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commencing with 20 Hen. 3, c. 10, several of which statutes are, by the 6 & 7 Vict. c. 73, either partially or wholly repealed.
In clauses 37 to 43, both inclusive, of the last-mentioned act, special provisions are made relative to the taxation of attorneys' and solicitors' bills of costs. Amongst others, the provision contained in 2 Geo. 2, c. 23, is re-enacted, to the effect that no action or suit shall be brought by an attorney or solicitor, for his costs, until the expiration of one month after the delivery of a signed bill. Several of the other principal provisions relating to the subject of taxation are noticed in the following notes.
Sect. 37.-Upon the application of the party charged, the bill may, within a month from the delivery, be referred for taxation, and the attorney or solicitor is restrained “from commencing any action or suit, touching such demand, pending such reference." If no such application be made within such month, then a reference for taxation may be made, either upon the application of the attorney or solicitor, or his executor, administrator, or assignee, or upon the application of the party chargeable, subject to such conditions as the court or judge shall think proper, the attorney or solicitor being restrained from taking proceedings during such reference. Provided that no such reference shall be directed upon the application of the party chargeable, after a verdict shall have been obtained, or a writ of inquiry executed, in any action for the recovery of the bill; or after the expiration of twelve months after the delivery of a signed bill, except under special circumstances. If a sixth be taxed off, the attorney or solicitor shall pay the costs of taxation ; but, if otherwise, the party chargeable with such bill shall pay such costs.
Sect. 38.-Bills may be taxed upon the application of third parties liable to pay, or who shall have paid such bills.
Sect. 39.-The Lord Chancellor may direct taxation of bills chargeable on executors, administrators or trustees.
Sect. 40.-"No bill which shall have been previously taxed and settled, shall be again referred, unless under special circumstances."
Sect. 41.,—A bill may be taxed within twelve months after payment, if the special circumstances of the case shall, in the opinion of the court or judge, appear to require the same : (Ex parte Turner, re Boyle, 23 L. T. Rep. 262.)
Where the Court of Chancery does not adjudicate on the subject-matter of a suit, it will not deal with the question of costs : (Andrews v. Morgan, 24 L. T. Rep. 170.)
Solicitors acting for trustees and executors, should frame their bills so as that they shall not contain charges beyond the amounts which would be allowed to the trustees and executors in their account with the estate which they represent: (Re. Dickson, 28 L. T. Rep. 153.)
To open a settled account with a solicitor, a case of fraud must be made out by the party complaining : (Blagrave v. Routh, 28 L. T. Rep. 111.)
By sect. 37 of the stat. 6 & 7 Vict. c. 73, it is provided that no reference of an attorney's bill for taxation shall take place " after the expiration of twelve months after such bill shall have been delivered, except under special circumstances to be proved to the satisfaction of the court or judge to whom the application for such reference shall be made :" (Cowdell v. Neale, 28 L. T. Rep. 173.)
If a client having paid his solicitor's bill of costs without pressure, wish afterwards to have it taxed, he must state in his petition and prove, by evidence, that the bill contains such grossly improper charges as furnisb evidence of fraud : (Horlock v. Smith, 2 Myl. & Cr. 495.) The like also when paid, by deduction, in an account between the solicitor and his client: (Ex parte Hemming, re Bischoffe and Coxe, 28 L. T. Rep. 144.)
The lien of an attorney on documents in his possession is not defeated by the operation of the Statute of Limitations.
A solicitor trustee is not entitled to charge for business done in the trusteeship, beyond payments out of pocket: (Moore v. Frowd, 3 M. & C. 45, and vide post.) But he may employ another solicitor, who will be entitled to the usual charges : (Robinson v. Kett, v. 2, White and Tudor's L. C.)
If a solicitor use a person's name as plaintiff without authority and fail, the solicitor himself must pay the costs : (Re Manby and Hawksford, 29 L. T. Rep. 378.)
An attorney must set out the items containing his charges and not merely an aggregate amount of certain items, else he will fail in an action to recover the amount, although a signed bill may be delivered a month before action : (Pigot v. Cadman, 28 L. T. Rep. 325.)
Attorneys carrying on business in partnership become individually liable to any client of the firm, for the miscon. duct of any of the partners, in the ordinary business of the firm : (Rew v. Lane, 28 L. T. Rep. 184.)
The business of an attorney is distinct from that of a scrivener, and accordingly it has been held that an attorney
who receives money for investment cannot bind his partner by the receipt, unless there be evidence that such transactions formed part of the partnership business : (Harman v. Johnson, 22 L. J. 297, Q. B.)
An attorney has no power to bind his partners by his bill or note, because such an implied authority is, by construction of law, limited to partnerships for purposes of trade : (Hedley v. Bainbridge, 3 Q. B. 316; Levy v. Pyne, C. & M. 453.)
Where a solicitor trustee is in partnership, the firm in which he is a partner is not entitled to costs in matters connected with the trust, but only to payments out of pocket: (Christophers v. White, 10 Beav. 523 ; Broughton v. White, 24 L. T. Rep. 152; Same v. Same, on appeal, 26 L. T. Rep. 54.)
Where a solicitor trustee is employed by his co-trustees (who are not solicitors) to conduct lawsuits of the testator, the solicitor is not entitled to full costs, but only to payments made: (Manson v. Baillie, 26 L. T. Rep. 24, Ho. of Lords.)
To enable a solicitor trustee to charge costs, a clause to that effect should be inserted in the deed, and the effect of such clause must be fully explained to the client before the execution of the deed : (Re Taylor, 23 L. T. Rep. 72.)
An attorney acting out of the usual course of his employment must have a special authority given him to receive money, so as to give a valid receipt: (Petgrave on Principal and Agent.)
The lien of a solicitor on a fund recovered in a cause does not extend beyond the costs in that particular suit (Lann v. Church, 4 Madd. 391.)
The lien of a solicitor upon a deed belonging to his client does not entitle him to refuse to produce the deed as evidence between third parties : (Hope v. Liddell, 25 L. T. Rep. 231, Court of Appeal.)
Town agents may set off a sum recovered by them for country solicitors against a debt due by the latter to the former: (Bray v. Hine, 6 Price, 203.)
Where a debt is attachable, the attachment is superior to the lien of an attorney in respect of general costs due to him from the judgment debtor: (Hough v. Edwards, 26 L. J. 54, Ex.)
An attorney in Ireland can recorer costs due to him by a party in England, in an action brought in England against the party indebted, although no signed bill has been delivered, as neither the English nor Irish statutes apply to such a case: (Kerneghan v. Wadeson, 24 L. T. Rep. 253.)
A solicitor wbo is a mortgagee, and who acts as his own solicitor, in a suit in defence of his title, is only entitled to costs out of pocket: (Sclater v. Cottam, 29 L. T. Rep. 309.)
Where a treaty for a loan, on a specified security, goes off, the lender not being satisfied with the title (there being no special stipulation as to payment of the expenses of the investigation), the proposed borrower is not liable for the costs incidental to the investigation of the title : (Melbourne v. Cottrell, 29 L. T. Rep. 293.)
If an attorney through inadvertence, inexperience, or neglect, incur trouble which is useless to his client, he cannot make it a subject for remuneration : (Bracey v. Carter, 12 Ad. & Ell. 373.) The same rule applies to disbursements : (Lewis v. Samuel, 2 Q. B. Rep. 685.)
The 62nd and 63rd rules of Hilary Term, 1853, prepared in accordance with the 223rd section of the Common Law Procedure Act, 1852, are as follows: “LXII. When issues in law and fact are raised, the costs of the several issues both in law and fact will follow the finding or judgment, and if the party entitled to the general costs of the cause obtain a verdict on any material issue, he will also be entitled to the general costs of the trial; but if no material issue in fact be found for the party otherwise entitled to the general costs of the cause, the costs of the trial shall be allowed to the opposite party. LXIII. No set-off of damages or costs between parties shall be allowed to the prejudice of the attorney's lien for costs in the particular suit against which the set-off is sought; provided nevertheless, that interlocutory costs in the same suit, awarded to the adverse party, may be deducted.”
As to distributive costs, under the 62nd rule, see the case of Treherne v. Gardner (29 L. T. Rep. 327), in connection with which the Master, on the taxation of the costs, allowed costs to the plaintiffs and defendants respectively according to the finding of the court, treating each party as partially successful. In that case, Coleridge, J., after referring to sect. 75 of the Common Law Procedure Act, 1852, and to Mr. Gray's book on the Law of Costs, said (inter alia), “It will be for the Master always to ascertain whether any and what costs have been incurred as to the part of the issue found for the defendant, and when they can be ascertained to have been incurred relative to the whole, to tax them to the defendant, though the plaintiff has succeeded and is entitled to the general costs in the cause." A similar course of practice previously existed, as shown by various cases and by the rules of Hilary Term, 1832: (see Welby v. Brown, 1 Exch. 770.)
By rule 117 of Hilary Term, 1853, it is provided that “ if a cause be removed from an inferior court having jurisdiction of the cause, the costs in the court below shall be costs in the cause.”
As to assignment of costs by a solicitor to a creditor, and as to notice thereof, see Day v. Day (26 L. J. 288, Ch. M. R.); Same v. Same (29 L. T. Rep. 206, Lds. Justices.)
On a sale under the direction of the Court of Chancery, where the abstract is laid before counsel on the vendor's behalf, to advise, and prepare conditions of sale, the solicitor is not allowed to charge for another copy of the abstract to send to the purchaser's solicitor, but only such sheets as may require copying to avoid showing the counsel's notes : (Rumsey v. Rumsey, 25 L. T. Rep. 241, Rolls.)
The following are some of the recognised and established charges allowed in conveyancing, góc.:
£ 8. d. Instructious for deed
0 6 8 Drawing same, per folio of 72 words
... 0 1 0 Fair copy, per folio
... 0 0 4 Engrossing ditto ...
NOTE. A skin of 15 folios is allowed to be charged for,
althongh there may, in fact, be less than that exact
Parchment, per skin ...
... Stamps, (sum paid) ... Attending Stamp-office
... .. Drawing memorial, per folio ...
... Engrossing ditto, ... ditto ...
... (A less sum is, however, generally charged in respect
of the two last above itens. ] Attending to register memorial, and afterwards for deed ...
... Attending the opposite party with draft or engrossment of deed for perusal or examination, or returning a draft deed approved, each