill for its full amount notwith- standing an unconditional offer made on the deliver}' of tlie bill to accept a smaller amount in settlement [374] [410]. If the clieni obtains the common order for taxation, lie cannot dispute the solicitor's retainer as to the whole bill [382] [383] [409]. Under section 38 of the Solicitors Act 1843 [368] [390], mort- gagors, beneficiaries, and others who not being directly chargeable are liable to pay, or have paid a solicitor's bill, may apply for taxation as if they were the parties chargeable [345] [349] [350] If a solicitor relies on a security deposited with him, and does not tender a proof for his costs in his client's bankruptcy, the assignee cannot obtain an order for taxation without giving an undertaking to pay the bill as taxed [353]. Taxation may be precluded by agreement between the solicitor and his client [336], which since the Solicitors Act of 1870 must be in writing [363] [377] [404]. Such an agreement must be fair in the sense that it is fully understood and appreciated by the client, and the remuneration thereunder must be reasonable having regard to the work done [406]. Agreements as to costs may be void on the ground of champerty [347] [362], or of maintenance [339]. In the Chancery Division payment of a taxed bill of costs should be enforced by means of a four-day order if the taxation has been on the client's application [385], and by action if the taxation has been on the solicitor's application [411]. In the Qiieen's Bench Division an order may be made for entry of judgment for the amount of the allocatur. If a solicitor issues a specially indorsed writ for the amount of his bill of costs, and applies under Order XIY., and the only dispute is as to the amount, the proper order is for taxation, with liberty to enter judgment for the amount of the allocatur [388]. In the absence of agreement, joint solicitors should divide equally the sums received fi'om the client after paj-ment of disburse- ments [332]. If successive solicitors are employed in an action, and the fund for payment is deficient, the solicitor last emploj^ed has priority [237] [335] ; but imder similar circumstances in a company liquidation they are paid^j?'o rata [352]. The trustee in the bankruptcy of a client can recover from a 110 SUMMARY. solicitor money paid to him by the client for services rendered after notice of an act of bankruptcy to which the trustee's title relates, unless the services are of necessity to the client, or have_ been rendered pursuant to a written agreement whereby the solicitor, not having notice of an act of bankruptcy, has agreed to perform definite services in consideration of the present payment of a lump sum [379] [405] [408]. Ill INDEX. jyr_B. — The nuvibers refer to titc paragraphs. Accounts, duty of soHcitor as to keeping - -.•■ro7Ql foftoi rifiJ between soUcitor and cUent ... [276] [279] [282] j_365 Agency allowances to conveyancer allowances to writer to signet terms, meaning of Agrents: town, accounts of ••• appearing as solicitors on record L*'"J bill of costs, taxation uVoqi r4i'^1 charging order for costs [/^iyj [oi/j claiming to participate in interest paid to country solicitor lien of, general flT 319 lien of, particular [dl/J [diyj partnership with covmtry solicitor relationship with covmtry solicitor, ^^ature^of ^ ^^^^^ ^^^^^ ^^^^^ Agreements as to costs : ror-m VAnoi oral L*^''-l L*"^J 3621 ■40G' 412 213 '230 316' '315' ■328" 323' '325' ■324 ■327' 328' 323 ■321 ■330 opinion of Court as to roV-oi r^'n^i requisites of -S 4^6 setting aside _ [336J [406] Alimony pendente lite, lien ... permanent, lien, "[oa Anonymous letters ; privilege L^^. Appearance, authority to enter ... ^ ri'm ' Apportionment of costs as between parties [10] solicitors Arbitration out of Court ; particular lien ... ••• . Authority of solicitors as to accepting service of notices... compromising proceedings ["J [7] [!"] defending proceedings r^irQri executions by Sheriff L'J L—^J interpleader... journeys abroad receiving purchase and other moneys . "• nnnV* raia' to bind co-partner [2^-^] *o [^^^J Bank account, mixing clients' money in [49] ■332 229 32 21 ■47 ■34 ■42 29 ■45 112 INDEX. N.B. — Tlie nnmhers refer to the i)aragraplLS, Bankruptcy of client, as affecting money owing to solicitor [353] [ 'J : 366 '408' 896 paid to solicitor .... [375] [379] [405 solicitor's remuneration when acting as trustee solicitor's remuneration when employed by trustee [369] 389 Beneficiary taxing under third party clause [350 Bill of costs : delivery ... [334] [337] [34i; delivery on condition ... ... •.• •.• ... 378 delivery, subsequent alteration [357] [361] [378 delivery with offer to accept less than full amount in settlement _ [374] [410; delivery without signature ... 370 disbursements proper to be included in ... [331] [342] 395 moderating ... ... .•• [36G] 392 payment of [355] [384] 4031 415 proceedings to recover amount of ... ... [388] 391 scandalous matter in 3'76 set-off for amount of •■• [341] taxing (see Taxation) withdrawal of [378] Breacb of trust : as affecting payment of costs oul of the estate... ... [387 solicitor allowing ; liabihty of co-partners [312 whether solicitor liable as constructive trustee [65] [69] [256 Certificate of taxing master not conclusive as to costs to be allowed against estate ... ... ... ... [386] Champerty as affecting the validity of transactions [274] [289] [347] [362] Cbarglng- order for costs : change of solicitors [202] [209] [214] [2211 [227] [237] court to which to apply for [194] [205J death of client [182] death of solicitor delay in applying for [183] forfeiture of right to ... granted notwithstanding prior order for payment '214J ■183] 196] '196] 229] 202] 218] "209J 230] infant's estate ■•■,■■: ••• ••• [180] [196] injunction penduig application for ... ... .191] not intended to relieve clients able to pay [223] [224] not necessarily limited to clients' interests [206] [218] [219] [238] practice as to applying for [210 [21l] 216J practice as to enforcing [202] [221J [224] priority, as against assignee for value [197] [204] [239] [241J priority as against garnishee creditor ... [201] [212] [220J priority as against landlord ... ... ... ... [231] property recovered or preserved [182] [183] [186] [190] [192] [193] [195] [196] [206] [214J [215] [224] [228] [230] [231] [232] [233] [234] [237] [238] [239] [241] Statute of Limitations not a bar to application for . . . [196J suit no longer pending [197J Cheque post dated ; partnership authority [304] 113 N.Ii. — The nnmhi'rs refer to the jjnragrajjJn. Client, Clients, delivery of bill to joint solicitor disclosing address of solicitor disclosing criminal oflfence by ... solicitor disclosing fi-aud by solicitor disclosing name of taxation by one of joint Commencement of proceedings ; authority for Communications privileged not privileged Company, business ultra vires, solicitor's lien mortgage to solicitor solicitor appointed by articles solicitor appointed by liqiiidator ... solicitor not officer of company solicitor's lien winding-up, costs [84] [337; 85 91 99' ■92 [346' ... ru; [84] [861 198 r82] [83] [84] [87l r96" [132" [62- r28l [261 [351 [39I [132] [1391 [1521 [158] [26] [352] ;354 winding-up, taxation of costs owing by company . . . [356] Compromise, as affecting particular lien ^1701 [172] [175] [179] [184] [189] [192] [209] [217] [232] [233] [235; non-communication to client of offer to... ... [54] [239 solicitor's authority to , [16] [17] [19] [21^ Conduct ol sale : solicitor having conduct piu'chasing ... ... [260] [2611 Constructive trustee ; liability of solicitor as. . . [65] [69] [256] solicitor constituting himself, not within partnership authority ... ... ... ... ... ... [313] Copies : making of documents subject to lien ... [l^OJ of letters; title to [57] [66] Copybolds: stewards' fees ... ... ... ... ... [254J Costs, agreements as to ... [336] [363] [404] [406] [412] apportionment between solicitors... ... ... ... .332] deficiency of fund for payment of ... [237] [335] 352J paid and ordered to be refunded on appeal ; charging order 228] paid to third parties should be included in cash account [331] Counsel : more than two, cUent's authority for emplo_\-rQent [74] County court: costs in, when amount claimed over £'10 and amount recovered under £10 ... ... ... [399] Criminal offence by client : solicitor's privilege [91] Custody of documents as between solicitor and client [57] [06J Sealingrs between solicitor and client : delay in applying to set aside gifts [290] [291 mortgages [275] [276] [278] [279 259 292' '280 rules as to [262] [263] [264] [271] [272] [273] [274] [275] [277] [291 sales and purchases ... [258 [265' setting aside [2591 [261] [263" [280] [282] [286] [289] [29i; settled accounts : opening supported [258] [259] [262] [273] [274] 'IE 261 '262 [276' '293 '296 '297" '282' '283' '284' '285' '286' '287' '266 '267' '268 280" 292 '281' '290' '294' ■295" '261' '262" '263" 268] '267] 272] 272 [273' 278 [293j '296" '297" '275' [279" [287" [276] ;28o; 288] ;298] [289] [298] [274] [298 [285" [200 114 INDEX. N.B. — The nvmhers refer to the paraijraplis. Defamatory words ; solicitor's privilege ... Defendant : solicitor made, costs only being asked against [88] [65] [67] [89] ' 335] [352] 2621 [288] [80] 276' him ••• |t Deficiency of assets for payment of costs .... [237] Delay in applying to set aside transactions [259] [261] Diary: whether duty of solicitor to keep Disbursements proper to be included in bill of costs [331] [842] [395] proper to be included in cash account [331] Dlsebarge of solicitor as affecting his lien : when discharge by client [130] [131] [136] [164] [166] [169] when discharge by sohcitor [105] [111] [141] Duties of solicitor : about to incur unusual expense [71] [74] [373 acting for adverse parties acting for firm as to accounts as to banking client's money as to bespeaking investment as to condition of client's papers as to disclosing information as to diary ... ... ... ... .■• _ as to informing Associate of change of solicitor as to mortgages taken by client ... as to registering charges [58] [1] [2] [22] 76] 621 Sasement ; not property recovered or preserved ... Execution, agreement to postpone, solicitor's authority seizure of particular goods ; solicitor's authority Executor, retainer of debt by, disallowed Expenses out of pocket ; duty of client as to iinusual, consent of chent... Fiduciary relationship as affecting : gifts to solicitor ... [290] [291] [292] mortgages [275] [276] [278] [279] [280] purchases by solicitor [258] [260] [261] sales by solicitor rirm, duty of solicitor acting for Fraud of client : solicitor's privilege .of partner ; solicitor's liability for [299] [200' [25' [248 [5o; .[71] [74] [373 [293] [282] [285] [262] [267] [300] [306] ■296] 297' [298] ^283] '284' '286] '287' [289] ■263] '272] '265 ^273" [274] [268] [81- [991 [303] [307] 305] 308] [309] Gifts by client to solicitor [290] [291] [292] [293] [296] [297] [298] l] Goodwill of solicitor's business Injunction in aid of charging order ... in aid of lien Interest claimed by town agent claimed on costs out of fund in Court [161] [191] [209 ... [112' ... [328 ... [359; INDEX. U5 N.B. — The numbers refer to the paragraphs. Interpleader, solicitor's authority [42] Joint clients, delivery of bill to taxation by some only solicitors, appearing by one agent solicitors, apportionment of costs between Journeys, country solicitors to London solicitor's authority for 337 846 318 332 373 [29 Iiessors, costs of [8] [15] [23] :Legacy, costs of solicitor appointed executor with power to charge [258] [255^ duties not to be included in bill [331] [365' letters, anonjanous, privilege... ... ... ... ... [94 title to, as between solicitor and client ... ... [57] 66 Ubel by solicitor, privileged communication ... [97] 98 Hen, general, as affected by alteration inpartnership [115] [119] [124 claims of third party ... ... ... ... ... "143 company acting ultra vires ... ... ... ... 132 determination of cUent's interest [110] [117] [125] [144] [156] [160] [163; involmitary loss of possession ... ... ... ... "159 repayment of mortgage ... ... ... ... [135] "148" solicitor acting for mortgagor and mortgagee [145] [154] "167 general, as affecting allotment letters ... ... ... \}-^'A documents delivered for special purpose [100] [118] [128] [140] documents in solicitor's hands for pm'poses of action only ... [107] [120] [137] [142] [1/)1] 1 160] [164] [166] documents in solicitor's hands for purposes of action and other purposes ... ... ... ... [113] [127] docvmaents not belonghag to chent [108] [109] [110] [1161 [117] [125] [145] [148] [154] [163] [168; documents subject to rights created by client ... ... [122 file of proceedings ... ... ... ... ... ... [139 marriage settlement ... ... ... ... ... 168 minute book... ... ... ... ... ... ... "152 share register ... ... ... ... ... [152] [158' will of client [104; copying documents subject to ... ... ... ... 150' delivery on payment into Court ... ... [106] [133] "157" deUvery ordered ; lien of third parties ... ... ... [129 delivery, subject to [105] [111] [115] [128] [130] [131 [136] [141] [155] [166; delivery, summary order for ... ... ... ... 153 documents not subject to [104] [107] [108] [114] [139] [152] ;i58; injimction in aid of... ... ... ... ... ... 112 in respect of statute-barred debt ... ... ... [134] [159 nature of [102] [108] [112] [114] [116] [121] [1241 [125] [134] [136] [144] [146] [150] [156] [157] [162] [165 notice of ... ... ... ... ... ... ... [149 production subject to [126] [136] [138] [147] [150" schedule [128 waiver of [101] [103 [162' 116 N.B. — I'he numbers refer to the paragraphs. [170 232 239 Xilen particular as affected : by compromise of action [172] [175] [179] [184] [189] [192] [209] [217 aa aftected by payment to client as affected by set-off [198] [203] [208] [222] [226] [234; as against assignee for value as against creditors of estate as against garnishee creditor ...[176] [185] [187 natin-eof M [174 none on real estate by common law Iiiquldator ; costs of solicitors to ... [26] [352] [354] 181 207 188 178 241 171' 240' 204 239 212' 236 177' 858' Maintenance, agreement void on ground of ... ... [339] Married woman applying for taxation ... _ ... ... [371] Misappropiatlon of money by partner: liability of co-partner [299] [300] J302] [303] [306] [307] [308] [309] Misrepresentation by solicitor ; action for... ... ... [72] mconey paid into Com't : charging order [214] [215] [216] [227] [232] [233] [234]_ Mortg-age : duty of solicitor as to sufficiency of security [76] [79 not completed : costs ... ... ... ... ... [12 notice to solicitors ... ... ... ... ... ••■ [32_ Mlortg'ag-ee, solicitor as, inserting iinusual clauses . . . [278] 287_ solicitor as, omitting usual clauses ... ... [283] 286 solicitor as, restraining sale by ... ... ... ... 284 solicitor as, stipulating for commission ... 282 solicitor of, retaining surplus proceeds of sale 288 jaortgag-or, taxation of costs by [334 sregllg-ence by solicitor assuming correctness of client's in- stnictions [59] [69] by solicitor disclosing defects of title ... ... ... [53] by solicitor losing deeds ... ... ... ... ... [60 by solicitor no defence to four- day order against client [385_ by solicitor not bespeaking investment ... ... ... [75_ by solicitor not communicating offer of compromise ... 54 by solicitor not informing Court of facts... ... ... 77 by solicitor not registering Zis ^e«(?ens ... ... ... 63 by solicitor not tried summarily .. . ... ... ... 51 by solicitor overlooking equitable charge ... ... 68 by solicitor overlooking restrictive covenant ... ... 73 by solicitor passing unusual covenant ... ... ... 52 Non-professional work ; taxation ... ... ... ... [372 Wotices to triistees ... ... ... ... ... ... [32 Partnership authority : acts within scope of [299] [301] [303' [305] [306] [307] [309] [312] authority: acts without scope of [300] [302] [304] [3081 changes in, as affecting general lien ... [115] misappropriation of money by partner [299] [300] [303] [306] [307]. [308 misappropriation of bonds by partner 310 119 302 [313] [124] [309] [310] 117 N.B. — The numbers refer to the paragraphs. Partnership : partner acting without client's authority partner concurring in breach of trust partner constituting himself a constructive trustee partner issuing j)Ost-dated cheque partner suppressing mortgage representations on behalf of Party and party costs not taxable under third party clause Payment of costs by retainer of money ; bill deUvered subsequently of costs by retainer of money ; no bill 355 403' 385' 365 delivered [384] of costs, order for, by client of costs, taxation after [334] [364] Police Court ; setting aside agreement as to costs in Privtlegred communications ... ... ... [84] [86] Probate duty to be included in bill of costs Production of documents subject to general lien Professional services or charges ; meaning of 244 126 138 244 136 147" 252' 250' 242 253 [246] [253] 214] [215 181] [192 [232] [239] [186] [192] [196] [224] Profit costs ; clauses in wills givmg solicitor-trustee acting in Court ... solicitor-trustee attesting witness... solicitor-trustee holding office of steward solicitor-trustee not paid by trustees ... to partner of sohcitor- trustee whether right to charge is a legacy Property recovered or preserved : adverse claims set aside costs paid and ordered to be refunded difference between claim and counterclaim ejectment obtained... foreclosure obtained money paid into Court money paid for compromise receiver appointed ... title established to annuity title established to life interest title established to mortgage ... title established to permanent alimony ... title established to real estate .•• [237] various cases in which claim to be has been disallowed, viz. — hJixcaoiny pendente lite ... easement ... money paid into Court in bankiiiptcy proceedings ... proceedings for administration stopped after accoimts brought in Purchase from client ; fraud ... unusual covenants ... requirements as to [259] [268] [264] [266] [267] [271] specific performance ... ... ... ••• ••• speculative ... [258] [262] subject matter of suit ••• [265 1 301" 312" 313' 304" '305" '311" 367; [402] [4151 [411] [3981 [412] [93" [395; 150 257" 252" 253" 255" ■254" '254' "245" 255; 206' 228" 234" 183 182' 233 '241' 231' 195' 193' 190' "230' "238" 213 ■200' ;225; 199 ■261" "270' '272' [64' [272' [274" 118 INDEX. N.B. — The numbers refer to the paragraphs. Ratlfl catl on of voidable transactions [290] Koceiver, appointment of, charging order [186] [192] 292 196' '224' in respect of married woman's separate estate after taxation plauitifFs solicitor not appointed ... _ retainer of debt by executor pending appointment of... trustees' firm acting for ... Reference, solicitor's authority Refunding of costs paid [380] Registrar in bankruptcy : moderating bill Remuneration to solicitor in addition to charges ... [294] Restraining- solicitor from acting to prejudice of former client [1] [2] [22] Retainer : by joint defendants ... ... ... ... [10 by lessee of lessor's solicitor ... ... ... [15 by liquidator ... ... ... ... ... [26 by trustees ... ... ... ... ... ••• [40 continued for purposes of action ... ... ... ... death of client [46 discharge of . . . ... ... ... ... [37] [43 disputing on taxation ... ... ... [382] [383 may exist although no charge made oral ... repudiation of ... ... ... ... ... [14] unauthorised whether an entire contract [297] [231] 371" 247' '248' 254 ■ [6 413 366 295; [30] whether arising from acquiescence work done in anticipation of [31] [5] [9] [13] 27 23' [358 [387' [37' [3'58' [46 [409 "4' 41 |;24' [407' [4i; 41 [i [260] [ [276] [278] [279 [275] Salary, solicitor paid by Sale by solicitor to client solicitor having conduct of, pm-chasing Scandalous matters in bill of costs ... Schedule of deeds, costs of Security : setting aside ... Settled amounts : opening Settled Xiand Acts ; sohcitor for tenant for life not appointed trustee ... Settlements: costs of ... Set-off as affecting particular lien [198] [203] [208] [222] [226] [234] of bill not delivered one month ... Sheriff; solicitor's authority as to instructing [7] [25] Sborthand notes ; costs of Solicitor appointed by will appointed in company's articles ... defendant; profit costs trustee; acting as steward trustee; acting for mortgagor to trust trustee ; acting in court for trust . . ... [242] [253] [20' 268' 261' 376' 128" [279] [280] [279] [285] [249] [18] 240' 34r 34' 71" 33' '28' 90" [254"' [■246"" [254" INDEX. 119 X.B. — Tlie numbers refer to the paragraphs. Solicitor : trustee; acting out of court for tnist ... ... [243] [253' trustee ; attesting will ; profit costs ... ... [253j 255' trustee ; costs of [242] [243] [246] [253] ;254' trustee; partner of, profit costs ... ... ... [245] "254" trustee; son of appointed trustee ... ... ... "251" wife of, gift to, by client set aside ... ... ... 298' witness ; allowance to ... ... ... ... ... [95" Special circumstances justifying taxation : no rigid rule as to .... payment subject to right to tax ... unusual charges of large amount requiring explanation [8511 various cases in which no special circumstances 360 [364;^ Specific performance of oral agreement to purchase from client [64 Speculative piu'chase from client ... ... [258] [262] [272 Statute of Limitations does not affect lien ... ... [134] "159 mortgagee's sohcitor retaining surplus proceeds ... 288 taxation of costs affected by ... ... ... [393] 416 Stewards' fees ... ... ... ... ... ... ... "254 Subject matter of suit purchased by solicitor ... [265] 274 Successive solicitors ; deficiency of fund for costs [237 [4011 [400] [381] [398] [335] [352] Taxation, adding items ... ... ... ... ... [340 afterpayment [334] [364] [365] '398" after twelve months ... [351] [356] [360] [370] [381' amending bill [357] [361' certificate not conclusive of costs to be allowed against estate [386' delivery of papers pending ... '348 disputing retainer [382] [383] "409' enforcing payment after ... ... ... ... [385] '411' of bill for non-professional work ... ... ... '372 of one of several biUs ... ... ... ... ... '414' of particular items '397' of statute-barred costs [393] '416' on appUcation of married woman ... ... ... 371 on application of third party [345] [349] [3501 [3671 [368] [390] [394; supplying details of lump sum ... ... ... ... '343' withdrawing items .. . ... ... ... ... ... '344' Treasury, local solicitors retained by, position of ... ... [44' Trustees, position of solicitor as regards costs ... [40] [387' TTndue Influence : ua the case of gifts tw^cr vivos from client ... ... [298 in the case of settled accounts ... ... ... ... '365' in the case of wills ... ... ... ... ... ... '295' 120 INDEX. N.B. — T?ie 7iumbers refer to the jJaragrnjyhs. Untaxed bill : action for [388] [391] Vendor and piu'chaser : dut^^ of solicitor acting for both . . . [58] Voidable transactions : ratification by client [290] [292] [297] "Ward of court : concealment of ... ... ... ... [83] •Wife of solicitor : gift to, by client, set aside [298] "Will, solicitor-trustee attesting witness, eifect on charging clause [253] [2551 "Witness : expenses of, solicitor not liable [333] ^ ^ LAW LIBRARY UNIVERSITY OF CALIFORNU LOS ANGELES uc souther;. AA 000 761 620 4