Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

NOTES ON THE SUBJECT OF COSTS.

Formerly no costs were recoverable either by plaintiff or defendant at common law: (2 Inst. 288.) But by the Statute of Gloucester, 6 Edw. 1, c. 1, s. 2, it was provided, that the demandant might recover against the tenant the costs of his writ purchased, together with the damages given by that statute, and that that act should hold place in all cases where a man recovered damages. Before then, however, the costs were taken into consideration in the quantum of damages awarded. Afterwards, the judges assessed a reasonable sum for costs, separate from the damages. Thereafter, costs were made payable under certain acts of Parliament, in certain cases. Later still, (as shown by "The Attorney's Compleat Guide,” 1773), a certain amount of costs was allowed in particular cases.

The clause above referred to of the Statute of Gloucester was the origin of costs de incremento (or of increase). And hence the plaintiff had, generally speaking, a right to costs, in all cases where he was entitled to damages, antecedent to, or by the provision of that statute: (10 Co. 116 a.) The plaintiff had also a right to costs in all cases where a certain penalty is given by statute to the party grieved.

In the reign of Henry the 7th, a local statute of Worcester was passed, limiting the fees of attorneys to 4d. a day.

Attorneys' fees, or charges, are still, in some instances, in accordance with the values of our ancient coins, viz., a noble, 13s. 4d.; half-noble, or angel, 6s. 8d.; angelet, 3s. 4d.

In various subsequent statutes the payment of costs was provided for in certain cases, and in some instances to a limited extent, viz., 8 & 9 Will. 3, c. 11; 43 Eliz. c. 6; 21 Jac. 1, c. 16; 22 & 23 Car. 2, c. 9; 4 Anne, c. 16; 11 Geo. 2, c. 19. Various other statutes have also been passed having reference to the same subject.

By the stat. 3 Jac. 1, c. 7, s. 1, attorneys and solicitors were to deliver a signed bill to their clients, before bringing

an action thereupon, and by stat. 2 Geo. 2, c. 23 (explained by 12 Geo. 2, c. 13), no attorney or solicitor should commence an action for his costs, till the expiration of one month after the delivery of his bill; which is directed to be written in a common legible hand, in English, except law terms, and subscribed with the attorney's name, in his own handwriting.

In equity, it would seem, that the matter of costs to either party was not held to be a point of right; but only discretionary, under the stat. 17 Rd. 2, c. 6, according to the circumstances of the case.

By 44 Geo. 3, c. 98, s. 14, it is enacted "that every person who shall, for or in expectation of any fee, gain, or reward, directly or indirectly draw or prepare any conveyance of, or deed relating to any real or personal estate, or any proceedings in law or equity, other than and except serjeantsat-law, barristers, solicitors, attorneys, notaries, proctors, agents, or procurators having obtained regular certificates, and special pleaders, draftsmen in equity, and conveyancers, being members of one of the four inns of court, and having taken out the certificates mentioned in the said schedule to this act, at the head office in London of the commissioners for managing the duties on stamped vellum, parchment, and paper, and other than and except persons solely employed to engross any deed, instrument, or other proceedings not drawn or prepared by themselves, and for their own account respectively, and other than and except public officers drawing or preparing official instruments applicable to their respective offices, and in the course of their duty, shall forfeit and pay for every such offence the sum of fifty pounds; provided always, that nothing herein contained shall extend, or be construed to extend, to prevent any person or persons drawing or preparing any will, or other testamentary papers, or any agreement not under seal, or any letter of attorney."

Costs may generally be considered as between attorney and client (being what is payable in every case to the attorney by his client, whether he succeed or not); or, as between party and party (being those costs only which are allowed in particular cases, to the party succeeding against his adversary.)

The 6 & 7 Vict. c. 73, consolidated and amended the laws relating to attorneys and solicitors. In a schedule thereto, reference is made to sixty-nine previous acts of Parliament, relating wholly or partially to attorneys and solicitors,

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 furnish 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 misconduct 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

« ΠροηγούμενηΣυνέχεια »