Cornell University Library KDK1695.A4 1892 Reported cases on costs, 1867-1891. 3 1924 017 809 322 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017809322 REPORTED CASES ON COSTS, 1867-1891. REPORTED CASES ON COSTS, 1867-1891. PUBLISHED BY THE COUNCIL OF THE INCOEPORATED LAW SOCIETY OF IRELAND. DUBLIN: FEINTED BY JOHN FALCONER, AT THE OFFICE OF " THE IRISH LAW TIMES AND SOLICITORS' JOURNAL," 53 UPPER SACKVILLE-STEEET. 1892. R iooi:l IIUBLIN : PRINTED BT JOHN FALCONER, 53 DPPEB SACKVILLB-STREET. r/ OCT \ sjsin^ PREFACE. The following pages contain a collection of verbatim reprints of the Reports of Cases on questions relating to Costs decided in Ireland since 18(37, and also of such of the English cases on the Solicitors' Remuneration Act as are applicable to the law in this country. It is hoped that the collection will prove of use to the legal professions of both countries, as collecting in .ona volume cases which are scattered through many volumes and series of Reports. The Council wish to aoknowledge their obligations and return their best thanks to the Incorporated Councils of Law Reporting for Ireland and for England and Wales respectively, and to the proprietors of the Irish Law Times, the Weekly Reporter, the Law Times, and the Solicitoi^d Journal, for theii| permission to reprint from their several publications the Reports which are here incorporated. A note following the name of each case indicates the source from which the Report has been taken, and refers to other publications where the case is to be found. The book has been compiled by the Council, with the assistance of Mr. G. Y. Dixon, Barrister-at-law, to Avhom they desire to offer their thanks for the manner in which he has carried out their wishes. THE INCOEPOEATED LAW SOCIETY OF lEELAND. COUNCIL AND OFFICERS FOR THE YEAR ENDING 26th NOVEMBER, 1892. President : THOMAS C. FRANKS. Vlce-Fresidents : TREVOR T. L. OVEREND. ] EDWARD D'ALTON. Ordinary SlemlbeTB : John MaoSheeht. William Eindlatee. Abthdk Ij. Bablee. William Fkt, Junior. KlOHABD S. ReBTES. Edward Fitzgebald. Fbancis R. M. Crozjbb. A. F. Baker. Edwaed D 'Alton. Charles A. Standell. Trevor T. L. Overend. Robert Reeves. William H. Duhne. W. Burroughs Stanley. JoHK A. Fbench. Sir Patrick Maxwell. John L. Soallan. Thomas Falls. Thomas F. O'Connell. Gboboe Fottrell. Thomas C. Franks. S. P. Redington. J'oseph Galloway. R. H. Bbauchamp. Bennett Thompson. John D. Rosenthal. Hugh S. Moore. John Trevor Fox. Thomas K. Roche. P. C. Earle Bland. Robert K. Clay. Provincial Delegates: Ulster.— Jon^ B. Atkinson. | Leinster W. Grove White. Connaughl—MV. P. Kelly. Munster. — Patrick S. Connolly. Eztra-Ordinary Slembers : Northern Law Society, Charles H. Bbbtt. C. W. Black. A. Caruth. John Dinnen. Charles Higginson. Southern Law Association, Robert Gregg. J. C. Blake. J. W. BOURKB. W. H. COEKBB. A. Julian. Treasurers : The Governob and Company or the Bank of Ireland. Secretary : William George Wakely. TABLE OF CASES. Allen, Ex parte, In re Merchant Shipping Act, 7 L. R. Ir. 124 . AUen, In re, 34 Ch. D. 433; 35 W. E. 218; 56 L. T. 6; 56 L. J. Ch. 487 Allen, Guinea v., I. R. 1 C. L. 331 ; 1 Ir. L. T. 6 Allen V. O'Callaghan, 10 Ir. L. T. R. 131 Anthony v. Walshe, 22 L. R. Ir. 619 . Armagh Election Petition, In re, 10 Ir. L. T. R. 178 . Atkinson, In re, and the Lnrgan Town Commissioners, 24 L. R. ■ Ir. 182 Atkinson v. Gregory, 1 Ir. L. T. 157 Aylesford, Earl of, v. Poulett Earl (1891), 1 Ch. 248 ; 39 W. R, 106, 241 ; 63 L. T. 519 ; 64 L. T. 336 ; 60 L, J. Ch. 204 Pago 223 348 1 172 425 181 498 5 657 B Bailward, Newbould v., 14 App.Cas. 1 ; 37 W.R.401 ; 59 L.T. 906 Bann Navigation Act, In re, 17 L. R. Ir. 168 . Beamish's Trusts, In re, 5 Ir. L. T. R. 104 Beaiunont, Kennedy v., 24 I. L. T. R. 95 Beck, In re, 24 Ch. D. 608; 31 W. R. 910; 49 L. T. 95; 52 L. J. Ch. 815 . . . . . Belfast Mineral Water Co. v. Dempsey, 25 Ir. L. T. 587 Belfast Water Commissioners, In the matter of the, Ex parte Orr ExpaHe Usher; Ex parte Connor; 21 L. R. Ir. 342 BeU V. M'Nally, 16 Ir. L. T. R. 14 Beresford, Riggs v. (Armagh Election), 10 Ir. L. T. R. 178 Best, Dennis v., 12 Ir. L. T. R. 152 . Billing, Birmingham v., I. R. 9 C. L. 287 Birmingham v. Billing, I. E. 9 C. L. 287 Blair v. Cordner, 19 Q. B. D. 516 ; 36 W. R. 109 Blenkhom, Parker »., 14 App.Cas. 1; 37 W. R. 401 ; 59 L. T. 906 Blee, Lapsley v., 6 L. R. Ir. 155 ; 13 Ir. L. T. R. 174 . 483 319 73 632 235 681 463 226 181 194 147 147 409 483 200 Table of Cases. Blencowe, Metcalfe v., In re Metcalfe, 36 VV. E. 137 ; 57 L. T, 925 ; 57 L. J. Ch. 82 . . . Bolingbroke v. O'Rorke, 11 Ir. L. T. K. 101 Bolton, Thompson Bros, v., 22 I. L. T. B. 96 . Bonass, Ex parte, In re Piircell and Leneh^n, 27 L, R. Ir. 375 Bourke, Chappie v., I. E. 3 Eq. 270 ; 3 Ir. L. T. 238 Boyd's Trusts, I. R. 1 Eq. 489 ; 1 Ir. L. T, 731 Brady v. Tuckey, 12 Jr. L. T. 309 Bray Electric Tramway, In re, 23 L. R. Ir. 116 Bridewell Hospital, In re, 57 L, T. 155 Brownr^g, Leonard v., I. R. 6 C. I^. 161 ; 6 Ir. L. T. Brunker v. North, 15 Ir. L. T. R, 10 . Buckley, Eager v., 8 L. R. Ir. 99 ; X5 Ir. L. T. R. 60. Buckley, Ferguson to {Sx parte), 21 1/. R. I. 392 Byrne, Devitt v., 8 L, R. Ir, 99 ; 15 Ir. 1,. T. E. 60 Byrne v. M'Evoy, I. R, 5 C. L. 568 ; 6 Ir. L. T. R, 22 Page 412 185 472 689 18 15 193 531 403 82 214 225 46 7 225 78 C Carter v. Rackham, In re Eackham, W. N. 1889, 214 Cartington's Estate, In re, 24 Ch. D. 608 ; 31 W. R. 910 ; 49 L. T, 95; 52L. J.Ch. 815 . . _ . Caruth, Ex parte, 25 L. R. Ir. 478 ; 25 Ir. L, T. R. 6 Chappie V. Bourke, I. R. 3 Eq. 270 ; 3 Ir. L, T. 238 Chichester, De Burgh v., I. R. 4 Eq. 623 ; 5 Ir. L. T. B. 1 Clarke, Doran v., 24 Ir. L. T. R. 34 Connor, Ex parte. In re Belfast Water Commissioners, 21 L. R Ir. 342 .... , Connor, Robb v., I. R. 9 Eq. 373 ; 9 Ir. L. T. R, 115 Cooke, Haig v., 24 Ir. L. T. R. 56 Cordner, Blair v., 19 Q. B. D. 516 ; 36 W. E. 109 Crotty, Lindsay v., I. R. 1 C. L. 731 j 1 Ir. L. T. 280 Crowder v. Irish North-Western Railway Co., I. R. 4 C. L. 371 3 Ir. L. T. 465 . Cusack, Jessop v., 25 L. R. Ir. 244 597 235 653 18 60 600 4€3 135 606 409 5 19 634 D Dean, In re, 32 Ch. D. 209 ; 55 L. J. Ch. 420 . De Burgh v. Chichester, I. R. 4 Eq. 623 ; 5 Ir. L. T. R. 1 Dempsey, Belfast Mineral Water Co. v., 25 Ir. L. T. 587 329 60 681 TahU of Cases. IX Denne, In re, 33 W. K. 120 ; 51 L. T. 657 ; 54 L. J. Ch. 45 . 266 Dennis v. Best, 12 Ir. L. T. R. 152 . . . .194 D'Esterre, O'Meara v., 21 L. R. Ir. 135 ... 415 Devitt V. Byrne, 8 L. R, Ir. 99 ; 15 Ir. L. T. R. 60 . . 225 Doherty, Kearse v., 21 L. R. Jr. 381 . . . . 448 Dolan, Ryan v., I. R. 7 Eq. 92 . . . .104 Doran v. Clarke, 24 Ir. L. T. R. 34 . . . 600 Dub. & Wick. Ry. go., O'SulIiv^n v., I. R. 3 C. L. 124 ; 1 Ir. L. T. 675 . . . . . . .11 Dublin (South) City Market Company, In re; Ex parte Keatley, 25 L. R. If. 265 , . . . . . 641 Dyott V. Reade, 10 Ir. I/. T. R, 110 , . . . 157 E Eager v. BuQkley, 8 L. R, Ip. 99 ; 15 Ir. L. T. R. 60 . Eakin, Lt^ng v., 1 Ir. L. T. 631 Eason, Johnson v-, 5 Ir, L. T. R. 6 Emanuel J^nd Simmonds, In re, 33 Ch. D. 40 ; 34 W. R. 613 55 L. T, 79 ; 55 L. J. Ch. 710 225 10 41 332 Ferguson to Buckley {Ex parte), 21 L. R. Ir. 392 Field, In re, 29 Ch. D. 608 ; 33 W. R, 553 ; 52 L. T. 480 ; 54 L. J. Ch. 661 Fitzgibbon, Long v., 20 L. R. Ir. 12 ; 21 Ir. L. T. R. 13 Fleming v. Hardcastle, 33 W. R. 776 ; 52 L. T. 851 . Fraser, Ryan v., 16 L. R. Ir. 253 .. . Fry V. James, I. R. 4 Eq. 255 ; 4 Ir. L. T. 162 . 4^7 278 382 290 256 21 G Gallaher, Goodbody v., 16 L. R. Ir. 336 Gallard, In re, Ex parte Harris, 21 Q. B. D. 38 Galway Election Petition (Trench v. Nolan), I. R. 7 C. L. 445 7 Ir. L. T. R. 188 . Garrett, Palmer v., I. R. 5 C. L. 412 ; 5 Ir. L. T. 165 Garvey, O'HaUoran v., I. R. 9 C. L. 551 ; 10 Ir. L. T. R. 20 Glascodine and Carlyle, In re, 52 L. T. 781 Goodbody v. Gallaher, 16 L. R. Ir. 336 . Gray, ftuin v., I. R. 1 C. L. 223 311 443 108 74 167 308 311 8 X Table of Cases. Page Greene, Leclerc v., I. R. 4 C. L. 388 ; 4 Ir. L. T. 780 . • 44 Gregg V. Johnston, 25 Ir. L. T. K. 20 . . ■ • 651 Gregory, Atkinson v., 1 Ir. L. T. 157 . . • • ^ Greville's Settlement, In re, 40 Ch. D. 441 ; 37 W. R. 150 ; 58 L. J. Ch. 256 ; 60 L. T. 43 . . • • 475 Greville v. Kirk, 10 L. R. Ir. 41 .... 227 Grey's Brewery Co., in re, 56 L. T. 298; 31 S. J. 219 . . 377 Griffiths V. Patterson, 22 L. R. Ir. 656 . . . . 452 Guinea v. AUen, I. R. 1 C. L. 331 ; I Ir. L. T. 6 . . 1 H Haig V. Cooke, 24 Ir. L. T. R. 56 . ... Hannan v. Laffan, 15 Ir. L. T. R. 32 . Harbison, Maclver v., 21 L. R. I. 241 Hardcastle, Fleming v., 33 W. R. 776 ; 52 L. T. 851 . Harris, ExparU, In re Gallard, 21 Q. B. D. S8 . Haslam v. O'Connor, I. R. 6 Eq. 615 . Hasties and Crawford, Be, 36 W. R. 572 Hayden, Mary, In the goods of, 23 Ir. L. T. 566 . Heffernan v. Vaughan, 18 Ir. L. T. R. 38 Hester v. Hester, 34 Ch. D. 607 ; 35 W. R. 233 ; 55 L. T. 862 56 L. J. Ch. 247 . Hickey v. O'Connor, I. R. 8 C. L. 509 . Hickley and Steward, In re, 33 W. R. 320 ; 52 L. T, 89 ; 54 L. J. Ch. 608 Higgins, Minors, In re, 23 L. R. Ir. 596 HUl V. Spurgeon, In re Love, 40 Ch. D. 637; 37 W. R. 475 ; 60 L. T. 254 . Holmes, Ward v., 32 Ch. D. 209 ; 55 L. J. Ch. 420 Hone V. Hutchinson, I. R. 7 Eq. 56 Humphreys v. Jones, 31 Ch. D. 30 ; 34 W. R. 1 ; 53 L. T. 482 55 L. J. Ch. 1 Hutchinson, Exparte^ In re Renewable Leasehold Conversion Act, I. R. 7 Eq. 56 . Hutchinson, Hone v., I. R. 7 Eq. 56 . 606 218 441 290 443 99 437 557 254 360 133 270 598 511 329 91 316 91 91 Irish North- Western Railway Co., Growder v., I. R. 4 C. L. 371 ; 3 It. L. T. 465 . 19 Table of Cases. XI James, Fry v., I. R. 4 Eq. 255 ; 4 Ir. L. T. 162 Jameson v. Royal Insm:ance Co., 8 Ir. L. T. 375 Jessop V. Cusack, 25 L. R. Ir. 244 Johnson v. Eason, 5 Ir. L. T. R. 6 Johnston, Gregg w., 25 Ir. L. T. R. 20 . Jones, Hmnphreys v., 31 Ch. D. 30, 34 W. R. 1 ; 53 L. T. 482 55 L. J. Ch. 1 . . , . . 21 131 634 41 651 316 K Kearse v. Doherty, 21 L. R. Ir. 381 : . . . 448 Keatley, Ex parte. In re Dublin South City Market Company, 25L. R. Ir. 265 641 Keeping, and Gloag, Re, 58 L. T. 679 . . . . 433 Kennedy, Talbot v., 1 Ir. L. T, 44 . . . . 3 Kennedy v. Beaumont, 24 I. L. T. R. 95 . . . 632 KilmaUock Union, Guardians of, O'Malley v., 22 L. R. Ir, 326 . 447 Kirk, Greville v., 10 L. R. Ir. 41 . . , .227 Lacey & Son, In re, 25 Ch. D. 301 ; 32 W. R. 233 ; 49 L. T. 775 53 L. J. Ch. 287 . Laffan, Hannan v., 15 Ir. L. T. R. 32 . Lanagan, M'ShefPrey v., 20 L. R. Ir. 528 Lang V. Eakin, 1 Ir. L. T. 631 Lapsley v. Blee, 6 L. R. Ir. 155 ; 13 Ir. L. T. R. 174 Leclerc v. Greene, I. R. 4 C. L. 388 ; 4 Ir. L. T. 780 Leonard v. Brownrigg, I. R. 6 C. L. 161 ; 6 Ir. L. T. 7 Lindsay v. Crotty, I. R. 1 C. L. 731 ; 1 Ir. L. T. 280 Locke, Pahner v., 21 Ir. L, T. R. 32 . London N.-W. By. Co., Mape n., I. R. 1 C. L. 563 Long V. Fitzgibbon, 20 L. K, Ir. 12 ; 21 Ir. L, T. R. 13 Love In re HUl v. Spurgeon, 40 Ch. D. 637 ; 37 W. R. 475 ; 60 L. T. 254 Lynch v. Macan (No, I.), 26 L. R. Ir. 385 ; 24 Ir. L. T. R. 89 Lynch v. Macan (No. II.), 26 L. R. Ir. 388 ; 24 Ir. L. T. R. 89 Lurgan Town Commissioners and Atkinson, In re, 24 L. R. Ir, - 182 . , . . . 238 218 397 10 200 44 82 5 411 14 382 611 645 648 498 xu Table of Cases. M V»g» Macan, Lynch v. (No. I.), 26 L. R. Ir. 385 ; 24 Ii-. L. T. R. 89 645 Macan, Lynch v. (No. II.), 26 L. R. Ir. 388; 24 Ir, L. T. R. 89 648 MacGowan, In re, Macgowan v. Murray (1891), 1 Ch. 105 ; 39 W. R. 227; 63L. T. 793; 60L. J. Ch. 118 . . 667 MacGrowan «. Murray, In re, MacGowan (1891), 1 Cfa. 105 ; 39 W. R. 227 ; 63 L. T. 793 ; 60 L. J. Ch. 118 . ^ . 667 Maclver, deceased, Maclver v. Harbison, 21 L. R. Ir. 241 . 441 Maguire v. O'Connor, 1 Ir. L. T. 702 . . . . 13 Malone, M'Namara v., 18 L. R. Ir. 269 ; 20 Ir. L. T. R. 24 . 343 Mandeville, ScuUy v., 10 L. R.'Ir. 327 . . . .231 Mape V. London N.-W. %. Co., 1. R. 1 C. L. 563 . . 14 Marsden's Estate, In re, Withington v. Neumann, 40 Ch. D. 475 ; 58 L. J. Ch. 260 . . . . . . 522 Martin (a lunatic). In re 41 Ch. D. 381 ; 33 S. J. 398, W. N. 1889, 84 . . . . . . .546 Martin v. Nixon, 22 L. R. Ir. 138 ; 22 Ir. L. T. R. 9. , . 423 Mayor of London, Ex parte, 34 Ch. D. 452; 35 W. R. 210; 56 L. T. 13 ; 56 L. J. Ch. 308 . . . . 371 Merchant Shipping Act, 1854, In re, 7 L. R. Ir. 124 . . 223 Merchant Taylors' Co., In re, 29 Ch. D. 209 ; 33 W. R. 542 . 287 Merchant Taylors' Co., In re, 30 Ch. D. 28 ; 33 W. R. 693 ; 52 L. T. 775 ; 54 L. J. Ch. 867 . . . .294 Metcalfe, In re, Metcalfe v. Blencowe, 36 W. R. 137 ; 57 L. T. 925; 57 L. J. Ch. 82 . . . . . .412 M'Evoy, Byrne v., L R. 5 C. L. 568 ; 6 Ir. L. T. R. 22 . . 78 M'Grath, Ex parte. In re Eoaohe's Estate, 25 L. R. Ir. 256 . 616 M'Mahon v. N.-W. Ey. Co., I. E. 6 C. L. 200 . . . 67 M'NaUy, BeU v., 16 Ir. L. T. R. 14 . . . . 226 M'Namara v. Malone, 18 L. R. Ir. 269 ; 20 Ir. L. T. R. 24 . 343 Moore, Thompson v., 25 L. R. Ir. 98 . . . . 609 Montage, Scott and Baker, In re "W. N. 1889, 40 . . 530 Mortimer, In re, I. R. 9 Eq. 96, 4 Ir. L. T. 87 . . . 23 M'Sheffrey v. Lanagan, 20 L. R. Ir. 528 . . . 397 Murphy v Nolan, I. R. 7 Eq. 498 ... . 125 Murray, MacGowan v., In re MacGowan (1891), 1 Ch. 105 ; 39 W. R. 227 ; €3 L. T. 793 ; 60 L. J. Ch. 118 . . 667 Myers v. Phelan, 26 L. R. Ir. 218 ; 24 Ir. L. T. R. 60 . . 558 Table of Cases. XIII N Page Nesbitt, The Queen »., 20 Ir. L. T. R. 56 , . . 323 Neumann, Withkigton v., In re Marsden's Estate, 40 Ch. D. 475 ; 58L, J.Ch. 260 522 Newbould ». BaUward, 14App.Ca».l; 37W.R.401; 59L.T.906 483 Newry Steam iErated Co. v. 9 Ir. L, T. 194 . 151 Nixon, Martin v., 22 L. R. Ir. 138; 22 Ir. L. T. R. 9 . . 423 Nolan, Murphy »., I. R. 7 Eq. 498 . . . .126 Nolan, Trench v. (Galway Election Petition), I. R. 7 C. L. 445 ; 7Ir,L. T. R. 18» ' , 108 North, Brunker v., 15 Ir. L. T. R. 10 . . .214 N.-W. Ey. Co., M'Mahon v,, I. R. 5 C. L 200- . . , 67 O CCaJlaghan, Allen v., lo Ir,L. T. R. ISl . . .172 O'CaUaghan, In re, 19 L. R. Ii-. 32 , . , ,324 CConnor, Haslam t;., I. R. &Eq, 615 . . .99 O'Connor, Hickey v., Ir. R. 8 C. L. 609 . , . . 133 C^Cfflmor, Maguire v., 1 Ir. L. T. 702 . . . .13 O'Hagan, Ex parte, 19 L. R, Ir. 99 ;. 21 Ir. L. T, 164 . 386 O'Halloran v. (Jarvey, I. R. 9 C. L. 551 ; 10 Ir, L, T. R. 20 . 167 Olpherts, £a; parte, 17 L. R,Ir. 168 , . . .319 O'MaUey v. Guardians of Kilmallock Union, 22 L. R. Ir. 326 . 447 O'Meara D. D'Esterre, 21 L. R. Ir. 135 . . .415 OTlorke, BoUngtaroke v., 11 Ir. L. T. R. 101 . . . 185 Orr, Ex parte. In re Belfast Water Commissioners, 21 L. R. Ir. 342 . . , . . . , .463 O'Sullivan v. Dub. & Wick. Ey. Co., I. R. 2 C. L. 124 ; Ir. L. T. 675 ....... 11 P Palmer v. Sartett, I. R. 5 C. L. 412 ; 5 Ir. L. T. 165 . . 74 Pahner, In re^ 45 Ch. D. 291 ; 38 W, R. 673, 62 L. T. 778 ; 59 L..J. Gh. 575 618 Fahner v. Locke, 21 Ir. L. T. R. 32 . . .411 Pwker V. Bienkhom, 14 App. Cas, 1 ; 37 W. R. 401 ; 59 L. T. 9(i6 488 Parker, In re, 29 Ch. D. 199 ; S3 W. R. 541 ; 52 L. T. 686 . 273 Patterson, Griffiths v., 22 L. R. Ir, 656 . . . . 452 Phelan, Myers v., 26 L. R. Ir. 218 ; 24 Ir. L. T. R. 60 . . 558 XIV Table of Cases. Page Purcell and Lenehan, In re, Ex parte Bonass, 27 L. R. Ir. 375 , &89 Poulett Earl, Aylesford, Earl of, v. (1891), 1 Ch. 248 ; 39 W. R. 106, 241 ; -63- L. T. 519 ; 64 L. T. 336 ; 60 L. J. Ch. 204 . 657 Q ftuin V. Gray, I. E. 1 C. L. 223 . . . . 8 « Queen," The, 3 Ir. L. T. 101 . . . .16 Queen (The) v. Nesbitt, 20 Ir. L. T. R. 56 . .- . 323 R Rackham, Carter v., In re Rackham, W. N. 1889, 214 . . 597 Eackham, In re, Carter v. Eackham, W. N. 1889, 214 . . 597 Reade, Dyott v., 10 Ir. L. T. R. 110 . . . . 157 Reade, Salthouse v.. In re Read's Trusts, 33 S. J. 219 . 528 Efiade's Trusts, In re, Salthouse v. Reade, 33 S. J. 219 , 628 Rees, Re, Rees v. Rees, 58 L. T. 69 , . . . 417 Renewable Leasehold Conversion Act, In re Exparte Hutchinson, I. R. 7 Eq. 56 . . . . . .91 Richardson, TiSdall v., 20 L. R. Ir. 199 . . . 395 "Rivoli" and Cargo, the, 4 Ir. L. T. 454 .. . 29 Roache's Estate, In re, Exparte M'Grath, 25 L. R. Ir. 256 . 616 Riggs V. Beresford (Armagh Election), 10 Ir. L. T. R. 178 . 181 Robb V. Connor, I. R. 9 Eq. 873 ; 9 Ir. L. T. R. 115 . . 135 Robertson, In re, 19 Q. B. D. 1 ; 35 W. R. 833 ; 56 L. T. 859 . 389 Roberts, Stanford i;., 26 Ch. D. 155; 32 W. E. 404; 50 L. T. 147 ; 53 L. J. Ch. 338 .... . 248 Robson, In re, 45 Ch. D. 71 ; 38 W. E,. 556 ; 63 L. T. 372 ; 59 L. J. Ch. 627 . . . . . . 625 Royal Insurance Co., Jameson, v., 8 Ir. L. T. 375 . . 131 Ryan v. Dolan, I. R. 7 Eq. 92 . . . . 104 Ryan v. Fraser, 16 L. R. Ir. 283 . . . .256 S Salthouse V. Reade, In re Reade's Trusts, 33 S. J. 219 . . 528 S'ealey v. Stawell, I. R. 10 Eq. 206 . . . . 179 Secretary of State and Denne, In re, 33 W. R. 120; 51 L. T. 657 ; 54 L. J. Ch. 45 . . . . . 266 Scully w. Mandeville, 10 L. R. Ir. 327 . . . .231 Simpson v. Wilson, 17 Ir. L. T. 546 . . . . 234 Smart v. Verdon, 9 Ir. L. T. 598 . . . . 153 Taibh of Case». Snrith, Pinsent & Co., In re, 44 Ch. D. 303 ; 38 W. R. 685 ; 59 L. J. Ch. 590- Spurgeon, HiU v., In re Love, 40 Ch. D. 637 ; 37 W. R. 475 60L.T. 254 . . Stanford v. Roberts, 26 Ch. D. 155 ; 32 W. R. 404 ; 50 L. T 147 ; 53 L. J. Ch. 388 ... • Stawell, Sealey v., I. R. 10 Eq. 206 . Steeds, Weston v., 24 L. R. Ir. 283 . Stewart, In re, 41 Ch. D. 494 ; 37 W. R. 484 Strange, Ex parte, 2il L, R. Ir. 529 XV Page 613 511 248 179 553 533 493 Talbot V. Talbot; Talbot v. Kennedy, 1 Ir. L. T. 44 . . 3 Tisdallv. Richardson, 20 L.R.Ir. 199 . . . .395 Thompson Bros. v. Bolton, 22 I. L. T. R. 96 . . . 472 Thompson v. Moore, 25 L. R. Ir. 98 . . . .609 Tuckey, Brady v., 12 Ir. L. T. 309 . . . . 193 Trench v. Nolan (Galway Election Petition), I. R. 7 C. L. 445 ; 7 Ir. L. T. R. 188 • 108 U XMted Kingdom Land and Building Association, In re, 40 Ch. D. 471 ; 37 W. R. 486 507 Usher, Ex parte, In re, Belfast Water Commissioners, 21 L. R. Ir. 342 .....•• 463 Vaughan, Heffeman v., 18 Ir. L. T. R. 38 Verdon, Smart v., 9- Ir. L. T. 598 W Walker, Wolf v„ 14 Ir. L. T. R. Ill . Walshe, Anthony v., 22 L, R. Ir. 619 . Ward V. Holmes, 32 Ch. D. 209 ; 55 L. J. Ch. 420 Wilson, Simpson v., 17 Ir, L. T. 546 Weston V. Steeds, 24 L. R. Ir. 283 Withal, In re (1891), 3 Ch. 8 ; 39 W. R. 529 ; 64 L. T. L. J. Ch, 14 , . • • Withington v. Neumann, In re Marsden's Estate, 40 Ch 58L. J. Ch, 260 . . • • Wolf V. Walker, 14 Ir. L. T. R. HI 704; 61 D. 475 254 153 212 425 329 234 553 683 52,2 212 TABLE OF CASES CITED, Abnd V. Riches, 650. Allen, In re, S65, »6&, S61, 370, 412, 414, 487, 537, 620, 516, 519. AUhusen if. Malgarejo, 68. Alsop *. Oxford (Lord), 15^. AlwiU, Moore v., 229. Anderson v. Lamb, 180. Arkins v. Armstrong, 75, 77, 80, 84, 88, 134, 558, 5&2, 564, 567, 568, 569, 571, 572, 574, 580, 581, 582, 583, 584, 588, 590; 592,. 595, 596. Armstrong, Arkins v., 75, 77', 80, 84, 88, 134, 558, 562, 564, 567,' 568, 569, 671, 572, 574, 580, 581, 582, 583, 584, 5«8, 59-0, &92, 595, 596. Ashcrioft v. Fbulbes, 259. Aston V. Lv N.-W.- By. Co.., 20, 68. Atkinson & Sons-, i« re, 654, 655, &56.- Atlantic Eoyal Mail Steam Facket Co., Watson v.,- 20. , Atlantic Steam' Co., Powell v.-, 20,- 68. Attorney-General v. Nethereote, 525, 526. Atty.-Gen. v. Monroe, 102. Aynsley v. Glover, 139'. Bahia, the, 30, 39. Bailwai-d, Newbould d:, 52'8, 536^ 548, 552, 630. Baines e. Bromley, 260,- 261, 264, 463, 682. Baker, Smith v., 137. Baker v. Oakes, 198. Barker, Foot v., 56. Bai-ker v. Birch, 41. Bann Navigation Act,- In re, ex' parte Olpherts, 390,- 393,- 495v Baridg, Staunton *'. 159. Barnard, Carter tl., 102. Barrow, Inre, 242. Barry, Smith v., 473. Bateson, Hartley v., &. Batty «. Kynock, 610. Beamish's Trusts, 126. Beard v. Perrv, 563, 592. Beck, In re, 317, 690. Be'gbie «. Fenwick, 102. Belton, Boyd, e. 93. Bennett «. Stfott, 134, 169, 170, 171, 208. Berdan v. Greenwood, 563, 591. Betham v. Feritie', 20, 68. Belts iS. Cleaver, 160. Biddick, the, 30, 36. Bilton, Saner v., 220. Birch, Barker t>., 41. Bird V, Higginson, 2. Biackmofe v. Higgs, 1, 75', 79, 80, 83, 87, 88, 562, 567, 586, 5«9. Blair «. Cordner, 524, 523'. Blee, Lapsley v.-, 383, 398. Blenkhornv. Parker, 65'5, 669", 670, ■ 673'. ■ Btenkhorn, Parker v., 528, 536. Blubk, Eichards v., 75, 56-3, 571, 583-, 587. Biumer, Hewitt v., 682. Blyth V. Fanshawe, 555. Bsggett, Fewster, «/., 84, 88, 563, 571, 574, 594. Boi-ch, Sithel j^:, 20, 70. Boswell V. Coaks, 650. Botilding ». Tyler, 563'. Bourke, Chappie »., 159. BoWes, Laing, «., 127. Boyd, Calwell «., 601. Boyd v.- Belton, 93. Bradley, Garnett «., 204, 20'5, 2'06,- 207, 208, 210, 211, 583, 584, 593. Bradnum, Winterfield v., 461. Bi-ennan »•• Mahony, 169./ Table of Cases Cited. xvii Brentini, Mason i;., 220, Briggs u. Calverley, 448. teromHey, Baine3 v., 260, 261, 264, 463, 682. Brooker t!. Cooper, 171. Brooking v. South Devon Ry, Co., 224. Brown, tn re, 682. Brownrigg, Leonard v., 148, 561, 568, 574, 586. Brown v. Gallatly, 64. Brown v. Julian, 6. Brown v. L. N.-W. Ey, Co., 68, 70, BuUer, Smith »., 159, 610, 611. Burton v. Lowe, 83. Byrne «. M'Evoy, 90, 148, 150, 563. Cahill, Kearney v., 228. 'Caine v. Coulson, 175. Caldwell V. Johnston, 169. Pallanan, O'DonneU »., 563. CaUan, M'Alisterw., 169, 170. Calvert v. Godfrey, 93. Calwell «. Boyd, 601. Campbell, Ex parte, 584. Camfyhansen, Padley »., 208. Capel ir. Staines, 176, 177. Carey v. Cuthbect, 163. Carr, Goutard «., 570. Carson v. M'Cullagh, 555. Carter v. Barnard, 102. Cassidy ». O'Loghlin, 208, 228. Cathcart, In re, 584, Chappie o. Bom-ke, 159. Chatfield v. Sedgwick, 219, 220, 221, 222, 260. Chester and Holyhead Ry. Co., Kisbey v., 20. Chillingworth, Mackey v., 610. Churton v. Frewen, 126, 129. Claridge v. Smith, 170. Clarke, Neale v., 220, 260. Clarke v. Tyne Improvement Com- missioners, 37. Clark 10. Malpas, 109. Cleaver, Betts c, 160. Cloran, O'Farrell r., 232. Coaks, Boswell v., 650. Cocker, Shuttle worth v. 134. Cole V. Firth, 220. CoUey, Hickman v, 170, 171. Connor, Robb v., 159, 170, 162, 165, 442, 473, 555, 637. Cooke 0. Hopewell, 315. ,Cook, Sandes v., 596. Cook, Wigens v., 398,, 400. Cooper, Brooker v., 171. Cordner, Blair v., 524, 525. Cory, Hewitt v., 563. Cottrell V. Stratton, 197. Coiighlan v. Morris, 563. Coulson, Caine ■»., 175. Cousens «. Cousens, 159. Cox, Horsley c, 102. Coyle 0. Sandford, 57. Croker o. Croker, 165. Crosse v. Seaman, 88, 563, 573. Crotfy,' Lindsay, v. 9. Crowder v. N.-W. Ry. Co., 68, 70. Crowley, Throckmorton v., 41. Crowther ». Farrer, 314. Cuthbert, Carey c, 163. D Dalbiac v. Delacour, 229. • Dale v. Hamilton, 317. Danby v. Lambe, 80, 148, 563. ^ D'Arcy v. Hastings, 20,' 68, 70. Davering College Case, 107. Davies, Foster v., 107. Davis V. Eail of Dysart, 101,; 102, 416. Davis V. Mansell, 9. Dawson, Stamford (Earl) v., 189. Dean, Inre, 614, 615. Defries, Myers v., 219, 221, 563, Delacour, Datbiae w., 229. De la Salle, Ibbett v., 64. Denne, Inre, 292. De Vesci v. L. N.-W. Ry. Co., 12. Devine v. London N. W. Ry. Co., 75, 79, 80, 83, 88, 89, 562, 565, 574. Dillon, Lord, Ex parte, In re M. G. W. Ry. Co., 465, 466. Divers, In re, 644. Dixon V. Pyner, 317. Dixon V. Walker, 563, 592. Dods V. Evans, 36. Donovan, Gower v. 127. Downing v, Hodder, 26, 29. XVIU Table' of Cases Cited. Poyle, ajip., 'Feiiloin', resp.j 86. Driver, Pobly.i?.; 197. Burden,' Mooi'e «., 26. D. W. W.Ey. Co., O'Stillivaii v., 80. , , ■ ; Dwyer, 'Armstrong v. 134. Dyotto.Eeade, 182, 637, 638, 64(0. Dysart,Earl of, Davis d., 101, 102, 416. E ,. Effingham (Earl of), Smjth v., 144, 159. Elliott V. Ke^pster, 180, Kmanuel and Simmonds, In re, 351, 362, 854, 357, 486, 546, 547, 548, 549, 551, 690, 691. Emmott, ' Staffo^-'dshire Bank v., 314. Evans, Dods i>., 36, Evans v. &. S. W. Ry. Co., 68, 69. Eyre, Ward v., 244, 292. F. Falls ?;. Proctor, 189. ^ - ■• Fansliawe, Blyth v., 555. Farmer ni. Tottfell, 7, 79, 83, 84, S6, 5:63, :570, 587, Fairer,' Croyvtlier, v., 314. Farr !). Sheriff, 64. . Faulkner, In re, 483, 486. 'Fenlbnl resp., Boyle, app.,%&. Fenwick, Begbie c, 102. Ferguspn and ' Buckley, Ex parte, ' 690; Fernie, Bethara v., 20, 68. Fewster ;«. Boggett, 84, 88, 5G3, 571, 574, 694. Field, Iri re' 292, 293, 294, 334, . 335i, 3,36, ^37, 339, 341, 351, ■ 352, 353, 354, 486, 515, 516, ' 517, 518, 519, 536, 537, 543, ' 546, 547, 548; 549, 551, 552, C27, 630, 690. Firth, Cole v., 220; Fitzgerald, Poor Law Commsrs. « , 126. Fitzgibbon, Long »., 453. Fleming v. Hardcastle, 299, 353, 516. Flint, Kelly v., 9, Foot 13°. Barker, 56. Foster v. Bavies, 107. Foster, Wheatcroft v., 601, 602, 603, 604. Foulkes, Asbcroft v., 25^. Eraser, Ryan v., 459, 563, Prazer v. Quane, 84, Frean v. Sargent^ 398. Freer ■». Riraner; 97. Frewen, Churton v., 126, 129, G Gallard, In re, 690. Gallatlyi Brown »,, 64, Gallo\yay v. Ileyworth, 36. Gaiway Election Petition, 137; 142, 156, 159, 162, 182, 1'83, 184, 473. Gardiner, Geoghefgan v., 170. Garnettc. Bradley, 204, 205, 206, 207, 20B, 210, 211, 583, 584, 593. Garratt ■». Quin, 313, Garrett, Palmer v., 19, 80, 83, 89, 561, 567, 568, 574, 583. Gathercole v. Smith, 260, Gaunt V. Taylor, 63. Geogbegan v. Gardiner, 176. Gibb," Original Hartlepool Coll, Cg(. : V. 22o: ■ : ' r " ^ ; Glascodine and Carlyle, 374. Gloag, Pringle v., 345. Glover, Aynsley x>., 139. G. N. Ry. Co., Sbiels v., 68. Godfrey, Calvert v., 93. ' Gooch V. Maltby, 563. . Goodright (deceased Stevenson) «. ■ Ndright,' 175, 178. ' Gore-Langton's Estate, In re, 465, 466. Gore, Little «., 555. Goutard v. Carr, 570. Gower v. Bonovan, 127. Grane, Toplis v., 64. _Gray, In re, 624, "Gray, Morgan v., 2, 44, 56, 57, 59, Greene, Thornton v., 654, Greenwood, Berdan v., 563, 591, Greenwood Ex parte, 398. Grey's Brewery, In re, 441. Griiflths !>. Patterson, 681, 682. Griffith v. Thomas, 398. G. S. W. Ey. Co., Evans v., 68, 66, Table of Cases Cifed.l Xl;X Guinness, Hughes v., 75,' 76', 84, 87, 88, 532, 561, 571, 572, '573, •588. Gurney, Pegler v., 112, 113, 156, ,184. G. W. Ey. Co., Tiittan v., 11, 12. , : : : : / , H Hale, "Wrightt;., 228. Hamilton, Dale v., 317. Hamilton o. Pattehj 64. ■' Hannan v. Laffan, 260, ,261, 263, 563 . ; Hardcastle, FFeming v., 299, 353, 516.': '-..'' Harnor, Smith '■»., 565,' 585. Harris, Ex parte, 690. « „ Harris o.' Petherick, 207. Harrison, In re, 244. Hartley v. Bateso'n, 6. Haslamo. O'Connor, 126, 137, 159, 162, 161. Hastings, D'Arey «.,'20, 68, 70. , Hearne v. Lancashire and York'* shire Ry. Co;, 12. Heffernan v. Vaughan, 636, 637. Heslef ®; Hester,' 407, 412, 414, 487, 516, 519, 537, 539, 620. Hewitt V. Cory, 563. Hewitt V. Blnmerj J382: Hickey v. O'Connor, 167, 169, ,170, 1,71;... ^- ; . .. , Hickley and Steward, In^re, f29. HiGkman> Cplley, 170,; 171. Higginson^ Bird «., 2. Higgs, BlackmoreiJ., 1, 75, 79, 80,, 83, 87, 88, 562, 567, 586, 589;. Hill;». Peel, -109i 112, 113, l'56, '184.' . , Hoeyj Powerj*., 99. Hodder, Downing v., 26, 29. . Holman v. Stevens, 179. ' Holme7 Lowe r., 260, 263, 264, 682; HJopewell, Cooke v. 3 j.5. . ,,^ ,. , , Hoops V. Lord Kingston, 63. Horlock e.i Smith, 3ia. Horsiey c. Cox, 102. . ^ Hughes V. Guinness, 75, 76, g4, 87, '88, 532, 5.61, -571, 572, 573, 58&. Hull's Estate, 7?i re, 92. ■ ■; T Humphreys' iA, Jij.n^,5516. . Hurley r. Lawler, 2(),j68i 71.. Hurst V. "Whaley, 2. Hutchinson, co; parte, 126. Ibbett V. De la Salle, 64. Inderwick, /?i re, 624. Jack, Yates «., 139. ' Jackson v. Newcastle (Duke of), 139. Jackson v. Spittal; 68. Janies v. Raggett, G, 9. James v: Vane, 563. Janson, TurnbuU v., 610. Johnson, Phelan v., 584. Johnston, Caldwell v., 169. Jones, Humphreys v., 516. Jones V. Tobin, 36, Jlilian, Brown v., 6. K Karla, the, BO, 35. Kearney v. Cahill, 228'. Keatinge, exparte, Ren. Leas. CohV, - Act, S3. Keefe, Ruth v., 452, 453, 454, 456. Kejeping and, Gloag, In re, 470. Kelly w. Flint,'.). , Kempster, KUioit ■«., 1 80. Kerru. M. G. W.^Ry. Co., II. Kingston (Lord), Hoops v., 63. Kisbey v. Chester and Holyhead ; Ry.jCo., 20. Krupp; Vavasseur, v., 261. Kynock, Batley v., 610. Laeey, re, 267,-268, 2.72,2.83, 285, 292, 293, 310, 371, 373,. 374, 435, 470, 472, 478," 481, 486, 515, 516, 627, 6,30, 690. Laffan, Hannan v., 260j 561, 263,, 563. Laing, Shrapnel »., 453,. 45.6, 457, I 458, 459, 460, 463, 563, 682. Laing c. Bowea 127. Lakeman, Raymond o. 281. La'mb, Anderson v., 180.. Lamb, Danby v., 80, 148, 563. , XX Tahle of Cases Cited. Lancashire and Yorkshire Ry. Co., Hearne v. 12. Lapsley v. Blee, 383, 1^98, Large v. Large, 229. Lawler, Hurley v., 20, 68, 71. Legge V. Tucker, 11, 12, 84. Leonard v. Bro-svurigg, 148, 561, 568, 574,' 586. Lillycrap, Parr v., 75, 571, 573, 594. Limerick & Ennis Ry. Co., In re, 224. Lindsay v. Crotty, 9. Lindsay, Pearse*., 102, 143, 159. Little V. Gore, 555. Liverpool Improvement Act, 642, 644. L. N.-W. Ry. Co., Aston v., 20, 68. L. N.-W. Ry. Co., Brown v , 68, 70. L. N.-W. Ry. Co., De Vesci v., 12. L. N.-W. Ry. Co., Devine r., 75, 79, 80, 83, 88,^9, 502, 565, 574. Lonergan v. Royal Insurance Co , 555. Long V. Fitzgibbon, 453. Lord Mayor of London, Ex pm'te, 470, 471. Love, In re, 533, 537, 539, 643. Lowe, Burton v., ,83. LOwfej;. Holme, 260, 263, 264, 682. Lurgan Te^sfja Commissioners, In re, 654, 655, «56. M Macgowan, In re, 686. Mackey v. Chillingwerth, 610. Mahony, Brennan v., 169. Malgarejo, Allhusen v,, 68. Malins v. Price, 109. M'Alister v. Callan, 169, 170. Malone, M'Namara v., 396, 424, 650. Malpas, Clark v., 109. Maltby, Gooch v., 563. Mannix, Thomas v., 532, 555. Mansell, Davis v., 9. Mason v. Breniini, 220. Massey, re, 281. Maw V. Pearson, 531. May V. Selby, 127.. Mayor of London, Ex f arte, 661, 664,' 690. M'CuHagh, Carson v., 555. Mennin, Thomas v., 37. Merchant Banking Co. c. Spetten, 327. Merchant Taylors' Co., In re, 374, £89, 407, 500, 501, 504, 673. • M'Donnell, O'Rorke v, 84, 563, 590. M'Evoy, Byrne v.', 90, 148, 150, 563. . M'Gowan v. MiddIeton,'261. M. G. W. Ry. Co., in re. Ex parte Lord Pillon, 465, A66. M. G. W. Ry. Co., Kerr v., 11. Mid. Ry. Co. v. Pye. 26. Middleton, M'Gowan ■»., 261. M'Namara i;, Malone, 396, 424, 650. Monroe, Atty. -Gen. v., 102. Moody V. Stewart, ,601. Moore v. Alwill, 229. Moore v. Burden, 26. Morgan v. Gray, 2, 44. 56, 57, 59. Morris, Coughlan v., 563. Morrison v. Salmon, 133. Morrison ■!). Summers, 176, 177. Morse, Ward «.,-260, 682. Myers v. Defi'iea, 219, 221, 563. N Neale v. Clarke, 220, 260. Neate, In re, 242. Nethercote, Attorney-General v., 525, 526. Newborough (Lord), Stefjtrens, v., 126, 159. Newbould v. Bailward, 528, 536, 548, 552,. 630. Newbould, In re, 435, 488, 485, 486, 490. Newcastle (Duke of), Jackson v., 139. Newman, In re, 242, 244. Newport C. Co., Yorkshire W. Co., r., 215, 216. Nicholls' Trust Esta-tes, In re, 465, 466, Nolan, Trench v., 137, 142, 156, 159, 162, 182, 183, 184, 473. Noright, Goodright (deceased Ste- vension) v., 175, 173. N.-W. Ry. Co., Crowder v.^ 68, 70.- Table of 'Cases Cited. XXI O Oakes, Baker « , 198. O'Con-nor, ilasjam »., 126, 137, 159,162, 164. O'Coiinori Hickey v., 167, 169, 170, 171. O'Connor, Power v., 99. O'Donnell v. Callnnan, 563. OTarrell v. Cloran, 232. O'Hagan, Ex parte, 654, 655, 656. O'Hagan, In re, 495, 49B, -499, ,505. Olive, tlie, 30. Olive, Severn c, 127. O'Loghlin, Cassidy c, 206, 2i8. Olplierts, ex parte, In re, Bann Navigation Act, 390, 893, 495. Original Hartlepool Coll. Co. v. Gibb, 22j0. O'Rorke ». M';Donnell, 84, 563,590. O'Sullivan v. D. W. W. Uy.Co., 80. Owens V. Vamhomriglij 84, 563. Oxford (Lord), Alsop «., 159. Padley v. CamphaHsen, 208. Palmer V. Garrett, 79,80,83,89, 561, 567,568,574,583. Parker, In re, 319, 389, 390, 392, 393, 421. Parker v. Blenkhom, 528, 536, 655, 669, 670, 673. Park, In re, 624. Parr v. Lillycrap, 75, 571, 573, 594. Parsons v. Tinling, 208. Patten, Hamilton v., 64. Patterson, Griffiths v., 681, 682. Pearse e. Lindsay, 102, 113, 159. Pearson, Maw v., 531. Peel, HilU, 109, 112, 113, 156, 184. Pegler v. Gurney, 112, 113, 156, 184. Perry, Beard v., 563, 592. Pelherick, Harris »., 207. Phelan v. Johnson, 584. Pilgrim v. Southampton & D. Ry. Co., 37, 127. Poland, Rex v., 171. Pooly V. Driver, 197. Poor Law Commm's. v. Fitzgerald, 126. Powell V. Atlantic Steam Co., 20, -68. Power V. Hoey, 99. Power e. O'Connor, 99. Price, Malins »., 109. Pringle D.-Gloag, 345. Proctor, Falls v., 189. Pugh, Re, 242, 244. Pye, Mid. Ry. Co. v., 26. Pyner, Dixon »., 317. Q Quane, Frazer ■»., 84. . Quin, G'arratt u., 313. R Raggett, James v., 6, 9. Raymond e. Lakeman, 281. Rayner, Saffron Walden, .&c., Co. V. 369. Reade, Dyott«., 182, 637, 638, 640. Reilly v. White, 20. Ren. Leas. Conv, Act, ex parte Keatinge, 9,3. Rex V. Poland, 171. Rey worth, Galloway ,r., 36. Richardson, Tisdall v., p50. Richards v.' Bluck, 75, 563, 571, 583, 587. Riches, Abud v., 650. Rimner^ Freer v., 97. Robb V. Connor, 159, 160, 162, 165, 442,473,555, 637. Robertson, In re, 421. Roberts, Stanford v., 248,292,-293, 296, 298, 299, 300, 301, 305, 317, 318, 374, 389, 495, 496, 500, 50-1, 602, 504, 506,.525, 633, 656, &69, 670, 673. Royal Insurance Co. v. Lonergan, 555. Royal Irish Insurance Co. v. Staines, 346. Ruth V. Keefe, 452, 453, 454, 456, Ryan v. Fraser, 4^9, 563. Saffron Waldea, &c., Co. ». Uaynei-, 369. Salmon, Morrison ». 13S. Sandes v. Cook, 596, Sandford and Coyle v., 57. Saner v. Bilton, 220, 457. Sargent, Frean v., 390. XXll Table of Cases Cited:, l Scott, Bennett «,, 134, 169, 170, 171, 208. :, Seaman, Crosse v., 8S, 563, 573., Sedgwick, Chatfleld j;., 219, 220, 221, 222, 260. Selby, May v. 137. Severn v. QMve, 127. Sherife, Farr v., 64. Shiels V. G. N. Ey. Co., 68. Shrapnel i'. Laing, 453, 456, 457, 458, 459, 460, 463, 563,. 682, Shuttleworth o." Cocker, 134. Sichel V. Borch", 20, 70. Smart v. Verdon, 160. Smith V. Baker, 137. Smith V. Barry, 473. Smith ». BuUer, 159, 610, 611. Smith, Claridge v., 170. Smith «. Effingham (Earl of), 144, •159.. Smith, Gathercole v. 260. - Smith .«. Harnor, 565, 585. Smith, Horlock v., 310. Smith, Williams "i?., 26 Smyth, Ex parte, 224. Southampton & D. Ey. Co., Pil- ■grim v., 37, 127. Southampton and Tamworth Cases, 112, 113, 156, 184. South Devon Ey. Co., Brooking v., '.'224.. South E. Ry. Co., Williams «.,.2l6. Speeding v. Young, 36, Spittal, Jackson v., 68. Spotten, Merchant Banking Co. v., 327. Staffordshire Bank c. Emmott, 314. Staines, Eoyal Irish Insurance Co. •T., 346.- > i Staines, Capel v., 176, 177. , Stamford (Earl) •». Dawson, 189. Stanford v. Roberts, 248, 292, 293, •29«,. 298^ 299, 300, ■ 301, -305,' 317, 318, 374, 389, 495j-496, 500, 501, 502, 504,506, 525, 633, 656, 669, 670, 673. Staples V. Young, 220. Staunton v. Baring, 159. Stevens, Holman d., 179. Stevenson deceased, Goodricht v Noright,.175, 178. Stephens v. Newborough (Lord), 126, 159. Stewart, Moody v., 601. Strange, JEJa; ;7ari«, 656. • .- Strutton,-Cottrell». 197. Stooke v. Taylor, 220, 259, 461. Summers, Morrison v., 176, 177. Strother, Re, 310. Tamworth and Southampton Cases 112, 113, 156, 184. Tattan v. G. W. Ey. Co., 11,12. Taylor, Gaunt v., 63. ■ Taylor, Stooke v., 220, 259, 461. Tetley v. Wanless, 313. Thomas, Griffith v., 398. Thomas v. Mannix, 532, 555. Thomas u Mennin, 37. Thornton v. Greene, 654. Throckmorton v. Crowley, 41. Tinling, Parsons, ■»., 208. Tisdall V. Eichardson, 650, Tobin, Jones. 17., 56. . Toplis V. Grane, 64. Trench v. Nolan, '137, 142, 156, 159, 162, 182, 183, 184,473. Tucker, Legge v., 11, 12, 84. Tucker, Wilson «., 436. Turnbull v. Janson, 610. Tyler, Boulding c, 563. , : Tyne Improvement Commissionei's, Clarke v., '67. u: United Telephone Co , Wheeler v., 563,570,590. Vane, James v., 563. Vanhomrigh, Owens v., 84, 563. ;, Vaudrey, 4:3; jparte, 224. Viiuglian, Heffernan c, 636, 637. yavasseur e. Krupp, 261. Verdon, Sruart v., 160. Walker, Dixon v., 563,- 592. Walsh V. Walsh, -75, 77, 79, 80, 84, 88, 562, 566, 567, 5G8, 574, .575,580, 588, 589, 690, 595. Wanless, Tetley r., 313. Ward V. Eyre; 244, 292, Tahle of Cases Cited. xxui Ward V. Morse, 260, 682. Watson V. Atlantic Royal Mail Steam Packet Co., 20. Welchman, Be, 242, 244. Wells, In re, 365. Whaley, Hurst v., 2. Wheatcroft v. Foster, 601, 602, 603, 604. Wheeler v. United Telephone Co., .563, 570, 590. White, Reilly v., 20. Wicklow Heirlooms Case, 596. Wigens v. Cook, 398, 400. Williams v. Smith, 26. Williams v. South E. %. Co., 216. Wilson, In re, 303, 488, 673. Wilson 13. Tucker, 436. Winterfield o. Bradnum, 461. Wright V. Hale, 228. Yates V. Jack, 139. Young, Speeding r.. 36. Young, Staples v., 220. Yorkshire W. Co. v. Newport C. Co., 215, 216. EEPORTED CASES ON COSTS. GUINEA V. ALLEN. (By permission, from I. E. 1 C. L. 331 ; s. c. 1 Ir. L, T. 6.) Costs — Unnecessary Motion for Leave to Reply. Where there are two replications filed to a plea, one of which merely takes issue on the truth of the defence, and the issue on the other is decided adversely to the plaintiflF, the costs of the replications and motion for leave to reply will not be allowed to the plaintiff, though successful in the action. This was a motion on belialf of the defendant tliat the T.ixiiig Master be dkected to review his taxation of plaintiff's costs, so far as related to the costs of the motion for leave to file plaintiff's replications, and all costs charged by the plaintiff incidental to the said replications. The action was on a promissory note by payee against maker, and the defendant pleaded the acceptance by the plaintiff of a subsequent promissory note, to which there were additional parties, in accord and satisfaction. To this plea the plaintiff, on motion, obtained leave to plead two replications — one traversing the ac- ceptance of the subsequent note in accord and satisfaction, tlie other alleging fraud. The jury found for the defendant on the question as to fraud; but on the other issue the finding was in favour of the plaintiff, who accordingly succeeded in the action. The Taxing Master allowed the plaintilf the costs of the replica- tions and of the motion for leave to file them. Dowse, Q.C., and Collins, in support of the motion: — The plaintiff is not entitled to these costs ; but for the replica- tion of fraud, which has been found against the plaintiff, no replications, or motion for leave to file them, would have been necessary. Blachmore v. Higgs (1) shows that the right to costs is to be determined by the result. It was held there that plaintiff (1) 18 C. B. N. S. 790. I? Com. Pleas, 1867. Jan. U. 2 Guinea i). Allen. Com. Pleas, could not better his title to costs, because to a count for assault, ^^^^' &c., in wliicli he succeeded, he joined in his action an unfounded claim of title to land. The result of Morgan v. Gray (1) is, that a plaintiff, though he succeeds generally in the action, is not entitled to such costs as were occasioned exclusively by issues on which he failed. They also referred to Bird v. Higginson (2) and Hurst v. Whaley (3). Murphy, Q.C., and ffRiordan, for the plaintiff: — It was counsel's duty to apply for leave to reply fraud in addition to denying the acceptance of the second note in accord and satisfaction, and the Court gave leave to file these replications. Under the sixtieth section of the Common Law Procedure Act, 1853, they may be entitled to the costs of the issue of fi-aud imsuccessfully raised by us; but we are entitled to the costs of the cause. [MoNAHAN, C.J. : — If to a count on a bill of exchange you plead that you did not indorse the bills, and also that you had no notice of dishonour, and j-ou succeed on the first issue, but fail on the second, you must pay the costs of that issue. Are you, or are you not, to pay the costs of the plea ?] It has never been held that when a defendant pleaded several . pleas and only succeeded on one he was not entitled to the costs of the motion for leave to plead double. We say that they are only entitled to the costs of trying the issue on which they suc- ceeded ; we could not have filed even a single replication without leave : Common Law Procedure Act (1853), section 57. MONAHAN, C.J. : — In this case the costs in dispute are the costs of a motion for leave to reply. The replication on which plaintiff succeeded being simply a traverse of the truth of the plea, if the plaintiff had relied on that alone there would have been no occasion for the motion. From his instructions, it was probably quite right and prudent for counsel to have advised the application for leave to (1) 10 Ir. Jur. N. S. 336. (2) 5 A. & E. 93. (3) 5 Ir. L. R. 429. Talbot V. Talbut. 3 reply fraud ; but the jury having negatived this allegation, it must Com. Pleas. be taken that the replication ought not to have been filed. The case, then, is this : — To th'e plea the plaintiff had a good answer and a bad one, and if she had rested on the good one there would have been no occasion for the motion. The plaintiff is not entitled to these costs, and we must therefore comply with the motion. Christian, J., and O'Hagan, J., concurred. Attorney for the plaintiff : C. J. Daly. Attorney for the defendant : G. W. A lien. TALBOT V. TALBOT; TALBOT v. KENNEDY. {By permission^ imm 1 Ir. L. T. 44 ) Taxation — Gosis as betiveen Attorney and Client— Costs agaiiut Fund. This was a motion on behalf of Mrs. Charlotte Talbot, that the Taxing Master might be directed to review the taxation of her costs in these matters. It appeared that there had been a long litigation between the different members of the Talbot family in reference to their respective claims on the Castle Talbot Estate in the County of Wexford, in the course of which Mrs. Charlotte Talbot sought to ■establish her right to a jointure and an annuity in prwsenti, and a reversionary interest expectant on the death of Mr. John Talbot, a minor. This litigation was ultimately brought to an end by a decree, dated the 18th day of June, 1864, the result of a com- promise between all the parties, by which Mrs. Charlotte Talbot's right to her jointure was established, she relinquishing all claim to the annuity and the reversionary interest. The decree declared that Mrs. Charlotte Talbot and certain other parties were entitled to the costs incurred by them in these suits, and also in the matter of Rorke v. Talbot, " all said costs to be taxed between party and party, save the said Charlotte Talbot's costs, which are to be taxed between solicitor and client;" and the decree further declared Mrs. Charlotte Talbot entitled to her costs in these suits as between solicitor and client, and a provision was thereby made that these Chancery. 1S67. Feb. 2. 4 Talbot V. Talbot. Chancery, gosts should be paid from a fund to be raised by a mortgage of 1od7. ^ the Castle Talbot Estate. The Taxing Master, upon the taxation of costs under this decree, refused to allow Mrs. Charlotte Talbot a larger sum for the costs of a motion in Rorlce v. Talbot than a fixed sum, which, upon the hearing of the motion, had been ordered to be paid to her by the Receiver in the cause for these costs. Ke also taxed her costs in these suits as costs between solicitor and client against a fund belonging to an adverse partj% and not as full costs between solicitor and client, as they would be taxed when payable by the client. Pierce Creagh and G. 0. Malley, in support of the motion. CHara, Q. C, and J. Harris, contra. The Court (1) held that the Taxing Master had taxed the general costs upon a correct principle ; but that in taxing the costs of the motion in Rorhe v. Talbot the same principle should have been observed, and that the amount of these costs was not restricted to the sum fixed by the order. As it would not be worth while to refer back the costs to the Taxing Master upon this point only, Mrs. Talbot should be declared entitled to the difference between til is fixed sum and the amount which those costs would have been properly taxed to, which could be settled by agreement between the solicitors for the parties. Solicitor for Mrs. Talbot: Simon Creagh. Solicitor for the other parties : W. C. Hogan ^- Sons. (1) Bkewstee, L.J. (who sat for the Loi-d ChRncellor) : — The motion had Ijeen made in the first instance in the Rolls, but the Master of the Rolls refused to entertain it, as he had been engaged as Counsel in these suits whei at the Bar. Atkinson v. Gregory. ATKINSON V. GREGORY. Q'^eenS Bend,. 1867. (Bj/ permission, from 1 Ir. L. T. 157.) -pi i , (Before O'Brien, J.) Costs — Taxation — Settlement of Action within Six Days of Service of Summons and Plaint. In this case plaintiff had obtained an order to substitute service. Within six days of the substituted service the defendant tendered the sum due, and £2 10s. for costs, under 1st General Order, 22nd Jan., 185(i. Coppinger now moved that the Taxing Officer migl\t be directed to tax plaintiff's costs of the motion to substitute service, and sub- mitted that such costs are not covered by the General Order. Plaintiff cannot proceed in the action after tender of the sum due, and £2 10s. for costs, so that this motion is necessary. He wants an order under 34th section of 16 & 17 Vic, c. 113, C. L. P. Act. O'Brien, J. : — I cannot make such an order. The General Order is express that £2 10s. should be sufficient in all cases. Section 34 of tlie C L. P. Act applies to cases where there may be a taxation of costs in the cause. Here there can be no taxation at all. Motion refused. J. Doyle, attorney for plaintiff. LINDSAY V. CROTTY. Com.PUas. 1867. (Bii permission, fvom I. R. 1 C. L, 731 j s. i;. 1 Ir. L. T. 280:) "^ April 27. Mmiey lodged in Court by the defendant, drawn out by the plaintiff on account, and subsequently taVen by him in satisfaction of his demand — Defendant's Costs subsequent to Lodgment of Money in Court. The defendant in an action lodged money in Court in satisfaction of plaintiffs demand ; and, on the same day on which he served notice of the lodgment of the money, served notice of motion to change the venue. The plaintiff took out the money on account, and subsequently elected to take the money so lodged in Court in satisfaction of his demand. 6 Lindsay v. Crolty. Com. Picas. Held, that the plaintiff must pay to the defendant his costs, necessarily IS^''- and properly incurred subsequent to the lodgment of the money, including the costs of the motion to change the venue. ]\IOTiOJf, that the plaintiff pay to the defendant his costs incurred subsequent to the lodgment of money in Court by the defendant, on the 22nd February, 18()7. The money in this case was lodged in Court, and notice of such lodgment given on the 22nd February, and notice of motion to change the venue was served on the plaintiff on the same day. 'Hie motion to change the venue came on on the 26th February, and the plaintiff appeared on the motion ; at his instance it was postponed. On the 8th March the money lodged was drawn out by the plaintiff on account of, not in discharge of, his claim. The plaintiff subsequently elected to take the money lodged in satisfaction of his demand. The costs of the venue motion were all that had been incurred by defendant. Beioley, in support of the motion, referred to Hartley v. Uateson (1), James \ Raggett (2), Broion v. Julian (3). Meldon, contra : — The English practice is different, because in England, when money is paid into Court the plaintiff has an opportunity of exercising an election, as he must reply either that he takes the money in full satisfaction, or that it is insufficient ; but here the (])T. R. 629. (2) 2 B. & Al. 766. (3) C. P. Jan. 11th, 1867. The defendant had pleaded an issuable plea, and after issue joined and notice of trial served, had applied for leave to withdraw the plea and pay money into Court. On this motion an order was made allowing him to do so, on the terms of his paying the costs of the motion if the plaintiff did not accept the sum so paid in, the order to be without prejudice to the plaintiff's notice of tr'al. Tliia order was mnde and the money paid into Court on Friday, November 23rd. The case was the last in list of common jury cases, the sittings for which were to commence on the following Tuesday. The plaintiff drew out the money in satisfaction of his claim on Saturday, the 2ith Novtmber, but did not give the defendant notice of his having done so, or withdraw notice of trial until Monday, 26th. The motion before the Court was that the plaintiff be allowed all costs incurred after the moaev had been paid into Court, and before notice of trial was -withdrawn. The Court ordered that all costs necessarily and properly incurred by the defendant, up to the service of the notice witlidrawing notice of trial, should be taxed and set off against the plaintiff's costs in the cause, and that the plaintiff should pay to the defendant £i costs of the motion. [S. c. Ir. L. T. 156.— G. Y. D.]. Lindsay v. Crotty. 7 costs soufflit are those of tlie venue motion, the notice for which C'"»- ^'™»- 1 Sfl7 was served along with that of lodging the money. MONAHAN, O.J. : We entertain no doubt in this caser On the 22nd February the money was lodged in Court by the defendant. The plaintiff, on receiving notice of the lodgment of the money, may either draw it out in satisfaction of his claim or on account. Here the plaintiff draws the money out on account, and when the motion for changing this venue came on, he appeared and obtained a postponement. Drawing out this money on account, left the plaintiff the power and right of proceeding with the action. If he had proceeded, and there had been a verdict against him, he would have paid the whole of defendant's costs. Instead of going on with the case he subsequently chose to change his mind and take the money lodged, which he had drawn out on account on the 8th of March, in full satisfaction of his cause of - action. The defendant is entitled to any costs properly incurred by him after the money was lodged. He had incurred the costs of the venue motion, and must get them, as he would under the judgment of the Court, if the case had gone on and the sum lodged had been found sufficient (1). Costs of motion to change the venue and of this motion to be set off against pla.intiff's costs, and balance, if any, to be paid to defendant. Leave to go on loitli the action refused. Attorney for plaintiff : J. Meldon. Attorney for defendant : J. D. Bergin. (1). In England the defendant would appear never to get the costs up to the lodgment of the money, even if he succeed, but in Ireland the rule seems otherwise. See Sec. 78 of the Common Law Procedure Act, and the case of Farmer v. Fottrell, 8 Ir. C. L. K. 228. Quill V. Gray. Exchequer. QUIN I'. GRAY. 1867. ^ jyfg^y Q {By permission, from I. E.; 1 C. I ., 223.) Practice — Costs — Costs incurred after Money is paid into Court — Unnecessary delay in drawing out Money. B, being sued by A for the sum of £32 for goods delivered, on the 18th December filed his defence, paying £29 into Court, and alleging that the goods were worth no more. On the 2Ist December, B served notice of motion to change the venue, which motion was movable before a Judge in Consolidated Chamber on the 4th January. On the 3rd January the plaintiff's attorney wrote to the defendant's attorney that the petitioner would take the money out of the Court in satisfaction of his demand. This letter was received on the 4th, and a telegram sent to Dublin to stop the motion, which, however, arrived after the motion had been made. The defendant was held entitled to the costs of the motion, but not to the costs of the affidavits on which it • was grounded. In tliis case the action was to recover £32 for goods sold and delivered. "J'lie writ. aw Procedure Act, 1852 (England), does not mean both contract and breach : Poicell v. Atlantic Steam Company (4), Aston v. London and North- Western Railway Com- pany (5), and Betliam v. Fernie (6), were referred to. Puicell, Q.C., and Wilson, for the plaintiff : — A company has its residence at its head office where it carries on its business; it does not carry on its business everywhere it has a station : Shiels v. Great Northern Railway Company (7), Brown v. London and North-We stern Railway Company (S). That cause of action means entire cause of action for, this purpose is settled: Hurley v. Lawler (9), Crowder v. N^orth-Western Railway Corn- Ante, p. 19. pany (10). Cases on the substitution of service rest on a different ground, and the English cases are contradictory. The Queen's Bench, in A llhusen v. Malgarejo (11), and the Exchequer, in Sichel (1) 5 Ir. Jur. O. S. 329. (7) 30 L. J. Q. B. 331. (2) 10 Ir. C. L. R. App. xxiv, (8) 4 B. & S. 326. (3) L. R. 5 C. P. 5):^. (9) 6 Jr. Jur. 0. S. 3H. (4) 10 Ir. Ch. E. App. xlvii. (10) Ir. K. i C. L. 371. (.5) Ir. E.l C. L. 604. " (11) L. E. B Q. B. 3J0. 6; 4 Ir. C. I.. U. 92. 3l^3IaJion V. North- Western Railway Co. 69 V. Borcli (1), have held that cause of action in the English Com. Pleas. Common liaw Procedure Act means entire cause of action. Cur. adv. vu!t. The judgment of the Court was delivered by Monahan, C.J. : — In this case a verdict was had for £50, for breacli of contract, which was subsequently reduced by this Court to a verdict for nominal damages. The plaintiff resides in the County of ilonaghan ; the contract was entered into in the County of Cavan, and the breach sued for occurred in the County of Monaghan. The North- Western Railway Company had an office in Castleblaney, in the County of Monaghan, but their principal office was not in tlie county. In this state of facts the Taxing Officer has ruled that the plaintiff, although he recovered only nominal damages, is entitled to half costs. The defendants have appealed from that decision, and contend that the case comes within tlie 97th section of the Common Law Procedui'e Act of 1856, which pi-ovides that where " the parties reside within the jurisdiction of the Civil Bill Court of the county in which the cause of action has arisen, and tlie plaintiff (in an action of contract) shall recover less than £20, the plaintiff shall not be entitled to any costs," unless the judge certifies. This question involves two considerations. First, whether the local office of the Railway Company at Castleblaney was a resi- dence within the section ; and secondly, assuming it to be so, whether the contract having been entered into outside the jurisdic- tion of the Civil Bill Court of tlie county where the parties resided, but the breach having taken place witliin such jurisdiction, " the cause of action " had arisen in the county witliin the meaning of the 97th section. The first provision enacted, disentitling a party to costs, was in the Civil Bill Act of 1851 (14 & 15 Vic, c. 57, s. 40). That provides that if, in any action of contra"ct (except, &c.) brought in the Superior Courts, when the Tpavties reside witliin the jurisdiction of the Civil Bill Court in which the cause of action lias arisen, the plaintiff recover less than £20, he shall be entitled to no costs; and in Evans v. Great Southern and Western Railway Company (2) (1) 2 H. & C. Oil. (2) 5 Ir. Jur. 0. S. 3'29. 70 M'MaJion V. North-Western Railway Co. ^'"liifo*"*' '* ^^^^ ^^^^ ^^ *^'* section that the Company having a ticket office in the county in which the plaintiff resided, the defendants " resided " within the jurisdiction of the county. In that decision reference was made to the 69th section of the same Act, -which regulates the Court in which proceedings shall be brought, and provides "that, if any person shall have or occupy any house, warehouse, counting-house, shop, factory, or ojffice, for the sale of goods, or for carrying on any business in any county, he shall be deemed to have a residence within such county for the purpose of this Act." The former section was repealed, and a new provision enacted by the Common Law Procedure Act, 1856, and then, on the substituted section, the one on which the present question also depends, this Court held, in UArcy v. Hastings (1), that the 69th section defined what was a residence such as to give the Assistant-Barrister jurisdiction under the 40th section, and that, as the same words occurred in the Common Law Procedure Act, 1856, section 97, as in the 40th section of the Civil Bill Act, being in pari materia, they must receive the same construction. That inasmuch as the plaintiff (as to whose residence the question arose in that case) would have been liable to have been sued in the Civil Bill Court, he should have sued the defendant in that jurisdiction, and was therefore disentitled to any costs. We have been referred to a recent case in the Court of Exchequer in this Ante, p. 19. Country, Croicder v. Irish North- Western Railway Company, which was exactly similar to the present case, and it appears to have been assumed that the Eailway Company, having an office within the county, had a residence within the 97th section, and the only question argued was, ichether the cause of action arose within the county. In the English case of In re Brown v. London and North- western Railway Co. (2), decided on the 60th section^ 9 & 10 Vic, c. 95, the Englisli County Court Act, which confers juris- diction on the County Court to issue a summons " in any district in which the defendant shall dwell or carry on his business," it was held that as a Railway Company cannot dwell personally anywhere — " dAvell " means the same as " carrying on business " — and that the place where they " carry on their business " is where (1) 10 Ir. C. L. K. App. xxiv. (2) 4 B. & S. 326. M'Mahon V. .N'ortJt-]VdStern Railway Co. 71 they carry on .their general business — and that the London and C'om. Pleas. ' 1870 North-Western Railway Company liaving their principal office at Euston- square, though they had a large station at Chester, could not be sued in the County Court at Chester. The Court in that case rely on the words of the statute being " carry on theii- business," not "part of their business;" while the words of the section of the Irish Civil Bill Act, regulating the jurisdiction of the Chairman, are " carry on any business." We think that in this matter of procedure- and practice we should adhere to the decision made in the Irish Courts. The next consideration is, what is the meaning of " where the cause of action arose ? " Is it sufficient that the breach of the contract should have occui'red in the county in which the parties reside, though the contract itself be made in another county? That question also first arose in this country on the Civil Bill Act. In Hurley v. Tjawler (1), the action was for a malicious arrest under a. fiat. It appeared that the affidavit on which the, fiat was obtained was sworn in Kerry, and the arrest was also in Kerry, but the judge's _/?ai was obtained in Dublin; and it was held that cause of action in that Act meant the whole cause of action, and that the whole cause of action did not arise within tlie County Kerry, and that the section did not apply. That case has been followed in this country, and since the argument in this case, a case has appeared in the Reports, Croicder v. North-Western liailway Aiite,f. 19. Company (i), in which the Court of Exchequer came to the same conclusion on this section of the Common Law Procedure Act. There could be no appeal from that decision, and we should not consider ourselves bound by it, if clearly of opinion it was wrong, but we concur in that decision on the words of the statute. I am aware that in England it has been held, in Jackson v. Spittal (3), that in order to serve a party not within the jurisdiction under the 18th section of the English Common Law Procedure Act, 1852, which enables the plaintiff to do so when " there is a cause of action which arose within the jurisdiction, or in respect of the ^breach of contract made within the jurisdiction," cause of action does not mean the whole cause of action, contract and breach, but (1) G Ir. Jur. 0. S. 3U. (2) I. R. 4 C. L. 371. (3) L. E. 5 C. P. 542. 72 In re Beamish's Trusts. Com. Piens. the act Oil the part of the defendant which gives the plaintiff his cause of action. But the very ehiborate judgment of the Court puts the decision on the ground that the section is not one giving jurisdiction to the Court; that the Court had inherent original jurisdiction, and that it being merely an Act relating to procedure and practice, the Court was bound to give it a liberal construction, so that the Court might be able to proceed with an action in which they have original jurisdiction. We think the decision being rested on those grounds is distinguishable, and following the previous decisions in Ireland, we must refuse this motion, with costs. Solicitor for the plaintiff : J. G- Persse. Solicitor for the defendant : A. Boyd. Roiu. In re BEAMISH'S TRUSTS. 1871. {By permission^ from 6 Ir L. T. R. 104 ) May 1. Practice — Taxation of Costs — Copies of deeds. No solicitor is. bound to send original deeds to counsel. It is his duty to his client to send merely copies. Copies of deeds sent with instruc- tions to prepare a petition should not be utilised for a brief on the hearing of the case, but the deeds should be briefed. The costs of such conies will be allowed on taxation. A PETITION was filed by Mrs. Beamish and her children on the 27 th of January, 1870, for the appointment of new trustees of a settlement dated the 22nd of October, 1842. With the instruc- tions to counsel to prepare the petition were sent copies of the several deeds relating to the trust funds. These deeds were all stated in the petition, but only three of them were taken down on the order, made on the 13th July, 1870, on the hearing of the petition, as having been read. Three other deeds were not so taken down as read. On the taxation of costs the Taxing Master (Mr. Gibson) disallowed the copies of all these deeds, but allowed a " brief copy" of the three deeds entered in the order as read. In re Beaminh's Trusts. 73 W. M. Johnson now moved for a review of the taxation of costs Rolls. ] 87 1 in respect of the items disallowed. It was necessary to state all the deeds in the petition, and accordingly copies of them were required to be furnished along with the instructions to counsel, which copies might also be required for the use of the Court. His Honor considered that when, under the circumstances of the case, it was necessary in the preparation of the petition to fully instruct counsel as to the deeds relating to the trust property, it would have been a violation of his duty on the part of the solicitor to send the original deeds to counsel. Such a course would involve the risk of their being lost, and the cost of these copies for the purpose of instructing counsel 'was accordingly most legitimate. The question then was, should these copies be made up in a brief for counsel when the case came into Court, or should these deeds be briefed in addition to the first cojjies ? Copies of deeds were frequently required for the use of the Court, who had to examine into every deed, and frequently to take the copies home to consider their construction and effect. Accordingly there was the necessity that these deeds should be briefed to counsel, and therefore these items, as prayed in the notice of motion, should be allowed with £5 costs. The principle involved in the decision was that no solicitor is bound to send original deeds to counsel, but ought to send copies of them, and in the latter case he is not bound to make snch copies into a brief. Solicitor for the petitioner : Thomas Ware. Solicitor for a minor interested in the trust fund: A. Neslilt. 74 Palmer v. Garrett. Com. Pleas. PALMER V. GAERETT. 1871. May 4. (,By permission, from I. R. 5 C. L. 412, s. c. 5 Ir. L. T. R. 166). Costs— Action of Contract— Com. Law Proc. Act, 1863, s. S^S— Lodgment in Court — Damages by Verdict — Amount " Beeovered." If, in an action of contract, the plaintiff obtain, partly by money paid into Court (which he accepts) and partly by verdict, a sum amounting to £20, he is entitled to full costs under section 243 of the Com. Law Proc. Act, 1853 ; although the contract upon foot of which the money was paid into Court was distinct from that for breach of which the damages were awarded by the verdict. Motion, on the part of the defendant, that the Taxing Master should be directed to review his taxation of the plaintiff's costs of the action. The summons and plaint contained five counts. The first three were for rent, and claimed respectively £37, £26, and £G4 ; the foarth was in contract for breach of agreement to use certain lands, of which the defendant was tenant, in a tenant-like and proper manner ; the fifth was in tort for waste ; and the damages on foot of the two latter counts were laid at £300. The defendant brought into Court the sums of £37 and £26, in satisfaction of the claims made by the first and second counts respectively, and took defence on the third, fourth, and fifth counts. The plaintiff drew out of Court the sums lodged on the first and second counts, in full satisfaction of his demands thereunder ; and took issue on the pleas to the remaining counts. The case was tried before Keogh, J., at the Mayo Spring Assizes, 1871, and resulted in a verdict for the defendant on the third, and for the plaintiff on the fourth and fifth counts, damages being assessed generally at £2. The causes of action stated in the last two counts were substan- tially the same. The Taxing Master allowed the plaintiff his full costs of the action, and the defendant souglit a direction to that officer to allow the plaintiff only half the costs incurred by him in all proceedings taken in the cause after the lodgment in Court and acceptance of the aforesaid sums of £37 and £26. Palmer v. Garrej-t. 75 Monahan, Q.C. (with him Jordan), in support of the motion. Com. Pleas. The plaintiff has " recovered " only £2 within the meaning of the 243rd section of the Common Law Procedure Act, 1853, for the first and second counts must be regarded as out of the case. Money paid into Court and accepted cannot be said to have been recovered in the action. The plaintiff may, by a construction of the section against which we contend, be said to have recovered more than £20 in contract, but as he has recovered less than £5 in tort, he falls within the section. In Decine v. London and North- Western Railway Company (1), where the Court of Queen's Bench were equally divided, the judgments of Lefroy, C.J., and Fitzgerald, J., sliow that counts in contract and tort in the same plaint are to be regarded, for the pui-pose of taxation, as different actions. They also cited and relied on Wal-ih v. Walsh (2), Blachmore v. Hiygs (3). Robinson, Q C. (with him 31acDermoi), against the motion. The verdict being general, some of the damages must be appor- tioned to the fourth count, which is in contract ; and adding what was lodged in Court on the first and second counts to the damages so to be apportioned, as Arkins v. Armstrong (4) shows we are entitled to do, we allege that we have recovered more tlian £20 in con- tract, and are entitled to full costs. The sums lodged and accepted on the first and second counts have been "recovered" witliin the meaning of section 243 : Hughes v. Guitmess (5), Richards v. Black (6), Pai'r v. Lillycrap (7). Walsh v. Walsh (8) was decided on the 126th section of the Common Law Procedure Act, 1853, and is, on that ground, distinguished by Pigot, C.B., from ArMns V. Armstrong, which governs the present case. Cur. adv. vult. The judgment of the Court was deUvered by Monahan, C.J.: Having stated the pleadings, his Lordship said: — The fourtli and fifth counts are substantially founded on the same cause of action, but the former is framed in contract for breach of agree- a^ (1) 17 I. C. L. 174. (5) 4 I. 0. L, 314. (2) 17 I. C. L. 195. (6) 6 C. B. 443. (3) 15 C. B. N. S. 790. (7) 1 H. & C. 615. (4) 3 I. 0. L. K. 373. (8) 1,7 I. C. L. 195. '" Palmer v. Garrett. ^""isn'"*' ^^^^ *° "®^ cei-taiii lands in a proper manner, and tlie latter is in tort for waste. The result of the action is that the plaintiff has obtained on the first two counts, wliicli are in contract, a sum exceeding £60, which was brought into Court, and which he accepted as sufficient, and on tlie last two counts a sum oi £2. Of this last sum a portion (which, owing to the general manner in which the damages have been assessed, it is impossible to determine) is ap- plicable to the fourth count, which, as 1 have stated, is in contract. The question is whether, under these circumstances, the plaintiff is entitled to full costs, or to half costs only, under the 243rd section of the Common Law Procedure Act, 1853. Has the plaintiif recovered £20 on contract in this action ? Has he a right to add to the sum which he must be taken to have recovered on the fourth count, the amount paid into Court and accepted on the first and second? There arc authorities the principles of wliich are per- fectly applicable to this case. In Hughes v. Guinness (1), which was an action on a special contract, the defendant paid £(3 into Court, and, on an issue as to the sufficiency of that sum, the jury gave the plaintiff £16 in addition. Under these circumstances, the late Mr. Justice Ball and I were of opinion that, as the section did not say "in case the plaintiff shall recover " br/ verdict or judg- ment — but simply " shall recover "• — the sum paid into Court should be looked on as part of the sum recovered in the action and that the plaintiff, having thus recovered more than £20, was entitled to full costs. That decision has never been questioned, and was considered and recognised by the Court of Exchequer in WalsJi v. Walsh (2). It may, therefore, be taken as settled that " recover " in the 243rd section means to obtain by the general result of the action, and not merely by verdict and judgment. Now, in this case, by verdict on a count in contract, the plaintiff has recovered a small sum, and by payment into Court on certain other counts in contract he has, according to Hughes v. Guinness, " recovered " a sum exceeding £60. The general result of the action, therefore, is, that he has recovered on contract a sum far exceeding £20. Now, does it affect the case that the cause of action on which the verdict was obtained consists of a breach of contract different from those declared On in the first two counts, and capable of beincr (1) 4 I. C. L. 31.1. (2) 17 1. C, L. 195. Palmer v. Garrett. 17 made tlie subject-matter of a separate action ? There is no doubt Com. Ph that if an action be brought on several distinct demands in con- tract, and the plaintiff at llie trial recovers more than £20, he is entitled to full costs ; and the same rule applies where part of the sum is paid into Court, and the remainder given by the verdict, because the former part has been " recovered " in the action. In our opinion Arkins y. Armstrong (I) is decisive on the present application. There the plaintiff recovered £8 by verdict on certain counts in contract, and the defendant had brought into Court £12 in satisfaction of a cause of action stated in another count in contract, and the plaintiff was held to be entitled to full costs. The only difference between that case and tlie case before us is, tliat there the plaintiff took issue as to the sufficiency of the money brouglit into Court, and on tliat point the jury found airainst him. Tlie present case is, if possible, more favourable to the plaintiff, because he had accepted the money paid into Court, while in Arkiiis v. Armstrong, as I have said, the plaintiff was defeated at the trial on an issue as to tlie sufficiency of the money paid into Court. On the argument of that case, the Court of Exchequer was pressed with its decision in Walsh y. Walsh {2). The argument of the plaintiff in Walsh v. Walsh rested on the allegation that the plaintiff had recovered more than £5 in tort. The Court of Excliequer decided against his claim for full costs, on the ground that the case was governed by the 126t]i section of the Act of 1853. There are, in the judgment of the Lord Chief Baron some expressions which might lead to the conclusion that he was of opinion that when a sum of money is lodged in Court and accepted in satisfaction, the cause of action in respect of which it has been so lodged and accepted should be considered to be at an end for all purposes. But in Arkius v. Armstrong (3) the Lord Chief Baron points out that Walsh v. Walsh turned on the provisions of the 12C)th section, which prohibits the recovery of more costs than damages in ah action for assault and battery, in which the jury shall iind the damages to be under the value of 40s. and the Judge shall not certify that the assault and battery were sufficiently proved ; and that the judgment in the last- men- tioned case contained nothing to prejudge tlie construction of the (1) I. B. 3 C. L. 073. (2) 17 I. C. L. lyS. (3) I. R. 3 C. L. 373. 78 Byrne v. M'Eeoy. Cam. Pleas. 243rtl section. On the whole, we are of opinion that the Taxing Master has proceeded on the true principle, and that the plaintiff is entitled to full costs. Motion refused. Attorney for the plaintiff : S. C. if' Cormick. Attorney for the defendant : R. P. Burke. Com.puas. BYENE V. M'EVOr. 1871. j^gy ]^4 IBy permission, from I. R. 6 C. L. 568; s. c. 6 Ir. L. T. R. 22.) Gods — Money paid into Court — Counts in Tort and in Contract — Detinue — 0. L. P. Act, 185S, s. 21,3. Where the plaint contains counts in contract and also counts in tort the plaintiflf cannot, for the purpose of entitling himself to full costs, add a sum paid into Court on foot of the counts in contract (which, upon issue joined, the jury have found to be sufficient) to the damag;es awarded by the verdict on the counts in tort. Detinue is an action of tort. Motion that the Taxing Master be directed to review his taxation, by which he allowed the plaintiff the full .costs of the action, and to allow him, instead, half costs only. The summons and plaint contained a count in contract for money alleged to be due on foot of a mortgage deed, and also counts in trover and detinue for the conversion and detention of the mortgage deed. In answer to the claims in contract, the defendant paid into- Court a sum of £36 2s. ^d., which he alleged was the balance due to the plaintiff on foot of the deed ; and he travCTsed the conversion and detention complained of in the other counts. The plaintiff took issue on the sufficiency of the sum paid into Court, and on the traverses respectively ; and at the trial the jury ■ found that the sum paid into Court was sufficient, and found a verdict for the plaintiff on the issues knit as to the conversion and detention, assessing the damages thereon at one farthing. The Taxing Master haying allowed the plaintiff full costs, the Byrne v. M''Evoy. 79 defendant now sought for a direction to the Taxing Master to Com. Pleas. allow the plaintiff but half tlie costs of the action. ^^"^^^ Armstrong, Serjeant (with him Daniel), for the motion:— In Arkins v. Armstrong {\), which will be relied on by the plaintiff as governing this case, the Chief Baron guards himself against applying the rule there laid down to a' case like the present. There the plaintiff recovered, by verdict, a sum of £8 on certain counts in contract, in addition to £20 paid into Court on the other counts, which were also in contract. In Blachmore v. Higgs (2), Erie, J., says — " Where there are two causes of action disclosed by the declaration, and a distinct line of pleading applicable to each, the two are, for the purpose of costs, to be treated as being as distinct as if there had been two separate actions." The words of Willes, J., in the same case, are also in point : — " As the plaintiff has failed in establishing his title, I agree with my lord that he cannot better his title to costs, because, in an action which might have been tried in the County Court, he has joined an unfounded claim of title to land." Here the plaintiff has joined to a claim in tort an unfounded claim to something over the money paid into Court on the counts ' in contract. The principle there laid down governs this case. In Palmer v. Garrett (3) something j„^ „ 74 had been recovered by verdict on the counts in contract, and the decision went on the fact ; but here the plaintiff has not now "recovered" any sum in contract within the meaning of section 243. The count in detinue is purely in tort. The defendant was not bonnd by any contract to return the mortgage deed to the plaintiff. The 0. L. Proc. Act, 1853, Sched. C, par. 18, describes detinue as " independent of contract." We rely on the judgments of Lefroy, C.J., and Fitzgerald, J., in Devine v. London and North- western Railway Company (4), and on Walslie v. Walshe (.*)). Farmer v. Futtrell (()) shows that the plaintiff should not get costs of any proceedings in reference to the counts in contract. (1) I. E. 3 C. L. 373. (4) 17 I. C. L. K. 174. (2) 15 C. B. N. S. 793. (5) lb. 195. (3) I. E.. 5 C. L. 412. (6) 8 I. C. L. E. 228. 80 Byrne v. M'Eooy. Com. Pleas. Hemphill, Q.C. (with him Houston), contra : — The plaintiff has recovered more than £20 in contract, and is, therefore, entitled to full costs. If it be held that recovery of such a sum by payment into Court alone does not confer a right to full costs, we contend that the action of detinue is not discon- nected with contract : 0' Sullivan v. Hiiblin, Wicklow, and Wexford Ante, p. n. Railway Company (1) ; and that, as the plaintiff must be taken to have recovered something on the count in detinue, he is entitled to add that sum to the amount lodged. [MoEKiS, J. : — In 0' Sullivan v. Dublin, Wicklow, and Wexford Ante,-p.\i. Railway Company {1), i\\e plaintiff could have framed his action in contract, and was not permitted to gain a right to costs by adopting instead a count in detinue. Here j-ou could not have recovered damages in contract for the non-delivery of the deed.] In Danhy v. Lamb (3) detinue is treated, for purposes of costs, as an action of contract. Wulslie v. Walshe (4) is not in point, as it was decided on section 126 of the Act of 1853. This case Ante, p. 74. is governed by ArMns v. Armstrong (5) and Palmer v. Garrett (6). The Act of 1853 permitted the joinder of claims in contract and tort ; and to hold that the plaintiff is not entitled to full costs because he has not recovered £5 in tort, while he has recovered more than £20 in contract, would be to treat these proceedings as two separate actions. The decision in Blackmore v. Higgs (7) depends on the fact that one count related to matter of title, as to which the inferior Court had no jurisdiction. They cited tlie judgments of O'Brien and Hayes, J J., in Deoine v. London and North-Western Railway Company (8). The judgment of the Court was delivered by Monaiian, C.J. : — In this case the Taxing Master has allowed the plaintiff the full costs of the action ; and the defendant now applies for an order that the taxation be reviewed, and the plaintiff allowed only half costs. [His Lordship, having stated the pleadings and course of the proceedings as above, said] : (1) I. K. 2 C. L. 124. (5) I. E. 3 C. L. 373. (2) I. E. 2 C. L. 124. (6) I. E. 5 C. L. 412. (8) 11 C. B. N. P. 423. (7) 15 C. B. N. S. 790. (4) 17 I. C. L. E. 195. (8) 17 I. C. L. E. 181. Byrne v. APEvoij. 81 Thus, the plaintiff recovered nothing on the counts in contract Gom. Pleas. beyond the sum paid into Coixrt, and the defendant became entitled to judgment on the issues raised on those counts. The plaintiff now contends that he is at liberty to add the sum he has recovered by verdict on the counts in tort to the sum paid into Court on the contract counts, and that he is, therefore, under the circumstances, entitled to the full costs of the action. We are of opinion that this contention is wrong. The cases cited in support of it are cases where both the counts on which payment into Court had been made and those on which the jury gave the plaintiff damages were in contract. In this case the plaintiff has recovered, by verdict, on counts in tort alone ; for the action for detinue is an action of tort. Therefore, we do not consider the authorities I have referred to apphcable to this case. We are of opinion that the plaintiff cannot add a sum paid into court on account-in con- tract to a sum recovered by verdict on counts in toi't'; that the Taxing Master has proceeded on a false principle; and that the plaintiff is only entitled to half costs. As the question arises from a mistake of the officer of the Court we give no costs of this motion. I may mention that a similar application is pending in the Court of Queen's Bench, and that our view of the question coincides with that of the judges of that Court. Motion granted. Attorney for the plaintiff : James Dunne. Attorney for the defendant : James Goff. G- 82 Leonard v. Brovmrigg. Queen': Bench. LEONAED v. BROWNEIGG. 1871. Nov. 23. (Sj, permission, from I. B. 6 C. L. 161 ; s. c. 6 Ir. L. T. R. 7.) Dec. 2. (Before Whiteside, C.J,, and O'Brien and Fitzgerald, J J.) Costs — Money 'paid Mo Court — Cowits in Tort and in Contract — " Recovering a sum not exceeding £6 " in an Action of Tort — C. L. P. Act, 18BS, s. 2^3 — 0. L. P. Act, 18B6, s. 97. Where the plaint coritains a count in contract and also a count in tort, the plaintiff cannot, for the purpose of entitling himself to full costs, add a sum paid into Court on foot of the count in contract (which, upon issue joined, the jury have found to be sufficient) to the damages awarded by the verdict on the count in tort. Motion, that the Taxing Master he directed to review his taxation, by vs'hich he allowed the plaintiff the full costs of the action, and Ihat the plaintiff he declared entitled to no costs. The summons and plaint contained three counts — 1st, for tres- pass on the plaintiff's farm, and ejecting him therefrom ; 2nd, for that the defendant became tenant of the same farm to the plaintiff upon the terms that he should use the same in a tenantable and proper manner, but had used it in an improper and untenantable manner; 3rd, for use and occupation. The defendant pleaded several pleas to the first and second counts, and on the third count paid £30 into Court. The plaintiff took issue on all the pleas, and also on tlie sufficiency of the money lodged in Court. At the trial it appeared that the defendant had contracted to buy the farm in question from the plaintiff, and, pending the completion of the purchase, had been let into possession ; that tlie purchase afterwards went off, the plaintiff not being able to make title ; and that the defendant having refused to deliver up possession the plaintiff brought an ejectment, in which judgment Avas allowed to go by default. The present action was then brought to recover damages from the defendant for the time during which he had been in possession. The jury found a verdict for the plaintiff on the first count, with £3 2s. &d. damages. On the issues on the second count they found for tl'e defendant ; and they also found that the £30 paid into Court on the third count was sufficient. Leonard o. Broionriyg. 83 No certificate was asked for, or given, by the Judge at the trial; Qi^cen's Bench. and the parties both resided within the same Civil I'ill jurisdiction. The Taxing Master had allowed Ihe plaintiff full costs, being of opinion that he had recovered upwards of £20 in an action of contract; and the present motion was brought to review that taxation. Armstrong, Serjeant, and E. Gibson, iu support of the motion ; — Money lodged in Court is not " recovered " within the meaning of section 243 of the C. L. P. Act, 1853, and section 97 of the C. L. P. Act, 1856; and so, if there had been no counts in tres- pass in this action, the defendant, having succeeded on the issue as to the sufficiency of the money paid into Court, would have been entitled to costs under section 78 of the 0. L. P. Act, 1853 : Farmer v. Fottrell (1). Again, if in the present action there had been only the couiat in trespass, or if the plaintiff had drawn the £30 in full satisfaction of his demand under the third count, the defendant would have been entitled to his costs subsequent to the lodgment: C. L. P. Act, 1853, section 77, and C. L. P. Act, 1856, section 97 ; but the plaintiff now says that by not drawing out the £30 he has placed himself in a better position, and is entitled to full costs. In Devine v. The London and North- Western Railway Company (2) the Court was divided ; but the two Judges who held that the plaintiff was entitled to full costs did so on the ground that the trover in that action arose out of contract, and that, therefore, the plaintiff had recovered more than £iQ in an action of contract. The case, therefore, is clearly distinguishable from this, where the tort is entirely unconnected witli the contract; and the plaintiff has no right to add on the damages recovered under the first count to the money lodged upon the third count. It is plain that the tort in this case is unconnected with contract, because in no possible way could the first count have been framed in contract. They also cited Palmer v. Garrett (3), Burton v. Ante, p. 74. Lowe (4), and Blachnore v. lUggs (5). (1) 8Ir. C. L. K. 228. (4) 15 \V. E. 791. (2) 17 Ir. C. L. K. 174. (5) 15 C. B. N. S. 790. (3) 5 Ir. L. T. 165. 84 Leonard v. Brownriyg. Queen's Jiejich. Purcell, Q.C, and Gibbon, contra : — 1871. > -* > ) The real foundation of this action is contract, for the defendant would never have got into possession of the farm but for the con- tract of sale. In Frazer v. Quarie (1) and Legge v. Tucker (2) the test is laid down to distinguish whether a tort is or is not con- nected with contract, and, under the authority of those oases, the whole cause of action in this case must be regarded as one. That being so, the money recovered on the first count ought to be added to the money lodged in Court : O'Rorhe v. M'DonneU{'6); Hughes v. ■Guinness (i); Fewster v. Boggett{5); Arkins v. Armstrong (d) ; -Walslie V. Walshe (7) ; Oivens v. Vanhomrigh (8). Farmer v. Fottrell (9) is distinguishable, because in that case there was but one count. If, however, the first count is to be considered an independent action, the C. L. P. Act allows different causes of action to be joined in one plaint, and the whole action is, therefore, in reality but one ; and as the action was rendered necessary by the misconduct of the defendant, it is but fair that the plaintiff should have his costs. Cur. adv. vult. Dec. 2, The judgment of the Court was delivered by Whiteside, C.J. : — [The learned Chief Justice having stated the pleadings and the course of the case, proceeded] : — Upon these pleadings, and under these circumstances, the ques- tion for our decision arises upon the first and third counts — whether, having regard to the fact that £30 was lodged in Court upon the third count, and not accepted by the plaintiff, and that a verdict for £3 2s. 6d. was found for the plaintiff on the first count, the plaintiff is entitled to the sum of £73 3s. Id., being full costs of the cause taxed by the proper officer. It was contended on behalf of the defendant, that by the combined operation of the provisions in the 243rd section of the Common Law Procedure Act, 1853, and the 97th section of the Common Law Procedure Act, 1856, upon the pleadings and findings and facts, the plaintiff was not (1) 16 Tr. C. L. R, App. xiii. (6) Ir. E. 3 C. L. 373. (2) 1 H. & N. 600. (7) 11 Ir. Jur. N. S. 378. (3) 13 Ir. C. L. R, App. viii. (8) 10 Ir. Jur. N. S. 297. <4) 4 Ir. C. L. E. 314. (9) 8 Ir. C. L. R. 228. (6) 9 M. & W, 20. Leonard v. Brownviyg.. 85 entitled to any costs ; and, on the other hand, it was contended Queen's Btnth. 1871 for the plaintiff that he had " recovered " more than £20 in an action of contract within the true meaning of these sections, for that although the finding of £3 2s. ^d. in the case of trespass (the first count) was in tort, yet it was in tort connected with, and springing out of, contract, and that the foundation of the whole action being contract, as contained in the third count, the wdiole might be considered as one action, in which more than £20 had been recovered ; and further, that even if the trespass was dis- connected with the contract there was notiiing in the Statutes to prevent the plaintiff from adding the £3 2s. 6c?. recovered on the first count to the £30 lodged under the third count, and thus, within the true meaning of the Statutes and the principle of decided cases, " recovering " a sum of £33 2s. 6(f. in one consolidated action, and so entitling himself to full costs. Now, if an action had been brought singly upon the contract, as in the third count, and £30 had been lodged in Court by the defendant, and accepted by the plaintiff in full satisfaction of his demand, in such case no judgment would have been marked, and tiiere would be no recovery by judgment ; the proceedings would be regulated by the 77th section of the Common I^aw Procedure Act, 1853, and the plaintiff would be entitled to his costs up to the time of the lodging of the money, and to nothing more. Suppose, however, as in the present case, a count in tort added to the count in contract upon the same state of facts I have just assumed to exist — namely, a lodgment upon the count in contract, and acceptance thereof by the plaintiff in full satisfaction of his demand upon that count, what, then, would be the result? Why, the count in contract would be considered as struck out of the plaint, insomuch that upon a motion in arrest of judgment it could not afterwards be referred to ; and if the plaintiff proceeded to trial upon tlie count in tort, and recovered a sum not exceeding £5, the case would fall within the provisions of the 243rd section of the Common Law Procedure Act, 1853, as an action of tort merely. Let me now suppose an action, with one count only, in contract, upon which money is lodged in Court ; that the plaintiff refuses to accept the money, and proceeds to trial oa an issue as to the sufficiency of the money, and is defeated. In such case the 80 Leonard v. Brownrigg. Qneen'sSench. plaintiff would not merely- lose liis costs up to the time of lodgment, vvliicli he would have been entitled to under the 77th section if he had accepted the money lodged in full satisfaction, but he would also have to pay the defendant his entire costs of suit without any deduction: Farmery. FottreH{l). I need scarcely add that if a plaintiff brought an action of trespass singly, and recovered £3 2s. Gd. only, his claim for costs would be adjusted by the 243rd section of the Act of 1853 and the 97th section of the Act of 18o(5, and that he would be entitled to no costs, or to half costs only, according as the parties might, or might not, happen both to reside in the same civil bill jurisdiction in which the cause of action arose. An attempt was, indeed, formerly made to argue that the Civil Bill Courts had not jurisdiction to tiy an action for mesne rates — which the first count in the present action was said in reality to be — on the pretence that such an action involved a question of title. It was, however, held, upon appeal, that the judgnient and execution in ejectment were conclusive as to the title, and that the action was within the civil bill jurisdiction as an action of trespass : Doyle, appellant, Feidon, responderd (2). In the principal case it was argued that this action of trespass was somehow or other coimected with contract, but no reason was given for the proposition, and no authority cited to support it; and, on turning to Schedule C to the Common Law Procedure Act, 1853, — "Forms of Pleadings" — we find that the very first precedent in cases of wrongs independent of contract is " trespass of land." That argument, therefore, disappears. It is, however, contended that a plaintiff, by joining in one plaint counts in tort and counts in contract, can escape the simplicity of procedure and the consequences which exist when there is only one count, and can thus secure for himself costs, which in the present case amount to £72, where. for the recovery in trespass in the Civil Bill Court iie could not have recovered half as many shillings, and where, suing in the iSuperior Courts, while he might have sued in the Inferior, he could have recovered for costs — nothing. I should be slow in yielding my assent to such practical injustice. The first step in the process by which 'this result is obtained is to fall back on the 54th section of the Act of 1853, which provides that causcg (1) 8 Ir, C. L. E. 228. (2) 1 Cr. & Dix, C. C. 07. Leonanl v. Brownrigg. 87 of action of whatever kind (except ejectment) may be joined; but Queen's Barcfu- I tliink that section never was intended to interfere with the questions of costs. Its true meaning and principle is shown in the case of Blackmore v. HiggsiV), where an endeavour was made to escape the jurisdiction of the County Court. And Erie, O.J., after pointing out that the plaintiffs had three causes of action, and that they had merely recovered a verdict of 40s. in one, laid it down, that where there were two causes of action disclosed by the declaration, and a distinct line of pleading a-pplicable to each, the two are, for the purposes of costs, to be treated as being as much distinct as if there had been two separate actions, and that the plaintiffs were to be in no better position by joining the whole in one action than if they had brought two actions. [The Chief Justice also referred to the judgments of Keating and Willes, J.J., in that case.] It may be said the judgment of Erie, C.J., applies to and includes a case of several counts upon different contracts. The whole of this reasoning applies, however, with still greater force to a case where trespass and contract are sued for in the same plaint; and rejecting, as I do, the unmeaning distinction between " action " in the 243rd section of the Irish Act, and " cause of action " in the corresponding section of the English Act, I think the legal doctrine laid down by Erie, C.J., contains an exposition of the true principles ; that it is directly applicable to the case before us, and should be followed to its legitimate conclusion. There is a class of cases, such as Hughes v. Guinness (2), where it has been held that, where at the commencement of the action tlie plaintiff's demand was really more than £20 the de- fendant could not, by a lodgment in Court before trial of part of the plaintiff's demand, deprive the plaintiff of his costs. In that case the action was on a special contract ; the defendant lodged £8 in Court, and thei'e was a verdict for the plaintiff for £16 in addition ; and under these circumstances the Court of Common Pleas held that the plaintiff was entitled to full costs, and that the meaning of the 243rd section is, that if a plaintiff recovers by force of his action, whether by the verdict of a jury or not, a sum not less than £20 he is entitled to full costs. It is, however, (1) 15 C, B. N, S. 790, (2) 4 Ir, C. L, R, 3U, 88 Leonard v. Broivnrigg. Queen's Bench, to be observed that tbe ludgrnent and the sum recovered by verdict were upon one and the same contract. The principles decided in that case seems to be sustained by the cases of Fewster v. Boggett{\) and Crosse v. Seaman (2). In Hughes v. Guinness it is also to be remarked that the plaintiff did not accept the £6 lodged in Court in satisfaction of his claim. In Walshe v. Walshe (3) the action was for assault and battery in one count, and for obstructing a right of way in another. The defendant paid £5 into Court upon the second count, which the plaintiff accepted in full satisfaction of his claim under the count, and went to trial on the first count ; the jury found for the plaintiff on the first count, with £1 damages. The Taxing Master having allowed the plaintiff his full costs, there was a motion to review the taxation. Pigot, C.B., in deliver- ing the unanimous judgment of the Court of Exchequer, reviewed all the authorities upon the subject, and after showing that if the plaintiff had not drawn out the money lodged in Court on the second count, but had proceeded to trial, and recovered any damages, however small, on that count over and above the money lodged, a question might have arisen whether the plaintiff had not recovered more than £5 in an action of tort, gives it as his decision that the plaintiff, by drawing the money lodged in full satisfaction of his claim on that count, had virtually struck it out of the summons and plaint, and that the cause of action on the second count was at an end. He, therefore, decided that the plaintiff was not entitled to costs, and declined to consider the case of Devine v. London and North- Western Railway Company (4) as having no application to the case before him. It must be admitted that Wulshe V. Walshe, although well decided, does not exactly govern the question now before us, inasmuch as both the counts were in tort, and the £5 lodged in Court was drawn out by the pldntiff in satisfaction of the cause of action on the count on which it was lodged. As to Arkius v. Armstrong (J)) awA Blackmore v. [lings, in both cases the money was lodged and damages recovered upon counts in contract only, and they, it may be said, are therefore distinguishable from the present case, in -which tort and contract (1) 9 M. & W. 20. (4) 17 Ir. C. L. R. 174. (2) 11 C. B. 524. (.-)) Ir. R. 3 C. L, 373. (a) 11 Ir. Jnr. N. S. 37S. Leonard v. Broicnrigg. 89 are united. Palmer \. Garrett (1) is also clearly distinguisliable, Queen's Bench, assuming tliat it is accurately reported. In that case there Ante, p. 74. were two counts in contract, upon which the defendant lodged £64 8s. 9^rf., which sum tlie plaintiff accepted in full satisfaction of his claim under those counts upon which the money was lodged in Court. There was also another count in contract and one in tort to which the defendant pleaded, and the jury awarded £2 damages, in gross, to the plaintiff, and it was held that a portion of this £2 was to be treated as recovered on each of the two counts in which no money had been lodged ; that the money lodged in Court was to be added to the unascertained portion of the £2, which was applicable to the third count in contract; that, therefore, the plaintiff had recovered more than £20 in an action of contract, and was entitled to his full costs. Now, that singular case had obviously no application to the present, in which no more money has been recovered by verdict on the count in contract tiian the very sum lodged in Court upon the same count. It would seem to me to have been more consonant with justice that — the plaintiff in Palmer v. Garrett having drawn out of Court and accepted in A.nte, p. 1i. in full satisfaction the substantial sum of money for which he really brought his action — the case should have been thenceforward dealt with as if the first and second counts had been struck out of the plaint, and the plaintiff should liave been obliged to proceed on the other counts at his peril. The last case to which I shall have occasion to refer is Devine v. London and Nortli-Western Uailway Company (2), in which the Court of Queen's Bench was equally divided. [The Chief Justice stated the facts of that case, and read and commented upon the several judgments delivered, and proceeded.] I think that, although the distinction taken by my brother O' Brien may be accurate, and his observations deserving of consideration, yet the reasoning of Fitzgerald, J., and Lefroy, C.J., is unanswerable, and applies with great force to the present case ; for this is an action brought, properly speaking, to recover damages for the use and occupation by the defendant of the plaintiff's farm during the pendency of a contract to purchase it, and in which the jury found the sum lodged in Court to be substantially (1) 5 Ir. L. T. 165 ; since reported, I. R. 5 C. L. 412. (2) 17 Ir. C. L. R. 174. »" Leonard v. Brownrhjg. Queen's Bench, sufficient for the real cause of action, but tliat tliere might have been a short period of time uncovered by that payment — i.e., the interval between the execution of the habere upon an ejectment by the plaintiff and the day of getting actual possession from the defendant ; and, as I have already shown, the plaintiff might have brought his action of trespass into the Civil Bill Court for that insignificant demand. I hold that the plaintiff in this case, having been defeated on the issue he took upon the sufficiency of the lodgment by the defendant in Court on the count in contract— his substantial cause of action — cannot be permitted to avail himself of that proceeding, in which he has been defeated, in order to add a sum he might have accepted in the first instance, and which he was ultimately forced by the verdict to accept, to the £3 2s. Gd. recovered on his count in trespass, and thus evade the operation of the 243rd section of the Act of 1853 and the 97th section of the Act of 1856, and, in what is virtually a petty action, mulct the defendant in a sum for costs amounting in the present case to £72. I am certain that in defeating this attempt I am rightly interpret- ing the intention of the legislators in their efforts to repress petty and vexatious litigation. The motion must, therefore, be granted, and an order made that the plaintiff is entitled to no costs. Motion granted (1 ), O'Brien and Fitzgerald, JJ., concurred. Attorneys for the plaintiff : Little and Elgee. Attorney for the defendant : W. H. Brownrigg. (1) This agrees with the decision of the Court of Common Pleas in Byrne v. Ante, p. 78. MEvoy, It. E. 5 C. L. 568. In re Renewahle Lemehold Conversion Act. 91 In Re RENEWABLE LEASEHOLD CONVERSION ACT, v.c.Couh. 1872. Ex parte HUTCHINSON. May 27. HONE V HUTCHINSON. J™« is- July ] . Nov. 18. iBy permUsion, from I. R. 7 Eq. 56). Taocation of Costs — Renewahle Leasehold Conversion Act (12 & 13 Vic. c. 105,' s. 33) — Correspondence prior to Filing of Petition — Exhibits not taken down on order — Duties of Taxing Master — Practice. Where a petitioner under the Renewable Leasehold Conversion Act established his right to a fee-farm grant, but was ordered to pay the respondent's costs of the matter : — Held, 1. That the Court had no discretion, under section 33 of the Act, to include in such costs those of proceedings that had taken place out of Court before the presenting of the petition and were not connected with its preparation. 2. That the respondent was entitled to the costs of the briefs of such docuraents-as, though not taken down on the order as read, the Taxing Master, in his discretion, should consider to have been necessary to support the application. In the case of motions and summary petitions, the affidavits on which the proceeding is grounded are alone taken down on the order, leaving it to the discretion of the Taxing Master to determine what other docu- ments (if any) connected with the case should be allowed for in the costs. It is his business solely to adjudicate upon such questions, and exercise his discretion in respect of them. Motion for taxation of costs. The facts which gave rise to the present motion are reported in May 27. detail, I. R. 6 Eq. 34. The Vice-Chancellor, by an order dated the 20tli November, 1871, directed the respondent, Hone, to execute a fee-farm grant to the petitioner on the terms therein mentioned, and that the petitioner should "pay the respondent the costs of this matter, np to and including this motion and order, when taxed and ascertained." While the costs were accordingly before Master Teeling for taxation, the respondent served on the petitioner notice of motion for the 27th. May, 1872, to the following effect :— 1. That the said Taxing Master " be at liberty to tax and ascertain the costs properly and necessarily incurred by the said respondent prior to the filing of the petition in this matter in con- nection with the drafts of the fee-farm grant to the petitioner, in 92 Ej' parte Hatchhixon. Y. 0. Court, tlie proceeding in this matter mentioned, and that the petitioner 1872 in be directed to pay such costs when taxed and ascertained." 2. "That the said Taxing Master shall be at liberty to allow to said respondent the costs of briefs of the several exhibits referred to in the affidavits (of the respective solicitors of the parties), used on the hearing of the petition in this matter." 3. " That the said respondent be declared entitled to the costs of the approval of the draft of the fee-farm grant which has been settled and agreed upon between the parties, and of the execution of the said grant, when taxed and ascertained, and that the peti- tioner be directed to pay the same, or, tliat the order made in this matter, dated the 20th day of November, 1871, be amended in the above particulars." The affidavit of the respondent's solicitor (filed May 23), on which the motion vcas grounded, stated tliat the Taxing Master had taken off his bill of costs items 1 to 85 (inclusive), being mainly the costs of the briefing of the correspondence which had passed between the parties relative to the questions at issue between them, prior to the filing of the petition ; that the Taxing Master liad also "intimated that he should disallow so much of the re- spondent's briefs as consisted of the several exhibits referred to in tlie affidavits of the petitioner's and respondent's solicitors, read on the Iiearing of the petition in this matter, as were not taken down on the said order ; " and that the draft of the proposed fee-farm grant had been agreed upon after the said order was made, so that it became unnecessary to have said draft settled in Chambers [which the order of November 20th had directed to be done in case the parties should differ as to its form]. Mr. Murray/, for the respondent, Anne Hone : — Section 33 of the Act under which this petition was presented (12 & 13 Nict. 105) provided that "the costs of all proceedings by and under any petition presented under this Act shall be in the discretion of the Court." See also 1 Lat. Furlong, 328, referring to Li re Hull's Estate, cited in Adair on Costs (Corrigenda et Addenda). There is no analogy between a petition under this Act, and a bill, as to the incidence of costs. A grantor is entitled to his costs of investigating the grantee's title. Ex parte . Hutchinson. 93 Mr. F. Walsh, Q.C., and Mr. Peet, for the petitioner, Sir Edward V- C. OouH. Hutchinson : — The respondent should have applied for these costs at the hearing of the petition. The order limits them to " costs of this matter." Those now asked for are unreasonable. Calvert v. Godfrey (1), as to a vendor paying costs where he fails to make a good title ; and Boyd V. Delton (2), where Lord Chancellor Sugden very unwil- li"gV gave to a defendant (on a subsequent motion, on the terms of his paying the costs thereof, and under peculiar circumstances) certain costs wliich he should have asked for at the hearing. See also Renewable Leasehold Conversion Act, ex parte Keatinge (3). The Vice-Chancellor : — The notice of motion in this case deals with three separate sub- jects. The first is as to the costs incurred by the respondent, prior to the filing of the petition, in connexion with the drafts of the fee-farm grant. The 33rd section of the Renewable Leasehold Conversion Act, which gives the Court jurisdiction as to costs, is confined to the costs of proceedings by and under the petition, and I do not think that proceedings that took place out of Court before the presenting of the petition, and not connected with its preparation, can be held to come within that section. In general, I think that a lessor is entitled to be paid, by the person claiming a grant, his costs reasonably and properly incurred in reference to that grant, to the same extent at least as he would be entitled to claim if granting a renewal ; but these are not costs of the pro- ceeding here, and the lessor should have asked, when the case was at hearing before me, that the payment of them should have been made a condition precedent to the executing of the grant. I am now called upon to go back on the case and consider this matter on its merits, which I decline to do, and I shall, therefore, make no rule on this part of the motion. The next subject of the notice has reference to the costs of the proceedings under my order declaring the respondent entitled to her costs in this matter, and is a question of items of allowance. ■This is, in the first instance, a question for the Taxing Master. I do not think I could have made my order without seeing the deeds (l)6Beav. 97. (2) 8 Ir. Eq. K, 113. (3) I. E. 2 Eq. 26. 94 Ex parte Hutchinison. y. 0. Court, as to which the question now arises ; but as I consider that the application with respect to these costs should be made after the costs have been certified, and by way of motion to review the taxa- tion, I shall make no rule upon it at present. The last question raised by the notice is as to the costs subse- quent to the date of my order. The proper course to be taken by the respondent appears to me to be a decline to execute the grant unless she is paid such costs as she considers herself entitled to, and if the petitioner refuse to pay them and applies for an order to have the grant executed, I shall then consider and decide the question, and shall make the payment of such costs as I shall think the respondent justly entitled to part of the terms of exe- cuting the grant. As for amending the order by introducing into the readings upon it the documents of which the respondent claims to have the costs, I shall not vary the practice which has prevailed in this Court, and, as I am informed by the Registrar, also in the Rolls Court, namely, to take down on the order only the affidavit which traces the petitioner's title, and the instrument or instruments which create the right of renewal. It is then for the Taxing Master to say what deeds (if any) showing the derivation of title, or appearing otherwise proper for the parties to copy in counsel's briefs, should be allowed. I shall, therefore, make no rule at present on tliis point also. It is right to mention that the solicitor appHed to the Registrar at the time to have the documents in question taken down on the order, which he properly refused to do, the practice being as I have already stated. I shall reserve the costs of this motion. June 18. Before the 18th of June, 1872, the Taxing Master certified the costs, and the case having again appeared in the Vice-Chancellor's list on that day, without any regular notice having been served His Honor directed notice to be served on the petitioner of a motion to review the taxation of the costs. That motion (in pursuance of such notice, dated 21st of June) came on for hearing on the 1st July 1. of July, when it appeared from an affidavit filed (23rd June) by the respondent's sohcitor that he had since been paid the costs relative to the approval and execution of tlie fee-farm grant, and Ex parte Hutchinson. 95 that the respondent having accordingly executed the grant, the 7. 0. Court third branch of the motion of May 27th was thereby disposed of. ^^'^^' The present notice referred only to tlie " exhibits " mentioned in the second branch of that notice, which had been disallowed by the Taxing Master. The Vice-Ohancellok (after consultation with the Assistant- Eegistrar, Mr. F. B. Martley) stated he would send the case to the Eegistrars and Master Teeling for them to report respectively on the practice. The following reports were subsequently made by the Taxing Master and the Registrars respectively : — " In pursuance of your Lordship's directions, bearing date the 5th day of July, 1872, calling on me for a certificate as to my taxation of the items of the costs of Mrs. Anne Hone, specified in the notice of motion dated the 21st day of June, 1872; for a review of my taxation of said items, I have to report accordingly that the items claimed by the said notice were briefs of certain letters or exhibits referred to in the affidavits of J. H. Townsend and R. J. Hone, read on the hearing of the petition in this matter, and which exhibits I disallowed in consequence of no reference whatever being made to them in your Lordship's order of the 20th day of November, 1871 ; the practice on taxation being not to allow briefs of docu- ments which are not taken down in the order made by the Court. " John J. Teeling. " Dated 7th November, 1872." " Chancery Registrar's Office, "16 J report of the Master in England, Master Gordon, and that was what was done in England — it is the common sense view of the question — and whv should it not be done here? This was a most extraordinary demurrer which has been argued by the respondent's counsel, but the argument falls to the ground. Upon the peti- tioner's application to review the taxation, I thought it right to say these two or three words with reference to these large items. The motion of the petitioner is granted in respect of those items which we have stated, but we refuse the costs of t^e subpoena in every case in which it was separately used, in accordance with the decision of the Master, and the allowance in that respect is not interfered with. I shall now turn to the respondent's application, which in reality is decided by our judgment upon the items already mentioned. We are asked to disallow the expenses of witnesses who were to be examined in support of the charges of treating which were abandoned. This was dealt with by anticipation by the learned counsel who opened the motion, who said there was a good deal in it, although he could not see it. We are of the same opinion. The Judge having, under the 41st section of this Act, declared that the petition should be allowed with costs, and having made no division of the costs at the time of making the order — and that would have been the proper time to have raised the question of the division of costs, if the able counsel who were then in the case had thought right to do so ; and I am sure they would have done so had they thought there was anything in it — we are now asked, a year and a half afterwards, to vary the original order. We are asked to go into an inquiry and re-try the Galway Election Petition. This is one of the most unheard-of applications that ever was brought into a Court, and we deal with it as counsel, by anticipation, considered it likely it would be dealt with — ^by refusing it. The only other item to which I wish to refer is the five or six pounds charged for substituting the service of a copy of the peti- tion upon the respondent. I concur entirely with what has been said by my brother, Keogh. In our opinion, there is no allegation here that the respondent was avoiding service or keeping out of the way. It is very probable that none of us would give very great facilities for parties to serve a process upon us. The respon- Trench v. Nolan. 123 tlent was seen in Dublm on a Sunday, and was served on that day. Com. Pleas. In my opinion that service was bad service. Serjeant Armstrong ^^^^' was of the same opinion, and directed that he should be re-served on Monday. The respondent was applied to, but he replied that he would not give any undertaking not to go away — that it was highly probable he would remain, but that he would give no under- taking not to leave town ; and he was, on his own showing, going rapidly to England. Consequently, tiie petitioner's agent had the respondent's expense agent and his election agent served — modes of service which the Court recognises as good. The cost of doing so — a sum of four or five pounds —was disputed upon some hypercritical notion that it involved a reflection on the respondent. There is no reflection upon him, and, therefore, as that sentimental ground for removing it off the bill of costs>does not exist, we will allow it to stand. Upon these points, therefore, the motion alto- gether failed. On neither motion were there costs asked for, nor indeed could any be given for applying successfully against the decision of the Master. Therefore, the respondent and the peti- tioner do not ask for them ; but it seems to be forgotten that if you do not succeed in reversing the Master's decision, you pay costs. These costs are asked for at the bar when . the case has concluded. The respondent's application having been rejected in omnibus, it follows the ordinary practice of being refused with costs. Lawson, J. : — I desire to saj' a few words as to the principle on which my decision rests. We are called upon to review the taxation of the Master. The taxation of costs in such cases as this is under the 41st section of the Parliamentary Elections Act. This section declares that the costs are to be taxed in the same manner as between attorney and client in a suit in the High Court of Chan- cery. I entirely adopt the rule laid down by Chief Justice Bovill, that the party succeeding is "entitled to all costs that were reason- ably incurred in the ordinary course of matters of this nature, but not to any extraordinary or unusual expenses incurred in conse- quence of over-caution or over-anxiety as to any particular case,"^"&c. 124 Trench v. Nolan. Corn. Pleas. Now, the first tiling we have to consider is, what is the nature of the case with which we are cleahng. The Master has told us that he dealt with the case more upon a general rule than having regard or giving consideration to this particular case — the nature of the case, the time it occupied, and the distance from DubUn at which the trial took place. All these matters are proper to be taken into consideration in order to arrive at a conclusion upon the question whether the costs claimed were reasonably incurred in matters of this nature, for, if they are unreasonable, then they ought not to be allowed. Let us refer for a moment to this docu- ment that supplies me with a number of the witnesses examined in this case. I find there were 236 witnesses examined for the petitioner, and 100 for the respondent ; and then the petitioner went into a rebutting case and examined 12 more, so that in this case 348 witnesses were examined. Tlie case oocupied the whole of Easter Term, the After-Sittings, the Vacation, and part of Trinity Term, during the whole of which the counsel engaged in tliis case were necessarily absent from Dublin. Now, applying the princijjle laid down by Chief Justice Bovill, we ask are these costs such as an attorney would be justified in incurring, having regard to the nature of the case? The first duty he had to dis- charge was to retain competent counsel. Therefore, I think those fees ought to be allowed. The Master appears to have acted upon a general rule, and not to have taken into oonsideration the magnitude of the case, the time occupied, and the number of ■witnesses examined. We have come to the conclusion to allow those fees which he has struck off, and direct that he should review his taxation in that respect. AYith respect to the items for the shorthand writer's notes, I think it would be an extraordinary thing if we were to hold that, when the legislature has taken the trouble of providing the machinery for supplying an authentic record of the evidence given at the trial, the party is not (o have the advantage of it except at his own expense. We have, there- fore, come to the conclusion that the amount actually paid out of pocket for the shorthand writer's notes should be recouped to the petitioner by the respondent, who has been decreed to pay the costs of this case. The next item is with regard to the employ- ment of a third counsel. I think this is a case which, from its Trench v. Nolan, 125 importance and magnitude, required the aid of a third counsel, Gom- Picas. and I do not think it was his duty to devote himself to taking " . down the evidence of those 348 witnesses. Therefore I entirely concur with the other members of the Court, that the petitioner's attorney should be repaid the amount actually paid for copies of tlie shorthand writer's notes^ and not that he shouJd be merely allowed the costs of a " dagger " brief. With regard to the expenses of the witnesses, in my opinion, upon the true construc- tion of the Act of Parliament, the provision that the Registrar shall give a certificate is one introduced for the benefit of the Matness ; but it is not a condition precedent to the Master's allowing the expenses of the witnesses that they should have the certificate of the Registrar. If they were properly subpoenaed and even not examined ; if they were proper and necessary witnesses ; if the Master thinks they were properly and prudently brought here, their expenses must be taxed in favour of the successful and against the unsuc- cessful party. We aTe all of opinion that there has been an error in holding that the certificate of the Registrar was necessary for the taxation of a witness's expenses. Now, it has been contended that, because the Judge's year of office has expired, he has no longer power to discharge any duties connected with the case. That, in my opinion, is neither common law nor common sense ; but we hold, following the English practice, that the certificate of the Registrar is unnecessary, in order that the expenses of a witness shall be allowed, and we therefore send back the taxation to the Master, with the directions to allow all proper and necessary witnesses, whether examined or not, if the Master thinks they were proper and necessary witnesses to summon. The Pelilioners motion allowed, without costs. The Respondents motion refused with costs. Attorneys for the petitioner — Cronhelm, Son, and Tobias. Attorneys for the respondent — M. Gfeen and Co. 126 Murphy v.^ Nolan. y. c. Court, MURPHY V. NOLAN, 1873. June 9, 26, 30. (Sy permission, from I. K. 7 Eq. 498.) Taxation of Costs between party and party — Documents appearing as readings on the decree — Briefs for counsel — Measurement and valuation of improve- ments to lands — Practice. 1. The entry upon the decree of documents as read at the hearing does not, upon taxation of costs between party and party, exclude the Taxing Master's discretion as to disallowing the charges for briefing them to Counsel. 2. Upon taxation of costs between party and party, the sums paid to witnesses for inspecting, measuring, and valuing improvements upon lands, will not be allowed in addition to the charges for the affidavits made by those witnesses. Motion, that the Taxing Master should review his taxation of the plaintiff's costs. The items in the bill of costs — the subject of the motion — the facts connected with them, and the report of the Taxing Master, sufficiently appear from the judgment. Mr. Beytagh, Q.C. (with him, Mr. Carton), for the plaintiff. Where documents have been fairly and reasonably entered upon the decree, the costs of briefing them to Counsel should be allowed as a matter of course : Poor Law Commissioners v. Fitzgerald (1), Ante, p. 99. Ilaslam v. O'Connor (2), Ex parte Hutchinson (3), and the Taxing Master has no discretion in the matter. The costs of briefing the Ante p. 72. correspondence ought to have been allowed : Beamish's Trusts (4); Churton v. Frewen (5) ; if not, the original letters should, at the risk of loss, be sent to Counsel. Mr. P. Martin, for the defendant. The Master allowed for the material parts of the correspon- dence ; it would be impossible for him to allow for it all : Stephens V. Lord Newhoroiigh (2). A bill of this nature did not require to be submitted to senior counsel. The costs of making measure- (1) 7 Ir. Jur. 0. S. 110. (4) 5 I. Law Times 104. (2) I. E. 6 Eq. 615. (5) 36 Law Joum. Ch. 660. (3) I. E. 7 Eq. 56. (6) 11 Beav. 403. Murphy v. A^olan. 127 ments, &c., were properly disallowed : Bewley on Costs, 54 ; May V. C. Court. V. Selhy (1) ; Severn v. Olive (2) ; Laing v. Bowes (3). The question ^*^^' as to the length of the briefs was entirely in the discretion of the Master ; Adair on Costs, 272 ; Pilgrim v. S. and D. Railway Company (4) ; Gower v. Donovan (5). The Vice-Chancelloe : — The circumstances under which the questions now before me have arisen are somewhat peculiar. The suit, which is one for enforcing the specific performance of an agreement for a lease disputed by the defendant, was set down for hearing upon repli- cation. After all the proofs had been made and the case had come into the paper of causes, a consent was entered into by which the defendant submitted to a decree as prayed, with costs, and by which the proofs to be entered upon the decree were agreed on. Thereupon a decree was made according to the consent, without having the case opened or any discussion in Court, and the plaintiff's proofs, as specified in the consent were entered as readings upon the decree. Those proofs consisted, amongst others, of a long correspondence in reference to the pro- posed lease, a number of drafts of it which passed from time to time between the parties and their agents, and a number of vouchers for the plaintiff's expenditure upon the premises upon the faith of the agreement — all which were specified in the list of proofs referred to in the consent and decree. The plaintiff's costs under the decree having come before one of the Taxing Masters for taxation, a number of items, amounting to a considerable sum, were disallowed by him, as to which I am asked to direct him to review his taxation. The first of these items is a charge for a copy of the correspon- dence laid before counsel for the purpose of drafting the bill. The Taxing Master reports that he has disallowed this item, as he considered that the copies were unnecessarily made, bnt that he allowed a charge for instructions for the bill, which, I presume, he considered was sufficient to cover the expense of any necessary (1) 1 Powl N. S. 70S. (4) 8 C. B. 25. (2) 6 Moore 235. (5) 2 I. L. E. 333. (3) 3 M. & S., 89. 123 Murphy v. Nolan. r.C. Court, extracts from the correspondence; and I find also that he has allowed a small portion of the charge for copies of letters. I see, therefore, that the Master has exercised his discretion as to this item, and the question being one of amount, and not of principle, I do not feel at liberty to interfere, though from the nature of the case made by the pleadings which I have read, I think it would have been impossible for counsel to prepare the bill without a careful perusal of every material letter that passed in reference to the agreement for, or the terms of, the proposed lease. The next class of items consists of charges for submitting to senior counsel the draft of the bill prepared by junior counsel, also the draft of the amendments afterwards prepared by junior counsel, and tlie answers of the plaintiff to interrogatories admi- nistered by the defendant. I consider this class of charge to be within the discretion of the Master, and one in which the Court should not ordinarily interfere ; and I do not find any sufficient ground here to lead me to think he has wrongly exercised that dis- cretion. The next class of items consists of charges for the expenses and remuneration of witnesses who were sent by the plaintiff to the lands to measure and value the plaintiff's improvements thereon. These witnesses have made affidavits which have been entered on the decree, and the costs of which have been allowed. The Taxing Master has disallowed sums paid them for their respective measurement and valuation. He has reported to me that these are not charges against the opposite party ; and in this opinion he is supported by the cases referred to at common law, where matters of this nature are of more frequent occurrence. I cannot see why a different rule should be followed in this Court as to such charges. I have applied to Mr. Colles, the Taxing Master of the Common Law Courts, for information as to his practice, and he has favoured me with a statement on the subject, by which it appears that it is the settled practice at Common Law, both in England and Ireland, that in addition to the travelling expenses, and compensation for loss of time in attendance at the trial, a civil engineer, if he makes a map which is given in evidence, gets in addition a sum varying from £3 to £5 for the map, but that he cannot, as against the party, get anything for measurement or Murpfiij V. Nolan. 129 valuation to qualify himstlf for giving evidence. Tlie case of V. 0. Court. Chnrtonx. Frewen {\), before Malins, V.C, appears to conflict ^"^' with that rule to some extent ; but I apprehend that case rests on its OM'n circumstances, and I do not find that the authorities in the Courts of Common Law, cited to me, were referred to. I am accordingly of opinion that the Taxing Master has properly dis- allowed these items. The last item is the largest in its amount, and the most import- ant in its nature ; it is the charge for briefs for the hearing, from which the Master has deducted more than one half. Charges of this nature are generally so much matters of amount, and there- fore properly and necessarily in the discretion of the officer, that the Court should not interfere except a matter of principle is involved. There is no species of charge tliat requires a more careful supervision, or as to which it would be more dangerous to limit the exercise of the Master's discretion. It was contended by the plaintiff that that discretion is altogether excluded by the entry of documents upon the decree as read in evidence, and that, when the Master finds any document so entered, he is bound to allow a full brief. This was a question of so much importance, that I deemed it right to make a further inquiry of the Taxing Master as to the practice of the office, and requested him to state what that practice is, as to the allowance of costs on taxation between party and party of briefs of documents entered on decrees as readings, which, if not so entered, the Taxing Master might consider unnecessary to be briefed. The Taxing Master has, in reply to this inquiry, informed me that a discretion is exercised in such cases, and sometimes, even where documents are taken down on the decree, some are disallowed as unnecessary briefing, and that each case depends upon the particular facts. It is satisfactory to me to know that this is so, as I was rather under a different impression, and I was, consequently, in the habit of myself directing the Registrar not to enter on the readings docu- ments which, though unobjected to, seemed to me unnecessary to have read in evidence, lest, by entering them, costs should be unnecessarily increased. My knowledge of the Master's possessing and exercising this discretionary power shall not prevent me from (1) 36 Law Journ. Ch. 661 K 130 Murpliy v. Nolan. V.C Court, still following the same course, for it is advantageous to preserve every check upon excessive charge. I believe that, under the old system of taxation, it vs-as of course for the Masters to allow full briefs of all documents so entered, and on inquiry from one of my officers, Mr. Campbell ^Joore, who has had an experience of upwards of fifty years, and whose skill on such questions is con- siderable, lie has informed me that such was always the practice of the Masters in Ordinary before the appointment of the Taxing Masters. I apprehend that the exercise of the discretion stated by Master Coffey originated with the G. O. of 13th April, 1842, followed by the 157th G. 0. of 1843, the terms of which are quite large enough to confer it upon the officer. I tliink that the reasonable principle on which the Taxing Master should act is that prima facie all documents appearing as readings upon the decree are proper to be briefed to counsel, but that he is still bound to look into the matter, and to disallow the costs of such as, upon examination, he shall satisfy himself were unnecessary to have briefed. This wholesome discretion will not be interfered with by the Court, except in cases where a principle is concerned, or where the Court sees that the Master has fallen into some error as to the grounds upon wliich such readings were entered as read. And here I may observe that it was altogether upon the admission and consent of the Defendant himself that all these documents were so entered. If he had thought any of them unnecessary, and only leading to excess of charges, he should have guarded himself by having them excluded from the list of proofs agreed on. It is not reasonable now to call upon the Court to enter upon a consideration of which of those documents were necessary proofs; and if the Taxing Master had allowed briefs of them all, I should, under the circumstances, have declined to review his taxation. I have been obliged to read the pleadings in the case, and I have arrived at the conclusion that the Taxing Master has fallen into a mistake as to the purpose for which the four drafts of the lease contained in the briefs were relied on, He seems to have assumed that the con- tention was as to the form of the lease to be granted, and not as to the existence of a binding agreement. The latter was the real question ; and, to establish that agreement, I am of opinion that all these drafts were nf much importance. I should, if the case Jameson and Co. v. Royal Insurance Co. 131 had come to a hearing, have required to examine each of them, y--C. Court. and I think counsel should have had briefs of tlnem all. Another question in dispute was as to the improvements alleged by the plaintiff to have been made by him on the faith of this agreement, the making or at least the extent of which was disputed by the defendant. I am of opinion that briefs were properly made of vouchers to prove the making and cost of permanent and sub- stantial improvements, such as building and drainage works, but not of such expenditure as seeds or manures. I shall therefore direct the Master to review his taxation of item No. 371, by allowing briefs of the four drafts, and of the vouchers for expenditure in building a farm-house and offices, and in making permanent improvements upon the lands. I shall refuse the rest of the motion, and each party must abide his own costs. Solicitor for the plaintiff : Mr. Michael M'Namara. Solicitor for the defendant : Mr. W. F. Henderson. JAMESON AND CO. v. ROYAL INSURANCE CO. Q«e«i's Bemk 1 7, 1 1874. (By permission, from 8 Ir. L. T. 375.) Jan .27. Costs— ShoHlmnd report— Construction of model— Sheriff's fee for jury panel- Briefs for new trial motion. Motion, that the Taxing Master's certificate, disallowing certain items charged in plaintiff's bill of costs, be remitted to him for revision. The action, which was brought on foot of a policy of insurance, was tried before Barry, J., and a special jury, when a verdict was had for the plaintiffs. Exham, Q.C. (with him Robertson), in support of the motion : — The hearing of the case occupied three days, and the inquiry turned almost wholly on a question whether the risk on the policy had been increased by the construction of certain coils towards the elucidation of whicli a model iiad been obtained by the plain- 132 Jameson and Co. v. Royal Insurance Co. HICKEr V. O'OONNOE. (By jienniiHon, fiom I, R. 8 C. L. 509.) (Before Monahan, C.J., Keogh and Morris, J.J.) Costs — Taxation — Common Law Procedui-c Act, 1853, s. 243 — Oommo^i Lam Procedure. Act, 1856, s. 97. Action for the conversion of the alluvial soil of the bank of a river alleged to be the plaintiflf's ; judgment by default, and damages assessed by a jury at £3 : — Hdd, That the action having been brought bona fide for the purpose of trying a right, the circumstance of the defendant not defending it, and thus waiving the question, did not disentitle the plaintiff to full costs. Motion for certificates to entitle the plaintiff to full costs, under the Common Law Procedure Act, 1853, sec. 243, the action having been brought to try a right to property more extensive than the sum sued for, and not being capable of being tried in the Civil Bill Court. The action was brought to recover damages for the conversion, by the defendant of soil deposited on a portion of the bed of a river alleged to belong to the plaintiff, but, substantially, to try the right to the bed of the river. The defendant allowed judg- ment to go by default; and an inquiry to assess damages having been had before the Master, in presence of the defendant, who, though he admitted the conversion, asserted his right to the bed of the river, the jury assessed the damages at £3. Heron, Q.C., for the plaintiff. The action could not be brought into the Civil Bill Court (Common Law Procedure Act, 1856, sect. 97). Though the defendant did not defend the action, the plaintiff is entitled to the certificates, because he intended to try a right. In Morrison v. Salmon (1), Maule, J., says: — "Suppose a case can be put of a declaration in trespass or case (although I do not think it can) in which a right could not, by possibility, come in question, still, if it should appear to the judge that the plaintiff had really mtended (1) 2 M. & G, 394, 395. Com. Pleat, 1874. Nov. 3. 134 Hickey v. O'Connor. ^<""- ^''""- to try a riglit, I conceive that the former would have power to certify. If an action be really brought to try, a right, whether it is calculated for that purpose or not, the party is within the letter, and, as it seems to me, also within the spirit of the Act." And Shuttleworth v. Cocker (1) also shows that the judge is not deprived of the power of certifying that the action was really brought to try a right, merely because the defendant has not chosen to contest it by his defence. Morgan Kuvanagli, contra. This case is not properly brought before the Court. It is on review of the Taxing Master's report that the question of costs ought to arise : Bennett v. Scott (2). Where the judgment goes by default, as in this case, the Taxing Master has no jurisdiction : Armstrong v. Dwyer (3); where Monahan, C.J., says: "Where, by not pretending to any right, he (the defendant) allows judgment to go by default, and admits himself a wrong-doer, the right is not brought into question." IMONAHAN, O.J. : — We are of opinion that plaintiff is entitled to the certificates he seeks. If an action be brought hond fide for the purpose of trying a right, the circumstance of the defendant's not choosing to defend it, and thus waiving the question, does not disentitle the plaintiff to his costs. Order accordingly. Attorney for plaintiff : Thomas V. Ryan. Attorney for defendant : Thomas O'Connor. (1) 1 M, & G, 829. (2) 8 Ir. Jur. N. S. 206. (3) 1 Ir. Jur. N. S. 2U6. liolih V. Connor. U'y llOBB V. CONNOR. Roiu. 1874. (By permission, from I. E. 9 Eq., 373, o. c. D. Ir. L. T. R. 115.) Nov. 24. 1875 Taxation of costs between 'party and party — Counsel's fees — Number of briefs j^jg 26. in Court of Appeal — Fees to professional untnesses. 1. In estimating the amount of fees to counsel, the Taxing Master should always have regard to the difficulty and complication of the ques- tions of law and fact involved in the case, and the importance of the result of it to the parties. The fees bona JiJe paid by a solicitor to counsel, and fairly required by the magnitude or complication of the cause, ought not to be reduced, but should be allowed on taxation between party and party. 2. Although two counsel only are heard in the Court of Appeal, the costs of three counsel in that Court should be allowed on taxation between party and party, where the difficulty and importance of the case render it proper to retain them ; particularly in cases where three counsel had been allowed on taxation between party and party in the Court below. 3. The daily fee allowed to a professional witness on taxation between party and party is not necessarily to be limited to £3 3s. In this case a fee of £5 5s. a day was allowed to an engineer and architect of eminence employed under the direction of the Court. Motion, on the part of the defendant, that the Taxing Master should review his taxation. The bill in this cause was dismissed with costs by a decree of the Master of the Kolls, dated the 2 1st of July, 1871. The plaintiff appealed, and the Court of Appeal in Chancery affirmed his Honor's decision on the 3rd of June, 1872. The nature of the suit is stated in the judgment. On the taxation of the costs, as between party and party, Master Teeling allowed the plaintiff the costs of three briefs to counsel at the hearing at the Rolls (items 360, 362, and 364 in the bill of costs), but struck off £2 2s. from their respective fees of £14 14s.,. £12 12s., and £9 9s. He allowed a refresher of £2 2s. per day, and consultation fees of £2 2s. for each counsel. He disallowed the costs of one of the three counsel in the Court of Appeal (items 435 to 534 = £26 3s. 8d.), and reduced the pro- fessional charges of Mr. M'Curdy, an engineer and architect, who was employed tp examine the premises in Belfast, from £13 16s. 8c/. to £10 Os. 9d. (item 560). 13(5 Hobh V, Connor. Rnijf. The defendant having moved to review the taxation as to the above-mentioned items, his Honor referred the matter to the Taxing Master, wlio reported as follows : — "As to item 360. " This was a fee of £14 14«. on hearing motion for a decree. " Having regard to the proceedings in the case, the amount of fees paid to counsel, and tlie fees paid by the plaintiff, and consi- dering that I allowed three counsel at the hearing of the motion, in my judgment £14 14.«. seemed too liberal a fee, and in conse- quence I reduced it by £2 2s. " The same remarks refer to items 362 and 364. "As to items No. 435 to 534. " These are the costs incurred in consequence of employing a third counsel on the appeal in this case, and which I disallowed, on what I understand to be the usual practice in the Court of Appeal ; which is, not to have more than two counsel for respon- dents or defendants, except in very rare cases, where there are a 'variety of respondents or defendants having separate or distinct interests. But, as that was not the case in the present instance, and as it was asserted tliat only two counsel we're, heard on the Tivgument in the Court of Appeal, I disallowed the third counsel. " As to item 560. " This was a charge of £13 15s. 8c?. for professional fees paid to INIr. John M'Curdy, architect, of which the following are the particulars as furnished by him : — ■ £ s. d. " To visiting Belfast in Rohb v. Connor, by order of the Court, two days, £5 5s , " To attendance in Court (query evidence), " To ti'avelling expenses to Belfast, &c., - 10 10 - 1 1 - 2 5 8 £13 16 8 "It will be observed that Mr. M'Curdy charges £5 5s. per day.- I understand, however, that £3 3s. per day is the usual fee allowed to gentlemen of his profession. And in the absence of any special agreement or order to allow larger fees, I considered I would not have been justified had I done so, and, consequently, I reduced his chai-ge of £o 5s. per day to £3 3s. Boll V. Connor. 137 " I allowed him £1 Is., his charge for attending Court to give ^''''«- evidence. " On taking an account as to the item £2 5s. 8c?. for travelling expenses, in my judgment he made an undercharge of 8s. Id., which I added to his charge of £2 5s. Sd., the result of which was a deduction of £3 los. lid. from his entire charge of £13 IGs. Sd." Mr. W. D. Andrews, Q.C., and Mr. Twigg, for the defendant, as to items 360, 362, 364, contended that the amount of counsel's fees was a matter in the discretion of the solicitor, to be exercised bond fide, and with a due regard to the exigencies of the case, and referred to the Galway Election Petition (1). ^^^^ _ jgg As to the items 435 to 534, they contended that there was no rigid rule which precluded the taxation of three briefs to counsel in the Court of Appeal. They had been often allowed by the Taxing Masters, where the case was of sufficient importance to require the service of three counsel. Such a rule might be very detrimental to the client. One of his counsel might be required to attend in another Court. The counsel who was not retained in the Court of Appeal, but who acted for him in the Court below, might be required to take a brief for his adversary, and both he and the counsel would be placed in a most embarrassing position. As to the architect's charges, they were of a most moderate character. Mr. Bruce, for the plaintiff : — The amount of the fees allowed the counsel in the Court below is not a matter of principle, and is completely within the Taxing Master's discretion, Smith v. Baker (2) ; so are the fees to the architect. Even at the first hearing, three counsel, are not always allowed between party and party, although three counsel are lieard, Haslam Ante, p. 99. V. O'Connor (3) ; but in the Court of Appeal the uniform practice is to hear but two counsel. (1) Ir. K. 1 C. L. 145. (2) 28 L. P. N. S. 669. (3) Ir. K. 6 Eq. 615. 138. Roih V. Connor". PoUi. The Master of the Rolls : — '. This is an appeal from the certificate of the Taxing Master on June ^26 *^'^ taxation of the costs of the defendant as between party and party. The case was argued before me some time ago, and I kept it over for judgment, with a view of thoroughly considering the practice which ought to prevail in reference to the matters in con- troversy. The questions involved strike me as being of great importance, affecting not merely the parties to this cause, but also the two legal professions, the Bar and the solicitors, and in addi- tion the interests of the pulilic, any one of whom may have to assert his rights in this Court at any moment. Tiie appeal is conversant with three classes of items, viz. : — First, counsel's fees on the briefs held at the hearing of the cause at this Court. Secondly, the costs of employing a third counsel in the Court of Appeal. Thirdly, certain charges for Mr. M'Curdy, an architect, in respect of a visit to Belfast, to inspect the premises the subject matter of the suit, made under the order of the Court of Appeal. Before I enter upon the precise questions which arise on this appeal, it is right that I should state what the case was, and what were the questions involved in it, both in point of law and in point of fact. I heard the case, and I can state that it was as serious a case as could be brought to a hearing in this Court. The bill was filed substantially for a mandatory injunction to compel the defendant to take down a long range of buildings which were in course of erection in Belfast on the allegation that they obstructed the light to certain valuable premises occupied by the plaintiff, Mr. Robb, and injured the carrying on of his business, to which perfect and uninterrupted light was essential. The premises which Mr. Robb, the plaintiff, occupied, were subject to a rent of about £400 a year, and were of a very extensive character; and up to the time when the defendant commenced his buildings the plaintiff had enjoyed, as he stated, uninterrupted light of a most valuable character, which was required for the sale of goods he dealt in — silks, satins, cottons, and velvets, by wholesale and retail ; and' if his case had been well founded in fact, it is easy to conceive the injury which might have been caused to his trade and property. The defendant was vitally interested in the suit. He Ituhh V. Connor. 139 commenced, indeed almost completed the buildings close to the •«"% plaintiff's premises, and invested a large sum of money in them, and was about building other structures in the neighbourhood ; and if he was restrained from cari^ing them on, and if an injunc- tion had been granted commanding him to pull down the buildings already erected, it would have placed him in serious embarrass- ment — nay, perhaps, might have caused his ruin. Ko two litigants could well be engaged in a Court of Justice in a more weighty controversy. The difficulty of the questions at law which arise in a case relating to an alleged diminution of light is well known. The case before me involved an examination of all the authorities, from the earliest to the latest, particularly the cases of Jackson v. Duhe of Newcastle (1), and Yates v. Jack (2). The very conflict of opinion between the learned Judges who decided these two cases shows tliat if the point involved in them arose here, it in itself stamped the case with unusual importance. Now one of the many questions involved in the case was that very point, whether a plaintiff coming into a Court of Equity alleging that his light is diminished, can obtain an injunction, though the diminished light is more than sufficient for the business which the plaintiff is then actually carrying on °l That delicate and nice question, amongst others, was argued before me at considerable length. I came to the conclusion which, in my judgment, the authorities at the time warranted, and which a subsequent decision has confirmed, Aynsley v. Glover (1), that the plaintiff was entitled to all tlie light which he had theretofore enjoyed, whether the entire of it was necessary to the business he was then actually carrying on or not, inasmuch as he might afterwards, for other branches of trade, require more light than was necessary to the trade he carried on in the premises when he filed his bill. There were also questions . Connor'. 141 counsel, £10 10«., with a similar consultation fee, and to tlie ^otts. junior counsel a fee of £9 9s., with a similar consultation fee. Refreshers of only £2 2s. per day were given to each of the counsel, senior and junior. The costs which, under the decree, were to be taxed against the plaintiff were, of course, only party and party costs. It is perfectly clear that on taxing the costs between party and party the Taxing Masters must act on the well- known rule, that there should be no extravagance, nothing of what has been called " the luxury of payment." The fees on such a taxation should be measured by the fair exigency of the case ; but, holding that principle most strictly, I feel bound to say that the fees which were given out to counsel on their briefs in this cause were as reasonably small as it was possible to hand to counsel in a case of this kind, while the refreshing fees, at all events, if viewed in reference to costs as between solicitor and client, were, in my judgment, scandalously insufficient. The fact that in a case of such importance as the one before me, involving great preparation, and conversant as it was with a most disputed and complicated state of facts, requiring constant attendance in Court, a Queen's Counsel in the first rank of his profession is expected to devote his whole day to it for a fee of £2 2s., sufficiently demon- strates that the scale of payment to coimsel in this country is brought to the lowest point ; and certainly the solicitor who marked such refreshers cannot well incur the imputation of extravagance. J udging from my own not very short experience at the Ear, and my general knowledge of the system in Ireland which regulates the amount of fees paid to counsel on their briefs, I do say that, as an almost invariable rule, such fees are of a most moderate character, and if there be an error on the side of extravagance it is very rare indeed. Tlie Taxing Master in taxing these costs has dealt with them in this manner — he has taken from the fee of £14 14s. £2 2s., from the fee of £10 10s. to the second counsel £2 2s., and from the fee of £9 9s. to the junior counsel £2 2s. There seems to me no principle in this mode of clipping fees, and I cannot understand it. The Taxing Master, from his report, would seem to ine to have had some regard to the amount of fees which the plaintiff paid his counsel ; but I can discover no reason why, because a pliintiff or his solicitor is niggarilly, a defendant 142 Robh V. Connor. Soils. or his solicitor is not to deliver a proper fee to Lis counsel. I lS7n could understand a fee of £14 14«. being reduced to seven or eight or five or six guineas upon some alleged principles ; but I must say I do not understand clipping or shaving fees in the manner in which they have been dealt with here. The proceeding would seem to me to be resorted to more through a desire to clip or take something off than through a desire to estimate the fee by a right standard — namely, the mngnitude of the case and the nature of the questions involved in it. The principle which I think should be acted on. and I am pre- pared to enforce, is this — that if a solicitor, acting bond fide within the rule I have above stated, delivers a brief with the fee marked thei'eon to counsel, prima facie that fee ought to be allowed, even in party and party costs ; otherwise the solicitor must be exposed in every case to the risk of having to pay out of his own pocket money which he honestly and hond fide paid to his counsel, unless he has taken the precaution of fixing the fee beforehand with his client. Acting on that principle I have no hesitation in reviewing the Taxing Master's decision, and directing him to allow the full amount of the fees paid to counsel on their three briefs. Three counsel were rightly allowed on taxation. The Master seems to have thought that this circumstance warranted him in somewhat reducing the fees. I cannot understand this view. It would surely be a very strange rule that any given counsel, whose advocacy is required, should get a smaller fee because two counsel are engaged' with him instead of one. There is no such principle known to the law or to the profession. The gentlemen who were solicitors for the defendant in this case are gentlemen of great respectability, and all idea that their fees were given with any other view than the fair conduct of the case must be put aside. What was given was given, I am thoroughly convinced, with the sole view of fairly protecting the client from a tremendous risk to which the plaintiff's suit exposed him. The principle I have stated is the one on which the Court of Common Pleas in this country recently Ante, p. 1Q8. acted in reviewing the costs of the Galway Election Petition (I) in relation to the counsel's fees ; and it seems to me to be one founded in justice and reason. (l)Ir. R. 7, C. L. 445. Eohh V. Connor. 143 The next question is, whether three counsel ouglit to be allowed RoU^. on the appeal? It is the general practice of the Court of Appeal to hear only two counsel. The Taxing Master proceeded on the ground that as two counsel only are heard in the Court of Appeal, he could only allow the costs of two counsel in that Court. The Taxing Master really appears to m'e not to have grasped the magni- tude and importance of this case, and that is the foundation of the error into which I think he has fallen in disallowing, as he has done, three counsel in the Court of Appeal. Three counsel were heard in the Court below, and were allowed; and the principle which I am called on to affirm is that, in a case where three counsel are allowed in the Court below, if the case goes further, one of these counsel must be got rid of — no matter what the magnitude of the case may be, both as to the legal principles and the facts involved in it. A great deal more is to be done in a case by counsel than the mere argument of it in open Court; there is no man of the smallest experience at the Ear who does not know that such is the fact. I will not allow such a principle as the Taxing Master has acted on to prevail. I think that when a suitor in this Court is allowed three counsel on taxation, and when his adversary takes him to the Court of Appeal, if the magnitude of the case is such as to warrant the employing three counsel for the appeal, the costs of such three counsel ought to be allowed between party and party — that is my clear opinion. There is a case of much importance on this point, which was not referred to at the Bar on this motion. Pierce v. Lindsay (1). In England the ordinary rule is that briefs for more than two counsel are not allowed on taxation between party and party. I need scarcely say, at least to those who have any acquaintance with the prac- tice of the Bar in the two countries, that if this suit had been heard in England, the fees given to two counsel there would have far exceeded the amount of the fees given to the three counsel here. The case I have mentioned was an appeal from the decision of Vice-Chancel lor Wood (2), declaring that in taxing the costs of suit as between party and party, only two of the three counsel retained by the plaintiffs upon the hearing of an appeal should be allowed, and referring it back to the Taxing Master to review his (1) : M. F. & J. 573. (2) 1 John. 702. 144 Rvhh V. Connor. RolU. certificate allowins the costs of the three counsel. At the original 1875. ^ , /-v , 1 hearing the plaintiffs appeared by two counsel. On the appeal an additional Queen's Counsel, was retained ; and it was submitted to the Taxing Master that the examinations and depositions taken in Chambers under the decree had increased so much the bulk of the evidence which it became necessary to submit to the Court of Appeal, that this addition was requisite for the purposes of justice. The Taxing Master acceded to this view, and by his certificate allowed the costs of the three counsel, on account of the peculiar difficulty and importance of the case and the bulk of the pleadings and evidence on the appeal ; lie considered that the case was one in which an exception might properly be made to a general rule allowing the costs of two counsel only laid down in Smith v. The Earl of Ejffingham (1). It was argued, in support of the appeal, that there was no such rule as that supposed to have been laid down in Smith v. Efingham, but that it was altogether matter of discretion whether the costs of two or more counsel should be allowed ; and that in taxing the costs of an appeal befoi'e tlie House of Lords the costs of three counsel are allowed where the nature of the case renders it proper to retain three counsel, although two only are allowed to address the House. It was not denied in the argument against the appeal that such was the practice. The Lord Chancellor, in giving jndgment, says : — " There is no doubt that the general rule is to allow only two counsel as between party and party ; but the question is whether that rule is an inflexible one, and those who affirm that the Taxing Master did wrong in allowing three counsel ought to prove it to be inflexible and without any exception. Now, instead of that, in each and every one of the authorities cited it was allowed that there may be an excep- tion." He then refers to three cases which had been cited; " That being so, instead of being proved /that the rule admits of no exception, it is allowed that the authorities say there may be an exception. It would be very unreasonable, I think, if there might not be an exception, because there are cases in which justice could not be done, in which the Court would not have the proper assistance which it has a right to expect, with two counsel, however learned." Then, after having referred to the facts of that case, (1) 10 Beav, 378. Rvbh V. Connor^ 145 Lord Campbell says : — r" The only argument urged against it lias -So'^s-. been that the plaintiffs were content with two counsel in the argument below. But surely that objection cannot be allowed to prevail. We do not know for what reason not more than two counsel were then employed, nor Avhat effect the severe labour they undertook may have produced upon them. We must, I think, dismiss from our consideration the circumstance of there having been only two counsel employed below. Upon the appeal we have heard three counsel on each side, and, in my opinion, with great advantage. My conclusion, therefore, is that the Taxing Master's certificate was right." The Loi'd Justice Knight Bruce concurred, and Lord Justice Turner said : — " I agree with what has been said, but with the anxious desire that it should still be borne in mind that, as a general rule, the costs of two counsel only should be allowed, and that before the costs of three are allowed, it should in each case be clearly shown to have been essentially necessary, for the purpose of doing justice between the parties at the hearing of the cause, that three counsel should be employed." Now the only possible distinction that can be drawn between that case and this is, that in the Court above three counsel were heard. But it appears to me that nothing substantially turns on that fact. The general principles of the case fully support the allowance of the three counsel in tlie Court of Appeal here in a case of this description. It is plain that it is only in exceptional cases, where the magnitude of the stake, the complication of the evidence, or the difficulty of the question of law wai'ranted, that three counsel A^'ill be allowed on tlie taxation of party and party costs in the Court of Appeal ; but T think that if three counsel are allowed in the Court below, and the nature of the case reasonably requires the employment of three counsel in the Court of Appeal, they ought to be allowed there, particularly when tliey are the same counsel who argued the case in the Court below. And when one considers the very small amount for which the best advocacy in this country can be had in the Court of OJiancery,. 1 consider that snch a rule, so far from being a hardship upon suitors, is one directly beneficial to their interests. Therefore, I think that the Taxing Master's decision on these items should be reversed, and I shall L, -■*" Rohh tv Connor. ms' "^lirect Iiim to allow briefs and fees for three counsel in the Court of Appeal. The next question ou which the Taxing Master has miscarried is on a very small matter, and I ain astonished that any question should have arisen on it. I am very much afraid, from what has transpired in this case, that there is a tendency in the office, on taxation, to clip costs by reducing the amount of items, for the sake of clipping alone. This is a course which I cannot sanction or allow. This Court must now and then have occasion to resort for assistance to the important profession of engineers and archi- tects. The Court of Appeal, as I have mentioned, sent down ^Ir. M'Curdy to Belfast to examine the buildings which were the subject of this suit. Pie went and spent two days there, and he attended in the Court of Appeal and gave his evidence there, and he presented a bill for his fees, the items of which are as follows :^ " To visiting Belfast, in B.obb v. Connor, by order of the Court, two days at £5 5s., £10 10«. ; to attendance in Court, £1 Is.; to travelling expenses to Belfast, £2 bs. Sd." ; the total of which is £13 6s. Sd. Mr. M'Curdy is a gentleman, as I have already indi- cated, of eminence in his profession. He spends two whole days in Belfast; he attends the Court of Appeal; he gave, I believe, most valuable assistance to that Court. The Taxing Master has struck off £2 2s. from each of his daily fees, reducing them to £3 3s. instead of £5 5s. There is no principle in that, except that of badly paying a professional man for valuable services, rendered under most peculiar circumstances. Surely, it is not to be expected that a professional man of eminence should go from Dublin to Belfast — substantially under the order of the Court — on such a business as Mr. M'Curdy was entrusted with, and be satisfied witli three guineas a day. I shall direct the Taxing Master to allow the original fees charged by Mr. M'Curdy. If I were to give any opinion as to the amount, I should say that his charges were of a most moderate character indeed— too small instead of being too much. It is not to be gathered from anything I have said that I depre- cate the vigilance of the Taxing Officer in watching over such items as I have been dealing with, or in examining into each case as it comes before him — even in the case of counsel's fees, if they Birmingliam v. Billing. 147 strike liim as too large or extravagant ; but his decision as to the allowance of those fees or I'educmg their amount must be founded upon a thorough examination of the nature of the particular case, and upon a discriminating judgment founded thereupon. Solicitors for the plaintiff : Messrs. Dalton Sf Smith. Solicitors for the defendant : Messrs. H. Wallace ^- Co. 1 875. BIRMINGHAM r. BILLING. {By permission, from I. R. 9 C. L. 287.) (Before Keogh, J.) Practice — Costs — Taxation — Detinue — Nominal Damages — Certificate — Com- mon Law Procedxire Act, 1863, s. 243. The plaint contained the money counts and a count in dttinue ;, and the plaintiff obtained a verdict for £40 on the former and for Is. damages on the latter, but did not get a certificate for costs ; the plaintiiF's verdict on the money counts having been afterwards changed by the Court into u verdict for the defendant : — Held, (1) that the plaintiff was entitled to no more than half costs on the count in detinue ; and (2), that the costs in respect of the money counts ought not to be taxed against the defendant, who ultimately succeeded on those counts. Motion that the Taxing Master should review his taxation, by which he allowed the plaitiff full costs as regards the items in the bill of costs which related to tlie count in detinue, and disallowed the defendant any costs as regards certain items relating to the money counts. The plaint contained the usual money fcounts against tlio defen- dant, as executor ; a count in trover, and a count in detinue for title deeds ; and prayed a return of the deeds and £30 damages for their detention. The defendant pleaded (1) traverses ; (2) as to the money counts, discharge and satisfaction; and (3) as to tlic count in detinue, a lien on the deeds. At the trial the jury found for the plaintiff £40 on the money counts, and also on the count in detinue with one shiUing damages, the defendant undertaking to deliver the deeds to the plaintiff; Com. Pleas. 1875. March 12. 148 Birmingham v. Billing. Com. rieas. and the iudge reserved leave to the defendant to move to set aside 1875. the verdict for £40 on the money counts and to enter a verdict for the defendant, if the Court should be of opinion that the judge had misdirected the jury. The plaintiff did not apply to the judge for a certificate of costs. In pursuance of the leave reserved, the Court set aside the verdict for the plaintiff on the money counts and entered a verdict on these counts for the defendant, leaving standing the verdict for the plaintiff on the count in detinue. The Taxing Master having allowed the plaintiff full costs on all items in respect of the count in detinue and allocated the costs on tlie money counts, the defendant now sought for a direction to him to allow the plaintiff but half costs on the count in detinue, and to disallow her any costs as regards any of the items in respect of the money counts. Beytagh, Q.C., and Roper, for the defendant: — Ante, p. 78. The plaintiff's costs ought to be half costs : Byrne v. M'Uvoy {I) ; Ante, p. 82. Leonard v. Brownrigg (2). Monahan, Q.C., and MacDermot, contra: — The 243rd section of the Common Law Procedure Act, 1853, does not apply to detinue : Danhy v. Lamb (3) ; because detinue does not ccJntemplate damages, but merely the return of the goods. See Bewley on Costs, p. 81. Keogh, J. : — This is a case which is not altogether free from complication, yet, on the whole, the facts appear to me to be sufficiently plain. The action was for a money demand of over £200, claimed against the defendant as executor ; and the summons and plaint also con- tained a count in detinue for certain title-deeds alleged to be the property of the plaintiff. In answer, the defendant pleaded, in addition to the general traverses, a defence of lien on tlie deeds for certain unpaid services rendered by the deceased testator as solicitor for the plaintiff, and as regards the money counts discharge (1 ) T. E. 5 C. L. 568. (2) Irish Law Times, 1872, p. 7. (3) 11 C. B. N. S. 42S. Birmingham v. Billing. 149 and satisfaction. The substantial question then to be tried was as Com. Pleas. to the money demand of £200, and, as regards this sum, the defen- ^ ' ' dant sustained liis case, except as to a sum of £40, which appears to have been made up of cash payments (together with a sum of £13 realised from plate sold), advanced by the plaintiff to the deceased solicitor from time to time for the purpose of carrying on a suit in which she was then engaged. The consequence was that at the trial the plaintiff recovered a verdict for the £40, but this was subject to a reservation that it should be turned into a verdict for the defendant if the Court should so determine ; and, accord- ingly, the Court, thinking, I presume, that the money was expended for her in litigation, and that she was not without some benefit, and negativing a suggestion of negligence on the part of the solicitor, reversed the verdict, and entered it for the defendant. The postea then stood, and now stands, in this position — that a verdict appears for the defendant on the money counts, while the plaintiff holds a verdict on the count in detinue, recovering the deeds sought, and one shilling for their detention, 1 think it plain, therefore, that the real question at issue was as to the money demand, and on that the defendant has succeeded. In this state of facts, 1 am asked to review the taxation of costs effected by the Taxing Master, who has allowed the plaintiff full costs on the verdict in detinue of one shilling, and the return of the deeds, which latter seems to have been settled rather by arrangement than in exactly the formal manner ; and, further, he has allowed several items relating to the money counts to be taxed in favour of the plaintiff. Now, I have not, under such circumstances, much difficulty in determining the proper allocation of the costs. Sup- pose that, instead of one plaint there had been two — one in detinue, and the other on the money counts. Then, if in the action for detinue the plaintiff merely recovered a verdict for one shilling, could it be contended he was entitled to full costs ? I think not. The 243rd section of the Common Law Procedure Act, 1853, applies directly, and rules this point. It says that certain specified fees shall be chargeable against the plaintiff or the defendant in respect of specified items, provided that, in case the plaintiff (among other things) " in any action for any wrong or injury disconnected with conti'act " siiall recover a sum not exceeding £5,' 150 Birminglbam v. Billing. Com. Pleas. " tlie plaintiff shall be entitled to no more than half costs," unless "the judge certify;" and in Schedule "C" of the Act detinue is classed among the wrongs independent of contract. My view of this matter is strongly corroborated by the case of Byrne v. Ante, -p.", i. M-Evoy{\). That is a direct authority in point. Of course, I am aware that ingenious distinctions may be sought to be raised between that case and the present ; but I cannot understand why, if the farthing costs there (which is the same as the shilling here) would be sufficient to carry full costs, the Court would listen to the long discussion which was thei'e entertained for the purpose of showing that sums of money recovered on money counts could not be added to similar sums on verdicts on counts of tort, so as to make the consolidated sum carry costs. Of course, they con- sidered that the farthing there would not carry costs, and therefore it was sought to consolidate the sum recovered. And the Chief Justice there says:— "In this case the plaintiff has recovered by verdict on counts of tort alone, for the action of detinue is an action of tort. Therefore we do not consider the authorities I have referred to applicable to this case. We are of opinion that the plaintiff cannot add a sum paid into Court on a count in con- tract to a sum recovered by verdict on counts in tort; that the Taxing Master has proceeded on a false principle ; and that the jdaintiff is only entitled to half costs." The very reason here mven bv the Chief .Justice for not allowing more than half costs is that the plaintiff was not at liberty to add the sums recovered in contract to those recovered in tort, which, if added, would have carried costs. But what would have been the necessity of adding the sums if a verdict for a nominal amount in detinue would, of itself, have carried full costs? And it cannot be maintained tiiat the plaintiff laboured under any disability by reason of the law .standing thus, for it was fully open to her to apply after verdict for a certificate that the action had been brought " for the purpose of trying a right to property more extensive than the sum sued for." This was not done ; but, as £40 had been recovered at the tinje by a verdict which was subject to a reservation, it was not contemplated that the verdict would be reversed, and the con- .sequeuc-e was that when the full Court reversed the verdict it (1) Ir. E. 5 C. L. 56S. Newry Steam JErated Co. v. 151 could not grant the certificate. I, therefore, think that, as only Com. PUaa. this nominal sum of one shilling has been recovered on account in detinue, which is an action of tort, and as there has been no certificate, that no more than half costs should be allowed the plaintiff. As regards the remaining portion of the case, I think that, as a matter of principle, all the items of the bill of costs which deal exclusively with the preparation and trial of the money counts should be allowed to the party who has substantially suc- ceeded on tho, money counts — viz., the defendant ; and I do not agree with the contention of the plaintiff's counsel, that because the defendant pleaded to the count in detinue a traverse of tlie plaintiff's property in the deeds, and a defence of lien, that there- fore such another proof of title was challenged as if another Claimant personated another Tichborne. I think that the items in the bill of costs which refer to the money counts ought not to be taxed against the party who was successful on those very counts, and I shall so direct the Taxing Master. Motion granted. Attorney for the plaintiff : Macnamara. Attorneys for the defendant : Meade S,- Colles. NEWRY STEAM iERATED CO. r. {Bff permission, from 9 Ir. L. T. 194.) (Before Sie Francis W. Beady, Bart., Q.C.) Tyrone Qiiar. Sessions. 1875. April 6. Mr. Dickie (on behalf of the company) stated the case, and said tliat he had been tendered by Mr. Moore, attorney for defendant, the amount of the debt (£2 5s. 9rf.), with 2«. costs of civil bill, after the process was served, proceedings taken, the proj^er notices served for the defendant to appear in person, and for the production of accounts, &c. He (Mr. Dickie) refused to receive the amount tendered by Mr. Moore, unless an additional sum of 2s. 6d., to which lie had a right in point of law, as costs was also paid. He drew the attention of the Court to the fact that, in the schedule 152 Newry Steam ^■Erated Co. v. — . Tijrone^ Quar. of fees, separate charges were made in ejectment and legacy pro- 1875. cesses for instructions and notices, and for the entry there was a fee for all civil bills. He had done all that was necessary to be done in the case, and he was, therefore, entitled to the fee of 2s. 6rf. Mr. Dickie then enumerated several places — County Carlow, County Cork, Queen's County, Roscommon, &e. — where this rule was adopted and acted on universally, as he was informed, and referred to the schedule of fees allowed by the Act of Parliament, from which he argued that the 6d. fee was for drawing up and signing the civil bill itself, and that the cost up to the time of tendering the money should also be paid along with it. Mr. Moore admitted that Mr. Dickie was entitled to the fee, but tlie question arose as to whether or not it was propeiiy charged against tlie defendant. He (Mr. Moore) thought that it oughT; to be charged against the plaintiff, who should pay for all work done up to the time that the money was tendered. The point, of course, was whether or not the fee was chargeable against the defendant. Mr. Dickie, in reply, referred his worship to the 21st of the rules of 1851, which required that in case of a tender after the action was brought, it should be accompanied by the costs of suit up to the time of the tender. His Worship said that there were several duties to be done on belialf of the plaintiff, and notice served before the case could come up for hearing, and all for the small fee of 2 s. Qd., as allowed by the law. The fee was very moderate. He was clearly of opinion that the fee of 2s. 6d. was included in the costs under the 21st rule, as portion of the costs of suit up to the time the money was tendered, and, therefore, the tender must be accompanied with this fee, as the 153rd section of this Act made them costs between party and party, and taxable against defendant. He, therefore, granted a decree for the amount, fee included. Smart v. Verdon. 153 SMAET V. VERDON. chancery Tax- ing Mailer's iBy permission, from 9 Ir. L. T. 598). •^^''' 1875. (Before Master Coffey.) Nov. 20. The following judgment was delivered by Master Coffey, on the 20th November, 1875, on the taxation of costs in this suit : — Before referring to the objected items of charges in the plaintiff's bill of costs, I think it necessary shortly to refer to the pleadings. This suit was instituted for the purpose of seeking relief against the defendant — founded upon charges of a very serious character indeed ; and, from the nature of the pleadings, there must have been involved great care and close inquiry with the view of collect- ing and bringing together a mass of information arising out of peculiar and unusually complicated dealings between the parties in this suit, so as to enable the plaintiff to put upon the file a complete narrative of her case; and, from the nature of the answer filed by the defendant, an amended bill of a voluminous character became necessary, and required great care and con- sideration on the part of solicitors as well as counsel with a view to its consideration in consultation before final adoption. From a perusal of the pleadings and affidavits in aid of the respective cases put forward by the parties, I was impressed with the magnitude and importance of the case which, of course, influenced my taxation. As regards the items objected' to by the solicitor on behalf of the defendant, viz.— No. 1. Instructions for bill, amended bill, and affidavit in aid of plaintiff's case, £55 15s. No. 2. Number of counsel employed. No. 3. Fees paid to counsel on briefs for hearing. By a consent order the defendant undertook to pay all costs between solicitor and client, and that the defendant was, if necessary, to furnish a requisition for that purpose ; the true construction of this consent is, in my judgment, that the defendant do pay all costs — that is, exonerating the plaintiff from all liability in respect thereto. In this view I am confii-med by the production l-'i Smart v. Verdon. Chancery Tax- \^QiQYQ j^jg of tljg certificate of the plaintiff's senior and iunior ing Masters ^ _ Ofice. counsel, settled in consultation — settled at a meeting of the counsel at both sides — to the effect that the defendant was to bear all costs as before stated. The consent by which the suit was com- promised is peculiar in its wording — the language is not confined to mere solicitor-and-client costs, it gives the plaintiff all her costs incurred. Now, the first item objected to is the instructions on the bill, the amended bill, and the affidavits in aid of the plaintiff's case, amounting altogether to £55 15s. This sum must be dealt with, having regard to the observations in the schedule of fees, " whereby the Taxing Master is to be at liberty to take into consideration the sj)ecial circumstances of each case, and, at his discretion, to make such allovsances for work, labour, and expenses, properly performed and incurred in and and about the preparation of the bill or answer, examination, and affidavit, as shall appear to liim to be just, having regard to the length of the documents, the nature of the suit, the interests of the parties, and the fund or person from which, or by whom, the costs are to be paid." Having in view, therefore, this wide discretion conferred upon me as Taxing Master, the work and labour performed by the solicitors for the plaintiff in the preparation of the pleadings, and the trouble bestowed on the arrangement of the briefs, and also considering the large amount of property at stake — some thousands of pounds — I felt and thought that, in the exercise of this dis- cretion so vested in me, the sum so charged for instructions to be moderate; and if even that sum were charged as between party and party I should have come to the same conclusion, because I have come to the conclusion, from considerable practice myself and some years' official experience, that in an equity suit there is hardly any difference, and I think it is wise it should be so between party-and-party costs and between solicitor-and-client costs, the exception merely being any costs incurred ex abundante oautela, or expenses incurred which would be of no use at the hearing— items rendered necessary by reason of the negligence or incapacity of the solicitors. With these exceptions, in a well- prepared bill of costs between party and party, and solicitor and client, there ought to exist little, if any, appreciable difference. 1875. Smart v. Verdon. 155 The next item of objection is a retaining fee of £10 1.0s. to Chancery. Tax- Ml-. Macdonogli, the senior and leading counsel for the plaintiff. *"^ office^ ' It is urged by the defendant that he should not be obhged to pay tliis, or, at least, the whole of it. If I be right in my construction of the consent order I cannot yield to the objection. It is urged that Ihe plaintiff personally knew nothing of the leading counsel, and that it was the act of her solicitor. 1 believe that to be so • but I think this lady's professional advisers were bound to point out to her, if they considered it a prudent course, to select a gentleman of eminence at the Common Law Bar to conduct so critical a case, looking at the probable course the suit would take, and that the Equity Judge would, in all probability, be likely, during the liearing of the cause, to require the assistance of a jury to decide upon alleged matters of fact, a large number of which were raised and in dispute between the parties; and, acting on the advice of her solicitors, the fee of £10 lOs. was paid. Therefore, as money paid by her authority and with her assent, the fee is, in my opinion, properly chargeable as solicitor-and- client costs, and payable by the defendant. Next are the numerous consultations objected items. During the settlement and arrangement of the pleadings and the affidavits, these consultations were undoubtedly numerous, but it must be borne in mind that the answers and affidavits filed by the defendant, all of which I was obliged to carefully go through, provoked and necessitated many of these consultations ; and as each and all of them were certified by counsel as having been required in the interests of the plaintiff, I have no hesitation in expressing my opinion that the solicitors were bound to carry out the direction of counsel, and that all these consultations must of necessity be allowed, and more particularly as the defendant derives, under the terms -of the consent order, a substantial advantage out of the property in dispute, and these costs will come out of the general fund, but I do not lay overmuch stress on this last consideration ; the sohcitor must procure the certificate of senior counsel as to the propriety or necessity of a consultation to enable him to charge tlierefor, and has a right to rely upon that certificate as a justifica- tion for the same. Before arriving at the result I have now announced, I perused 156 Smart v. Verdon. Chancery Tax- with Care the EngHsh decisions, Hill v. Peel (the Tamvvorth Case), wg Master's ° /> iiT-in Office. Pegler v. Gurney (the Southampton Case) (1) ; also the Irish Case, Galwav Election Petition (2) ; and, although these cases refer to Ante, p. 108, "^ \ / ' ' & English and Irish Election Petitions taxable under the Chancery schedule of fees, numerous Chancery cases taxed between party and party, and solicitor and client, were referred to and considered. The decisions arrived at are in conformity with my rulings in the present case. It is, I think, worthy of note that, in considering and discussing the principles upon which these taxations were made, Bovill, 0. J., and Mr. Justice Brett had requested the assistance of the senior Taxing Master of the Court of Chancery (England), who was invited to si,t with them, and their opinion was that tlie principle I am acting upon was correct. Therefore, in deciding against the defendant upon these objected items, I consider that I have, in addition to tlie practice of my own Court, the sanction of the high authority of these learned judges, and the concurrence of the English Taxing Master. I adjudge, accordingly, the allow- ances made are just and reasonable. I may observe, too, that it is a remarkable circumstance that, in this particular bill of costs, there is — and necessarily so— a large expenditure and a great outlay, while the actual profit to the solicitor is under £400 ; therefore, this circumstance, in itself, convinces me that the solicitor's charges are reasonable, being satisfied that all the consultations should be allowed in this special case ; and having regard to the 12th General Order of May, 1868, where costs are even taxable between party and party : — " The Taxing Master may allow to the party entitled to receive such costs all just and reasonable expenses as appear to have been properly incurred in : — 1 . Advising with counsel on the pleadings and other proceedings. 2. Procuring counsel to settle and. sign pleadings and such petitions as may appear to be proper to have been settled by counsel. 3. Procuring consultations of counsel. 4. Procuring evidence by deposition or affidavit, and the attendance of witnesses, and supplying counsel with copies or extracts from necessary documents. But in allowing such costs, the Taxing Master should not allow to such party any costs which do not appear to have been necessary or proper for the attainment of justice or (1) L. E. 5 C. P. 172 (33 Viot., 1869-70). (2) 7 Ir. L. T. E. 189. Dyott V. Reade. 157 for defending his rights, or which appear to have been incurred Chancery Tax ing Master's Office. through over-caution, negligence, or mistake, or merely at tiie desire of the party." , Under all the circumstances, and by virtue of the discretion left to the Taxing Master under the General Order referred to, many of the numerous consultations charged for from time to time, when different points and phases of the suit developed themselves partly by the answer of the defendant and the affidavits filed on his behalf, I do not think I can, as between solicitor and client, dis- allow any of them ; and, in conclusion, rule that all the charges objected to, including the fees of counsel — which in my mind are reasonable, seeing the magnitude of the briefs, and that the fees to counsel, as a general rule, are left to the discretion of the Taxing Master in Chancery as well as at Common Law — must be allowed. Solicitor for the plaintiff : Fimllater 8f Co. Solicitor for the defendant : Henry C. Neihon. 1875. DYOTT V. READE. j,m,, 1875. (By permission, from 10 Ir. L. T. R. 110.) Dec. 3,4. Practice — Taxation of^ costs between party and party — Fees to counsel — Case to jiorch 8 advise proofs — Fees on hearing .of the cause — Befresher fees — Gonmltation fees— IS O. 0., 1868. Where — in a suit of great magnitude and complexity to set aside a deed as fraudulent and void — fees of fifteen guineas on a case for direction of proofs, fifty guineas on the briefs for the hearing, and ten guineas a day refreshers, were paid to senior counsel for the plaintiff ; and it appeared that the fee paid on the case for proofs was fairly required by the mag- nitude and complication of the cause, but that the fees of fifty guineas and ten guineas respectively were paid by the solicitor rather as special fees, in order to secure the services of particular senior counsel, than as the result of his own estimate of what would be adequate and re- quired by the difficulties and nature of the case : — Held, that, on taxation between party and party, the fee of fifteen guineas oh the case for proofs should be allowed ; but, that the fees of fifty guineas and ten guineas should be reduced, and had been properly reduced by the Taxing Master to twenty-five guineas and five guineas respectively. 158 Dyott V. Reade. Molls. On a taxation o£ costs each item should be separately dealt with ; and ^^''^- so, in estimating the amount to be allowed as a fee to counsel for direc- tion of proofs, the Taxing Master should not take into consideration the amount allowed for settling and revising the plaintiff's bill in the cause, nor the fee paid on a consultation required on advice of proofs— which latter fee, moreover, is not taxable as between party and party. Motion, on behalf of the plahitiff, that the Taxing Master should review his taxation. The plaintiff by his bill in this cause prayed that a deed of the 15th of April, 18(57, whereby the late Louisa Agar, widow, granted and assigned to Thomas Swan (one of the defendants) large real and personal estates upon certain trusts, should be declared void as having been obtained by fraud and undue influence ; that the said deed might be delivered up to be cancelled ; and that the plaintiff should be declared entitled to the real estate therein comprised as the heir-at-law of the said Louisa Agar, and to the personal estate therein comprised as her adminis- trator. The case was at hearing for nine days, and by the decree of the Master of the Eolls, in conformity with the prayer of the bill, set aside the said deed as fraudulent and void. Tiie bill contained 240 fohos, and the interrogatories 100 folios ; the answer of the defendant, George Reade, contained 290 folios, and that of the other defendants 36 folios ; making together G66 folios. The case to advise proofs contained 301 folios, and the manuscript documents referred to therein contained over 1,200 folios. The brief furnished to each of the plaintiff's counsel contained nearly 3,000 folios. Master Teeling reported as follows, as to the items of the plain- tiff's costs taxed between party and party, which it was now souglit to have remitted for review : — " As to item No. 370— "This was a charge of £15 15s., fee to counsel on the case to advise proofs. It will be observed that at item No. 24 in the bill of costs a fee of £10 10s. was charged and allowed to junior counsel for settling the draft bill, and at item No. 27 in the bill of costs a like fee of £10 10s. was charged and allowed to senior counsel for revising the bill, and at items 403, 404, 405, 406, 407, 409, 410, 411, and 412, the sum of £6 6s. was charged and allowed for expense of consultation on advice of proofs. Under the f oregoino- Dyott V. Eeade. 1 59 circumstances, I consider the fee of £15 15«. (beinff £5 5s. over ^iolh. 1875. the fees paid either to senior or 'junior counsel for setthng and revising the draft bill) to a third counsel was excessive. I, tliere- fore, reduced it by £7 7s., and allowed £8 8s. " As to items No. 914 and 918— " These items consist of fifty guineas each to the two senior counsel on their briefs for hearing. There is no doubt this was a suit of more than ordinary magnitude, and in which I consider large fees should have been allowed. I did, however, look upon fees of fifty guineas as special fees to special counsel (the leaders of the Common Law Bar), and which I considered could only be allowed on taxation of costs as between solicitor and client. Having regard to these facts, I allowed what I considered liberal and fair — namely, twenty-five guineas to each of the senior counsel. I may observe, as bearing out this view, that the fees given to senior counsel were special fees; that the fee paid by the plaintiff to the junior counsel on his brief for the hearing was only £10 10s. ; and also, that the fee paid to the Solicitor-General by the defen- dant on his brief at the hearing was only twenty guineas. " As to 32 items in refei-ence to refreshers — " These items were charges of ten guineas refresher fees to the two senior counsel for each day the case was at hearing. I dis- allowed £5 OS. on each refresher of £10 10s. on the same grounds that I reduced the fees on the briefs." Mr. Dames, Q.C. (with him Mr. Walker), for the plaintiff, in support of the motion, cited Galway Election Fetition (1), Robb Ante, p. 108. and Reade v. Connor (2) ; 12 General Order 1868. -^nie, p. 135. Mr. G. Fitzgibhon, Q.C. (with him Mr. Foley), for the defendant, contra, cited Stephens v. Lord Newborough (3), Smith v. Bullen (4), Stanton v. Baring (5), Alsop v. Lord Oxford (6), Smith v. Earl of Effingham (7), Haslam v. O'Connor (8), Chappie v. Bourhe (9), ^n;c, p. 99. Cousens v. Cousens (10), Pearce v. Lindsay (11). ^"'<'> P- 1^- (1) 7 Ir. L. T. R. 189. (7) 10 Beav. 378. (2) 9 Ir. L. T. E. 115. (8) Ir. E. 6 Eq. 615. (3) n Beav. 403 (9) Jb. 3 Eq. 270. (4) L. E. 19 Eq. 473, (10) L. E. 7 Cli. App. 48. (5) Weekly Notes 188, Nov. 13th, 1875. (11) 1 De G. F. & J. 573. (6) 1 M. & K. 561 160 Dyotf V. Reude. RoHs. ]\£f. Walker, in reply, cited Smart v. Verdon (1), Beits v. Ante, p. 153. deauer (2). Judgment deferred. Sullivan, M.E. : — The conduct of the Taxing Master, in respect of the fee to counsel on the case for direction of proofs, is perfectly unwarrantable, and the principle upon which he has reduced it cannot be maintained in this Court. The Taxing Master has naw told me that, having regard to the nature of this case and his estimate of what was involved, fifteen guineas was an excessive fee to give to counsel for the advice of proofs. If he had put it on that ground alone, then the question would have arisen whether he had thus sufficient reason for reducing the fees; or whether, when a solicitor, estimating the magnitude of the case, and acting bond fide, delivers fees which he considers ordinarily commensurate with the magnitude of the case, such fees should not even then be allowed Ante, T). 135. — that was the principle on which I acted in the case of B.obh v. Coniior (3). But the Taxing Master has proceeded to deal with tliis fee on a principle which would work the greatest mischief, not only to the public, but the solicitors and the Bar. He has taken seven guineas off from fifteen guineas, and reduced the fee on the advice of proofs from fifteen guineas to eight guineas; and the reason why he so acted has been assigned by him in his report, which I will read verbatim: — "This was a charge of £15 15«., fee to counsel on case to advise proofs. It will be observed that at item No. 24 in the bill of costs a fee of £10 10s. was charged and allowed to junior counsel for settling the draft bill, and at item No. 27 in the bill of costs a like fee of £10 10s. was charged and allowed to the senior counsel for revising the bill ; and at items 403, 404, 405, 406, 407, 409, 410, 411, and 412 a further sum of £6 6s. was charged and allowed for expenses of a consultation on advice of proofs. Under the foregoing circumstances I considered the £15 15s. (being £5 5s. over the fees paid either to junior or senior counsel for settling and revising the draft bill) to a third counsel was excessive, and therefore reduced it by £7 7s., and (1) 9 Ir. L. T. & S. J. 589. (2) L. R 7 Cb. 515. (3) 9 Ir. L. T. E. 115. Dyott V. Heade. ICl allowed £8 8s." Now, the principle the Master has acted on is •'?"''»• this— that as it costs ten guineas to prepare the bill, and as it costs ten guineas to revise it, and as he has allowed £6 6s. on the con- sultation, which he tliought it was right to allow, and inasmuch as the counsel who had the advice of proofs was not the junior or senior who revised the bill, he must take from that counsel's fee the enormous sum of seven guineas. In this the Taxing Master has overlooked his duty. When a fee is bond fide paid to counsel it should not be reduced on such grounds as these. Now, this case to advise proofs, in my opinion, mus't be estimated as if it had been laid before the present Lord Chancellor, who revised the bill, and not before Mr. Macdonogh at all, who was afterwards brought in to advise proofs. I know what was the magnitude of this case; it was before me at hearing nine days ; it took me one entire day to state the mere facts ; it occupied me the greater part of fourteen nights to write my judgment, so complicated, so unequalled was the extraordinary state of facts on ^^hich I thought the plaintiff entitled to relief. Furthermore, the proofs to be given in the case were as critical and involved as it is possible to conceive. I now say from this bench that it is a most astounding fact that less than fifteen guineas was considered a proper fee to advise those proofs, for if it was double that sum it would have been anything but immoderate. I do not make these observations in the interests of the Bar or of solicitors alone, but in the interests of the public, for it may be the fate of any man to have his property at stake in this Court. The documents before counsel were of enormous magnitude ; the case involved a great amount of real property — a great amount of personal property ; but it involved, above all, the investigation and proof of fraud. The case for advice of proofs, which I have before me, occupied twenty pages of brief. It is totally indefensible, when a document of that description is pre- sented by a solicitor, and all is done and settled on its delivery, that the Taxing Master, in estimating the fee to be allowed for it, should refer back to see what fees he has allowed for the settling and revision of the bill. The drafting of the bill ought to have nothing to say to this item. Each item of taxation should be taxed separately. It is also of great importance that the question of counsel's fees should be settled at the moment of delivery. There M 162 Dyott V. Reade. Roih. cannot be a more reprehensible practice than that of marking the -"'' fees upon the case in blank. It would furnish an opportunity for any disreputable practitioners to take their chance for fees dependent on the result of the case. When this case to advise proofs was laid before counsel by the solicitor, and he had there and tlien paid his money and drawn his cheque, it was gone from him for ever. How the propriety of that payment is to be estimated by the fact that two other counsel got twenty guineas between them, surpasses anj'thing I ever came across. I cannot understand why the fair and honest principle 'which is laid down in the Galway Ante, p. 108. Election Petition (1) is not followed — namel}^ that when a solicitor, acting bond fide, duly estimates the fee to be paid and deHvers it to his counsel, his discretion ouglit not to be lightly interfered with. And 1 can only say that, having regard to what came Ante, p. 135, before me in the case of Rohb v. Connor a.nA. to what is now before me, I shall keep a strict v/atch on this question of the quantum of taxation. In my opinion, that fee of fifteen guineas upon the case to advise proofs should have passed criticism, and I shall allow it as a matter of course. With respect to the consultation fees I express no opinion, as they have not been appealed against. But I wish here to say a word on this question of costs between party and party. Costs between pai'ty and party are not the same as solicitors' and clients' costs. In costs between party and party one does not get full indemnity for costs incurred against the other. The principle to be considered in relation to party and party costs is that you are bound in the conduct of your case to have regard to the fact that your adversary may in the end have to pay the costs. You cannot indulge in the " luxury of payment " ; a remarkable instance of that occurred in this case, but it was occasioned by way of excessive caution, and the adversary is not to pay for that. When a case is laid before counsel to advise proofs, and he requires the due consultation, that must fall as solicitors' and clients' costs, and not as costs taxable between party and party; and, that being so, where I think the Taxing Master entirely erred in this matter was in thinking that if he had added the fees of consultation to the fees on advice of proofs the fee would have been ex- (2) 7 Ir. L. T. K. 189. Dyott i\ Beade. 163 cessive — in my opinion, it would be under the mark, rather than ^o''"- otherwise. There now remain substantially only two other items in contro- versy — namely, a fee of fifty guineas paid with the briefs for the hearing to each of the plaintiff's senior counsel, and a daily refresher of ten guineas paid to each of them for the eight days after the fu-st during which the hearing of the case continued. Now, these fees have respectively been reduced by one-half on taxa- tion. The matter might have been decided without difficulty but for the grounds relied on at the bar for maintaining Master Teeling's taxation, one of which was that, according to the present rate of remuneration at the Irish Bar, twenty guineas was the highest standard of fee known to be allowed for senior counsel on his brief, as between party and party ; and the other ground was that, in the whole annals of taxation in this country, twenty-five guineas was the highest known, and that was in a very recent case, Haslam v. O'Connor. These statements appeared to me at the Ante, p. 99. time they were made to be so extraordinary that I could scarcely believe them ; and I myself mentioned that, in the case of Carey V. Cutlihert, which was lately before me, and which was not a case anything like the present in point of magnitude, twenty-five guineas was given to each of the two senior counsel, and twenty guineas to the junior; and, on taxation, Master Coffey, with great propriety, allowed such fees. But, in order to avoid any mistake, I determined to inquire further as to those statements. Having done so, I must declare that more rash instructions were never given to counsel than those on which these statements were based, for, as the event showed, for neither the one statement nor the other was there any foundation. The statement with regard to " the annals of taxation " was rested before me upon an allegation that had formed, substantially, the ground-work for the decision cutting down the fee to one-half its original amount. Now, it is right to say that the case had scarcely been argued before me when the Taxing Master, seeing some report of it in the daily papers embodying that statement, addressed a letter on the subject to me, dated the 8th December, 1875, at the very moment when I was about to write to him for information about it. [His Honor read Master Teeling's letter, the purport of which was that no 164 Dyott V. Reade. Rolls. such information as that referred to liad ever been afforded or supplied, either by himself or his Registrar ; and that -the whole foundation for it was that an assistant of Mr. Cusack, the solicitor for the plaintiff, had come to the office and asked to see the bill Ante, p. 99. of costs in the cases of Croker v. Croker and Haslam v. O'Connor, which "was shown to him.j Now, this whole transaction is an illustration of the care that should be observed before instructing counsel to make general statements of such a character as to a matter largely affecting not only the Bar and solicitors, but the public as suitors. The real question I have to decide here is whether the Master's taxation in this particular case is to be maintained or overruled, and if over- ruled, to what extent? The case out of which this taxation arose was one of great magnitude, involving altogether a subject-matter which miglit be set down in round numbers at £40,000. It was a suit to set aside a deed obtained by the defendant from an aged lady, who lived in his house, as fi'audulent and void, and executed under such circumstances as that I by my decree had to set it aside with costs against the defendant. The facts spread them- selves over a series of years, and a large number of documents were connected wltli them. The briefs delivered to counsel con- tained nearly .3,000 folios, and I did not think they were at all too long, and only a very small number of folios were taxed off. The costs of the suit were thus necessarily very heavy. They were originally furnished at £1,181 12s. bd., of which £339 Us. Zd, were taken off on taxation, leaving a balance of £840 as taxed costs. Three counsel for the plaintiff were rightly allowed on taxation — the two seniors getting each fifty guineas with their briefs, and the junior ten guineas. The case was nine days at hearing, and ten guineas a day were given to each of the seniors as a refresher fee, and two guineas a day to the junior. Now, no question arises upon the junior's refresher fees. 1 have looked over the taxed bill of costs, and I feel bound to say that, apart from the disputed items, it has been taxed with considerable dis- crimination and with fair liberality. With regard to the amount of counsel's fees to be allowed on taxation, this Court is generally slow to interfere with the 'discretion vested by law in the Taxing Master; but if the Taxing Master erred in a matter of principle Dyott V. Reade. 165 this Court would interfere. I have expressed my views ou this R"lta. subject in the recently reported case of Robb and Reade v. Con- , , , Ante, p. 135. nor (1). In the present case the Taxing Master has stated his reasons for the course he has taken — namely, that he looked upon fifty guineas as a special fee, which could only be allowed as between solicitor and client ; and this view was supported by the fact that the junior counsel had only received ten guineas on his brief, which was a very unusual disproportion ; and the leading counsel for the defendant had only received twenty guineas on his brief, and the junior seventeen guineas. But I feel bound to say that I do not think that the fees paid on one side in a case like this could be taken as a test of what should be allowed on the other. There is almost in all cases considerably more trouble on one side than on the other, and it might happen that one side was dealing with a solicitor who was disposed to act fairly towards the Bar, while the solicitor on the other side might act in a niggardly manner. It is a great mistake to suppose that this is a Bar question. It is nothing of the kind. No matter what rules might be laid down as to taxation of costs, the fees paid to counsel could never be limited by them. This is really a question more affecting solicitors than barristers, but infinitely more than either barristers or solicitors the suitors of the Court and the public are interested in it, and their interests are paramount to those of any profession. It is a perfectly settled rule that an advocate of eminence might decline to go into any given Court under a fee of a given amount, or to go as special counsel without a special fee, but such fees are not neces- Farily to be allowed in taxation as between party and party, for in tlie last-mentioned case the fee must be assessed quite irrespective of any rules individual counsel might lay down for themselves. I had not delivered judgment in the case without having spent several days in reading over all the documents in this case ; and I doubt whether I have ever been placed in circumstances of greater difficulty owing to the way in which the plaintiff's solicitor dealt with the counsels' fees. If I were asked the abstract question at the time, I would have said without hesitation that fifty guineas was not too large a fee for the plaintiff's senior counsel in this case. But the real point was that which Mr. Foley pressed (1)9Ir. L. T. R. 115. 16tJ Byotl V. Reade. fsTs' '" ^'^ argument with great ability — namely, tliat it was impossible to suppose that the scale of fees given to senior counsel was formed in Mr. Cusack's mind by a mere estimate of the difficulties of the case, but that these fees were given to secure the services of two particular gentlemen. This view is supported by looking at what had been given to Junior counsel, and that is a fair test. He had only received ten guineas, and Mr. Foley asked why that estimate should not be taken as a criterion of the difficulties of the case as well as the fifty guineas. I quite agree in that view after having given the case the greatest consideration, and it received considerable confirmation from the course which had been taken at the original hearing, and which I believe to be without parallel — namely, the plaintiff's solicitor interposing when his junior counsel was about to reply in his ordinary turn, and asking that the case might stand until Mr. Macdonogh should be sent for to reply. I had been obliged to call on the plaintiff's junior counsel to reply according to the ordinary course, and he did reply remarkably well. Under all these circumstances, and having regard to the mode in which the plaintiff's solicitor proportioned his fees, I must decline to interfere with the Taxing Master's ruling. 1 do not believe that a scene such as 1 have described could have occurred in Court if tliere had not been some special circumstances under which the fees of fifty guineas, or, at any rate, one of them, was given, which view was confirmed by the refreshers of ten guineas a dayman unusual amount in this country. I consider myself debarred by the course Mr. Cusack has taken from allowing those fees, and from entering into the general question whether the fees of fifty guineas should have been allowed. Mr. Cusack must abide by what he has done. The refresher fees of five guineas a day allowed to the senior counsel by the Taxing Master seem fair; and, therefore the ruling of the Master both as to the two fifty guinea fees and the refresher fees must be affirmed — each party to abide their own costs. Order accordingly. Solicitor for the plaintiff: T. A. Cusack. . Solicitors for the defendant : L, IF. Corcoran ^- Son. O'Halloran v. Garvey and Others. 1(57 O'HALLOEAN v. GAEVEY AND OTHERS. ^xo%«.n 1876. (By permission from I. R. 9 0. L. 551 ; s. c. 10 Ir. L. T. R. 20.) T n 11 18 Judgment hy Default — Certificate to entitle the Plaintiff io full Costs — Common Law Procedure Act, 1853, ss. 126, 243 — Common Law Procedure Act, 1856, s. 97. 1. Although judgment has passed by default, the Court has jurisdiction to grant the plaintiflF a certificate under section 97 of the Common Law Procedure Act, 1856. 2. Where there has been no trial, the Court has no jurisdiction to grant the plaintiff a certificate either under section 126 or section 243 of the Common Law Procedure Act, 1853 ; whether the plaintiff is entitled to either certificate is a matter to be determined by the Taxing Master, as incident to the taxation of costs. Hickey v. O'Connor (1), dissented from. Ante, p. 133. Motion for certificates under sections 126 and 243 of the Common Law Procedure Act, 1853, and section 97 of the Common Law Pro- cedure Act, 1856, to enable the plaintiff to obtain his full costs of the action — viz., certificates that the freehold or title of the land mentioned in the plaint was chiefly in question, or that the trespass was voluntary or malicious ; that the action was brought to try a right more extensive than the sum sued for ; that the case was one which could not have been tried in the Civil Bill Court, or was a fit case to be tried in a Superior Court. Trespass, q. c. f. — The plaint contained two counts complaining of trespasses by the defendants on the lands of Ballycunneen, in the County of Clare on two several occasions, and was served on the defendants on the 25th of June, 1875, the venue being laid in the County of the City of Cork. No defence was taken to the action by any of the defendants, and interlocutory judgment was entered on the 12th of July, and a writ of inquiry, directed to the Sheriff of the City of Cork, to ascertam the amount of damages, came on to be heard before the Sheriff on the 3rd of August, 1875. None of the defendants appeared at the inquiry, although served with notice of it, and the jury assessed the damages at sixpence. The plaintiff made an affidavit in support of the motion, in which he stated that tlie defendants committed the trespasses complained (I) Ir, E. 8 C, L. 509. 168 O'Halloran v. Gareey and Others. Exchequer, of ill the plaint in the assertion of a pretended right of passage whicli the defendants amongst other persons, inhabitants of the parish of the "Wells," claimed to exercise over the plaintiff's lands in going to and from the R. 0. chapel of the " Wells," for the purpose of attending Divine Service on Sundays ; that on Sunday the 6th of June, 1875, he met the defendants, and warned them not to persevere in going over the lands to the chapel ; yet they afterwards, on the same day, broke and entered the lands, and committed the trespasses complained of in the first count ; that on Sunday the 13th of June, 1875, he met the defendants on the public road, as they were about to enter on the lands for the purpose of passing over them to the chapel, and he told them not to come in upon the lands, and that if they did so he would pro- ceed against them and hold them accountable for any costs he might tliereby incur ; yet they in his presence climbed over the boundary fences of the lands and passed over them to the chapel, thus committing the trespasses in the second count complained of; that the right of passage claimed by the defendants was a right to pass through his demesne, and for that purpose to use the principal avenue and entrance gate leading to his residence, and that the right of property which the action had been brought to try was of much greater value to him than the sum of five pounds ; that the value of the lands, under the Acts relating to the valuation of i-atoable property in, Ireland, greatly exceeded twenty pounds by the year ; that he had suffered very great annoyance and injury from the persistent use of the pretended right of passage over his lands by the defendants and others, and he had been forced to take legal proceedings against them in order to preserve his pro- perty from destruction, and that tlie pretended right of passage had been used as an excuse for trespassing in other directions and for other purposes over his demesne, and that on several occasions his trees had been broken and damaged, fences thrown down, gates left open, and cattle allowed to stray from his lands by persons claiming a right of passage to the " Wells" chapel. Two of the defendants made an affidavit to resist the motion, in which they stated that about four days after the service of the phiint all the defendants went to the residence of the plaintiff, and he said that if they agfocd not to go upon the lands he would with- O'Halloran v. Garvey and Others. 169 draw the law proceedings ; that they agreed to do so, and had not Excheijuer. shice gone upon the lands, nor had the other defendants, as they verily believed ; that in consequence of the foregoing conversation they did not enter a defence to the action, nor consult any attorney upon the subject, though they now charged and believed that they had a good defence to the action, inasmuch as the public had an uninterrupted right of way to the lands as long as they could remember — for more than 30 years ; and they heard no more of the law until they received a notice that an inquii'y would be sped before the Sheriff of the City of Cork; that the judgment was obtained against the defendants by stealth, and behind their backs, and after the plaintiff had agreed not to proceed in the cause ; and they charged that if the plaintiff had not agreed with them to withdraw the proceedings, they would have consulted an attorney, and would have entered a defence to the action, having, as they were advised and believed a good defence ; but that when such an offer was made by the plaintiff, they, not desiring to go to law, and in order to avoid any dispute or difference, agreed not to go on the lands again. The plaintiff made an answering affidavit, in which he denied tlie statements in the defendants' affidavit ; and one Matliias ' MacMahon made an affidavit denying the statements referring to him in the defendants' affidavit. O'Brien, Q.C., and Thomas Kellj, for the plaintiff, in support of the motion : — Hichey Y. O'Connor (1) is a direct authority for making the 4»i«c, ^j. 133. application to the Court in the first instance. In the case of judgment by default, sections 126 and 243 of the Common Law Procedure Act of 1853 do not apply at all. The precise point is decided in M'Alister v. Callan (2), which is followed m Bennett v. Scott (3) ; Brennan v. Mahony (4) ; Buller's Nisi Prius, 329a. Atkinson, contra : — The Court has only power to grant a certificate under section 97 of the Act of 1856, Caldwell v. Johnston (5) is an authority to (1) Ir. R. 8 C. L. 609. (4) H. & J. 478. (2) 8 Ir. C. L. R. App. 10. (5) Ir. R. 6 C. L, 297. (3) 8 Ir. Jur. N. S. 206, 170 O'ffalloran v. Garvey and Others. Exchequer, ghow tliat A/'AHsfer V. Callan (I) is of no weight. In Bennett v. ' Scott (2) MAlister v. CaZ/aw is not followed to the extent of giving a certificate under the 243i-d section. The plaintiff ought to have gone before the Taxing Master. In Bennett v. Scott (2) it was distinctly recognised that where a plaintiff wants to proceed under the 243rd section of the Common Law Procedure Act of 1853 he must go before the Taxing Master. The 126 th section gives no jurisdiction to the Court, and only gives jurisdiction to the Judge, Ante p. 133. Hichey v. O'Connor did not come under section 126. Hickman v. Colley (3) ; Claridge v. Smith (4) ; Bewley and Naish, 144. The judgment of the Court (Palles, C.B., Fitzgerald, and Dowse, B.B.) was delivered by Palles, C.B. : — This is an application for tliree certificates for costs, under the 126th and 243rd sections of the Common Law Procedure Act, 1853, and the 97th section of the Common Law Procedure Act, 1856. From tlie view which we take of the case, we shall deal separately with each certificate. In reference to the application under the Act of 1856, the 97th section of that Act expressly confers upon us a jurisdiction to make an order to the effect of a certificate in the event, which has happened, of there being no trial. Tlie certificate required is — either that the case was one which could not have been tried in the Civil Bill Court, or that, though within the jurisdiction of the Civil Bill Court, it nevertheless was a fit case to be tried in one of the Superior Courts. It was proved by the affidavit on behalf of the plaintiff, that the action was brought to try an alleged right of way claimed by the defendants, and the statement was confirmed by the affidavits of the defendants in opposition to the motion. It was also shown that the amount of the valuation of the property excluded the jurisdiction of the Civil Bill Court under the 37 & 38 Vic. c. 66. The case, therefore, was one which could not have been tried in the Civil Bill Court, and we shall make an order to that effect. The application for a certificate under the 243rd section of the (1)8 Ir; C. L. R. App. 10. (3) 2 Str. E. 1120. (2) 8 Ir. Jur. N. S. 206. (4) 4 Dowl. 583. O'Halloran v. Gdrvey and Others. 171 Common Law Procedure Act, 1853, raises a different question. Mxcheriuer. Tiiis section does not prescribe the mode in which the purpose for which the action has been brought shall be ascertained. The Act, no doubt, provides for general rules being made, and the rules are to be construed as part of the Act. The 103rd rule makes provision for the determination of the plaintiff's right to full costs in the event of a trial ; but no provision is made, either by the statute or by the rules, for the determination of this question in the event of there being no trial. The old practice was that matters of fact which affected the plaintiff's right to costs were, in the absence of legislative enactment to the contrary, put upon the record by suggestion, which was traversable, Rex v. Poland (1) ; Hickman v. Colley (2). But this rule was never applicable when the alteration in respect of costs was one which merely increased or diminished the amount. In such a case the question was one of taxation, which was determined by the officer, Brooker v. Cooper (3). The 243rd section affects not the right to costs, but their amount. If, therefore, the matter were res nova it would appear to us that the purpose for which the action was brought should. in the event of there being no trial, be, prima facie, determined by the Taxing Master as incident to the taxation of the costs. It has, however, been argued that we are not at liberty to deal with the question as if it were res nova; and Ilickey v. 0' Connor Ante p. 133. (4) has been referred to as a decision of the Court of Common Pleas upon the point in question. But there is another case in the same Court which underwent very full consideration, Bennett V. Scott (5), which is an authority the other waj'. In that case which, in relation to this question, was decided upon the assumption of no trial having been had, the question of the plaintiff's right to full or half costs under the 243rd section was raised and decided upon a motion for the review of the taxation. We think that, in the exercise of the jurisdiction conferred on us by particular statutes, we should be careful to see that the case in which we are called upon to act is within the jurisdiction; and, with de- ference to the decision in Hickey v. O'Connor, we are of opinion Mte p 133 (1) 1 Str. R. 49. (4) Ir. E. 8 C. L. 509. (2) 2 Str. B. n. (5) 8 Ir. Jur. N. S. 206. (3) 3,Exch. 112, 172 Allen v. 0" Callaghan. EoKhequa: that, ill a case such as the present, the question under the 243rJ section can arise solely upon the appeal from the decision of the Taxing Master. As to the third certificate — viz., that under the 126th section, we also hold that we have no jurisdiction to grant it. The plaintiffs counsel, in moving the application, contended that this certificate was unnecessary to entitle the plaintiff to costs. We are far from saying that he is wrong in this contention. Our decision is, that we have no jurisdiction to grant it. We shall, therefore, make an order under the 97th section of the Act of 1856, declaring that the case was one which could not have been tried in the Civil Bill Court ; and we say " no rule " upon the rest of the motion. Order accordingly^ Attorney for the plaintiff : James Hynes. Attorneys for the defendant : Connolly and Leahy. Exchequer. 1876. Jan. 12, 20. ALLEN V. O'CALLAGHAN. iBy permission^ from 10 Ir. L. T. E. 131.) (Before Palles, O.B., Fitzgerald, Deasy, and Dowse, BB.) Ejectment for Non-payment of Bent — Setting aside Proceedings — Abuse of the Process of the Court —Actimi brought after Rent Tendered— S3 db S^ Vic., c. IJfJf, s. 62 — Costs — Letters before Writ. A tender of rent after the gale day is not a defence to an action o£ ejectment for non-payment of rent. The 5th section of 11 Anne, ch. 2 — providing that if a tenant should, at any time before the trial of an action of ejectment for non-payment of rent, pay or tender the rent and costs all further proceedings should cease — having been repealed by 23 & 24 Vic. , o. 154, the tenant, instead of so tendering rent due, should proceed as provided by section 62 of the latter Act. Where a tenant had tendered rent post diem the Court refused to stay or set aside the proceedings in an action of ejectment subsequently brought for non-payment of the rent, the right to tender having ceased to exist at the time when it was made. Semble, that an attorney of a creditor retained to demand a debt has no right to insist on payment of any costs of his letter demanding the debt previously to issuing a writ of summons and plaint. Allen V. ffCallaglian. 173 MoTiOK, on IJehalf of the defendant, in two actions of ejectment Exchequer. . 11-1 ^^^*'- for non-paymeiat of rent, that the writs of summons and plaint be set aside as vexatious and an abuse of the process of the Court, inasmuch as the actions had been instituted after the rent — on account of the non-payment of which they were brought — had been tendered to the agent of the plaintiff. The following were the material facts : — The defendant held the three houses and premises in question under three separate leases as tenant to the plaintiff at the respective yearly rent of £10, £18, and £20, making altogether £48 a year, for which he was in the habit of settling by one payment, and of getting one receipt for the several rents. It was customary for many years, as the defendant alleged, for the landlord not to call upon the tenant to pay a gale until another was about to fall due. In September and again in October, 1875, Captain Bradley, who had recently become the plaintiff's agent, applied to the defendant for the March rent, when he asked for a little further time. On the 25th October the defendant received a letter from Mr. Bass, the plaintiff's attorney, applying for a year's rent to September, and he called upon Mr. Bass the next day and tendered a cheque for £22 Is. Qd. in payment of the March rent, after making deductions for poor rate and water rate. Mr. Bass declined to accept it without communicating with Captain Bradley; and Captain Bradley having refused to take less than a full year's rent, Mr. Bass wrote, on the 16th November, to the defendant, stating this. The defendant at once called on Mr. Bass, and . stated he would pay the amount on the following Saturday ; and, accordingly, on the 20th November he called again, and handed Mr. Bass his cheque of that date for £44 3s., being one year's rent, less £3 6s. deducted for poor's rate and lis. for water rate. The cheque was payable to the order of Captain Bradley, and Mr. Bass retained it until he saw him, which was on the 2nd December. Captain Bradley then directed Mi\ Bass to return the cheque, on the ground that the deductions claimed were excessive, giving reasons for this contention which are not material to be stated. Mr. Bass, accordingly, returned the cheque to the defendant in a letter of the 2nd December. The defendant ad- mitted, in his affidavit, that the deductions were slightly erroneous 174 Allen v. O'Callaglum. '^"iSTfi'*''' "^ their details, but alleged that the. cheque Was for an amount niore than sufficient in any view of his liability. On the 3rd December the defendant, having previously paid the rates for September, 1875, called at tlie office of Mr. Bass and, as Mr. Bass was not there, tendered to a clerk, as the defendant alleged, the sum of £44 Is. 2d. in cash, together with the proper vouchers for £3 7s. 10c?. poor's rate and 11«. w^ter rates, which he alleged he was entitled to deduct. The clerk refused to receive the money in the absence of Mr. Bass, whereupon the defendant left the vouchers with him, and directed him to tell Mr. Bass that he had tendered £44 Is. 2d., with vouchers, and that he would pay it if sent a receipt for the year's rent. The clerk made an affidavit denying that any tender whatever had been made, and two other clerks, who had been in the office at the time, made a joint affidavit corroborating him. On the 4th December a messenger from Mr. Bass brought defendant a receipt, in the usual form, for a year's rent up to the 29th September, 1875, signed by the agent, allowing him for poor's rate, but accompanied by a demand for 10s. ficZ. for costs, which the defendant refused to pay. Thereupon, the plaintiff, on the 9th of December, 1875, issued two summons and plaints in ejectment for non-payment of rent to recover possession. The defendant alleged that the vouchers had been detained by Mr. Bass as payment for so much of the rent, and he lodged in Court' £44 Is. 2d., the amount that he alleged he had tendered before service of the plaints. He, also, positively swore that all rent was paid for the three houses up to the 29th September, 1874, and stated that he beheved the proceedings were instituted because he refused to pay the 10s. &d, to Mr. Bass. Mr. Bass made an affidavit, in which he endeavoured to show that the deduction sought to be made by the defendant in respect to the water rate was not such as he was entitled to, and that the sum properly due for rent was £44 12s. 2d., which sum the defendant had never offered to pay either by cheque or by cash. The defendant, in his answering affidavit, stated that Mr. Bass, in his letter of the 2nd December, made the amount payable for rent £45 7s., but that, in addition, the sum of 1 Os. 6d. .costs was added by him, which, the letter stated, "must also be included, making together the sum of £45 17s. Gd." The de- Allen V. 0' Callaglian. 175 fendant further stated that the sum of lis. for water rate had •^*°''^'?"*''' been properly deducted by him, that it was, in fact, allowed in the receipt for rent brought to him on the 4tli December by the messenger from Mr. Bass, the only sum then in dispute being the sum of 10s. 6d. claimed for costs by Mr. Bass; that no objection was ever made to allowing poor's rate or water rates until after the ejectments had been brought ; that, in addition to his tender, he had, both before and after the service of the eject- ments, offered to pay the year's rent, without costs, to Mr. Bass ; and that he. was informed, and believed, that his attorney, im- mediately after the service of the plaints, offered to pay the rent, without costs, to Mr. Bass, but that Mr. Bass, in every instance, refused to accept it unless his costs were also paid, O'Brien, Q.C. (with him T. Wal^, for the defendant, in support of the motion : — The Landlord and Tenant (Ireland) Act, 1860, section 62, clearly has reference only to a case where the action has been already brought. In the case of Goodvight (deceased, Stevenson) V. Noright (1), it was held that a tender of rent before service of the ejectment process shall stay proceedings. This is really an effort to enforce the payment of 10s. 6d, costs of the attorney's letter demanding the rent, a claim which is not legal — FPalles, C.B. : — I believe it is not the custom for an attorney to demand costs before a writ is issued at all.] Certainly not. The attorney's own client is the person to pay him. If the debt is paid before action brought the attorney is not entitled to recover the costs of his application for the debt from the debtor : Caine v. Coulson (2). There can be no question on the point as to the deduction of the poor rate, as the defendant had sub-let the premises in apartments : 6 & 7 Vic, c. 92, s. 4. Win. Johnson, Q.C. (with him Lane), contra : — Tlie rent was not, in point of fact, ever tendered. But a plea of tender to an action of ejectment for non-payment of rent is bad in point of law. The proper course is for the defendant to lodge the amount of the rent in Court, which he is enabled to do by (1) -2 W. Bl. 745. (2) 32 L. J". Ex, 97. 176 Allen v. O'Callaglian. Exchequer, reason of the provisions of the Landlord and Tenant (Ireland) 1876. ^ ' Act, 1860, section 62, and lie can plead accordingly, and show the i-ent is paid by lodgment of money in Court, under the Common Law Procedure Act, 1853, section 198. Li Lessee of Geoghe'gan v. Gardiner (1), a plea of tender of rent was held an insufficient answer to an action of ejectment for non-payment of rent {see " Longfield on Ejectment," p. 328). No abuse of the process of the Court was attempted. It is -ain invariable practice for attorneys to claim their costs, as was done here ; and it would be a hard thing if a creditor who was kept out of his money should be obliged to pay his attorney for trying to get it. [Dowse, B. : — Suppose an attorney writes a letter to a debtor, asking him to pay an account claimed to be due, can he also make the debtor pay the costs of that letter ?] In that case the debtor might, perhaps, put him at arm's length, but the custom has been to pay the costs (2). [Palles, C.B. : — If these costs cannot legally be demanded, it becomes a serious question whether attorneys who are the officers of the Court should continue habitually to make a demand for a sum of money tliat the Court has decided could not be demanded. If there was a solemn decision of the Court that these sums were not a legal demand, the officers of the Court should follow that decision, and not be asking persons, who are not aware of how the law stands, to pay this demand for the costs of lettei-s sent before action brought.] [Dowse, B. : — I agree entirely with my Lord Chief Baron. I have continually seen instances mentioned in the newspapers of poor people, debtors and others, having demands for 10«. and 15s. made upon them in this way, and paying those demands rather than be dragged into law. If the demand is not legal, the attorney should not be allowed to levy what he. might consider " benevolence " from those parties.] There are cases in which it has been held that the demand is a (1) Hay. & J. App. xvi. (2) As to the duty of an attorney to write demanding payment before action see Kinder v. Beacon (11 Ir. Jar. N. S. 414). And note that, on the question aB to the costs of Buch letters, Eolmar v. Stet-ens quoted from Tke Jurist by Palles, C.B., infra, ia much more fully reported, 33 L. T. E. 148, and see article by the writer, on " The Costs of Attorneys' Letters " (10 Ir. L. T. & S. J. 474— E. N. B., Ed.). Allen v. G" Callagliah. 177 proper one : Morrison v. Summers (1) ; Capel v. Staines (2). Ko ExeUquSr. doubt, however, the contrary appears also to have been decided (3). [Dowse, B. :— It should be understood that attorneys have no right to make this demand for costs when merely applying for payment of a debt.] [Palles, C.B. : — Costs are recoverable by an attorney only after the issuing of the writ.] We do not argue that the practice is a legal one, but it is customary for the attorney almost always to apply for costs when applying for payment of the debt. In this case, however, the right to tender at all had ceased to exist, and it was no abuse of the process of tlie Court to issue the writs, ignoring a tender which the plaintiff was not bound to recognise. Judgment reserved. Palles, C.B. : — In these cases, which are two separate eject- ments for non-payment of rent, motions have been made that the proceedings may be stayed, or set aside with costs, as oppressive and vexatious, and an abuse of the process of the Court. The subject-matter of the dispute, which has culminated in these applications, was originally a very small amount. It appears that the defendant held three separate tenements from the plaintiff under leases. His usual practice was, to pay one gale before the next accrued due. The gale whicli accrued on 25th March last was not so paid, and the year's rent was due upon the 29th September. For this year's rent there appear to have been some applications, which were not complied with; and on the 26th October the defendant sent a cheque for the March gale, less by a reduction for some rates which had been previously allowed, and for which he was not then entitled to credit. Ultimately, and before the actions were brought, a tender was made by the defen- dant to the plaintiff's attorney of a sum of money which one party alleges, and the other denies, to be the year's rent, less the deductions to which the tenant was entitled. This tender was refused. The demand in consequence of which the tender was made, included the sum of 10s. &d. for costs ; and there can be (1) 1 D. P. C. 325, 1 B. & A. 559. (2) 5 D. P. C. 770, 2 M, & W. 853. (3) Fisher's C. L. Dig., 2093, Ed. 1870. N 178 Allen v. 0' Callaglian. Exchtqtier. ]\^^\^ doy^^ that if the demand for the 10s. Gel. had been complied ■ lo/o. with, we should not have been troubled with these warmly con- tested motions. Whilst, however, we may regret the non-existence of a nodus vindice digitus we are bound to decide the question raised. The mode in wliich the defendant's case was presented to us was that the tender was a legal answer to the claim for rent due; that the adoption by the plaintiff for the recovery of that rent, of the particular form of action of ejectment, prevented him availing himself by plea of tliis defence ; and, therefore, he argued the Court would interpose upon an interlocutory application. During the argument it was suggested by the Court that, in an action of debt or covenant for recovery of the rent, the tender made in the present case could not, even assuming it to have been sufficient in amount, have been pleaded as a valid defence ; and ultimately it was admitted by the defendant's counsel, as indeed is clear, that such a plea could not be maintained. Where a debt is payable on a particular day, the debtor is bound to tender on the pi-ecise day, and caimot plead a tender made post diem. Thus, the grounds upon which the application was first rested admittedly failed ; and, in truth, the application, as now presented to us, is to obtain on motion the benefit of a tender in a case in which, according to law, the right to tender had ceased to exist. In support of the application the case of Goodright (on the demise of Stevenson) v. Noright (1) was cited. That case, it will be found, turned upon the language of the English Act, 4 George II., cap. 28, sec. 4, Avhich was similar in its terms to — indeed, probably copied from^ our statute of 11 Anne, chap. '2, sec. 5. That section enacted that if the tenant should at any. time, before the trial in such ejectment, pay or tender the lessor all the rent and arrears, together with the costs, all further proceedings should cease. The decision was that a tender, before notice of action brought, was sufficient. At present there is no corresponding enactment in force in this country. The 5th section of the 11 Anne, chap, 2, has been repealed by the 23 & 24 Vict., chap. 154. The 62nd section of .that Act, whilst it provides for paying into Court a sum of money for rent, at any time before judgment, or service of notice of trial, (1 Sir W. BlackBtone, 746. Sealey v. Staivell. 171) in an ejectment for non-payment of rent, makes no provision for Exchequer. tender Before action. The case cited is, therefore, inapplicable. There is a case wliich was not cited, Uolmaii v. Stevens (]), Avliich, though not a case of ejectment, is more closely in point. We have carefully considered the ground upon whicli that decision was rested, and their applicability to the present case. Notwithstanding, however, the expressions of Mr. Justice Willes, we are unable to arrive at the conclusion that we can set aside a writ as being an abuse of the process of the Court upon the sole ground that a tender was refused in a case in which tiie right to tender had ceased to exist. To do so would be iu effect to force the creditor to accept a tender in a case in which, according to law, he was not bound to do so. We feel that, if this shall operate as a hardship, the remedy rests with the Legislature, not with tlie Court. We have, thei'efore, arrived at the conclusion that, even if we adopt the view of the facts presented by Mr. O'Brien, we cannot yield to the application; and that the only course open to defendant is to lodge the rent in Court under the 62nd section of the 23 & 24 Vict., cap. 154. We refuse the application, but witli- out costs. Fitzgerald, Deasy and Dowse, BB., concurred. Motion refused. Attorneys : Bass Sf Son and M. J. Ilorgan. SEALEY V. STAWELL. r. a Com-t. 1876. (By permission from t K. 10 Eq 206.) — Practice — Oosts — Several Defendants — Use of word "respectively'' in. Decree- awarding Costs to Defendants. It is not the practice, except under special circumstances, to insert the . word "respectively" in decrees giving costs to several defendants ; and, as an ordinary rule, the propriety of several defendants appearing sepa- rately should be left open for inquiry upon taxation. Semble — The insertion of " respectively " in a decree after the names of several defendants to whom costs are awarded renders it obligatory on the taxing officer to tax their costs separately. (1)6 Jur. N.S. ]24. April 26. 180 Sealey v. Slawell. v. C. Court. Mr. Campion, Q.C., on behalf of respondent, George Stawell, the, younger, moved, on consent, that his costs under the decretal order (1) should be taxed separately. Mr. J. Clarke Lane for the petitioners. The Yice-Chancellok made the order pursuant to the con- sent. His Lordship said that it was never the practice of the Court, except under special circumstances, to insert the word "respectively" in decrees giving costs to defendants who appeared separately, because it was ordinarily the proper function of the Taxing Officer to investigate whether the separate appearances were vexatious or not. He had been furnished with a report by Mr. Ferguson, the senior Registrar of the Court, as to the prac- tice, referring to a case which had come before the Court of Appeal in Chancery, in which it was held that where one set of costs only were to be allowed, the form of decree in 1 " Seton on Decrees, 24.S, should be adopted" (2). Solicitors for the petitioners : Messrs. Nohlett ^- Son. Solicitor for George Stawell, the younger : Mr. Bahington. (1) I. R. 9 Eq. 608. (2) The following is the communication referred to : — "In Anderson v. LamJb, 28th May, 1873, on appeal from the Master of the EoUs, the order ran dismissing the bill, ■with costs to be paid by the plaintiff to the defendants A. B , C. D., E. F., and Cr. H., his wife. Master Coffey taxed the costs of A. B., butjretused to tax those of C. D,, E. F., and G. H. I was asked to amend the order by adding tbe word 'respectively,' and I declined to do so, and an application was made to the Court of Appeal on the 10th of February, 1874, to direct him to tax, and the order made was, " That the Taxing Master do proceed to tax the costs of the defendants C. D., E. F., and G. H., pursuant to the order of this Court, dated the 28th May, 1873.' The Court proceeded on the ground that where one set of costs only was intended to be given the form in 1 Seton, 243, would be used. There a note of a case, Elliott v. Kempster, 22nd May, 1864, before Smith, M.K., where he held that an order directing costs to be paid to C. D. and E. F. respectively had the effect of precluding the Taxing Master from considering what otherwise it would have been his duty to consider — viz., whether, if they appeared by the same solicitor, and filed separate answers, and appeared by separate counsel at the heaiing, they should have separate costs, or one set of costs in the ordinary course ; and the adoption of tbe word * respectively ' proved to be mischievous. It is never used in tbe Court of Chancery in London, unless for some special purpose." Riggs V. Beresford. 181 In re THE ARMAGH ELECTION PETITON : RIGGS v. Com. PUm. BERESFORD. _^!!!^ Juue 14. {By permissiotif from 10 Ir, L. T. R. 178.) (Before Morris, C.J., Keogh and Lawsox, JJ.) Parliamentary Election Petition— Taxation of Costs— Fees to Couiuel — Printing Analysis of Bill of Particulars — Expenses of Witnesses. The Master ot the Court, in taxing the bill of costs of an ordinary election parliamentary petition, reduced— 1st. Counsel's fees on a motion for particulars, from five, four, and three guineas, to three, three, and two guineas. 2nd. The fee to senior counsel from two hundred to one hundred guineas on his brief at the hearing. 3rd. The fee to junior counsel from sixty to fifty guineas. 4tli. The refreshers of senior counsel from twenty to fifteen guineas. 5th. The refreshers of junior counsel from twelve to six guineas. 6th. The fees for eight consultations to four. 7th. The consultation fees from five, five, and three guineas, to three, three, and two guineas. 8th. He disallowed the expenses of the printing of an analysis of a bill of particulars. 9th. Disallowed £38 17s. &d. out of £117 12s. incurred by the preliminary examination of witnesses. 10th. Disallowed £214 out of £333 lOs., the expenses paid to witnesses, only one shilling inalicnm being allowed to witnesses resident in town. 11th. Disallowed various charges and fees on subpoenas. 12th. Disallowed the payraeuts made to assistants for taking evidence. The Court on appeal referred the bill of costs back to the Master to reconsider the refresher fees allowed to junior counsel, and to allow the. item for printing, and the expenses of summoning any witnesses men- tioned in the bill of particulars ; also, the necessary expenses of the examination and attendance of such witnesses as had been summoned and attended, to such amount as he should see fit ; but refused to inter- fere with the Master's discretion with regard to the other items. Appeal on behalf of Caj^tain Beresford, M. P., respondent in tlie matter of the Armagh Election Petition, against tlie Master's taxation of tlie costs of the trial. Tlie objections to the taxation were as follows : — 1st. That four guineas were taken off fees paid to counsel on a motion for par- ticulars. The fees paid were five, four, and tliree guineas, but the Master only allowed three, tliree, and two guineas. 2nd. That one hundred guineas were taken off Mr. Macdonogli's fee of two hundred guineas on his brief at the hearing. 3rd. That Mr. jMonroe's fee of sixty guineas on his brief was reduced to fifty guineas. 4th. That five guineas were taken off ^Ir. Macdonogh's 182 Riggs V. Beresfovd. ^""is^'*"'' ^'6^''®^^^''® o^ twenty guineas per diem, making them fifteen guineas per diem, the same amount received by Mr. Porter, Q.C., the second counsel in the case. 5th, That six guineas were taken off Mr. Monroe's refreshers, reducing them from twelve to six guineas. 6th. That fees for three consultations out of eight were disallowed. 7th, That five guineas were taken from counsel's fees in the con- sultations allowed, reducing them from five, five and three guineas to three, three, and two guineas. 8th. That the printing of an analysis of the bill of particulars, amounting to £5 14«. lit/, was disallowed — allowing, at the same time, some fees to the attorney for some trouble in connection with this matter. 9th. That £38 17s. &d. was struck off the sum of £117 12«. incurred in llie preliminary examination of witnesses. 10th. That £214 was taxed off expenses paid to witnesses, amounting altogether to £333 10*., Master Burke considering himself bound by the 34th section of tiie Anu,-p.\Oi. Act, and the judgment of Morris, J., in the Galway Election Petition (1), to allow only one shilling as viaticum to witnesses resident in the town. 11th. That various fees and charges on subpoenas were disallowed. 12th. Tiiat the payments made to the attorney's assistants for taking evidence were disallowed, Macdonogh, Q.C., Porter, Q-C, and Monroe, in support of the appeal : — The Master had reduced Mr. Macdonogh's fee to 100 guineas, because 100 guineas was only what was paid to Mr. Porter, and said tliat if 200 guineas had been given to Mr. Porter, he would not then have disallowed it. It is usual to give the leading counsel a higher fee. [Morris, C.J. : — One leading counsel is supposed to be the same as another, and if there is not a limit put on the fees,-they may go up to 1,000 guineas. If a higher fee is given to one counsel than another, it is given for tlie individual, and not because he is Attk, p. lo7. a leading counsel : Dyott v Reade (2). The Master has here decided that 100 guineas is the normal fee]. The petitioner has established the criterion for himself by giving his leading counsel (Serjeant Armstrong) 200 guineas. (1) 7 Ir. L. T. E. 189. (2) 10 I. E. L. T. E. 110. (E. N. B. Ed.) R'kjijs V, Beresford. 183 [Lawson, J. — The fee is 100 guineas, except in special cases. Com. Pleas. such as the Galway Petition]. The Master has reduced Mr. Monroe's fee from sixty guineas to fifty guineas, because only fifty guineas was allowed in the Galway Ante, p. los. Election Petition (I). [MoEEis, O.J. — It has always been the rule that if 100 guineas was the fee for a Queen's Counsel, fifty guineas should be the fee for a junior.] The Master has reduced Mr. Macdonogh's refreshers from twenty guineas per day to fifteen guineas, because that was all that was given to Mr. Porter, while he had reduced JVlr. Monroe's refreshers from twelve guineas to six guineas, which must be con- sidered out of proportion to the fees allowed to the senior counsel. There have been eight consultations, and only five of them have been allowed. It is of great importance in a case of the kind to consider the evidence that has been given during the day, and to consult as to the best course to adopt the next day. In the Galway case — Trench v. Nolan (1) — this Court was of opinion that 100 ^"'c, p- 108. guineas fee to leading counsel was too small, and that the reduction of the refreshers from twenty guineas to fifteen guineas, and the reduction of consultation fees from five guineas to two guineas, was too great. Serjeant Armstrong, J. Murphy, Q.C., and Kishey, contra. This petition was heard in the Christmas Vacation, when business was slack. There is no analogy between this petition and the Galway one. In the borough of Armagh the population was less than 9,000, while in Galway, which was a principality in extent, there was a population of 250,000 interested in the electioni. Takino- the working days of a Queen's Counsel at two hundred davs, and calculating his income at tiie rate at which Mr. Macdonogh was paid here — viz., 100 guineas every eleven days, and fifteen guineas a day refresiiers -tiie result would be about £5,000 a year; and there are few Queen's Counsel in Ireland who would quarrel with that income. The highest fee ever allowed to a iunior in Ireland is sixty guineas. No consultation fees were allowed on the days referred to, because no witnesses were (1) 7Ir..L. T. K. 189. 184 liiac/s V, Beresford, Cow. Pleas, examined. In Trench v. Nolan, the Court — referring to tlie lR7fi " Ante 108 Tamworth and Southampton cases (1)— adopted the rule there laid down by Chief Justice Bovill, that the party succeeding is entitled to all costs that were reasonably incurred in the ordinary course of matters of this nature, but not to any extraordinary or unusual expenses incurred in consequence of over-caution or ovei'-anxiety as to any particular case. MoREis, C.J. : — We think that the bill of costs should be sent back to the Master for review in some particulars, and we refuse the motion in regard of the other matters complained of. There is one item of considerable importance — the fee of 200 guineas paid to Mr. Macdonogh, which the Master has reduced to lOD guineas. Now, we do not think that this item should be referred back to the Master at all, not solely on the ground that only 100 guineas was paid to Mr. Porter, although tliat was a very material element in the case; for, if 100 guineas is deemed sufficient for one of the most eminent men in the profession, the additional 100 guineas must be deemed an artificial fee paid to Mr. Macdonogh, and the person who paid it must pay it out of his own pocket. What was allowed in the Galway Election Petition was 150 guineas, but that was in every respect a case of great magnitude. Now, no person can apply the word magnitude to this Armagh case, and therefore 1 do not think we should interfere with the discretion of the Master by allowing more than the normal fee of 100 guineas. The same observation applies to the fee paid to the junior coimsel. The same ruling applies to the refreshers paid to the senior counsel, but we think that the refreshers paid to the junior counsel are too low. They are not one-half of what were paid to tlie senior. We refer them back to the Master. AVe do not interfere with the consultation fees, and we will not refer them back to the Master. They are the same as allowed in any other case. The item for printing we allow, as we think it a very useful thing to have done. The item with regard to the summoning of wit- nesses we allow. It was a wise precaution to summon them, and the reasonable expenses of those who did attend should be allowed. (1) L. R. 6 C. r. 172. Bol'uighroke v. ORorke. 185 We allow also tlie item for the taking down tlie evidence of wit- Com. Pima. nesses. The bill will be, therefore, referred back to the Master to reconsider the junior counsel's refresher fees, the printing item, and the item for the expenses of witnesses. The Court made the following order : — It is ordered that it be referred to the Master to reconsider the refresher fees allowed to junior counsel, and to allow the item for printing (No. 138), and that the expenses of summoning any wit- nesses mentioned in the bill of particulars be allowed ; also the necessary costs of the examination and attendance of such witnesses as may happen to have been summoned and attended, to such amount as the Master in his discretion may think fit to allow. Let each party abide their own costs of the argument and judg- ment in this appeal motion. Attorneys for the petitioner : Harris and l^ohias. Attorney for the respondent : W. Hardy. BOLINGBROKE v. O'ROKKE. n^,^ 1877. {By permission, from 11 Ir. L. T. R. 101), Feb. 14, Practice — Taxatimi of Costs — Court Fees — Higher and Lower Scale — With' drawing certificate after appeal — General Order, l\'ov. 1867. In a suit to raise a charge of £500, for which purpose it was sought to set aside a deed of assignment on allegations of circumstances amounting to equitable fraud, the Master of the Rolls, holding that the transaction was bona fide, dismissed the plaintiff's bill, but this decree was reversed by the Court of Chancery Appeal. The plaintiff's solicitor not consider- ing at the commencement of the suit that there was any question to be taken into account which affected the scale of fees and charges, except that of the amount in dispute, had lodged with the Clerk of Records and Writs a certificate that the lower scale of fees of Court was applicable under the General Order, Nov., 1867 ; but after the reversal of the decree of the Court below, finding that he had been mistaken, he with- drew the certificate, and lodged his bill of costs on the higher scale, and paid the difference between the higher and lower scale of Court fees payable on behalf of the plaintiff. Held, that, as the deed was sought to be set aside on allegations of fraud, the higher scale of Court fees was that applicable ; and that the 186 BoUngbroke. v. ORorke. Mills. plaintiff's costs should be taxed on such higher scale accordingly, his ^^'^^' solicitor undertaking that all additional fees properly payable thereunder and in the proceedings already had, should be made good. Motion on behalf of the plaintiff that the Taxing Master should be at liberty to tax the plaintiff's bill of costs, notwithstanding that such bill of costs had been prepai-ed under the higher scale of fees, and that the plaintiff should be declared entitled to such costs under said higher scale. Mr. W. H. Peyton, solicitor for the plaintiff, deposed that at the commencement of this suit, not considering there was any question to be taken into account which affected the scale of fees and charges, except that of the amount in dispute in the suit, and the amount in this cause being under £700, he lodged a certificate of lower scale, and his attention was not called to the matter until after the decree of the Court of Appeal in Chancery. F. Gifford, articled clerk, deposed that in the month of July last, upon draw- ing the plaintiff's bill of costs in this cause, pursuant to the decree of the 10th of July last, he discovered that the lower scale was, as he believed, inapplicable thereto, and that the plaintiff was bound to pay the difference between the lower and higher scale for the Court fees paid under the lower scale in this cause, whereupon he immediately withdrew the certificate of lower scale and paid such differences in the Court fees. He had not paid the fee on the decree at the time, and he paid that fee in the first instance on the higher scale. On the 20th of July last he lodged the plaintiff's bill of costs in the office of the Taxing Master, and transmitted notice thereof in the usual way. The said costs were drawn on the higher scale, and no bill of costs had been previously drawn or lodged on behalf of tlie plaintiff. On the 1st of August last he obtained a summons before the Taxing Master (J. F. Teeling, Esq.) for taxation of said costs on the 4tli of August last, but, upon the summons coming before tlie Master in vacation, the costs could not, according to the rule of said Taxing Office, be then i)roceeded with without the consent of the defendant's solicitor ; and Mr. M'Cully, the defendant's solicitor, not having attended, the said summons to tax was adjourned to the 23rd of October last. On the hist-mentioned dav he attended before the ■Bolingbroke v. O'Uorke. 187 Taxing' Master for the parpose of taxing the costs but tlie Master R<>Ui. ■ ] 877 dedincdto tax t!ie TdiII so lodged on the higher scale upon the ground that the proceedings had been carried on to final hearing upon the lower scale. He directed tiie former bill of costs to be withdrawn, and a new bill of costs prepared under the lower scale to bo lodged in its stead. On the 28th of November he applied to the Taxing Master for his ruhng upon the bill of costs, when he directed him to bring it before him on notice. He accordingly applied, on notice, to the said Taxing Master on the 4th of December last to tax said bill of costs so lodged under the higher scale or to make a ruling thereon, which application the Master refused. Mr. W. H. Peyton stated, in addition, that he was advised that if he were to relodge the plaintiff's costs calculated on the lower scale, and if the various items thereof were allowed by the Taxing Master, he would have considerable difficulty in having the taxation re- considered by the Court. Master Teeling reported as follows : — " In pursuance of your lordship's order made in this cause, bearing date the 15th of December, 1876, calling on me to certify why I declined to proceed with the taxation of Mr. Wm. Henry Peyton's (the solicitor for the plaintiff) bill of costs, I have the lionour to certify to your lordship that when the bill of costs came before me for taxation the gentleman representing the solicitor for the defendant stated he had a preliminary objection to make to the bill of costs as furnished, on the ground that the bill in the suit was filed under the lower scale; that a certificate to that effect had been prepared by Mr. Peyton, and signed by the Master's officer (an attested copy of which he held in his hand, and which he begged to lay before me) ; that the duty or Chancery fund on the lower scale had been paid on behalf of both plaintiff and defendant during the progress of the suit, and until the cause came on for hearing before your lordship, when your lordship was pleased to make an order dismissing the bill, with costs, to be paid to the defendant by the plaintiff; and that the plaintiff filed a petition of appeal, and that the proceedings in that Court were also carried on under the lower scale ; and that it was not until after the petition of appeal had been heard, and an order made in favour of the petitioner declaring him entitled to his costs, that the additional duty between tlie .lower and the higher scale was 188 BolinghroTce v. ORorTte. Rum, paid by the plaintiff's solicitor. It was, therefore, contended that the defendant should not be then called on, after the case had been disposed of by the Court of Appeal, to pay costs under the higher scale, and that the duty on the lower scale had been paid on behalf of the defendant, pursuant to the certificate furnished by plaintiff's solicitor; he, therefore, on behalf of defendant, declined to pay any further or additional duty. 1 asked the gentleman representing Mr. Peyton what explanation he had to give on the matter, or why lie furnished the costs on the high scale after obtaining a certificate that the proceedings should be carried on under the lower, and under which scale they had been carried on until the final hearing in the Court of Appeal. He admitted that the statement made on behalf of the defendant was quite correct, and that all he had to say on the matter was, that when he came to draw the costs he considered, or it had been suggested to him, that the proceedings should have been carried on under the higher scale, and that he, therefore, furnished the costs under that scale— admitting, without hesitation, that only the duty on the low scale had been paid both on behalf of the plaintiff and defendant during the progress of the suit, and that until the order in the Court of Appeal had been made, and not till then, had the additional duty been paid on behalf of the plaintiff. This explanation I did not consider satisfactory, and stated that, Mr. Peyton having made his selection, I considered he should be bound by it ; that he prepared a certificate that the bill had been filed on the low scale, and, in consequence, the duty had been paid both by the plaintiff's solicitor and by defendant's solicitor all thi'ougli the proceedings, and until the final order by the Court of Appeal on that scale, and, although the additional duty between the high and low scale payable by the plaintiff had been discharged subsequent to the order by the Court of Appeal, tlie duty between the higli and low scale payable on behalf of the defendant still remained unsatisfied ; and I suggested that the plaintiff should lodge a new bill of costs drawn on the low scale, intimating, at the same time, that I shoidd be very glad to hear Mr. Peyton if he had any further explanation or reasons to offer to induce me to change my views. Mr. Peyton, however, did not appear before me. Subsequently, however, the gentleman repre- Bolinghrohe v. O'Rorhe. 189 senting him made a further application that I should tax the •'^o'^'- costs as lodged (the gentleman repi'esenting the defendant being present). Seeing, however, no reason to alter or change the opinion I had formed, I declined to accede to his request. Having stated the facts connected with the case (at, perhaps, a greater length than was necessary) for the information of your lordship, I have, in conclusion, to certify to your lordship that my reason for not taxing the bill of costs in question was in consequence of the costs having been drawn on the higher scale, the proceedings having been (as already stated) carried on all through, until the final order by the Court of Appeal, on the lower scale. However, after the order made by the Court of Appeal, declaring plaintiff entitled to his costs, plaintiff's solicitor paid the additional duty payable by him between the high and low scale, but the additional duty payable by him between the high and low scale payable on behalf of the defendant still remains unpaid; and considering that the default was entirely owing to the course taken by the plain- tiff's solicitor, and, also, considering that it was my province before taxing the costs to see that the proper duty payable to the Crown in: the suit had been discharged, and as I had no power to enforce the defendant's solicitor to pay the additional duty, I declined to tax the costs until the full duty which should be paid in the suit had been- discharged or paid. Had the plaintiff's solicitor offered or pro- posed to pay the additional duty which refnained unpaid on behalf of defendant I would have proceeded with the taxation, but no such proposal was made." Mr. Monch, for the plaintiff, in support of the motion, cited Em^l of Stamford v. Dawson (1); Falls v. Proctor (2); Order, Nov., 1867 ; Morgan's Costs in Chancery, 7th Ed. Mr. Jackson, Q.C., contra. Sullivan, M.R. : — The Taxing Master has given a very clear report indeed as to- what took place befoi'e him, and of the reasons which guided him: in coming to the conclusion he did; and I am not so certain that' the Master had not some grounds for coming to that conclusion.' (1) L. K. 4 Eq. 203, 257. (2) Not reported. 190 BoUnghrohe v, O'Rorhe. Rolls. Tlie matter, which is of great importance so far as it affiects the practice of the Court, stands in this way: — The plaintiff filed his bill against Mr. O'Eorke to raise a charge of £500 that he was entitled to on the property of Mr. O'Rorke. But it appeared that, inasmuch as the charge that he had filed his bill to raise had become the property of the defendant, Mr. O'Rorke, under a deed of assignment, executed by the plaintiff, he had framed his bill with a view to raise his charge, praying that the deed should be set aside ; and to lay the foundation for setting it aside he relied upon certain alleged facts which amounted to equitable fraud. Now the bill, in point of form, was a bill framed for the purpose of raising £500 only ; and, as a matter of course, it would, prima facie, therefore fall within the points mentioned under the General Order, as to costs, of October, 18G7, as being a suit conversant with raising a charge under £700, and one in reference to which the rule of taxation on the lower scale would be applicable, inas- much as the amount was under that figure. But I am clear upon the authorities that have been referred to, that where it is necessary, in order to raise a charge, to set aside a deed of assign- ment on the ground of the fraudulent conduct of the party giving it, the case comes not within the lower scale, but within the higher scale. In my view it was a case in which the solicitor would not have been ju'Stified in lodging a certificate under the lower scale- at all. This course he should not have adopted. No doubt what Mr. Monck says is true, that that was a mistake into which tlie solicitor might have fallen bond fide; he might have been guided by the amount, and might not have had sufficient knowledge of the circumstances. The facts proved it to be one of the cases in which the lower scale would not have been applicable, and whatever may have happened afterwards the certificate was lodged bond fide under the belief that it was applicable. The General Order is this :— " (1) Solicitors shall be entitled to charge, and be allowed, fees according to the 'lower scale' in the several cases following, unless the Court make order to the contrary, that is to say " and then it specifies under the head apphcable to these cases "suits for enforcing any charge or lien in which the mortgage whereon the suit is founded, or the charge or lien sought to be enforced, shall be under the amount or value of £700." In any Bolinghrohe v. O'Rorhe. 191 case proper for it, the Court gives the solicitor a right to file with Rati'. the Clerk of Records and Writs a certificate in the form set forth, a copy of which certificate must be issued at the request of any solicitor or any party acting in person in the suit. The form of certificate is as follows : — " I hereby certify that, to the best of my judgment and belief, the lower scale of fees of Court is appli- cable to this case." And on production of the certificate the officers of the Court shall receive and file all proceedings in the suit or matter bearing stamps according to the lower scale. And the order then proceeds — '■" In any case certified for the lower scale of Court fees, in which it shall happen that the solicitor shall become entitled to charge and be allowed according to tlie higher scale of solicitors' fees, the deficiency in the fees shall be made good." The only other part of the order necessary to read is, "In all other cases solicitors shall be entitled to charge, and be allowed, fees according to the higher scale in the schedule hereto, unless the Court shall make an order to the contrary, as to all or any of the parties." Now it is manifest and plain that this last clause entitles a solicitor, as a matter of right, to tax his costs on the higher scale in any case not falling within the several heads specified. It provides also for a lower scale being converted into a higher scale, if he is entitled so to charge. It is the practice of the. Record and Writ Office, invariably, that a solicitor who lodges a certifipate for the costs to be taxed on the lower scale can with- draw his certificate during the progress of the suit. He is allowed to do that as a matter of right. The moment he withdraws his certificate, the officer of the Court marks on the certificate " with- drawn." The cases that have been suggested are very different from the present, being where the claim of the solicitor was referable to costs which did not fall within the lower scale, and where, for the sake of saving a few shillings, he would certify for the lower scale, and then, upon the decree being in his favour, withdraw his certificate. That is the precise distinction in this case. What are the facts ? The case turned out to be one that rested on allegations of fraud. [His Lordship referredto the cir- cumstances.] I held that the transaction in question was londfide, and dismissed the plaintiff's bill with costs, and relieved Mr. O'Rorke from the imputations cast upon him. The plaintiff 192 BoUnffhroJce v. 0' Rorke. im appealed, and the Court of Appeal took an opposite view and gave him a decree (1). It is perfectly clear that fraud being the allega- tion on which he sought to set aside the deed, the lower scale was not applicable. Mr. Peyton lay by until after tlie decree in this Court, and went into the Court of Appeal on the lower scale ; and after he filed his appeal he discovered that his proceedings were wrong, and that he should have proceeded on the higher scale, and then withdrew liis certificate. If I thought he was guilty of a subterfuge I would give him no aid ; but it would be a strong thing fo hold that in a case like this. I am not prepared to assume that against him in the teeth of the afiidavit. I think he made a mistake originally. Therefore, I am of opinion that, it being the right of the suitor to have the certificate withdrawn by the solicitor, he was justified in this case. I cannot fix the time when the right to withdraw ceases ; and, as pointed out by Mr. Monck, the decree in the Court of Appeal did not note this matter, as an account was to be taken in the office. Under these circumstances the costs must be taxed on the higher scale, Mr, Peyton undertaking that the difference of the Court fees shall be made good ; and he must bear his own costs. Ordered — That the Taxing Master in this cause do proceed to tax the plaintiff's costs in the cause, pursuant to the said decree ; and that such costs be taxed on the higher scale of fees, Mr. W. H. Peyton, the plaintiff's solicitor, undertaking that all additional fees properly payable by the plaintiff under the said scale and the proceedings already had in the cause shall be made good ; and the Court doth order that the said Mr. W. H. Peyton bear his own costs of this motion and order. Solicitor for the plaintiff : W. H. Peyton. Solicitor for the defendant: A. M Cully. (1) The decree of the Court of Chancery Appeal was afterwards reversed by the House of Lords : see 11 Ir. L. T. & S. J. 386, 400.— (E. N. B., Ed.) Bmdy v. Tuckeg. 193- BRADY V. TUOKEY. Chancery. 1877. (By permission, from 13 Ir. L. T. 809). (Before Ball, 0.) Costs — Sale by Mortgagee — Auction — Advertisements — Attendance of Solicitor at Sale. This was an application on behalf of Mr. Tuckey to review certain rulings of Master Teeling. The applicant had sold by auction Mr. Brady's estate, situate at Ballinamore, County Leitrim, pursuant to power in a deed of mortgage made to him, and the questions now involved were as to the amount for advertising the sale, and as to the expenses of the mortgagee's solicitor attending the auction. It appeared that postings for sale had been advertised three times in the General Advertiser, Freeman's Journal, Daily Express, Irish Times, and a local journal, and that Master Teeling only allowed for one advertisement in each. He had also dis- allowed the travelling expenses of the mortgagee's solicitor for attending the sale. Walker, Q.C. (vyith him Gerrard), for the mortgagee. Lawless, Q. C, for the mortgagor. At the conclusion of the arguments the Lord Chancellor said that he would consult the Master of the Rolls on the subject. Judgment deferred. Ball, C. :— In this case I shall now proceed to state the views which, after consultation with a judge of such great experience as the Master of the Rolls, I have adopted. The first item is as to the sums dis- allowed for advertising, £16 ; and in considering the propriety of that charge it is to be borne in mind that the costs were incurred in connexion with a sale by a mortgagee under a power in his mortgage. A vendor in that position is bound to use his best endeavours that the property should not be undersold. The mortgagee had ample security for himself, but this duty was not o July 8. 194 Dennis v. Best. ^'"'"^^"J- merely to pay himself — lie had to make the surplus as large as lie could for the mortgagor. No plan was so likely to insure compe- tition at the sale as advertising, and if a mortgagee in that position was to advertise inadequately he would leave himself open to the imputation of regarding only his own interests. Having regard, to these considerations, I am of opinion, and I have the concurrence of the Master of the Eolls, that the sum here expended for advertising was not unreasonable, and that therefore the sums dis- allowed by Master Teeling should be allowed. As to the second item, 1 think it was of the most vital importance tliat the solicitor or some legal person, should be present at the sale to see, on behalf of the mortgagees, that such a contract was made with the pur- cliaser as would avoid a suit for specific performance or some future litigation. I shall, therefore, allow that charge also. There will be no costs for the application, however, as it was an appeal from the Taxing Master. Exchequer. DENNIS V. BEST. 1878. jT J J (fiy permisiUm, from 12 Ir. L. T. R. 152 ) (Before Palles, C.B., and Fitzgekald, B.) Taxaiiun of Costs— '^ Higher Scale" and "■Lower Scale" in Actions for Recovery of Land on Title— Compromise as affecting Costs —Schedule of Fees Order, December 36, 1877, r. 6; Rules, April, 1878, Order VIII. In an action for the recovery of land on the title, involving the ownership of an estate of the annual value of £500 a year, while had not the action been instituted, the title to the fee-simple, moreover would have been barred by the operation of a sale in the Landed Estates Court, the plaintiffs title had to be established under extreme difficulties, caused by the necessity of giving secondary evidence of deeds under which the plaintiff claimed, in consequence of their having been lost or destroyed by an ancestor of the defendant, through whom the defendant claimed. At the trial a compromise was entered mto, pro- viding that judgment should be entered for the plaintiff, with costs. Held, that the costs, as provided for by the terms of the compromise, should be taken to mean the legal costs as taxable upon the true con- struction of the Rules of Court, and not costs as taxable at the time of the compromise being entered into ; and that the circumstances of the case were such as to warrant the exercise of the discretion of the Court Dennis v. Best. 195 by allowing the costs to be taxed according to the "higher scale" Exchequer. provided by the Rules of the Supreme Court of Judicature (Ireland), l^^*- April, 1878. Motion, that the plaintiff be allowed in this action the fees set forth in the column headed " higher scale " in the Schedule to the Rules of the Supreme Court of Judicature (Ireland), April, 1878, and that the plaintiff be declared entitled, in addition to the costs at the date of the Judicature Act allowed on taxation as between party and party, to all other costs, charges, and expenses reason- ably incurred by the plaintiff for the purpose of this action. The action was brought for the recovery of a certain estate, containing upwards of 400 acres, in the County of Wicklow, producing an annual rental of about £.'500 a year, under the will of Henry Scott, who was devisee under the will of the late Lady Elizabeth Stratford. The defendants had gone into the receipt of the rents of the lands on the death of the late Earl of Aldborougli, allegino' he was seized in fee-simple, and claiming to be entitled thereto as his co-heirs at law, and had instituted proceedings and obtained an order in the Landed Estates Court for the sale of the lands. The plaintiff thereupon applied to the Landed Estates Court to discharge the said order, and made and filed an affidavit fully disclosing his title to the said lands; and, upon hearing of such application, which the defendants resisted, an order was made directing that the motion should stand adjourned till a future day, with liberty for the plaintiff in the meantime to take proceedings to establish his title. The principal difficulty in the case arose from, and was occasioned by, the absence of the title deeds, which were traced to the custody of the late Earl of Aldborough, and proved to have been in his possession, and to have been either lost by him or destroyed while in his custody. In consequence of the loss of the deeds it became necessary for the plaintiff to make search in every place where there was a possibility of their being found before secondary evidence of their contents should be given, and this entailed an extensive coiTespondence with several persons who had formerly been connected with the Aldborough family, and also attendances upon several solicitors, &c., at their offices, and searches for the missing deeds, and for evidence of their prepara- tion and existence had to be made, which work was of a very 19(5 Pemiis v. Bed. Exchequer, ai'duous iiatui-e, and necessitated the perusal of a great number of deeds, letters, accounts, orders of Court, rentals, bills of costs, and other papers, which were sworn to have amounted to" several thousand folios. And, for the same reason, it also becamenecessary for the plaintiff to prove receipt of the rents and other acts of ownership by the said Lady Elizabeth Stratford and by the late Earl during the life of his father and also during the life of Lady Sophia Stratford; and this entailed the necessity of attending at ■ Baltinglass for seven days examining witnesses, inspecting tenants' leases or agreements for leases, and old maps in their possession, and comparing the same with the now existing fences and boun- daries on the lands, and procuring information relative to the receipt of rents by the late Lady Elizabeth Stratford and the . sixth -Earl of Aldborough from the death of the fourth Earl down to the death of the sixth Earl. This proved a very difficult undertaking, . as the plaintiff had to prove payment of rent to Lady Elizabeth Stratford and Lord Aldborough out of each separate holding on the property, as, owing to the fact that the plaintiff had no reliable evidence of the exact lands of which I-ady Elizabeth Stratford was seized in fee, the plaintiff' had to be prepared for the defendants going into a part and parcel case, which they did do at the trial. In addition to the above searches, the plaintiff had to make long searches in the Registry of Deeds Office, the Public Eecord Office, the Landed Estates Court, and the Courts .of Common Law, and also at the Civil Bill Courts of "Wicklow and Baltinglass for records of former proceedings relative tfl the lands in dispute, which occupied a long space of time. A large number of witnesses were subpojnaed from various parts of the country to prove the details of the plaintiff's case.. The plaintiff's solicitor stated, by affidavit, that unless the cost§ should be taxed according to the higher scale, as between solicitor and client against- the defendant, the plaintiff would be out of pocket to a large amount for costs necessarily incurred. The action was tried at the_ Summer Assizes, 1878, and was then compromised on certain terms, one of which was that judgment should be entered' for the plaintiff, with costs. Dennis v. Best. 197 W. Ryan, Q.C., audi?. Robertson, on behalf of the plaintiflf, in ExcU'imr. , 1878. support of the application : — : According to Kule VI., Part I. (A), of the Order of the 26tli December, 1877, as to Court Fees, in all actions for purposes to which any of the forms of endorsement of claim on writs qf .summons in Part II., Sections II., IV., and V., of Appendix A. to the Rules under the Judicature Act are applicable, except- in certain actions of injunction, fees, and percentages are to be taken on a certain prescribed. scale, entitled "lower scale." Among the class of actions thus defined are actions for the recovery of land, both on the title and for non-payment of rent. By Order VII. of the Rules of the Supreme Court of the 8th April, 1878— the Order regulating the amount of solicitors' costs — the provisions of Rule VI., Part I., of the Order of the 26th December are adopted as the test of cases in which costs in general are to be taxed upon the " lower scale."' In all actions for recovery of land, accordiiiglj', costs are, as a general rule, to be calculated upon the " lower scale." However, the latter part of Order VII. of the Rules of April, 1878, prescribes that the Court or a Judge may, in any case, direct the fees to be allowed to all or any of the parties, and as to all or any part of the costs, according to either tlie " higher scale " ,or the " lower scale." We seek to bring the present case within this proviso by showing that it is a case for the exercise of the discretion thus provided for. According to the rule in the English Chancery Courts, in cases of foreclosure £1,000 is considered as the boundary line between cases where the higher and lower scale of costs are applicable. In Cottrell v. Stvatton {V), James, L.J., states, as to this rule — " It is in accordance with the common feelings of mankind that we should not, and ought not, to impose the same amount of costs in small as in large transactions. To effect this purpese some rule must be made, £1,000 was taken as the sum at which, to draw the line." Costs on the "higher scale" were allowed in an action on a bill of exchange in the Chancery Division : Peoly v. Driver (2). We submit that the limit of the £1,000 is. a fair one, and ought to be followed in tliis case. Here property to, the value of between £13,000 and £14,000 has been recovered, and it is not the mere annual value of the estate which (I) 9 Ch. App. 614. (2) 5 Ch. D. 458, 1^8 Dennid v. Best. ^''fm^' ^^'^^ *** stake, but, inasmuch as a petition for sale had been filed in the Landed Estates Court, the title to the whole could have been barred if the plaintiff had not brought this action. The entire difficulty, moreover, was caused by the act of the party through whom the defendants claimed in having lost, or made away with, the deeds which established the title of the plaintiff. These deeds not being forthcoming, it became necessary for the plaintiff to give secondary evidence of their contents, and, for that purpose, to exhaust every possible source from which information as to them might be obtained, and to search every locality where they could possibly be supposed to be hidden — an undertaking frauglit with difficulty and expense. The Judge at the trial liad no power to aid us in the matter, according to Baker v. Oakes (1). [The Court having expressed an opinion adverse to the second portion of the motion — viz., as regards the costs, charges, and expenses incurred, it was abandoned by the plaintiff's counsel.] Ilemphill, Q.C., and W. Anderson for the defendants: — We resist 1,his application upon two grounds. In the first place, the action is one against an heir-at-law in possession of the estate. Will the heir-at-law be placed by the Court in the unfavourable position of liaving to pay indemnity-costs between solicitor and client of the opposite side when defending the estate of his ancestor ? [Palles, C.B. — Your clients were the heirs-at-law, but not the heirs of the ancestors.] Secondly, this action was compromised at the trial, and tlie consent provided for costs being paid to the plaintiff, which costs, in the absence of any agreement to tlie contrary, must be taken to be the costs then taxable,, and they were costs according to tlie " lower scale." This being a matter of compromise it lay upon tlie plaintiff to suggest, as one of the terms of the compromise, that costs should be taxed upon the " higher scale." If this had been suggested the action might have been fought out.- (1) 2Q. B. Div. 171. Dennis v. Best. 199 Palles, C.B. — This is a yery important motion, and, I believe, Exchequer. the first instance of such an application in any Division. Having heard the points very fully argued we have come to a clear con- clusion that it is a case to which the " higher scale " of taxation ought to be applied. I wisli to take the question, in the first instance, as if no compromise had been entered into between the parties at the trial. We have, then, as the subject-matter of the suit, an action for the recovery of land on the title, involving the ownership of an estate of the value of £500 a year, and not the mere possession of that estate, but the title to the fee simple, which would have been barred for ever through the operation of the Landed Estates Court if this suit had not been instituted. The plaintiff's title, too, had to be established in the face of extreme difficulties, whicli difficulties were caused by the Earl of Aldborough, through whom the defendants claimed. The object of the rules as to costs is to segregate cases of greater from those of less difficulty, and in those of less difficulty to make the '■ lower scale " of costs applicable, subject to the discretion of the Court. The class of cases specially instanced as proper for the higlier scale of taxation are " actions for special injunctions to restrain the commission or continuance of waste, nuisances, breaches of covenant, injuries to property, and infringement of rights, ease- ments, patents, and copyrights.'' If, accordingly, this were a case not of recovery of the fee-simple of the estate, but merely to establish a right to an easement incident to the fee, such as a watercourse, the "higher scale" would, by the very words of the rule, be applicable. Actions for the recovery of land were, as a rule, included within the " lower scale," but this is because the great majority of such actions on the title in Ireland are cases between landlord and tenant, in which no title to large estates is in question. Here we have the title to the fee-simple of large estates involved — a case abounding with every element of diffi- culty, caused by the individual through whom the defendants claimed, so that, apart from the question of the compromise, I have no doubt that it is one for the exercise of the discretion of the Court in favour of the plaintiff. Turning, then, to the com- promise, we have been told by the counsel for the defendant that it is to be construed as a consent by the plaintiff to have the costs 20O Lapsley v. Blee. "^^fivs"*'' ^^^®^' ^s *'^6y ^^^^ would have been, unless this application had been made, upon the " lower scale." We do n*t think so. We think that the true construction of the consent is that the costs should be taxed according to law — that unless an express stipula- tion were introduced into the consent that the costs should be taxed upon the " lower scale," the parties must be taken to have agreed to abide by taxation according to the legal construction of the rules. We accordingly order that the plaintiff's costs in the case be taxed according to the " higher scale " ; but as this is the first case in which an application of this nature has been made, and as the plaintiff's counsel have very properly abandoned the latter part of the motion, we will give no costs of the motion. Fitzgerald, B., concurred. Order accordingly. Solicitors for the plaintiff : Meade Sc Colles. Solicitors for the defendants : Longfield, Davidson Sf Kelly. Exchequer. LAPSLEY I". BLEL. 1879. -J. J n 9 ^^y permimoii, from 6 L. R. Ir. 155 ; s. c. 13 Ir. L. T. R. 174) Appeal. ([n the Exchequer Division, before Palles, C.B., and Fitzgerald, Nov. 17. B. In the Court of Appeal, before Ball, C, Morris, C.J., and FiTzGiEBON, L.J.) Costs — Judgment hy Default — Amount recovered not exceeding £20 — Parties Resident icithin same Civil Bill Jurisdiction— Judicature Act, 1877, s. 53 — Common Law Procedure Act, 1856, s. 97— Order Till. (April, 1878), Mule S— General Order XII., Bide 3. The OTth section of the Common Law Procedure Act, 1856, has not been repealed by the 53rd section of the Judicature Act, and remains in force with respect to the costs as well of undefended actions as of those tried before a jury. The effect of Order VIII., Rule 2, of April, 1878, is merely to ascertain the amount of costs in actions where judgment is marked by default in those cases in which a plaintiff is entitled to costs. In an action upon a bill of exchange for a sum under £20 both parties resided within the civil bill jurisdiction in which the cause of action arose, and there were admittedly no grounds for holding that the case Lapslvy V. Blee. • 201 was one fit' to be tried in the Superior Courts. Judgment having been Exchequer. allowed to go by default : — 1879, Held, by the Exchequer Division and by the Court of Appeal, that the 97th section of the Common law Procedure Act, 1856, disentitled the plaintiff to costs. Ex PARTE application, on behalf of the plaintiff, that, in pursuance of the 53rcl section of the Judicature Act and of Order VIII. (8tli April, 1878), Rule 2, the costs of the action should be added to the judgment marked by default on the 14th October, 1879. The action was upon a bill of exchange, and the plaintiff and defendant both resided in the civil bill jurisdiction of the County of Donegal, where the cause of action arose. The judgment was for a sum less than £20, and the Master declined to insert costs in the judgment. Eiffe, in support of the motion : — , The costs of an action like the present are not within the dis- cretion of the Court. The 53rd section of the Judicature (Ireland) Act, 1877, enacts that, " subject to the provisions of this Act and of Rules of Court, the costs of, and incident to, every proceeding in the High Court of Justice and Court of Appeal respectively shall be in the discretion of the Court," &c. The Rules of Court dealing with the subject are General Order XII. and Order VIII. of 8th April, 1878. The 3rd Rule of General Order XII. pro- vides that, in such a case as this, " the plaintiff, upon fihng an affidavit specifying the amount actually due, may sign final judg- ment for such sum, not exceeding the sum indorsed on the writ, together with interest at the rate specified, if any, to the date of tlie judgment, and a sum for costs," &c. The 2nd Rule of Order VIII. of 8th April, 1878, defines the amount of costs to be allowed. To this extent the plaintiff is, therefore, absolutely entitled to costs. The 53rd section of the Judicature Act, 1877, corresponds to the English Order LV., except as to the words within brackets in the Irish section, which are as follows :—[" Subject to all existing enactments limiting, regulating, or affecting the costs payable in any action by reference to the amount recovered there- in."]. The effect of these and the following words in the section is to except out of the provision that costs shall be in the discretion 202 Lapsley v. Blee. ^^I'siq""' °^ *''® Court costs in an action tried by a jury (which costs are alone the subject-matter of the proviso), and the clause puts two limits upon the discretion already given by the section: — First, when the costs are within an enactment limiting, regulating, or affecting costs payable in any action by refei'ence to the amount recovered therein ; and secondly, for any special cause shown and mentioned in the Order. This is the grammatical and logical i-eading of tlie 53rd section. It has been decided that the effect of the English Order LV. has been to repeal the 21 Jac. I., c. 16, s. 6, which provided for costs in certain actions : Garnett v, Bradley (1). A similar construction should be given to section 53 of the Irish Act, which corresponds with the English Order. By that section of the Judicature Act, 1877, costs are now in all cases (subject to the Act and Rules made thereunder) to be in the discretion of the Court or Judge, and the provisions of the Common Law Procedure Acts limiting costs by the amount recovered, save the costs of trials befoi'e juries, are repealed. This case is ex- pressly provided for by the Rules made under the Act, and the costs are, therefore, not within the discretion of the Court. Cur. adv. vult. Nov. 12. Palles, C.B. : — Both the parties in this action (which is brought upon a bill of exchange) reside in the County of Donegal, where the cause of action arose. The plaintiff has recovered judgment by default for a sum less than £20, and he now moves for a direction to- the officer to enter the judgment for costs as well as debt. He does not contend that the action was one which could not have been tried in the County Court, or that it was fit to be tried in one of the Superior Courts ; and he, therefore, admits that, if the 97th section of the Common Law Procedure Act, 185G, be an existing enactment, costs cannot be recovered. He contends, however, that the effect of the Judicature Act is to render that section inapplicable to a case like the present, which was not tried by a jury. He says that such costs were, prior to the Orders of the 8th April, 1878, in the discretion of the Court, and that the 2nd Rule of Order VIII. of these Orders takes away that discretion, (1) 3 App. Cas. 91t. Lapsley v. Blee. 203 and entitles him absolutely to costs to the extent of the sums Exchequer. mentioned in that Kule. In support of his first proposition, the plaintiff relies upon the well-known case of Garnett v. Bradley (1), in which it was held that Order LV- under the Judicature Act in England repealed the Statute of 21 Jac. I., c. 16. The 53rd section of our Judicature Act is not identical with the English Order LV, ; on the contrary, it contains words which appear to me to have been inserted for the express purpose of excluding the questions raised in Garnett v. Bradley (1). Both the English Rule and our section commence with a general pro- vision that the costs of every proceeding shall be in the discretion of the Court. Each then contains a saving, not germane to the matter in hand, as to costs of trustees and others, and then follows a proviso in reference to the costs of an action tried by a jury. It is here that the difference between our section and the English Eule occurs. The Rule provides tliat " where any action or issue is tried by a jury the costs shall follow the event, unless, upon application made at the trial for good cause shown, the Judge . . . or the Court shall otherwise order." The main difference between this proviso and that in the Irish section is, that in tlie latter, after " provided that," we have these words — " subject to all existing enactments limiting, regulating, or affecting the costs payable in any action by reference to the amount recovered therein." Now, the argument of the plaintiff's counsel is, that the decision in Garnett v. Bradley (1) was mainly based upon the first clause of the Order LV., which is in terms the same as the first portion of our 53rd section ; and he contends that the effect of the introduc- tion of the words I have mentioned into the proviso, as distin- guished from the portion of the clause which confers general discretion as to costs, is to except, out of the provision that costs shall be in the discretion of the Court, costs in an action tried by a jury. He says that these costs are alone the subject-matter of proviso, and that such proviso (including the words which do not occur in the English Order) does no more than impose in reference to these costs two limitations upon the exercise of the discretion (1) 3 App. Cas. 944. 204 Lapsley v. Blee. .Exchequer, given by the earlier part of the section — viz., 1st, that it be for special cause shown and mentioned in the Order ; 2nd, that where the costs are within an enactment limiting, regulating, or affecting the same, by reference to the amount recovered therein, the dis' cretion is controlled by such enactment. In my opinion this argu- ment is untenable. I need not say that if the words of our secr tion were substantially the same as those of the English rule, the decision of the House of Lords would be conclusive. But where the words which we have to construe are not identical with those which were the subject of the House of Lords decision, we cannot take the decision per se. We must ascertain the ratio decidendi, and consider whether it is applicable to a subject-matter which contains the additional words which we have in the section before -US. Now, what was the decision in Qarnett v. Bradley ? (1) The Order had provided generally that costs should be in the discre- tion of the Court. Then came a proviso, that where an action was tried by a jury the costs should follow the event, unless for good cause shown. That was a proviso iinijosing a fetter upon the exercise of the discretion of the Judge, iu the case of a cause tried by a jury. But the general provision was in antagonism to the Statute of Gloucester, and other statutes which gave costs at Common Law; and these statutes were accordingly held to have been repealed by the conjoint effect of the rule and the section of the Judicature Act. The Act of James I., however, was. one which operated by way of exception out of the Statute of Glou- cester; and the decision of the House of Lords was, that the repeal comprised not only the Statute of Gloucester, but also the Statute of James I., which operated by way of exception out of it. ■Now, the statute of James was in nowise expressly referred to in ■the statute or the rule; and the real question for the decision of the House of Lords was, whether in such a case the general Act, i.e., the Judicatui-e Act, could be construed as repealing the par- ticular statute of James I. by mere implication; or whether tlie general rule, that costs should be in the discretion of the Court, could not stand, with the exception that in certain specified cases that discretion could not be exercised so as to give any greater sum for costs than had been found for damages. It will be found (1) 3 App. Cas. 914. Lapsley v. Blee. 205 that the greater portion of the judgment of the learned Lords is Exchequer.: occupied by the discussion of what is the meaning pf the old maxim, generalia specialibus non derogant, and that the decision is based upon their opinion that the statute of James I. was not a "special Act" within the meaning of that maxim. " But in reference to our statute we have not to consider whether an Act dealing with a particular subject-matter is repealed by im- plication by the general words of a subsequent statute ; because this enactment (Common Law Procedure Act, 1856, s. 97), being, one " affecting the costs payable in an action by reference to the amount recovered therein," is expressly referred to in the section, and treated as an existing enactment. The intention was, that effect and operation should to some extent, at least, after the passing of the Judicature Act be given to this section. Garnett V. Bradley (1) cannot, therefore, apply. Indeed this cannot be shown more clearly than by Lord O'Hagan's judgment in the latter case. He says (2) : " There are two interpretations, either of which might possibly be entertained, the one recognising the existence of the antecedent statutes, the other regarding them as repealed ; and I prefer the latter as in my mind manifestly accor- dant with the general intention of the Act, and calculated to attain the benefit at which it aimed, and to remedy the mischief it sought to remedy." Here we cannot refuse to apply the interpretation recognising the existence of the antecedent statutes, because the clause itself, in very words, states their existence, and legislates va, reference to them. No doubt the section would have been more aptly framed if the words in question had been inserted in the earlier part of the clause. The section would then have read thus : " Subject to the provisions of the Act, the rules, and of all existing enact- ments regulating or affecting the costs payable in any action by reference to the amouiit recovered, the costs of every proceeding shall be in th6 discretion of the Court ; " and then would follow the provisoes in reference to the costs of trustees and the costs of actions tried by juries. It has been argued that the first portion of the clause would, per se, and standing alone, have wholly repealed the statute in (1) 3 App. Cas. 9U. (2) Ibid. 960. 206 Lapsley v. Blee. Exchequer, question, and I think that the decision in Garnett v. Bradley (1) goes that length. Then it is said that as this operation is prevented solely by the proviso, it should not be affected beyond the subject- matter of the proviso. This reasoning divides the clause into two portions, and construes the first without reference to the second. In my opinion the clause must be taken as a whole ; and construing it thus, the proviso rebuts the inference which would have arisen from the earlier portion of the section of an intention to repeal the statute in question. We hold that the 97th section of the Act of 1856 continues in force, and regulates costs in applicable cases, whether the action be or be not tried by a jury, and that the Master was right in declining to insert costs in the judgment. I may add that I think the 2nd Eule of Order VIII. of 8th April, 1878, does no more than ascertain the amount of costs in cases in which the party is by law entitled to costs, and does not give him costs when, but for that Rule, he would not have" been entitled to them. FiTZGEKALD, B., Concurred. Application refused. The plaintiff appealed. Appeal. 1879. Eiffe, for the plaintiff, the appellant : — Nov. 17. The decision here involves the determination of what is the rule as to costs in all actions tried by any mode of trial, or not tried, when the plaintiff" recovers, exclusive of costs, less than £20 in contract, or less than £5 in tort. Another question is, whether the rule as to costs in these cases, though a matter of procedure, is, unlike other matters of procedure, outside the power of the Supreme Court to alter or regulate. Reading the 53rd section of the Judicature Act grammatically and logically, and so as to harmonise with the objects and principles of the Act, it means that costs are in all cases, subject to the Act and Rules, within the Judge's discretion ; provided that when the action or issue is tried by a jury the successful party shall be entitled to his costs, subject in the case of the plaintiff to the provisions of the statutes (1) 3 App. Cas. 9W. Lapsley v.. Blee- 207 referred to in the parenthesis, unless special cause be shown ; but Appeal. . 1879 if it be shown, the Judge's discretion, under the proviso as to jury trials, is as large as under the first clause of the section. Garnett V. Bradley (1) really amounts to this, that Order LV. (English) makes a tabula rasa of all the old statutes as to costs, on the ground that its provisions are inconsistent with their existence, and that they were not special Acts within the maxim generalia specialibus non derogant, and therefore not saved from the operation of the maxim leges posteriores contrarias abrogant, and of the 33rd section of the English Judicature Act; and, therefore, that a plaintiff who recovers in an action tried by a jury any sum what- ever is entitled to full costs, unless the Judge, for good cause, otherwise orders. The 53rd section of the Irish Judicature Act is similar to Order LV. (English), with the addition of words in brackets, and, save so far as altei'ed by these words, it should receive a similar construction. The words in brackets were inserted to meet the decision in Garnett v. Bradley (1), i.e., to provide that where a plaintiff recovers in an action tried by a jury less than £20 in contract or not above £5 in tort, save in the few excepted cases, no costs in some cases, and not more than half in others, should be given, unless the Judge otherwise orders ; but it was not intended thereby to preserve for all purposes the ante- cedent statutory enactments limiting costs. The words in brackets should be read as qualifying the words " the costs," as, in fact, a re-enacting of the existing statutes so far as they affect the plaintiff's costs in jury trials. If this be not so, the force of the words "unless the Court or Judge shall for special cause otherwise order " will be destroyed in many cases where they would probably be acted upon where the plaintiff recovered less than £20 in contract or not above £5 in tort, and the Judge cannot order a plaintiff who recovers only six shillings in a vexatious action to pay the defendant's costs, as was done in Harris v. Petherick (2). The principle of partial repeal and partial preservation of statutes is a leading feature of the Judicature Act, and is distinctly enun- ciated in the 71st section, and the construction suggested harmonises with the object of the Judicature Act to assimilate the procedure and practice of the High Court to that of the Court of Chancery : (1) 3 App. Cas. 9i4, (2) 4 Q. B. Div. 611. 208 Lapsley v. Bke. ^wq"'' Garnett v. Brudley^^ (!) ; Parsotu v. Tinling {2). The plaintiff having recovered judgment in default of appearance in an action of debt, he is entitled, under Order XII., Rules 3, 5, to a " sum for costs," and under the Rules of April, 1878, Order VIII. Rule 2, these costs are £1 17s. We contend that the 97th section of the Common Law Procedure Act, 1856, now only applies to cases tried by a jury, though before the Judicature Act it was otherwise : Bennett v. Scott (3). If the Common Law Procedure Acts, in so far as they relate to costs, are outside the operation of the Judicature Act, then the discretion of the Judge is done away with in the Chancery as well as in the Common Law Divisions: Fadley v. Camphausen (4). The effect of the 243rd section of the Common Law Procedure Act of 1853 on a trial in the Chancery Division is to destroy the discretion of the Judges in all these cases, whilst the policy of the Judicature Act is to place matters of procedure within his discretion. [FiTzGiBBON, L.J. : — That is but criticising the wisdom of the Legislature. In Cassidy v. O'Loghlen (5) it was pointed out that although it was not desirable to establish a different practice here from that in England, yet the Irish Judicature Act has made an exception which differs from the English Act.] In Parsons v. Tinling (6) it was held that the words " follow the event " in Order LV. (English) constituted a general provision as to costs. The first part of the 53rd section, and the whole but for the parenthesis, would, by virtue of its very phraseology, repeal all previous statutes. The meaning of the proviso is, that the Common Law Procedure Acts are preserved as to jury trials, having regard to the amount recovered. The bracketed words are placed in immediate proximity to the provisions as to costs of actions and issues tried by a jury in order to indicate that the exception retaining the old rule as to costs applies to such cases only. Had it been intended to apply these words to all cases the proviso would have been placed at the commencement of the section. (1) 3 App. Cas. 944. (4) 10 Cb. Div. 550. (2) 2 C. P. Div. 119. (5) 4 L. E. Ir. 1. (3) 8 Ir. Jur. (N.S.) 204. (6) 2 0. P. Div. 119. Lapsley v. Blee. 209 Ball,G.:- ^p^^[ Counsel has said all that it was possible to say to induce us to reverse the order of the Exchequer Division. We think, however, it ought to be affirmed. The question is, has the 97th section of the Oommon Law Procedure Act of 1856 been repealed, or is it still in existence in cases where a triaUby jury has not been had 1 Now, that section regulates the amount of costs to be paid by tlie defendant to the plaintiff in certain cases by the sum the plaintiff shall recover in the action. That the words "recover" includes undefended cases is shown by the expression "in case there shall be no trial." This section thus using the word recovered so as to include both defended and undefended cases, we come to the 53rd section of the Judicature Act : — " . . . Provided that (subject to all existing enactments limiting, regulating, or affecting the costs payable in any action by reference to the amount recovered therein) the costs of every action, question, and issue tried by a jury shall follow the event," &c. Now, what does this proviso do? By its very language, from the very force of the terms it uses, it treats as existing all enactments affecting the costs by reference to the amount recovered ; it treats that previous section of the Common Law Procedure Act as existing which includes both defended and undefended cases. Whether the section is repealed or not as to certain cases is to be ascertained by the intention of the Act as shown in the 53rd section itself, and any intention to repeal is rebutted by words which treat the previous enactment as continuous and existing. There is another matter in this case ; that is the effect of Order VII. of the Rules of April, 1878. That Order was not made for the purpose of defining whether or not the plaintiff or the defen- dant is entitled to costs, but to define what charges are to be made by the solicitor ; for what is the preamble ? " Tiie following regulations as to costs of proceedings in the Supreme Court of Judicature (Ireland), save proceedings before the Land Judges of the Ohanceiy Division, shall regulate such costs from the com- mencement of the Supreme Court of Judicature Act (Ireland), 1877." There is nothing in this preamble giving eitlier the plaintiff or defendant a right to costs ; these words are simply directory as to the amount to be allowed to the solicitors ; and when we come r 210 Lapsley v. Blee, Appeal. to Order VIII. these prefatory words must again be considered as they affect the whole matter. It does not therefore appear to me that the intention of this section was to define the cases in which parties had or had not a right to costs, but to define the charges which were to be made ; and that seems to be the yiew taken by the Chief Baron also. " I may add," he says, " that I think the 2nd Rule of Order VIIL, of 8th April, 1878, does no more than ascertain the amount of costs, in cases in which a party is by law entitled to costs, and does not give him costs when but for that Eule he would not have been entitled to them." Certainly the words in Order VIII., are stronger than in Order VII., but I think they must be taken only to regulate the amount to be charged ; and that when the Order says, " In all cases in which a plaintiff shall have obtained a judgment by default, there shall be added by the officer to the principal sum for which such judgment is marked the following sums for the costs thereof, and no more " what was intended was to fix the amount to be charged, and not to define the right that appertain to the individual. In other words, it is the same as if the Order said in every case where plaintiff was entitled, he should get so much for costs, and no more. I hold that the order of the Exchequer Division ought to be affirmed. ' MoEKis, C.J., concurred. FiTzGiBBOJf, L.J. : — • On the construction of the English Judicature Act, it was at least doubtful whether the statutes limiting the amount of costs were or were not repealed by implication, for in Garnelt v. Bradley (1) the Court of Appeal and the House of Lords differed upon the question. In our Act we find a clause which, in the event of a trial by jury, admittedly and expressly gives operation to the previous statutes, and does so by describing and treating them as " existing enactments." These words negative the intention to repeal them ; and moreover, by referring to these statutes, for example, to the Common Law Procedure Amendment Act of 1856, section 97, it will be seen that it would be very difficult, if not im- possible, to separate their clauses and read them as "existing (1) 3App. Cas. 914. Ziepsley v. Blee: 211 enactments affecting the costs payable in any action by reference to Appeal the amount recovered therein " after a trial by jury, while treating them as repealed in other cases. Then, looking at the substance of the thing, while it may be desirable to give the Court uncon- trolled discretion as to the costs in all cases, as has been done in England, it is very hard to conceive any reason for taking away that discretion, and limiting the plaintiff's right to costs, only in the one case where the defendant has added to the hardship of an unfounded resistance by continuing it to the last. If there were any one case in which we might expect the plaintiff's right to costs to be curtailed, it would be where he has selected the costly procedure of the Superior Courts in suing an unresisting adversary for some paltry demand ; yet there it is contended that the statutes are repealed, 1 think it a more natural construction of the Act to hold that it treats the limiting enactments as still existins: in all cases to which their terms apply. The decision of the Court of Appeal in Garnett v. Bradley. (2) was pronounced on the 2nd June, 1877, reversing the previous judgment of the Exchequer Division ; our Judicature Act passed on the 14th August, 1877, and the House of -Lords reversed the decision of the Court of Appeal on the (3th June, 1878. If it were permitted to speculate, it would seem probable from these dates that our statute was intended to preclude all question here by referring to these Acts as " existing," as under the authority of the Court of Appeal they were then believed to be in England, and that the divergence of practice has arisen from the subsequent decision of the House of Lords which changed the course of authority upon the English Act. Appeal dismissed^ Solicitor for the appellant ; R. H. Todd. (2) 3 App. Cas. 944. 212 Wolf V. Walker. Com. Fleas. WOLF V. WALKER. 1880. Nov. 15. {By permission, from 14 Xr. L. T. B, 111.) (Before Lawson and Haekison, JJ.) Practice—Costs— Money Lodged under Order for Security for Cods upon Terms — Tender Before Action without Plea — Acceptancy of Amount lodged— Costs of Action— Order XXX., r. 4— 49 G. 0. 1854. A defendant had applied for an order for security for costs, and an order was made on the terms that he should pay into Court a sum he admitted to be due, and stated he had tendered before action as being the entire amount due. He accordingly lodged this sum in Court, and the plaintiff drew out same " in full satisfaction." Held, defendant was entitled to the costs of the action. Motion, on behalf of the defendant, for an order that the defen- dant's costs of this action should be taxed and paid, and the plaintiff declared entitled to no costs. The action was commenced by writ for £18 on the 23rd of July,» 1 880. On the 2 1 st a letter was written by defendant's solicitor tendering £16 8s. The plaintiff's solicitor refused this; and, the plaintiff living in London, a motion for security for costs was made, and came on for hearing on August 17, 1880, before Lawson J., who, on hearing the affidavit of the above facts, made an order that the £16 8s. should be lodged in Court within ten days, and that, on same being so lodged, proceedings be stayed till security for costs given, and in default of such £16 8s. being so paid in, that the motion be refused with costs. The £16 8s. was so lodged, and the following notice therewith served : — " Take notice that I have this day lodged in tlie Bank of Ireland, &c., the sum of £16 8s. pursuant to the order of Mr. Justice Lawson, of August 17th, 1880, in full satisfaction of plaintiff's claim." The plaintiff drew out the money in full satisfaction of his claim, serving notice to that effect (Form No. 6, App. B., Rules 1877). Plaintiff then claimed to tax his costs up to lodgment, and the Taxing Master held he was entitled to do so. Orr, in support of the motion : — The money was paid in under special order. It was never con- templated to deprive us of the right we had then to plead tender, Wolf V. Walker. 213 and pay the money into Court therewith. If we had done so, and Com. Pleas. plaintiff had drawn out the money in full satisfaction of liis debt, ■we would have been entitled, under 49 General Order, 1854, to have our costs taxed, and these costs would be paid out of the money in Court in the first place. D. Fitzgerald, for the plaintiff, contra : — They wish to get the advantage of a plea of tender without pleading it. We might have gone on if they had pleaded. No doubt the money was paid into Court under a special order, but it was, nevertheless, paid "in satisfaction," and that enables us to draw it out " in satisfaction." [Lawson, J. — I think it was contrary to my order.] We are within Order XXX., Rule 4, the words of which are general, and the money was drawn out regularly. We would now offer to waive our claim to our costs, and let them waive their claim to any costs also. Lawson, J. : — We think that it was altogether a breach of tliis order for tlie plaintiff to draw the money out of Court as if it had been lodged in the ordinary procedure in satisfaction of the cause of action, and then to go on and take out an order entitling himself to the costs of the action. There is a great deal in what Mr. Fitzgerald says about its being hard upon his client to have to pay all these costs ; but it is the plaintiff's own fault. The plaintiff was offered the sum of £16 8s. before action brought, and he chose to go on for a further sum of £1 12s., and to bring an action in the Superior Courts for that. Let it be taken down upon the order that, Mr. Fitzgerald declining to re-lodge the money in Court and give security for costs, the order be made in the terms of the notice ; and let the defendant be declared entitled to the costs, but no costs of the present motion. Order accordingly. Solicitors for plaintiff : D. O'Rorke S[ Son. Solicitor for defendant : Andrew M' Clelland. 214 Brunker v. North. J-xcheqiicr. BEUNKER V. NORTH. 1880. Dec. L\ (By permission, from 15 Jr. L. T. R. 10.) Practice — Costs of Notice Party — 0. XV., rr. 18, SI — Judicature Atft, s. SS. A person on whom the defendant had served notice under O. XV., r. 18, obtained liberty to defend the action as to certain causes of action in tort, and the question of his costs was reserved. The jury having found for the defendant on all these causes of action ; and the Judge who tried the case being of opinion that no witnesses were called for the defence unnecessarily : — ndd, that the defendant should pay all costs properly incurred hy the notice party ; and that in ascertaining the defendant's costs of the same causes of action to be paid by the plaintiff, the witnesses called by the notice party should be taken to be witnesses for the defendant. Motion on behalf of M. Meade & Son (notice parties), pursuant ■to leave reserved at the trial, that their costs might be provided for and paid such person or persons as the Court should direct. The action arose out of injuries sustained by the plaintiff's house in Graf ton-street during the rebuilding of the adjoining house belonging to the defendant. Paragraphs 5 and G, and also paragraph 0, of the statement of claim stated special contracts by the defendant to protect the plaintiff's house from any injury. Paragraph 10 alleged that the ]:)laintiff was entitled to support for his said . house, from the defendant's house, and that defendant deprived the plaintiff of such support. Paragraph 11 stated that the defendant negligently and unskilfully pulled down his house, whereby, &c. ; and para- graph 12 was for trespass q. o. f. On 21st February, 1880, an order was made giving the defend- ant leave to serve a notice under O. XV., r. 18, on M. Meade & Son (the contracturs), claiming to be indemnified. On the 27th April, 1880, an order was made under O. XV., r. 21, giving , Meade & Son liberty to defend the action as regards the 10th, 11th and 12th paragraphs of the statement of claim, and to appear at the trial by counsel and solicitor, and to call witnesses and cross- examine the plaintiff's witnesses, and that Meade & Sou should be bound by the findings on the said paragraphs ; that certain amendments should be made in the defence already delivered ; that the plaintiff should give Meade & Son like notice of all proceedings 1880. Brunher v. North 215 in the action, including notice of trial, as he should give to the Exchequer. defendant ; that the question of the costs to be ultimately paid to or by the said Meade & Son should be reserved for the decision of the Judge at the trial and subject to appeal, and that in any event of the action -the plaintiff should not be liable for more than one set of costs. The action was tried before Fitzgerald, B., and a special jury, in November, 1880, and the jury, by direction of the Judge, found for the defendant in -respect of the causes of action mentioned in the 10th, 11th and 12th paragraphs of the statement of claim, and, with respect to the remaining causes of action, the jury found for the plaintiff with £900 damages, and the Judge directed the ques- tions between the defendant and Meade & Son to be argued before the Divisional Court. Serjeant Heron, Q.C., awdi Andrews, Q.C. (with them 1). Fitzgerald), for Meade & Son, in support of the motion ; — We were to defend as to lateral support, negligence and trespass. All these have been found for the defendant. , We have been acquitted of all blame, and someone ought to pay our costs. Holmes, Q.C, and Gerrard, for the defendant : — There is no jurisdiction under O. XV., r. 21, to make the defendant pay the costs of the notice party : Yorkshire Wagon Co. V. Neicport Coal Co. (1). [Fitzgerald, B. : — That went upon the ground that the notice party was not bound to come in]. [DoAVSE, B. : — In reserving Meade's costs we followed the decision of the Court of Appeal in Sheridan v. Midland G. W. Ry, Co. Do you contend that the Judge at the trial had no authority over Meade's costs?]. Yes. The plaintiff was in the wrong in joining the causes of action in tort; he should, therefore, pay all the costs occasioned by these. [Palles, C.B. : — We might say that witnesses properly called by Meade should be deemed witnesses for the defendant. (His lordship referred to Judicature Act, s. 53.)] There would still be two sets of general costs. The defendant's (1) 5 Q. B. D. 268. 216 Brunher v. North. Exchequer, case was not, and could not be, conducted along with Meade's. We submit that the provisions of the Judicature Act as to notice parties have entirely changed the position of a plaintiff. [PalleS, C.B. : — The plaintiff is entitled to bring an action to try a question at the risk of paying one set of costs if he fails.] Houston, for the plaintiff : — We submit we ought not to pay any part of Meade's costs : Williams v. South Eastern Ry- Co. (1). More witnesses were called than was necessary. [Dowse, B. : — If the defendant had made a complete defence by his own witnesses the case might be different. That depends on the facts.] Palles, O.B. : — We have no difficulty as to the order to be made. Meade was allowed to defend as to the causes of action in tort. He was in substance the person interested in these. No judgment could have been given against him in the action, but he would have been conclusively bound by the finding of the jury. He succeeded completely. The Yorkshire Wagon Co. v. Neioport Coal Co. (2) has been relied on to show that the notice party is entitled to no costs. I do not think that case well decided. It seems to me to give no effect to the words in O. XV., R. 21 — "upon such terms as shall seem just." By section 53 of the Judicature Act the costs of, and incident to, every pro- ceeding in the High Court of Justice are in the discretion of the Court, subject as therein mentioned. If the third parties, having notice, did not come in they would be bound by the issue sub- mitted to the jury, and in the event of collusion between the plaintiff and defendant judgment would go against them by default. In this case we are of opinion that the defendant should pay Meade's costs properly incurred, including the costs of this motion. The defendant contends that he ought to have these costs as well as his own over against the plaintiff. This would be directly contrary to our own order, by which the plaintiff is to pay only one set of costs in any event. Williams v. South-Eastern (1) 26 W. E. 352. (2) 5 Q. B. D. 268. Brunker v. North. 217 Ry. Co.{\) shows that a plaintiff is not to be saddled with the "^'^'^^g'^j'"'- extra costs of a third party under such circumstances. There are, however, some costs in fact incurred by Meade, which in sub- stance are costs of the defendant. My brother Fitzgerald is not prepared to say that any of the witnesses called for the defence were unnecessary. The witnesses produced by Meade will, there- fore, be treated as witnesses called by the defendant. Fitzgerald, B., concurred. Dowse, B. : — We will not follow the decision of the Queen's Bench Division in England, as it is inconsistent with the decision of the Court of Appeal in this country. As to the second point, no witnesses were called for the defence unnecessarily. This is not to be taken as an authority that if the original defendant made a complete case the third party might go through that da capo, and load the plaintiff with the extra costs. Ordered : — That the defendant do pay to the said M. Meade & Son their costs properly incurred in this action, including their costs of the order of the 27th April, 1880, and of this motion, when taxed and ascertained; and it is further ordered that, in taxing as between the plaintiff and the defendant, the said de- fendant's costs of the causes of action in the 10th, 11th, and 12th paragraphs of the statement of claim, the costs of any witnesses produced by the said M. Meade & Son in respect of the said causes of action are to be treated as witnesses for the defendant ; and that the plaintiff and defendant do abide their own costs of this motion. Solicitor for the plaintiff : J. D. Rosenthal. Solicitor for the defendant : Wm. Hayes. Solicitors for Meade & Son : D. ^ T. Fitzgerald. (1) 26 W. R. 352. 218 IJannan v. Laffan. S'^f^Q^er. HANNAN V. LAFFAN. 1881. Jan. 18 26. (Bppermiision, from 15 Ir. L. T. R. 32.) (Before Palles, C.B., and Fitzgerald and Dowse, BB.) Practice — Jud. Act, s. 53, sched. r. 22 — 0. XXI., r. 10 — Action aitd Counter- claim, both established — Form of Judgment — Costs — Distinction between Set-off and Counter-claim. In an action for assault, the defendant set up a counter-claim on foot of promissory notes made by the plaintiff to the defendant. The jury having found for the plaintiff on the assault with £100 damages, and that the plaintiff was indebted to the defendant in £100 on the counter-claim, and the Judge at the trial having ordered judgment to be entered for •the defendant with costs : The Court set aside this order, and ordered judgment to be entered for the plaintiff in respect of the action of assault for £100 with costs, and for the defendant in respect of the counter-claim for £100 with costs ; that the said sums and costs should be set off against one another, and that the party in whose favour there should be a balance should recover from the other the amount of such balance. Where the defendant establishes a strict set-off equal to or exceeding the plaintiff's demand, this amounts to a defence to the action, and the plaintiff cannot have judgment. But where the defendant establishes a counter-claim merely (as this does not amount to a defence), the plaintiff is entitled to judgment on his cause of action, and the defendant to judgment on his counter-claim ; these sums will then be set off against one another, and the party in whose favour the balance shall be will have judgment for the amount of such balance. Chatfield v. Sedgwick, 4 C. P. Div. 459, discussed. Motion, on behalf of the plaintiff, that the judgment directed to be entered for the defendant at the trial of this action should be set aside, and judgment entered for the plaintiff in respect of his claim for £100, and for the defendant in respect of his counter- claim for £100, and the said sums set off against each other, and that the plaintiff should have judgment for his full costs of suit. The action was for assault. The defendant traversed the cause of action, and by way of counter-claim relied on four promissoiy notes of the plaintiff, each for £50, due to the defendant. The plaintiff, besides replying specially, joined issue and traversed the making of the notes. At the trial at the I^imerick Summer Assizes, 1880, before Eari'y, J., and a jury, a verdict was had for the plaintiff on the Ilannan v. Laffan. 219 claim with £100 damages, and for the defendant on the counter- Excluquer. claim with £100, and the learned Judge directed judgment to he entered for the defendant with costs, reserving liberty to the plaintiff to move. The plaintiff having obtained a conditional order accordingly : J. Atkinson, Q.C., and G' Wright for the defendant, showed cause. The Jud. Act, sched. r. 22 and O. XXI., r. 10, show there can be only one judgment in the action. Here the plaintiff recovers nothing by his action, so judgment should be for the defendant, and carry costs as usual. It is not contended that a special order as to costs under the Jud. Act, s. 53, should be made in the pre- sent case. Where the defendant succeeds he ought to get his costs: Chatjield Y. Sedgwick (1). [Palles, C. B. — In Myers v. Defries (2) the Court of Appeal in England decided that there may be more than one " event " of an action.] There was no counter-claim there, and the case merely shows that the defendant gets his costs of the issues found for him, as he used formerly'. [Palles, C.B. — Ought not the judgment to be that the plaintiff is entitled to recover £100 in respect of his action for assault, with the costs ; that the defendant is entitled to recover £100 in respect of his counter-claim on the notes, with costs ; that the two sums be set off, and execution limited to the difference 1 Would not that be one judgment 1 Dowse, B. — You contend that the de- fendant ought to get the general costs of the cause. If that be right, a man who was owed £100 by another might assault the latter, provided he did not go beyond £100 with it, and the person assaulted could get nothing.] The plaintiff might have applied to have the counter-claim tried separately. [Palles, O.B. — It is a strong thing to allow a set-off or money to be paid into Court in an action of assault. It ought not to be extended further than the statute requires. Suppose the plaintiff sued you again for the same assault, what would be your defence ? (1) 4 C. P, Div, 459. (2).5 Ex. Div. 18Q. 220 Hannan v. Laffaiu Exchequer. Judgment recovered. That shows that each matter must be dealt 1881. . ° with specifically on the record]. [Fitzgerald, B. — The counter-claim might be for specific performance or an injunction. There would not be a balance then within O. XXL, r. 10]. Original Hartlepool Coll. Co. v. Gibb (1), and Staples v. Young (2), were also cited (3). W. O'Brien, Q.C. {Peter O'Brien, Q.C., and Cleary with him), for the plaintiff, contra. In Chatfield v. Sedgwick (4) the plaintiff was not entitled to any costs, as the amount found due to him was less than £20. In Cole, Marchant, ^ Co. v. Firth (5), the Court ordered the defendant to pay the costs of the plaintiff's claim, and the plaintiff to pay the costs of the defendant's counter-claim. A counter-claim must be distinguished from a strict set-off of mutual debts: Neale v. Clarke (6), Mason v. Brentini (7) (following Saner v. Bilton) (8), was the converse of the present case. Both claim and counter-claim were dismissed with costs, and the plaintiff had to pay the general costs of the' action, and the defendant only the amount by which the costs had been increased by reason of the counter-claim. Stoohe v. Taylor (9) is in our favour. [Palles, C.B. : — Judgment for the defendant would be that he go thereof without day. Why should that be when there is £100 against him ? As to the general costs of the action, I doubt if that is properly before us]. . Atkinson, Q.C, in reply : — The judge at the trial made an order giving us the costs, and you are asked to set that aside without reason assigned. [Fitzgerald, B. — As the judge states no reasons we must assume he acted on the ordinary case]. The counter-claim cannot be treated merely as an issue in the original action. The defendant might have brought a separate (1) L. E. 5 Ch. D. 713. (2) L. E. 2 Ex. r>. 324. (3) And see Baines v. Bromley, 6 Q. B. D. 197— Eep. (4) 4 C. P. Div. 459. (7) 16 Ch. Div. 287. (5) 4 Ex. Div. 301. (8) 11 Ch. Diy. 416. (6) 4 Ex. Div. 286. (9) 5 Q. B. Div. 669. Hannan v, Loffan. 221 action on the notes, and got the costs of it. To make him pay Exchequer- the general costs now would be to put a fine on him for having availed himself of the provisions of the Judicature Act. The order suggested would be contrary to Chatfield v. Sedgwick. [Palles, O.B. — There the order of reference seems to have contemplated only one event]. Our £100 ought to be treated as a set-ofF, or as paid into Court ; in either case we would be entitled to judgment, and to the costs of the action. [Dowse, B. — There can be no set-oif against unliquidated damages. Palles, C.B. — Money paid into Court could be drawn out by the plaintiff]. Palles, C.B. : — The only question now before us is, how judgment ought to be entered. We are not at present concerned with the result of the taxation of costs on that judgment. The first action was for assault, and the jury found a verdict for the plaintiff, with £100 damages. I am of opinion that the plaintiff is entitled to have it appear on the record that he has recovered £100 damages for assault, and that this must be so in the interest of the defendant himself, that be may have the defence of judgment recovered to a second action by the plaintiff for the same assault. As to the counter-claim on the promissory notes, it equally follows that there must be an adjudication on the record in respect of this. As to costs, section 53 of the Judicature Act provides that the costs of every action, question, and issue tried by a jury shall follow the event, unless, upon application made, the Judge at the trial or the Court shall, for special cause shown and mentioned in the order, otherwise direct. The learned Judge did not make an order to the contrary, nor do we propose to do so. Myers v. Defries (1) is a decisive authority that where two unconnected and independent causes of action are tried together the word " event " in the section must be read distributively. Myers v. Defries, indeed, goes further than is necessary for the decision of the present case, for there both the causes of action were brought by the plaintiff. (1) 5 Ex. Div. 180. 222 Hantian v. Laffan. Fscchequer. Accordingly, I am of opinion that the judginent should be 1881. somewhat in this form : — Therefore, it is considered that the plaintiff ought to recover £100 damages in respect of this action for assault, with costs, and that the defendant ought to recover £100 ill respect of his counter-claim, with costs. It will be for the Taxing Officer to ascertain what these costs are on each side. Now, these judgments are not final, but interlocutory, and v\e have used (1) the words "ought to recover," not "shall recover." But by the Judicature Act final judgment is to be entered accord- ing to the result of all the questions. The order will, therefore, direct that the lesser of these sums, when ascertained, shall be set off against the greater, and that execution be limited to the difference. One word as to the cases cited. Many may be put out of the question at present, as they arose on review of taxation. Mr. Atkinson says our decision is opposed to Chatjield v. Sedywick. That turned on the meaning of the word " event," not in the section of the Judicature Act, but in a reference under the arbi- tration clauses of the C. L. P. Act. Moreover, the counter-claim was for a balance on accounts between the parties. Under the statute of set-off that amounted to a defence to the action ; and where a defence to the action is proved, of course, the plaintiff cannot have judgment. But if it be not matter of set-off, but strictly a counter-claim, and the plaintiff establishes his cause of action, he must have judgment. Fitzgerald and Dowse, BB., concurred. Ordered: — That the plaintiff do recover from the defendant £100 damages in respect of the cause of action in the statement of claim, with costs ; and that the defendant do recover from the plaintiff £100 in respect of the cause of action in his counter- claim, with costs ; that the said sums and costs so recovered shall be set-off one against the other ; and that the party in whose favour there shall be a balance shall recover from the other the amount of such balance. The plaintiff to have the costs of this motion. Solicitor for plaintiff : J. Dundon. Solicitor for defendant : J. Ryan. (2) But compare the form of order given at foot, wiioh was settled by the Court— Kep. Ill re Merchant Shipping Act, 1854; Ex parte Allen. 223 In re MEECHANT SHIPPING ACT, 1854; Ex parte v.-Ohanedhr ALLEN. '^^'- 7zh. 28. (By permission^ from 7 L. K. Ir. 124). S Vict., c. 18, s. 80 — Entailed Lands Compulsorily Talcen — Purchase Money Lodged in Court and Invested — Disentailing Deed — Petition for Transfer out of Funds — Costs — Taxing Master. Upon a petition for the transfer to the petitioner of funds lodged in Court as the purchase money of lands taken by Commissioners under their compulsory powers, of which lands the petitioner was tenant in. tail in possession, the Court refused to direct that the costs of a deed disentailing the funds in Court were payable by the Commissioners. Semble, the Court will not specify what costs are properly payable within the 80th section of the Lands Clauses Consolidation Act, 1845, but will leave all questions on that point to the decision of the Taxing Master in the first instance. PETlTlOJf, praying for a transfer to the petitioner of the sum of £272 Is. 2d. Government New Three Per Cent. Stopk standing in Court to the credit of the matter, and that the Commissioners of Irish Lights might he ordered to pay to the petitioner the costs of the petition and all the costs incurred consequent thereon, pursuant to the provisions of the Lands Clauses Consolidation Act, including the costs of a disentailing deed of the 26th January, 1881. Christopher Allen, by his will, dated the 31st October, 1862, devised to Charles Frederick Allen and Henry Jones all his real estate upon trust, subject, as therein mentioned, to the use of his eldest son, the petitioner, and the heirs of his body lawfully issuing, with remainders over. The testator died on the 24th of October, 1 866, and his will was duly proved. Under the provisions of the Merchant Shipping Act, 1854, which incorporated the Lands Clauses Consolidation Act, 1845, the Commissioners of Irish Lights were empowered to take and purchase any lands which might be necessary for the purpose of erecting new light-houses ; and they duly gave notice to Charles Frederick Allen and Henry Jones that they required a piece of land, part of the lands so devised by the aforesaid will. The sum of £250 was duly settled by agreement as the amount to be paid as the purchase money for the said land ; and, on the 224: In re Merchant Shipping Act, 1854; Ex parte Allen. ^■'?oo^'""'*' ^^^ ^^ ^^y» 1873, the Commissioners^ of Irish Lights paid the 1881. sum of £250 into the Bank of Ireland, in the name and with the privity of the Accountant-General of the Court of Chancery, to the credit of the matter, which sum of £250 was, upon the petition of Charles Frederick Allen and Henry Jones, afterwards invested in the sum of £272 Is. 2d. Government New Three Per Cent. Stock, which was transferred to the credit of the matter. The petitioner attained twenty-one on the 24th of August, 1876, and by an indenture, dated the 26tli of January, 1881, he disentailed tlie said said sum of £272 Is. 2d. Government New Three Per Cent. Stock. There were no incumbrances affecting the Stock, and there was no question as to the right of the petitioner to the fund, or as to his being entitled to the general costs of the petition and the proceedings thereunder against the Commissioners. Mr. J. C, Lane, for the petitioner: — That the disentailing deed was necessary is shown by In re Limet'ich and Ennis Railway Co., ex parte Smyth (1). Under the 80th section of the Lands Clauses Consolidation Act, 1845 (8 Vict., c. 18), the petitioner is entitled to be paid all costs, except those caused by adverse litigation. In re Devisees of Nicholas Brooking v. The South Devon Railway Co, (2) is an authority that the costs of a disentailing deed should be paid by the Company. In Ex parte Vaudrey (3) it was held that even the costs of an unsuccessful attempt to invest the moneys paid in must be paid by the Company. In the form of decree given in " Seton on Decrees," p. 1,441 (4th edition), the costs to be paid by the Company are specified, and the only costs not there specified are those caused by adverse litigation. Mr. Rohertson, for the Commissioners of Irish Lights, said that, in a recent petition matter before the Master of the Rolls, where a deed disentailing the funds in Court had been executed, His Honor refused to direct the costs of the deed to be allowed upon the ground that, whether these costs should be allowed or not, it was a question for the Taxing Master. He submitted that this was (1) Ir. E. 10 Eq. 66. (2) 2 Giff. 31. (3) 3 GifF. 224. Eager v. Buckley ; Devitt v. Bijriie. 225 the more convenient practice, as otherwise the Company would ^--C Court. always be compelled to appear in Court in cases of the kind to see whether the deed was properly framed and confined to the fund in Court. The Vice-Ohancellor : — I think the course adopted by the Master of the Rolls is a con- venient one, and that it ought to apply to all cases in which general costs are given. The only thing which the Court should do is to adhere to the words of the section, and the Taxing Master will then decide what costs are properly incurred, and if lie goes wi'ong the parties aggrieved can have his taxation reviewed. Jn my opinion, a great deal of mischief is caused by giving special directions as to particular costs in a case, because then, if in any other case a special direction is not given as to similar costs, the Taxing Master will think that he should not allow them without an order. I shall make the order in the usual form. Solicitors for the petitioner : Messrs. Thomas JExham Sj: San. Solicitors for Commissioners of Irish Lights ; Messrs. T. 4: J^^ Fitzgerald. EAGER V. BUCKLEY; DEVITT v. BYRNE. (.Bi/ permission from 8 L. R. Ir. 99; s. o. 15 Ir. L. T. R. 60.) (Before the Full Cotjet.) [These two cases were heard together, the facts being similar.] Practice— Costs— Judgment by Default— Ousts of Motion to Substitute Service. Where a defendant upon whom service was substituted allowed judg- ment to go by default -.—Held, that the plaintiff in marking judgment was entitled to add to the sum allowed by Order YIII. Rule 2 (April, 1878), the taxed costs of the motion to substitute service. These were actions for rent, and judgment had been allowed to go by default. It appeared the plaintiffs had obtained orders to substitute service of the writ of summons, and the costs of the first action on taxation were ascertained to be £12 15«. On marking Queen's Bench. 1881. March 1. 226 Bell V. M'Nally. Queen's Bench, judgment, tlie Master of the Court refused to allow more than £4 6s. costs to be added to the debt, stating that under Order VIII., Rule 2, of April, 1878, no more could be allowed. Heivson and William Kenny, for the plaintiffs, argued that this rule did not provide for the present case, and referred to the repealing Rule 2, Order II., of June, 1879, as showing this by analogy. They contended also that under Rule 29 of Order X. (April, 1878), the practice under the Common Law Procedure Act of 185.3, section 34, was to be continued, which provides that in such cases the taxed costs should be included in the judgment. The Court held the plaintiffs entitled to have the taxed costs of the motion added to the amount of the judgment, and intimated that for the future the practice as to this matter was to remain as it had been under the old system. There was no appearance for the defendants. Co. Court. BELL V. M'NALLY. 1881. (By permission, from 16 Ir. L. T. R, It.) Dec. 29. (Before R. W. Gamble, Esq., Q.C.) Practice— Costs — Fee for Instructions to Plaintiff's Solicitor prior to Entry of Cicil Bill. Where the amount sued for by an ordinary civil bill is tendered before the entering of the civil bill, the plaintiffs solicitor is entitled to payment of the prescribed fee for instructions. This was a Civil Bill to i-ecover £15 19s. lie?, for the use and occupation of defendant's holding under the plaintiff. The rent was admitted to be due, and was tendered with certain costs to plaintiff's solicitor two days before the entry of the civil bill. The payment was refused on the ground that the costs did not include the fee for instructions, wliich is set out in the schedule prior to the fee for entry. On the question whether this fee is properly chargeable, the case came before the Court. Mr. B. A. Mullan, solicitor, for the plaintiff. Mr. A. Gartlan, solicitor, for the defendant. Greville v. Kirk. 227 The Judge held that the plaintiff's solicitor was entitled to C"- (^<""'f- 1 S8 1 chai'ge as against the defendant tlie fee for instructions before the entry of the civil bill, on the ground that it was reasonable, as it was necessary tliat a solicitor should have instructions to ascertain whether or not the case was one in which a civil bill should be issued, and the fees were graduated in proportion to the sum claimed, and without the fee for instructions the remuneration to the solicitor would be insufficient. GREVILLE V. KIRK. (By permission, from 10 L. R. Ir. 41.) (Before Laavson and Harrison, J J.) Cosfs — Ejectmejit — Overholdiiiq Tenant— Joinder of Claim for Mesne Rates — Land Law (Ireland) Act, 1881, Sect. 51 — County Court Jurisdiction. An action waa brought in a, Division of the High Court o£ Justice to recover possession of lands on the expiration of a lease for thirty-one years at a yearly rent of £40, under which the lands had been held, the writ of summons being issued before the passing of the Land Law (Ireland) Act, 1881. By his statement of claim, delivered in October, 188 1 , ^the plaintiff claimed to recover possession and mesne rates. A consent for judgment for possession and a sum for mesne rates was given by the defendant. Held, that the action for possession and mesne rates might have been brought in the County Court ; and that the plaintiff was, therefore, by sect. 51 of the Land Law (Ireland) Act, 1881, disentitled to costs. Motion, on behalf of the plaintiff, for an order that the Taxing Master should proceed to tax the plaintiff's costs. The action was brought to recover possession of certain lands in tlie County of Longford, held under lease dated the 21st of February, 1851, for a term of thirty-one years, at a yearly rent of £40, and made between Richard Greville, whose interest vested in the plaintiff, and John Burn Kirk, whose interest in the lease became vested in the defendant Anne Kirk. Tlie lease expired on the 25th of March, 1881. The writ of summons was issued before the passing of the Land Law (Ireland) Act, 1881 ; and on the 25th of October, 1881, the plaintiff delivered his statement of claim, by whicli he c'liinicil Com. Picas. 1882. Feb 10. 'Hi^ Greville v. Kirk, Com. Pleas, possession of the lauds, and £50 for mesne rates. On the 28th of I8S2 November the defendant delivered her statement of defence, and issue was joined. Notice of trial was served, but on the 1 5th of December, 1881, the defendant gave a consent for judgment for ])ossession of the lands and £27 for mesne rates, which consent was made a rule of Court. Possession was delivered to the plaintiff on the 3rd of January, 1882. The defendant remained up to that date in possession, after the expiration of the lease. The plaintiff having lodged his costs for taxation, the Taxing Master deferred taxing them pending a case in the Exchequer Division, in which it was supposed that the question as to the effect of the 51st section of the Land Law (Ireland) Act, 1881, would be raised for decision. The question, however, was afterwards argued before the Taxing Master, wlio, upon liearing the argument, was of opinion that, as tlie action might have been brought in the County Court, the plaintiff was not entitled to any costs, and refused to tax the costs accordingly. The plaintiff thereupon served notice of the present application, which, iiaving come on to be heard before Harrison, J., sitting to hear motions, was directed by his Lordship to stand for the Divi- sional Court. FaJoon, in support of the motion : — ■ The question here arises upon the 51st section of the Land Law (Ireland) Act, 1881. The opinion expressed by Palles, C.B., in Kearney v. Caldll (1), wliich will be cited on the other side, does not apply. In tliat case tiie rent was under £20. In this case the action is for over-holding on tlic expiration of a lease, and the yearly rent is- £40, and it was commenced two months before the Land Act was passed. The point was not practically discussed, as the application was made ex parte, and the Lord Chief Baron only granted a con- ditional order. The case does not scrm to liave gone further. Cassidy v. Logklen (2) was decided on the retrospective operation of a statutoiy provision .with respect to procedure. Wright v. Hale (3) also turned upon an enactment purely relating to pi-ocedure. The distinction between statutes altering procedure merely, and those interfering with vested riglits, must, no doubt, be admitted. (1) loir. L.T. R. 512. (2) 4 L. R. Ir. 731.. (3) 6 H. & N. 227. Grevilh v. Kirh 229 But assuming that tlie riglit to costs depends upon whether the Com. puas. action could be brought in the County Court, the general jurisdic- tion as to ejectment, " the determination of disputes and differ- ences respecting the possession of land held under leases," extend only to a rent not exceeding £30 (14 & 15 Vict. c. 57, s. 79; 40 & 41 Vict, c, 56, s. 53), and these provisions were reajly applicable only to actions between persons claiming the lessee's interest. The jurisdiction of the County Courts to entertain ejectments for over-holding was given by the 23 and 24 Vict. c. 154 ; but although the jurisdiction so conferred extends to lands let at any rent up to £100 a year, the section applies to the recovery of the lands, and nothing else. The power of the County Court Judge, then the Chairman of the County, was to " Decree the landlord to be put into possession of tlie said premises." Nothing is said about mesne profits where they have accrued after the determination of the lease. Tlie jurisdiction of the County Court is statutory, and it could not effectually assume any juris- diction beyond the express language of the section. Therefore, if the plaintiff sued in the County Court, he must have brought tw-o actions there — one for possession, another for mesne rates. This action was commenced before the alteration in the law effected by the 51st section of the Act of last Session. The writ of summons commences the action: Moore v. A Iwill (I ), in which the Exchequer Division did follow Large v. Large (2). The consent for judgment entitles a plaintiff to costs as much as if he had obtained a verdict : IJalbiac v. Delacour (3). T. X. 0' Shaughnessy, for the defendant : — The County Court would liave had jurisdiction in this case : see the 72nd section of the Landlord and Tenant Act, 1860. There is no ground for the contention that a claim for mesne rates cannot be made in a civil bill ejectment. Order 11. of the County Courts (1877), Rule 10, dealing with the joinder of causes of action in the County Courts, provides that no cause of action shall be joined with an action for the recovery of land, except claims for mesne rates or arrears of rent in respect of the premises sought to be recovered, • thus contemplating the joinder of such (1) 8 L. K. Ir. 245. (2) W. N., 1877, p. 198. (3) L. E. 10 Exoh. 210. 230 Gremlle v. Kirk. Com. Pleas, eauses of action in a civil bill eiectmenl. This was, therefore, an 1882 action in which the plaintiff could have sued and recovered all that he was entitled to in the County Court. In such a case, section 51 of the Land Law (Ireland) Act, 1881, is express that the plaintiff, if he elects to sue in the Superior Court, shall not be entitled to costs unless the Judge at the trial or the Divisional Court otherwise direct. No special case is attempted to be made here to justify the Court in departing from the general rule of the statute. Lawson, J. : — The action for the recovery of the land in this case is one which could have been brought in the Civil Bill Court,- but it has been contended that tlie joining a claim to recover mesne rates takes the case out of the provision in the statute disentitling the plaintiff to costs. I am not aware of anything to prevent the plaintiff in the Civil Bill Court from claiming mesne rates by his ejectment, and the rule to which we were referred seems to contemplate it. There is a discretion vested in the Court to give costs under special circumstances, but we are not asked to exercise that dis- cretion. This is an ordinary case of an ejectment, which might have been brought in the Civil Bill Court, and we must, therefore, refuse this motion, which asks for a direction from the Master to tax the costs. Hakrisox, J. : — I am of the same opinion. I allowed the matter to stand over as involving a point of some consequence under the recent Land Act. I consider the Master's decision was right. The question is, could the plaintiff have sued for the recovery of the land sought to be recovered in this action in the Civil Bill Court? There is no question he could. It is true he brings a claim for mesne rates; fcut the Eules of the Civil Bill Court show that he could have joined a similar claim in his ejectment proceedings in that Court. If so, the case is clearly within the provisions of the 51st section of the Land Law (Ireland) Act, 1881. Motion refused. , Solicitor for the plaintiff : ./. Wilson, junior. Solicitor for the defendant : L. ]\J. Fleming. Scully V. Mandeoille. 231 SCULLY I'. MANDEVILLE. {^y per mission t from 10 L, R. Ir. 327.) (Before Mat, C.J., and Lawson, J.) Land Law {Ireland) Act, 1S81. — The Landlord and Tenint Law, Ameiid- metbt, Act (Ireland), 1860 — Writ of Restitution — Costs when rent is under £100 per annum. When a holding at a rent under £100 per annum has been evicted for non-payment of rent, the tenant or other party having a specific interest in the holding is entitled to a vrrit of restitution, under 23 & 24 Yict., 0. 154, without paying the costs of the action. This was an application by the defendant that on lier lodging in Court to the credit of the action the sum of £83 lis., being the amount of the rent sued for, and arrears, up to the date of the execution of the habere, an order might issue to restore the defendant to the possession of the lands. It appeared from the affidavit of the defendant that she was served with a writ of summons in ejectment for non-payment of £55 Os. 8d., one year's rent of part of the lands of Mullough, in the County of Tipperary, and that she not having entered an appearance, judgment had been marked in the action by default for possession of the lands. The amount endorsed upon the writ of habere was £55 0«. 8d. for rent due out of the lands, together with the sum of £10 15s. Id. for the costs of the plaintiff. The defendant, two days previous to the hearing of the application, lodged in Court the sum due for rent without costs. A. Cleary, for the defendant : — We are entitled to redeem on payment of tiie rent, without costs: section 71 of the Landlord and Tenant Act of 1860, and section 51 of the Land Law (Ireland) Act, 1881. The landlord is not entitled to any costs of an action of ejectment for non- payment of rent which he brings in the Superior Courts when the Civil Bill Court would have jurisdiction. In this case the Civil Bill Court had jurisdiction, the rent being under £100. Q. B. Div. 1882. Not. 8. 1882. 232 Scully v. Mandeville. Queen's Sench. John Murray, for the plaintiff: — By the 70th and 71st sections of the 23 & 24 Vict., c. 154, the tenant, or person having a specific interest iu the tenancy, must pay the rent, arrears thereof, with full costs, or lodge the same in Court within six months after the execution of the habere, in order to redeem. These costs are not personal costs. In this case judg- ment was obtained for default of appearance, and therefore the judgment was only for the possession. This would have been the case, no matter what the amomit of the rent. Tlie Land Law (Ireland) Act, 1881, therefore does not apply; the plaintiff does not seek any costs or other relief, the action is at an end, and the judgment executed. It is the defendant who seeks relief. The tenant is obtaining in a summary way the relief which formerly Avould be the subject of a redemption bill in equity. In such cases the landlord was indemnified, and got solicitor and client costs. In order to recover costs a separate action should be brought. By the rulesof Court the judgment is in rem — merely for possession ; no costs are given. It is, therefore, clear that the costs are not necessarily tliose given in the action. This is made manifest from the fact that a mortgagee or other party having an interest in the premises, although not a party and not served, could apply for restitution. Tlie defendant can have the costs taxed ; the amount is large, because the writ had to be served by posting on the police station, mider the Rules of 27th December, 1881. The granting of the restitution is discretionary with the Court, and the fact that the writ had to be so served is an additional reason for makin^g the tenant pay the costs. In any event the defendant should pay the costs of the motion : O' Farrell \. Cloran (1), where the form of the order is given. May, C.J. :— It is provided by the 51st section of the Land Law (Ireland) Act, 1881, that "Whenever an action . . . for the recovery of land, whether for non-payment of rent or for overholding, is brought in the High Court of Justice in Ireland, in any case in which the plaintiff in such action could have sued for the recovery of such land in a Civil Bill Court, the plaintiff in such action shall (1) I. E. 5 C. L. 442. Scully V. Mandeville. 233 not be entitled to any costs unless the Judge before whom such Queen's Bench. 1009 action is tried, or the Divisional Court to which such action is attached, shall by order declare the said plaintiff entitled to costs." The defendant in this case contends that she is entitled to restitu- tion of her holding on paying the rent and arrears, without any costs, it being admitted that the case falls within this Act, and we think she is so entitled. It is true that under previous statutes an evicted tenant applying for restitution was obliged to lodge in Court " the rent and arrears thereof and full costs." But in the present case the Act of 1881 has provided that the plaintiff, the lessor, shall not be entitled to costs, and it seems clear that no costs being due none should be lodged. LaWSON, J. : — The plaintiff in this case insists that the defendant is bound, in order to redeem the evicted lands, to lodge the costs in addition to the rent. He has furnished a bill of costs, and it is argued that the amount of those costs, when taxed, should be lodged in Court. But the Land Act provides that, where an ejectment is brought in the Superior Court which might have been brought in the .County Court, the plaintiff shall not be entitled to any costs : that is this case. Judgment was obtained by default, and there is no judg- ment for costs. Costs can only flow from the judgment of the Court; here there could be no such judgment, as the Act of Parliament deprives plaintiff of costs. Solicitor for the plaintiff : Cavanagh. Solicitors for the defendant : O'Riordan and Mandeville. 234 Simpson v. Wilson. Assize,, SIMPSON V. WILSON. 1883. July 11. {Bi/ permission, from 17 Ir. L. T. 546.) (Before Palles, C.B.) Practice — Costs — Civil Bill — Amount sued for greater than sum recovered. Civil bill appeal. — The appellant, Simpson, had been solicitor for the plaintiff in the case of Wilson v. Devlin in the Armagh County Court, in which the plaintiff had sued for £50 damages, but obtained a decree for only £15, from which lie had appealed, when the amount was increased to £35. Mr. Simpson then fur- nished his bill of costs to Wilson, who refused to pay the amount claimed according to the Schedule of Fees, as on the £35. Ac- cordingly, Mr. Simpson took proceedings against Wilson, seeking to recover £2 12s. Gd. The County Court Judge granted a decree for only £1 17s. 6d., as upon the amount for which he had given the decree in Wilson v. Devlin, and as payable thereon as between attorney and client. Palles, C.B., held that the appellant was entitled to fees on the original sum sued for (£50), according to the Schedule of Fees, and not on the amount recovered, whether in the Civil Bill Court or on appeal, but observed that, as a check against filling up civil bills for excessive amounts, the Court would exercise a discre- tion, considering whether or not the amounts claimed were reason- able and right and in accordance with the instructions received from the clients. IiL re Beck; lit re Cavtivgton Estate. 233 In re BECK; In re CARTINGTON ESTATE. Vice-Chan. 1883. {By permissim, from 24 Ch. Biv. 60S | s. c 31 W. R. 910 ; 49 L. T. 95 ; 62 L. J. Ch. 815. ) Settled La/nd Act, 188S—Sale by tenant for life— Solicitors' Bemuncration Act, 1881 — General Order — Solicitors' rermmeration in respect of business connected with sales — Auctioneer's charges. Settled property -which had been put up for sale by auction by the tenant for life under the Settled Land Act, 1882, but withdrawn for want of any sufficient oflfer, having been sold by private contract on the same day : — Held, on summons by the trustees for the decision of the Court, that one charge, according to the scale set out in Part I. of Schedule 1 of the General Order under the Solicitors' Remuneration Act, 1881, was payable out of the purchase-money to the tenant for life's solicitor for conducting the sale, including the conditions of sale, and one charge for deducing the title and completing the conveyance, including the preparation of the contract ; and that the costs of the concurrence in the sale by the mort- gagees of the tenant for life, and a proper sum for the auctioneer's charges, were also payable out of the purchase-money. Adjourned summons for the purpose of obtaining the direction of the Court as to payment of costs of a sale of settled property by the tenant for life under the Settled Land Act, 1882. In January, 1883, W. A. Beck, the tenant for life under the ■will of Thomas A. Beck, of the Cartington estate, with the con- currence of his mortgagees, advertised the Cartington estate for sale by auction under the provisions of the Settled Land Act, 1882. At the auction the property was withdrawn, no sufficient offer being made, but it was, on the same day, shortly after the attempted auction, sold by private contract, through the instrumentality of the auctioneer, for £37,500. Previously to putting up the pro- perty for sale by auction it was arranged between the vendor's solicitors and tlie auctioneer that the solicitors should draw the advertisements, conduct the advertising, prepare the particulars, and superintend the preparation of the plans, and that the auctioneer should receive one-quarter per cent, on the purchase-money if the property was sold at the auction or afterwards through his agency. Questions having arisen as to the payment of the costs and charges of the sale, this summons was taken out on behalf of the trustees (and adjourned into Court), asking that they might be at July 31. 2.36 In re Beck ; In re Cartington Estate. '^ I'sss'"'^'' ^^^^^^J^ ^^^ ^^ *^1'6 proceeds of tlie sale of the estate, to pay the solicitors of the tenant for life a commission for conducting the sale of the Cartington estate by public auction, including the con- ditions of sale, and also a commission for deducing the title thereto, and perusing and completing the conveyance thereof, according to the scale set out in Part I. of the 1st schedule of the General Order under the Solicitors' Remuneration Act, 1881, and also be at liberty to pay to the solicitors of the mortgagees of the tenant for life their proper charges in connection with the sale, according to the scale set out in the 2nd schedule of the same order, and also be at liberty to pay or retain the proper charges of their (the applicants') solicitors in connection with this matter according to the last-mentioned scale. Wolstenholme, for the trustees : — The attempted auction and actual sale by private contract were really one transaction, and the solicitors for the tenant for life are therefore entitled to one commission only for conducting the sale and for deducing title to the property and perusing and completing conveyance, and not to commission on the reserved price, and also to one-half of the commission for negotiating the sales accord- ing to Rule 2 of the 1st schedule of the General Order under the Solicitors' Remuneration Act, 1881. They are not entitled to repayment of the auctioneer's commission of one-quarter per cent, as by the General Order, Rule 4, the remuneration prescribed by Schedule I. to the order "is not to include auctioneer's or valuer's charges." The costs occasioned by the concurrence in the sale by the mortgagees must be paid by the tenant for life. Under the old practice the trustees would have been the persons selling, and the expenses of the mortgagees, whose concurrence in the sale was necessary, would have been paid out of the capital, but this rule no longer applies. Shebbeare (Hemming, Q.C., with him) for the tenant for life: — By the Settled Land Act, 1882, section 53, the tenant for life, in exercising the powers of the Act, is in the position and clothed with all the powers and duties of a trustee; and by section 21 (x.) capital money arising under the Act may be applied in payment of In re Beck ; In re Cartinglon Estate. 237 costs, charges, aiid expenses of or incidental to the execution of the >^--C. Court. powers given by the Act. Tlie vendor is therefore entitled to receive out of the purchase-money the costs and charges mentioned in the summons — i.e., the commission for conducting the sale and commission for deducing the title and completing the conveyance— and, under Rule 5 of Schedule 1 of the General Order, to the charges occasioned by the concurrence of the mortgagee's solicitor. We also submit that although by Rule 4 the remuneration pre- scribed by Schedule I. does not include auctioneer's charges, the vendor's solicitors should he allowed these charges, which have been paid by them pursuant to the arrangement made previously to putting up the property for sale. Bacon, V.C,, holding that the attempted sale by auction and the actual sale by private contract must be treated as one transac- tion, directed tliat the trustees were to be at liberty to pay out of the purchase-moneys one commission for conducting the sale, in- cluding the conditions of sale, and also commission for deducing the title and perusing and completing the conveyance according to the scale of charges contained in Schedule 1, Part I., to the General Order under the Solicitors' Remuneration Act, 1881, and also the costs occasioned by the concurrence in the sale of the tenant for life's mortgagees. The trustees were also to be at liberty to pay out of the purchase-moneys a proper sum to the auctioneer for his charges, which had been paid by the tenant for life, in addition to the scale payable to the solicitors. MINUTES OF ORDER.— Let the applicants be at liberty, out of the proceeds of sale of the above-mentioned Cartington estate, to pay Messrs. H. cfc M., the solicitors of the tenant for life, W. A. Beck, his costs of the sale, on the principle that there is to be one charge according to the scale set out in Part I. of the 1st schedule of the General Order made in pursuance of the /Solicitors' Remuneration Act, 1881, for conducting the sale of the above- mentioned Cartingtmi estate by public auction, including the conditiens of sale, and one other cliarge, according to the same scale, for deducing the title to the said Cartington estate, including the preparation of contract for title. And let the applicants be at liberty thereout also to pay to Messrs. J. H. & P., the solicitors of the mortgagees of the said tenant for life, their proper charges in coiinection with the said sale according to the old system as altered by the 2nd schedule to the said order. And let the applicants be at liberty thereout also to pay to the auctioneers a commission of one-quarter per ceht. on the amount of the purchase-money of the said estate for their charges of the sale. 238 In re Lacey 8f Son. V.-O. Court. And let them also be at liberty to pay or retain the proper charges of Messrs. 1883; j^_ 2). & Co., their solicitors, in connection with this matter according to the scale set out in the 2nd schedule to the said General Order. Costs of all parties of this application to be taxed and paid and retained by the applicants out of the said proceeds of sale. Solicitor: Mills, Doivson ^ Co. ; Johnston, Harrison ^- Powell, affent for Harrison Sf Milne, Kendal. Court of Am. In re LACEY & SON. 1883. (By permission, from 25 Ch. D. 301 ; 8. c. 32 W. R. 233 ; 49 L. T. 755 ; 63 L J. Ch. 287 ) v.c, Nov. 17. Solicitors charges — Taxation — Pressure — Rules under Solicitors' Remuneration 5'-^- Act, 1881 (44 d: 45 Vic, c. H)— Percentage. Dec. 12, 13. A tenant having an option of purchase of the fee at a given price on the terms of his paying all the vendor's costs, gave notice in December, 1882, of his exercise of the option, and stated that he should not require an abstract of title. The time for completion was the 2oth March, 1883, but it was arranged for the tenant's convenience that the completion should be six weeks earlier, and that the property should be conveyed in two lota. He sent his draft conveyances for perusal before the end of December. On the 2nd of February, 1883, the vendor's solicitors sent in their bill of costs, in which they charged 303. per cent, on the pur- chase-money of each lot, considering that this was the proper charge under Schedule I. to the general rules under the Solicitors' Remunera- tion Act, 1881, which provides that amount of remuneration to a vendor's solicitor "for deducing title to freehold, copyhold, or leasehold property, and perusing and completing conveyance (including preparation of con- tract or conditions of sale, if any)." The purchaser's solicitors objected to these charges, but the vendor's solicitors refused to allow completion unless they were paid, and on the 14th of February the purchaser paid them under protest, and completed the purchase. After this he applied for taxation of the bill. Held, by Bacon, V.C, that an order must be made for taxation of the bill with a direction that the taxation should be on the old system prevailing before the Solicitors' Remuneration Act, 1881 : — Held, on appeal, that the case was governed by the new Rules, but that the bill was framed on an erroneous footing, for that the ad valorem remuneration authorised by Schedule I. was chargeable only where the whole of the business in respect of which it was imposed — viz., the deducing title and perusing and completing conveyance —was done ; that here, as there was no deducing of title, but only perusal and completion of the conveyances, Schedule I. did not apply, but that under the General Order, rule 2 (c), the solicitor's remuneration was to be regulated by the old system as modified by Schedule II. But lield, that having regard to the dates, there was no pressure, and that there was no overcharge amounting to fraud, and that there were therefore no special circumstances to authorise taxation after payment. In re Lacey Sf Sou. 239 By an agreement, dated the 19th of December, 1881, between A, Appeal. 1883 H. Parken, thereinafter called the lessor, and 0. A. D. George, thereinafter called the lessee, it was agreed that, as soon as the lessee should have erected and covered in certain houses on the piece of land therein mentioned, the lessor should grant him a lease of it for ninety-nine years from the 29th September, 1881, at the rent therein mentioned, payable on the four usual quarter days. It was provided that this lease should contain an agreement that if the lessee, his executors, administrators, or assigns, should at any time within the first five years of the demise give the lessor notice in writing of his or their intention to purchase the reversion in fee simple at the price of £2,205, then the person or persons giving such notice should purchase the reversion at that price, subject to the conditions thereinafter contained, among which were the following : — "1. The purchase-money shall be paid and the purchase completed on such one of the quarterly days hereby appointed for payment of rent as shall happen next after the end of three calendar months from the date of such notice. 3. Uiion payment of the purchase-money and all arrears of rent at the time aforesaid, "the vendor shall execute a proper conveyance of the said premises to the purchaser, to be prepared by and at the expense of the purchaser, and sliall contain the like covenants on the part of the purchaser as are hereinbefore contained on the part of the lessee to pay the expense of maintaining and keeping in repair the said road, sewer, and footway, and not to erect any additional building, wall, or fence, or make any alterations in the plan or elevation of the said messuages and premises without licence of the vendor, nor carry on any trade or business, or do any act which may be an annoyance or disturbance to the vendor or his tenants or the neighbourhood. The person or persons to whom such conveyance shall be made shall execute and deliver to the vendor a duplicate of the said deed of conveyance, such duplicate to be prepared by the solicitor of the vendor, and the costs thereof and all other costs of the vendor of and attending the said pur- chase, or incidental thereto, including the abstract of title, shall be borne by the purchaser. 4. The vendor shall within one calendar month from the date of such notice as aforesaid deliver to the purcliaser or his solicitor an abstract of the vendor's title 240 In re Laoey ^ Son. ^Jf^f" to the said premises, such title to commence with an indenture of conveyance to the vendor dated the 19th of October, 1881, and the purchaser shall make no objections or inquiry as to the earlier title."' By a subsequent agreement the terms of this agreement were varied, and the purchase-money was increased to'£2,362 10s. In December, 1882, George gave two notices of his intention to purchase, one notice relating to part of the property and the other notice to the remainder. The solicitors of George gave notice to Messrs. Lacey & Son, the solicitors of Parken, that no abstracts of title would be required, and the draft conveyances were forwarded for perusal on the 29th of December, 1882. The length of each was about twenty-eight folios. The time for completion was the 25th of March, 1883, but at the purchaser's request the completion was arranged to take place about six weeks earlier. The rules under the Solicitors' Remuneration Act, 1881, came into operation from and after the 31st of December, 1882. On the 2nd of February Lacey & Son sent to George's solicitors an account of what George would have to pay on completion, .including the following item: — " Our costs, as per other side, and stamps paid for you - _ _ £50 10.,." Adding the note, " Your conveyances being unstamped, we have had to stamp them and to get denoting stamps affixed." The account of costs was as follows : — " Messes. Lacey & Son's Charges. " Parken to George. " 1883. Feb. 2. " As to conveyance of plot for £1,125 " Perusal on behalf of Mrs. Rotton and Mr. Dwarris " Stamp on conveyance " ,, duplicate " As to conveyance of plot for £1,237 10«. - " Perusal on behalf of Mrs. Rotton and Mr. Dwarris " Stamp on conveyance " ,, duplicate £ s. d. 16 10 s 2 - 5 15 5 - 17 10 s 2 - 6 5 - 5 £50 10 0" Ill re Lacey Sf Son. 241 Mrs. Rotton and Dwarris were mortgagees who concurred in ^fi^f'- the conveyances. George's solicitors on the otli wrote to Lacey & Son objecting to a charge being made according to the percentage scale fixed by the new Tlules : — " The purchase being carried out under an agreement made long before the Rules came into operation, and when no such charge for costs could have been contemplated by the purchaser, we do not think that the scale applies." They went on to propose that the purchase should be completed on pay-- ment of the amount claimed exclusive of the £50 10s., letting that stand over until the amount could be settled. Lacey & Son declined to accede to this proposal or to part with the deeds except on payment of the whole sum ; and on the 14th February George's solicitors wrote to Lacey & Son a letter inclosing cheques for the full amount, stating that the delay which would be entailed by taxation would be so prejudicial to the pur- chaser that he had directed them to pay the costs, but only under protest, and that unless a settlement could be come to they should apply to have them taxed. On the 21st the deeds, duly executed, were sent to the purchaser. On the 4th of October, 1883, a summons was taken out on behalf of George to have the bill taxed, and was adjourned into. Court and heard before Vice-Chancellor Bacon on the ITtli of November, 1883. T. Brett, for the purchaser : — "We ask to have the solicitor's bill taxed according to the at^ree- nient of December, 1881, under the scale in force before tiie General Order under the Solicitors' Remuneration Act, 1881, came into operation. At tha time when the agreement of the 19th December, 1881, was entered into, the General Order under the Solicitors' Remuneration Act, 1881, had not been issued, and it is contemplated by the Act, sees. 2, 4, that the provisions of the Act are not appUcable until the General Order shall have come into operation. Reliance \^ill be placed on sec. 7, which provides' that as long as any General Order under the Act is in operation taxation shall be regulated thereby ; but sec. 8 enables a solicitor and client to agree on the form and amount of remuneration and 242 In re Lacey 4' Son. ^PP'"^- contract themselves out of the Act. In this case the parties must 1883. 1. 1 * 1 be presumed to have made their contract according to the law as it then existed (before the Act). But we rely mainly on the fact that everything was practically completed except the engrossing and execution of the conveyance before the 1st of January, 1883, from which date the General Order under the Act came into force. Tlie purchaser has not lost his right to have the bill taxed, as the solicitors refused to allow the transaction to be completed until the bill was paid, and, therefore, .payment was made under what has been held to amount to pressure such as to justify taxa- tion after payment: Morgan and Wurtzburg on Costs, page 449; J71 re Newman (1) ; Re Pugh (2). F. W. Bush, for Messrs. Lacey & Son, the solicitors: — Tlie business relating to the purchase was not transacted until after the 31st of December, 1882 — the conveyance having been signed in February, 1883 — and, therefore, by sec. 7 of the Solici- tors' Kemuneration Act, 1881, the taxation, if directed, must be regulated by the scale under the General Order which had then (?ome into operation. We submit, further, that this is not a case in which the Court will direct taxation on an application not made until eight months after payment of the bill. There was no pressure, as the pur- chaser had ample opportunity for examining the bill, which was delivered fourteen days before the date fixed for completion. He cited In re Barrow (3) ; In re Neate (4) ; In re Welchman (5) ; Re Pugh (6). Bacon, V.C. : — There is clear evidence of pressure in this case, so that the pur- chaser is entitled to have the bill taxed. The real question to be decided, however, is as to the effect of the Solicitors' Remunera- tion Act, 1881. From sec. 4 it is clear that it did not come into operation, and tliat the old practice was to subsist until the General Order to be made under the powers given by the Act should have come into force. (1) Law Rep. 2 Ch. 707, (4) 10 Beav. 181. (2) 32 Beav. 173 ; 1 D. J. 4& S. 673. (5) 11 Beav. 319. (S) 17 Beav. 547. (6) 'il Beav. 173 ; 1 D. J. & S. 673. In re Lacey Sf Son. 243 In this case every one of the particulars mentioned in sec. 4 to Appeal. be taken into consideration in determining the amount of remune- ration had been disposed of before the new Act came into opera- tion. The capital was known, all skilled labour had been per- formed, and all the documents had been prepared before the 31st December, 1882 ; but the conveyance had not then been executed. Sec, 7, which says that as long as any General Order under this Act is in operation the taxation of bills of costs of solicitoi's shall be regulated thereby, does not apply to transactions so far advanced as this was. In' this case all the important matters had been performed before the Act came into operation, and nothing was done afterwards but the mere formal completion of the purchase. Nothing whatever, therefore, havingbeen done under the Act of 1881, taxation must take place under the old orders; and I direct the bill of Messrs. Lacey & Sou to be taxed, regard being had to the scale in force prior to the General Order made in pur- suance of the Solicitors' Remuneration Act, 1881. Summons allowed with costs. Lacey & Son a])pealed. The appeal came on for hearing on the 12 th of December, 1883. Millar, Q.C., and Bush, for the appellants: — First, we say that the bill cannot be taxed at all, as no applica- tion to tax was made until after payment. The petitioner had the bill in his hands from the 2nd to the 14th of P'ebruary, and then paid it, so tiiere was no pressure, and it is not alleged that there are overcharges amounting to frauds. Secondly, supposing the bill taxable, it ought to be taxed under the new rules made under the Solicitors' Remuneration Act, 1881, which were to take effect from the 31st December, 1882. Brett, contra: — Tiie Vice-Chancellor thought that as the agreement had been entered into in 1881, and the negotiations had been completed in 1882, before the period covered by the new orders, the old scale of 244 ]ii re Laeey 4' ^^"• AppecU. charges ought to apply. But supposing the case comes under the new rules, the first rule of the General Order provides that the schedule shall not apply to land the title to which is registered, which shows that it was intended that the scale should apply only in cases where tlie ordinary course of a sale is carried out. Here nothing was done but perusing a couple of short drafts. The work for which the ad valorem chai'ges are given in Schedule I., Part I., was not done. That scliedule, therefore, is inapplicable, and the ease comes, by virtue of Rule 2 (c), under the old scale as modified by Schedule II. I contend, however, that the Vice- Cliancellor was right in holding the case not to be within the new rules at all. The Act is not retrospective, and cannot apply to a contract entered into before it : Ward v. Uvre (1). There was sufficient pressure to authorise taxation : In re Newman (2) ; Re Pugh (3). Millar, in reply : — Pjessure is out of the question, for the purchaser was not bound to complete till the 25th of March, and he chose to complete in February for his own convenience ; the pressure was on his side. There is no case where the refusal to hand over deeds until the solicitor's claim has been satisfied has been held to amount to pres- sure where the bill has been delivered so long before as here : In re Welcliman (4). The remarks of the Master of the Rolls in In re Harrison (5) apply here ; tliere is no ground for taxation but alleged overcharge. [Cotton, L.J. — Is there not more than that — a charge for work which has never been done ?J The solicitors honestly made out their bill in this way, considering that under the Act they had no option. The charge seems high, but -the object of the Act and Rules was to give an average. In some cases the percentage gives an unreasonably large amount of remuneration for tlie work done ; in others it gives it as much too little. (f) 15 Ch. D. 130. (4) 11 Beav. 319. (2) Law Sep. 2 Ch. 707. (5) 10 Beav. 57. 13) 32 Beav. 173 ; 1 D. J. & S. 673. In re Lacey <|' So'>^- 245 CdTTON, li. J. :— Jppeal. 1888. This is an appeal by Messrs. Lacey & Son from an order for taxation of their bill of costs, with a direction that the scale con- tained in the General Orders under the Solicitors' Remuneration Act, 1881, does not apply. Tlie appeal is based on two grounds ; first, that the Judge was wrong in saying that the new scale does not apply ; and, secondly, that the bill could not be taxed at all, for that it had been paid, and there were no special circumstances to authorise a taxation. In the view we take of the case it is not necessary to decide whether the new scale applies; but, as the point has been fully argued, and is of general importance, we will give our opinion upon it. We are of opinion that if the business done had been business within the description of the business to wli'ich Scliedule I. applies, it would properly be charged for according to that schedule. But what has been done here is to make the ad valorem charge of 30«. per cent., which the rules authorise a vendor's solicitor to make for " deducing the title to freehold, copyhold, or leasehold property, and perusing and completing conveyance (including preparation of contract or conditions of sale, if any)." In the present case there was no deduction of title, for the purchaser, a hen he gave' notice of his intention to purchase, stated that he did not want an abstract. All that Messrs. Lacey and Son did was to peruse the two deeds sent them by the purchaser's solicitor, each being about twenty-eight folios in length, to procure their execution, and to attend the completion. For this business £16 10«. was charged in respect of one lot and £17 10«. in respect of the other. These charges appear to be largely in excess of what could reasonably be charged. In my opinion the rules do not authorise the charging the percentage there mentioned, unless the work there mentioned as being the work for which it is chargeable has in substance been done. I consider, therefore, that the percentage here claimed was not chargeable, but that the case is governed by Eule 2 (c). " In respect of business not hereinbefore provided for, connected with any transaction the remuneration for which, if completed, is hereinbefore or in Schedule I. hereto prescribed, but which is not, in fact, completed .... and in respect of all other deeds or documents, and of all other business theremuncraticn for which 246 In re Laeey .§• Son. Appeal, is not hereinbefore, or in Schedule I. hereto, prescribed, the remuneration is to be regulated according to the present system as altered by Schedule II. hereto." In my opinion, then, asthe work of deducing title has not been done, the case is one not provided for by Schedule I., and falls -within Schedule II. The bill, then, as it appears to me, contains serious overcharges, but in my opinion we cannot, without over-ruling the whole current of decisions, direct a taxation. After payment special circum- stances are requisite to authorise taxation, and these special circumstances must be pressure and manifest overcharges, or overcharges so gross as to amount to fraud. It cannot be said that these are overcharges amounting to fraud, and 1 think that pressure is not shown. The bill was delivered six weeks, before the time fixed for completion, and though the time for completion was anticipated, that was at the desire of the purchaser, and the bill had been in his hands nearly a fortnight before the time of actual completion. Under these circumstances I cannot think that there was pressure. The cases nearest to the present are cases where the bill was not delivered till the time of completion ; but that is a very different state of things. If when parties are met to complete the bill is for the first time produced, and the solicitor refuses to allow the matter to proceed unless it is paid, thit is pressure ; but the case is quite different when sufficient time has been allowed to consider the bill. I am of opinion that the order of the Vice-Cbancellor must be discharged. LiNDLEY, L.J. : The first question is whether this bill can be taxed at all after payment; and, witiiout attempting to define what are sufficient special circumstances to authorise a taxation, I agree that we cannot say that such circumstances exist here. The time fixed for com- pletion was the 25 th of March, but for the purchaser's convenience the purchase was completed on the 14th of February. The bill had been sent on the 2nd. These dates are sufficient to show that there was no pressure, and the bill, therefore, was not liable to taxation. This is all that it is necessary to decide; but a question of general importance has been argued on which we think it right to i>i\ c our opinion. Tlic bill is framed on the supposition that the til re Lacey S,- Son. 247 new rules apply, and that supposition, I tliiiik, is riglit ; but it is Appeni. also framed on the supposition that Schedule I. applies, and that, in my opinion, is wrong. I think that the 30s. per cent, can only be charged in the case provided for : viz., where substantially the whole of the work mentioned — i.e., deducing the title and perusing and completing the conveyance — is done. The rules cannot, in my opinion, be construed as authorising the solicitor to charge the percentage where he does nothing but peruse and complete the conveyance. Fky, L.J. :— I regret that I am compelled to concur in the conclusion that a taxation of this bill cannot be directed. The dates negative pressure, and, that being so, there are no special circumstances to justify an order for taxation. As to the other question, I concur in the opinions which have been already expressed. I think that the solicitors made out their bill on a wrong footing. They assumed, and I think correctly, that tlie new rules were applicable. But Schedule I. only applies where substantially all the things for which the percentage is chargeable are due. The clause of Schedule I. which bears on the present case mentions four things — deducing the title, perusing the conveyance, completing the con- veyance, and preparing contract or conditions of sale. It is not necessary in order to enable the solicitor to make the charge that a contract or conditions should be prepared, the schedule saying that the work for wliicli the charge is made includes the preparation of the contract or conditions, " if any ;" but in my opinion the charge cannot be made unless the other three things are done. Here an important part of the business specified was not done. I think, therefore, that Schedule L is not applicable, and that under Eulc 2, sub-sec. (c), the remuneration of the solicitors was regulated according to the old system as modified by Schedule II. I am of opinion, therefore, that the bill was framed on an erroneous footing ; but, as we have no jurisdiction in the absence of special circumstances to order taxation after pay- ment, the order of the Vice-Chancellor must be discharged. Solicitors for Lacey & Son : Todd ^ Demies. Solicitor for respondent : J. D. Ottky, 248 Stanford v. Roberts. ^fs^/. STANFORD v. ROBERTS. 1884. Feb. 14. ^ (1854, s. 55.) (By ptrmilion, from 26 Ch. 1). 156; s c. 3i W. R 404; 50 L. T. 147; 53L.J.C11. 338.) Suit for Administratioit — Taxaticm of Costs — Solicitors' Remuneration Act, 1881 (44 & 45 Vict., c. 44)— General Order, August, 1882, r. 2— Costs for Conveyancing busines& in an Aotivn. Solicitors who transact conveyancing business in an action will, under the Solicitors' Remuneration Act, 1881 (44 & 45 Vict. , o. 44), and the General Order of August, 1882 (W. N., 1882, Pt. II., p. 358), be allowed taxed costs and charges for such business according to the scales .set forth in the schedules to the General Order. The proper construction of the language of sect. 2 of the Solicitors' Remuneration Act, 1881, is that it refers to conveyancing matters which take place in an action as well as to those out of Court, and that the exception is only from " other business " not being conveyancing busi- ness, and accordingly where the Taxing Master had disallowed certain charges made for conveyancing business in an action, and under the scales of charges contained in the schedules to the General Order of August, 1882, he was directed to review his taxation. Adjourned summons. — The application was by the plaintiff, asking that it might be referred back to the Taxing Master, to whom the taxation of tlie costs in this suit stood refeiTed to review his taxation under the order dated the 31st of May, 1883, in respect of certain items of charge in the bill of costs of the apphcant. The order of the 31st of May, 1883, directed the taxation of the costs of the plaintiff, including charges and expenses properly incurred by her incident to or attendant upon the negotiation for and exercise of the power by the will of William Stanford, deceased, vested in lier as tenant for life, of granting leases for the term of ninety-nine years, and in and about the exercise of the powers of the Stanford Estate Act, 187.1, The circumstances which led to the making of the order may be gathered from the reports of Stanford v. Roberts (1 ) and Stanford V. Roberts (2). In taxing the plaintiff's bill of costs the Taxing Master had disallowed certain charges for settling conveyances, perusing documents, and for journeys to Brighton, where the property, (1) Law Eep. 6 Ch. 307. (2) W. N. (1882) UC. Stanford v. Roberts. 249 which was the subject-matter of the suit and of such conveyances Kay, J. and documents, was situate. The charges were the proper amounts payable under the scales of charges contained in the schedules to the General Order made in August, 1882, in pursuance of the Solicitors' Remuneration Act, 1881 (44 & 45 Vict., c. 44). By sect. 2 of the Act it was enacted that the Lord Chancellor and the other persons named might from time to time make any such General Order as to them seemed fit " for prescribing and regu- ating the remuneration of solicitors in respect of business connected with sales, purchases, leases, mortgages, settlements, and other matters of conveyancing, and in respect of other business not being business in any action, or transacted in any Court or in the Chambers of any Judge or Master, and not being otherwise con- tentious business." The General Order made in August, 1882, and which came into operation after the 31st of December, 1882, contained in Rule 2 the language of the above section, "in respect of business connected with sales," &c., and the remuneration ap- plicable to conveyancing business only was regulated as set forth in the schedules to the order. Objections to the taxation of the items so disallowed were left by the plaintiff in the office of the Taxing Master, and he stated to the Court the reason for his decision thus ; — " I consider that the intention of the order is that the words in the 2nd section of the General Order made in pur- suance of the Solicitors' Remuneration Act, 1881, 'not beinsr business in any action, or transacted in any Court, or in the Chambers of any Judge or Master,' should apply to matters of conveyancing so transacted. I have therefore allowed in the matters of conveyancing transacted in the above suit the charges for such business heretofore allowed. It may be remarked that by having the sanction of the Judge in Chambers to all these transactions the solicitor incurs no responsibility, and simply acts under direction. The increased charges are in these costs applied to instruments not materially (if at all) shorter than they used to be." Hastings, Q.C., and J. Beaumont, for the plaintiff: — The General Order of August, 1882, with the scale of charges in the schedule, applies to conveyancing business whether trans- 25Q Stanford v. Roberts. t^ay, J. acted in an action or not. Grammatically the words of excep- tion in the 2nd section, "not being business in any action," &c , must be referred to the words " of other business " which immediately precede. If the section be ambiguous the grammatical construction ought to be adopted. The statute 44 & 45 Vict., c. 44, was passed because the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict, c. 41), which received the royal assent on the same day (August 22, 1881), curtailed the lengtli of con- veyances, although the trouble and care required in preparing them had not been diminished. It was thought right that the scale of remuneration of solicitors, which had previously been allowed according to the length of the documents, should be re -adjusted. There can be no reason why solicitors should be remunerated on a scale differing according to whether the convey- ancing business be done in an action or not. Cecil Russell, for the trustees : — Further arguments are referred to in the judgment. Kay, J. :— I think I must accede to the applicant's view of the meaning of the statute, which is certainly not very easy to construe. [His Lord- ship having read section 2, continued.] Now, grammatically the words "not being business in any action or transacted in any Court or in the Chambers of any Judge or Master, and not being other- wise contentious business," must refer to the last antecedent — that is, " other business." " Other business " is contrasted with " busi- ness connected with sales, purchases, leases, mortgages, settlements, and other matters of conveyancing ; " therefore grammatically the exception is from other business, and not from these matters of " business connected with conveyancing." But then there are certain rules in the General Order of August, 1882, which were made in pursuance of the section, and they apply entirely, so far as I can make out, to conveyancing business as dis- tinguished from contentious business, and there is nothing in the scale of costs contained in the schedules to the General Order except certain business which is, strictly speaking, conveyancing business. I can find nothing at all in the scale of charges which comes under the description of '■' otlier than conveyancing business " con- Stanford v. Roberts. 251 tainecl in the above section, unless it be the items in Schedule 2 Kay, J. under the two headings, " Attendances " and " Journeys from home ; " and, judging from the context, I suppose that these were intended to be "Attendances" and "Journeys from home" in respect of conveyancing business, because the 2nd schedule begins ■with these words, " Instructions for drawing and perusing deeds, wills, and other documents." So that the difficulty in the case seems to me to be mainly occasioned by the mode in which the rules under this section have been made, which rules do not apply to any other business than that which is ordinarily known as conveyancing business. However, 1 do not know that I am at liberty to construe the statute by a reference to the rules, and it may be that it was not thought necessary to make any rules with respect to the other business at present. There is, however, this difficulty, that the rules in the commencement of them profess to be made in order to regulate the remuneration of solicitors not only in respect of con- veyancing business, but also, following tJie very words of the statute, " in respect of other business not being business in any action, or transacted in any Court, or in the Chambers of any Judge or Master," so that the rules, which are professedly made for the purpose of conveyancing and other business — whatever these words "other business" may mean — have provided, in fact, a scale of remuneration only for conveyancing business. The two constructions of the section of the statute which are contended for are these : One is, that it means conveyancing busi- ness of every kind, whether in an action or not, and business other than conveyancing, not being business in an action, &c., or con- tentious business, confining the exception to the "other business." The other is, that it means only such conveyancing business as is not business in an action, &c., or contentious business, extending the exception not only to the last antecedent, but to all the words which precede. I have said that grammatically the former seems to me to be the true construction. But decidedly, looking at the whole language of the section, it is ambiguous, and the rule which applies to a document of an ambiguous kind is that the Court is bound to look at the reason of the thing, and see -which is the most r-easonable construction. Now, the Solicitors' Remuneration Act, 1881, was passed, and 252 Stanford v. Roberts. Kay, J. the royal assent was given to it on the very day, the 22nd of August, 1881, on which the royal assent was given to another Act of Parliament— the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict., c. 41), which curtailed very much indeed, as it was intended to do, the length of conveyancing instruments. Up to that time the remuneration of solicitors for conveyancing business was calculated at so much per folio, and of course when an Act was passed curtailing the length of convej'ancing documents, if the remuneration had been thereafter calculated upon the old scale the remuneration of solicitors would have been decreased, while at the same time the attention and care requisite for the settling of such documents might be very much increased. Therefore the obvious intention of the Legislature in passing the statute was to provide a different scale for calculating the remuneration of solicitors, so that it might not be unduly decreased by the change that was to take place simultaneously in the length of conveyancing documents. At the time when the two statutes were passed a solicitor was entitled to obtain remuneration for all the proceedings in an action, and if the proceedings included the settling of a conveyance or a deed of settlement, or any other kind of deed, he got his remuneration in respect of the deed under the old scale. Now, any such deed as that has been cut down, and unless the new scale of charges is to be applied to it, he vvill receive less in respect of a conveyance settled in an action than he would have received before. He will get all the same costs in respect of the action that he. would before, but he will get less remuneration in respect of any deed settled in the action. Is there any reason why that should be ? Obviously the fact that he gets remuneration from the other costs of the action can be no reason, because he got that remuneration before. There can be no reason why he should get less in respect of a deed settled in the action under the new system than he would have got before, and therefore I do not see any reason for putting a construction upon the Act which would give a solicitor the costs of a conveyance or settlement, or other deed, settled in an action upon the old scale, which costs would be admittedly less than he would be entitled to receive if the deed had been not a deed settled in an action at all, but a deed settled with- out any litigation going on concerning the matter. Stanford v. lioherts. 253 ' There is one reason given by the Taxing Master which deserves ^-.V''/' special notice. He says, " It may be remarked that by having the sanction of the Judge in chambers to all these transactions, the solicitor incurs no responsibility and simply acts under direction." I am not quite sure about that, because it is possible that a soli- citor may be guilty of such negligence in conducting the matter of a deed or settlement settled in chambers as to make him liable in an action for negligence, notwithstanding that the deed pro- fessed to be settled by the Court. The Court acts always upon the instigation of the solicitors employed in the matter, and sup- pose that by reason of the exceeding negligence of the solicitor employed by the plaintiff in an action a deed of settlement should be settled and passed in a form which omitted some of the provi- sions which the conveyancing counsel had recommended should be inserted in it, is it to be said that the solicitor is relieved from responsibility ? I do not think so. There are many cases in which a solicitor would not be relieved from responsibility, although the deed was formally settled in Court, if the deed happened to be in a wrong form owing to his negligence. Therefore I do not entirely accept the view of the Taxing Master on that point. But besides tliat there is another answer, viz. — that the trouble of the solicitor and the time taken up, the instructions drawn by him, and all tlie other matters connected Avith the deed and the perusal of the deed on behalf of the client, have all been done by him Just the same, or very nearly the same;, as if the deed was settled out of Court. Why should he not be remunerated for that time and trouble on the same scale as lie would be if the deed were settled out of Court ? I confess I do not see. Therefore it seems to me that if there be any ambiguity in the construction of the statute — and I am far from saying it is as clear as it might be —I ought to adopt that which is the reasonable construction, looking at the subject matter to which it is to be applied ; and as I see no sufficient reason why a solicitor should not be remunerated on the same scale whether the deed be settled in an action or not in action, I think that the proper construc- tion to put upon the statute is that it refers to conveyancing matters which take place in an action as well as to those out of Court, and th^t tlie exception is only from "other business," tliat 254 Heffernan and Keefe v. Vaughan and otliers. ^^^y'/- is, from other business not being conveyancing business, as to 1884, which it may be at some time, if it has not been already, the duty of the persons making the rules to provide a scale of charges. The order, therefore, will be that the Court being of opinion that the costs in question ought to be taxed under the Solicitors' Remuneration Act, 1881, the matter be referred back to the Taxing Master for him to review his taxation. Solicitors: Day Sf Gather; Senior, Attree, ^ Johnson, agents for Hunt, Currey, ^ Nicholson, Lewes. c. P. D. HEFFERNAN AND KEEFE v. VAUGHAN AND ^^^^- OTHERS. Feb. 21. (By permission, from 18 Ir. L. T. E. 88 ) (Before Moeris, C.J., Haekison and Muephy, JJ.) Taxation of costs — Discretion of Taxing Master — 0. X., r. 33 (^April, 1878). The Taxing Master, in allowing the expenses of witnesses on the taxation of costs, should be guided by the direction of proofs of counsel rather than by what took place at the trial. Application under Order X., rule 33, of the Rules of April, 1878, to review the taxation of costs by Master Coffey, in an action of ejectment which was tried before Baron Dowse in November, 1883. Two veitnesses had been subpoenaed on behalf of the defendant to prove the terms of an arrangement stated to have been made when the parties were before the Land Sub-Cora- mission at Kanturk in April, 1883, to have a fair rent fixed. One of these (Mr. Beytagh) who had acted for the plaintiffs in the court below proved the alleged arrangement, which rendered it unnecessary to call the other witness (Mr. Keller). The Taxing Master, when the case came before him for taxation, refused to allow an item of £31 4s., the amount of Mr. Keller's expenses, on the ground that that gentleman had not been examined. Peter O'Brien, Q.C. (with him John Francis Moriarty), on behalf of the defendant. — The Taxjng Master should be directed Heffernan and Keefe v. Vaiighan and others. 2,55 to allow the sum of £31 is. as part of the defendants' costs. Mr. Oom.^Pka,. Keller had been duly subpoenaed to attend the trial, and had come to Dublin in June, and again in November, as the case was not tried on the former occasion. His attendance was ordered by counsel in the direction of proofs, as although there was another witness to the arrangement relied on by the defendant, yet, he being to a certain extent connected with the opposite party, it was not considered safe to rely on his version alone. Henry WHea, on behalf of the plaintiffs, argued that it was not for the Court to interfere in such a case with the Taxing Master's discretion. MoREis, C.J., in giving judgment, said that the Taxing Master should not have taken any notice of what had occurred in court at the trial. He should have limited his attention to the proofs directed by counsel, and should not have disallowed the costs of any witnesses so directed to be subpoenaed. It was often necessary to direct witnesses to be in attendance whom it afterwards was not necessary to examine, yet that was no reason why their expenses should not be allowed. The case should be referred back to the Master to have the item of £31 4s., the expenses of Mr. Keller's attendance, allowed to the defendant in his bill of costs, Harrison, J., concurred. MuEPHT, J., also concurred. In his experience he often found that counsel wished to have certain witnesses examined though their evidence really was not required, merely lest their expenses should not afterwards be allowed on taxation. Solicitor for plaintiff : H, H. Barry. Solicitors for defendant : J. ^ M. Moriarti/. 2^50 Ryan v. Fraser. ^fiit MICHAEL EYAN v. ROBERT FRASER April 21. (By Original Action) ; June 9. ROBERT FRASER v. MICHAEL RYAN (By Counterclaim). {By permissiotf, from 16 L. R. Ir. 253; reversing s. c. in Court below, IS Ir. L. T. 11. 21.) (Before Sir E. Sullivan, C, Mat, C.J., and FitzGibbon and Baket, L.JJ.) ' Practice — Clahn— Counterclaim — Set-off — Cross liquidated Demands — Form of Judgment — Costs, where balaiKe under S,20 is recovered. In an action brought for a lio^uidated demand of £26 for work and labour the defendant pleaded a cross-liquidated demand as a counter- claim and the jury found for the plaintiff on the statement of claim for £22 8s. &d., and for the defendant on the counterclaim for £9 13s., and the Judge at the trial directed judgment to be entered fur the plaintiff for £12 15s. 6i. , with his costs. The Taxing Master allowed the defendant full costs, and, on motion to review his taxation, the Exchequer Division declared the plaiutiif entitled to his full costs, and directed judgment to be entered that the plaintiff do recover from the defendant £22 8s. 6i. in respect to the cause of action in the statement of claim, with costs ; and that the defendant do recover from the plaintiff £9 13s., in respect of the cause of action in the counterclaim, with costs ; that the said sums and costs so recovered should be set-off, and the party in whose favour there should be a balance should recover from the other such balance : — Held, reversing the order of the Exchequer Division, that one judg- ment should be entered for the plaintiff for £12 15s. Sd., and that the plaintiff, having recovered less than £20, was entitled to no costs, the parties being resident in the same civil bill jurisdiction. In such a case a true set-off is not deprived of ite real character of a defence by being described and pleaded as a counterclaim. Appeal from an order of the Exchequer Division of the 7tli Post, 253. February', 1884. See the curial part of the order, infra, pp. 255, 256. The action was brought by William Ryan against Robert Fraser for the sum of £25., for work and labour done and perforjned by the plaintiff for the defendant. Tlie statement of defence, after traversing the allegations in the claim, proceeded as follows : — The defendant (admitting, for Ryan v. Fraser. 257 tlie purposes of this defence, but not further or otherwise, that Appea!. work was done for the defendant, as in the first paragraph of the statement of claim is alleged) says that the said work was done under an agreement entered into between the plaintiff and the defendant, by which, in consideration that the plaintiff and his wife would work as farm-labourers for the defendaiit, the defendant agreed to pay the plaintiff for such work at the rate of six shillings per week, and to give to the plaintiff the use of a certain cottage, the property of the defendant, whilst the plaintiff continued in the employment of the defendant; and the work mentioned in the first paragraph of the statement of claim was done under the said agreement, and the defendant satisfied and discharged all claims of the plaintiff in respect to the said work before action by pay- ment at the rate aforesaid, as and when the same became due, and by giving to the plaintiff the use of a certain cottage, the property of the defendant, whilst the plaintiff continued in the employment of the defendant. And by way of counterclaim the defendant says : — 1. Between the years 1881 and the commencement of this action the defendant sold to the plaintiff, and the plaintiff bought from the defendant, goods — to wit, potatoes — -to the value of £5 8s. 6c?. The plaintiff has not paid the said sum, or any part thereof. 2. In the year 1881 the defendant let to the plaintiff, and tlie plaintiff took from the defendant, one quarter of an acre of land, and the plaintiff agreed to pay the defendant for the said land the sum of £2 10s. ; and the said sum of £2 10s. has not been paid. 3. On the 30th day of December, 1882, the defendant let to the plaintiff, and the plaintiff took from the defendant, a certain potato garden, and the plaintiff agreed to pay the defendant the sum of £2 10s. for the same. The said sum of £2 10s. has not been paid, 4. In the month of February, 1883, the defendant let to the plaintiff, and the plaintiff took from the defendant, a certain other potato garden, and the plaintiff agreed to pay the defendant the sum of £1 5s. for the same. The said sum of £1 5s. has not been paid. s 258 Ryan v. Fraser. Appeal. Tlie defendant, by way of counterclaim, claims : — ^***' 1. The said sums of £5 8s. Gd., £2 lO*., £2 10s., and £1 5s., making together the sum of £11 13«. dd. 2. His costs of the action. The plaintiff delivered a reply, and on these pleadings issue was joined. The case was tried before Mr. Justice Andrews and a common jury in Dublin on the 12th December, 1883. The jury found in the original action for William Eyan, the plaintiff therein, for £22 8s. Qd., and on the counterclaim for Eobert Fraser (the defendant in the original action and the plaintiff in the counter- claim) for £9 13s. The Judge directed that the judgment should be entered for Michael Eyan, the plaintiff in the original action, for £12 15s. 6d., together with the costs of suit. The Taxing Master on taxation allowed the plaintiff full costs, on the ground that he had recovered judgment in the orighial action for over £20. The defendant thereupon moved the Ex- chequer Division to review the taxation of the costs, on the ground that the plaintiff was not entitled to any costs, inasmuch as he recovered judgment for a sum less than £20, and tiie parties, plaintiff and defendant, resided in the same civil bill jurisdic- tion. The Exchequer Division (Palles, C.B. Dowse, B., and Andrews, J.) made no rule on the defendant's motion, and upon the applica- tion of plaintiff's counsel, who moved by permission of the Court, made the following order : — '• The Court doth declare the plaintiff to be entitled to his full costs of this action, and doth order that the judgment in this action be amended by changing same into a judgment to the following effect : — That the plaintiff do recover from the defendant tiie sum of £22 8s. 6d. in respect of the cause of action in the statement of claim, with costs ; and that the defendant do recover from the plaintiff the sum of £9 13s. in respect of the cause of action in his counterclaim, with costs; that the said sums and costs so recovered shall be set-off against the other, and that the party in whose favour there shall be a balance shall recover from the other the amount of such balance. It is further ordered that the said costs be referred back to the said Taxing Officer, having Ryan v. Fraser. 259 regard to the said amended judgment, and that both parties do '^f^'"^- abide their own costs of this motion " (1). The defendant appealed. J. H, M. Campbell, for the appellant : — If the counterclainl in this case had been relied on, and pleaded as a set-off under the old system, the amount recovered would iiave been the balance, and the plaintiff would have been disentitled to costs : Ashcroft v. Foulkes (2). The rules under the Judicature Act were framed to give a more extended riglit of set-off by allowing a defendant to get judgment if the balance was in his favour, and by setting off claims which he could not have set-off under the old system. No distinction is drawn by the rules between the terms " set-off " and " counterclaim." Schedule rule 22 provides : " A defendant in an action may set-off or set up by way of counterclaim against the claims of the plaintiff any right or claim, whether such set-off or counterclaim sound in damages or not ; and such set-off or counterclaim shall have the same effect as a statement of claim in a cross-action, so as to enable the Court to pronounce a final judgment in the same action both in the original and the cross-claim." If the amount found by the jury for the defendant on his counterclaim had been in excess of plaintiff's claim there should, under G. O. XXL, r. 10, have been judgment in his favour for the balance only. This is so, whether it be a set-off or a counterclaim; and this rule, when read with the schedule rule, shows that in such cases the amount recovered, and for which judgment is to be marked, is the balance merely, whether it be in favour of plaintiff or defendant. In the Forms, Appendix C, No. 8, the counterclaim is stated to be by way of set-off and counterclaim, and the omission of the words "set-off" in this case cannot alter its nature and effect. In Stooke v. Taylor {d) Cockburn, C.J., in his judgment, says, on the facts of that case, which resemble the present : " Claim and counterclaim being for liquidated damages to the extent to which the amount established by the defendant was co-extensive with, and so operated to ex- tinguish the plaintiff's claim, the counterclaim operated as a set-off; (1) See 18 Ir. L. T. E. 21. (2) 18 C. B. 261. (3) 5 Q. B. Div. 569. 260 Ryan v. Eraser. Appeal. in reference to the amount by which it exceeded the plaintiff's claim it operated as a cross-action, recovering in which the defendant would be entitled to his costs." Again, p. 581 : "Where the only issue is whether or to what extent a plaintiff can make out his claim, or where the defence consists of mere set-off, though pleaded in the form of a counterclaim, the award of the arbitrator as to amount may well be held to be the event on which the costs are to depend." In the present case the items in the counterclaim are all for liquidated damages and matters of mere set-off. Lowe v. Holme (1) is a direct authority for the proposition that the Court must give effect to the defendant's counterclaim when it operates as a defence to the action by deducting it from the amount of the plaintiff's claim, even though it is pleaded as a counterclaim, and not as a defence. [Counsel also referred to Cliatfield v. Sedgwick (2) ; Neale v. Clarke (3) ; Gathercole v. Smith (4).j A. Cleary, Q.C., for the respondent: — The counterclaim here was throughout the case treated fi,s a cross-action and not as a set-off, and the plaintiff having in the original action recovered over £20 he is entitled to his full costs. In Bailies v. Bromley (.5) Lord Justice Erett says, that if in that case the defendant chose to deny the whole of the plaintiff's claim and to rest on his cross-action, the form of the judgment would be right. That is what the defendant has done in this case, he having by his pleading treated his claim as a cross-action and not a set-off. There having been two independent actions in this case the judgment must be entered separately for each party: Ward v. Ante, p, 218. Morse {&)', Hannan v. Laffan (7). It is a distinct benefit to a defendant to plead a cross-claim as a counterclaim and not as a set-off, as if he pleads it by way of set-off the plaintiff can, by discontinuing the action, prevent the defendant going on with the cross-claim ; but if the defendant has pleaded it by counterclaim, (1) 10 Q. B. Div. 286, (5) 6 Q. B. Div. 691. (2) 4 C. P. Div. 459. (6) 23 Ch. Div. 377. (3) 4 Ex. Div. 28i5. (7) 15 Ir. L. T. R. 33. (4) 7 Q. B. Div. 620. Ryan v. Fraser. 261 discontinuing the action will not put an end to the counterclaim : '^J'l'gf' M'Goioan v. Middleton (1), where Vamsseur v. Krupp (2) was over-ruled. Campbell, in reply: — As to the argument, that where a set-off is pleaded as a counter- claim the plaintiff cannot discontinue, but must go on to prevent a judgment against him on the counterclaim, the answer is, that the plaintiff can, as a defence to the counterclaim, set-off the very items in his original action. In Baines v. Bromley (3) no question was raised as to the form of the judgment, and the only question was, how were the costs to be taxed on the form of the judgment as entered up ; and the judgment of Brett, L.J., is distinctly based on the fact that the counterclaim was in its nature a cross -action and not a set-off. In Hannan v. Laffan (4) the claim being in tort Ante, p. 218. for unliquidated damages, and the counterclaim on a promissory note for a liquidated sum, it was impossible to set-off the amounts^ Sir Edwaed Sullivan, C. : — This case of Ryan v. Fraser is an appeal from a judgment of June 9. the Exchequer Division, and has been ai'gued with great learning on both sides ; and I am sorry that the substance of the appeal is not larger than it is, for we are hearing a case where the sum of £12 5s. 6d. was recovered by the plaintiff after considerable litiga- tion, and the appeal now is as to the mode in which the judgment is to be entered. The action was tried before Mr. Justice Andrews. The state- ment of claim averred that the defendant was indebted to the plaintiff in the sum of £25, money payable by the defendant to the plaintiff for work done for the defendant at his request, and was indebted to him in the same sum of £25 for money payable by the defendant to the plaintiff for money found to be due from the defendant to the plaintiff on accounts stated between them. The defence on which this question principally turns denies that any work was done in the usual form, and also denies that any account was ever stated between the -defendant and the plaintiff ; (1) 11 Q. B. Div. 464. (3) 6 Q. B. Div. 691. (2) 15 Cb. Div^. 474. (4) 15 Ir. L. T. K. 32. 2G2 Eyan v. Fraser. Appeal. and also pleads another defence, on which nothing turns, and then the pleading continues— " And by way of counterclaim, the de- fendant says, between the year 1881 and the commencement of this action the defendant sold to the plaintiff, and the plaintiff bought from the defendant, goods — to wit, potatoes — to the value of £5 8s. &d. The plaintiff has not paid the said sum or any part thereof," and then alleges a number of lettings by the defendant of small pieces of land to the plaintiff, setting out a number of items, and claiming altogether £1 1" 13s. M., to which defence there is the reply in due form, and to which reply there is a rejoinder. One wonders why litigation as to such small sums should be brought before the Superior Courts. The case was tried before Mr. Justice Andrews, and the counter- claim resolved itself into a simple set-off, and it was treated at the trial as a set-off, and the jury found for the plaintiff in the original action for the sum of £22 8s. &d., and for the defendant in respect of the counterclaim for £9 13s., and the Judge directed that judgment should be entered for the plaintiff for £12 15s. M. There was a struggle before the Taxing Master as to how the costs should be taxed. Mr. Justice Andrews thought that the parties were entitled only to deal with the case as if £12 15s. 6. 301. 28 i In "e Field: C- ■i. /)(6'e, in reply : — 1885. The only just construction is either, that where the business is before the rules the taxation is not governed by them at all, or that the business done after they came into force is governed by them, and the work done before is to be paid for separately. Cotton, L.J. : — In this case negotiations for a lease were carried on through the lessor's solicitor for many mouths before the rules under the Solicitors' Kemuneration Act, 1881, came into operation; but a final agreement was come to, and the lease executed after that period. In his bill the solicitor charged for negotiations both before and after the time Vi^hen the rules came into operation, and also charged the percentage allowed by Sched. I., Part II., to the rules. The Taxing Master struck out all the items relating to the negotiations, and Mr. Justice Chitty affirmed his decision. The solicitor has appealed. The first ground which he takes is, that the Act does not apply. Utile 6 provides that, " In all cases to which the scales prescribed in Sched. I. hereto shall apply a solicitor may, before undertaking any business, by writing under his hand communicated to the client, elect that his remuneration shall be according to the present system as altered by Sched. II. hereto." Here it was said that the solicitor could not exercise his option because the business was in full swing before the rules came into operation, and that the scale therefore could not apply. This argument is forcible ; but I think it cannot prevail when we look at the 7th section of the Act — " As long as any general order under this Act is in operation the taxation of bills of costs of solicitors shall be regulated thereby." No doubt the application of the Act to pending business alters the contract under which the business was undertaken, but this altera- tion may in some cases be for the benefit of the solicitor. It may be that if a solicitor, after the rules came into operation, gave notice that he elected to have remuneration for business then pending according to the old system as modified by Sched. II., we should hold such a notice effectual. Here the solicitor did nothing of the kind, for he claimed- percentage under the rules, and we ta re Field. 285 It has been decided Son (1) that the rules apply to pending business. Cannot get out of sect. 7. It has been decided in In re Lacey the charges in respect of them are covered by Part II. gf Sched. I., whatever its precise terms may be. This conclusion appears to me to be fortified by Eule 2, Sub-sect, (c) : — " In respect of business not hereinbefore provided for, connected with any transaction the remuneration for which, if completed, is liereinbefore or in Schedule I. hereto prescribed, but which is not, in fact, completed . the remuneration is to be regulated according to the present system as altered by Schedule II. hereto." This shows that if a lease was not executed there still might be business M'hich could only be in respect of negotiations, and it hence appears that negotiations were (1) 25 Ch. D; 39L 286 Tn re Field. C- ^- intended to be included in business connected with leases. If the 1885. lease is not executed, this business is to be paid for according to the old system as modified by Sched. II. ; if it is executed, the soli- citor is paid according to the scale. The Act and rules were intended to provide for the fair remuneration of solicitors, and in many cases, I believe, tend greatly to their benefit. Having the benefit they must take the burden. LiXDLEY, L.J. : — I agree that the decision appealed from is right. Perhaps the most difficult question is whether the rules apply at all to pending business; but sect. 7 of the Act satisfies me that they are applic- able. I do not regard it as unimportant that the solicitor claimed the benefit of the rules as to part of the business. He elected to have that part of his work paid for under the new rules, and I am not sure that it does not follow from that election that his whole bill must be treated in the same way. I think that there is nothing in the argument founded on the agreement ; it was a mere agreement that the lessee should pay what the lessor was liable to. The solicitor is to be paid by the lessee, and the only question is, how the remuneration is to be cal- culated. The only difficulty on the rules arises from the words in Sched. I., Part II., " for preparing, settling, and completing lease and counterpart," which at first sight seemed to me to be struck out by the decision. The only way of meeting that difficulty is to fall back on the body of the rules, and when we look at Rule 2 (b) and (c), it is pretty clear what is meant by " business connected with." The expression includes preparatory negotiations. Then again, if we look at the 5th of the " Rules applicable to Part II. of Sched. I.," we find that if a lease is granted for a premium the purchase scale applies to the premium. In such a case there can be no doubt that negotiations are included. I agree that the appeal must be dismissed. Fey, L.J.:— I am of the same opinion. I think that section 7 of the Act declares in substance that the Act shall apply to all bills which are taxed while the. General Orders are in force. If the Ill re Merchant Taylors Company. 287 Act had not been intended to apply to pending business different lanffuage would have been used. As to the second question, I agree with the other members of the Court. No doubt the Sched. I. is not very easy to construe, but I agree in the conchision that it was intended to deal with the whole of the business relating to the sales and leases. That is the natural import of the first part of Eule 2, It is true tliat in clause (6) we find different language, for it speaks of the solicitor " having the conduct of the business." I tliink that this means of the entire business connected with the lease, and that it ought not to be cut down on the ground that in the schedule the remuneration is expressed to be " for preparing, settling, and completing lease and counterpart." I agi-ee that the appeal must be dismissed. Solicitors for the appellant : Soames, Edimrds, ^- Jones. Solicitors for respondent : Freeman 8( Boiliamley. O.A. 1885. In re MERCHANT TAYLOES COMPANY. (Bf permission, from 29 Ch. D. 209 ; s. c. 83 W. R. 542.) Cliitty, J. 1885. April 17. Sal& under Lands Clauses Consolidation Act, I84S (8 §• 9 Vict, c. 18; [Revised Ed. Statutes, Vol. ix., p. 628]) — Reinvestm&nt of Proceeds — Costs — Solicitors' .fl; j Bemuneration Act, 1881 {1^1). Sf 43 Vict, c. 44) — Gmeral Order of August, post p. 294. 1882, Sch. L, Ft I., Bwle 11— Scale Charges. Where land has been compulaorily taken by a railway company in exercise of its statutory powers, and the proceeds of sale have been paid into Court and subsequently reinvested in land, the costs incurred in such reinvestment may be charged for according to the scale fixed by the Solicitors' Remuneration Act, 1881. The exception contained in Rule 11 of the General Order, Sch. I., Pt. I. , does not apply to such costs. Adjourned Summons.— Certain lands belonging to the Merchant Taylors Company having been taken by the Great Eastern Rail- way Company and other companies in exercise of their statutory powers, the proceeds of sale were paid into Court under the provi- sions of the Lands Clauses Consolidation Act, and were afterwards reinvested in the purchase of other lands for the Merchant Taylors Company. 288 In fe Merchant TayloTs Company. *^^'««- ^' ^^^ solicitor to the Merchant Taylors Company made out his bill of costs according to the scale charge fixed by the Solicitors' Remuneration Act, 1881, and on taxation these charges were objected to on the ground that the scale charge did not apply as coming within the exception contained in Eule 11 of Schedule I., Part I., of the General Order, which directs that in case of sales under the Land Clauses Consolidation Act, or any other private or public Act under which the vendor's charges are paid by the pur- chaser, this scale shall not apply. The Taxing Master held that the solicitor of the Merchant Taylors Company was entitled to charge according to the scale fixed by the General Order, and the railway companies thereupon took out a summons to review his taxation, which was adjourned into Court. Macnaghten, Q. C, and Smart, in support of the summons :^ This is a sale and purchase under the Lands Clauses Act, and comes within the exception mentioned in the latter part of Rule 11, and the scale does not apply. Bonier, Q.C., and Hood, for the Merchant Taylors Company: — The question here is with regard to the purchaser's charges; the vendor is outside the taxation altogether, and. there is no question about paying his charges. We submit the Taxing Master is right. •CHtTt-r, J. :— The question is whether this case falls within the exception at the end of the 11th rule of the General Order made in pursuance of the Solicitors' Remuneration Act, 1881. [His Lordship read the clause.] The Merchant Taylors Company's land has been taken by several railway companies, and the purcliase'moHeys, as in tlie ordinary case, have been paid into Court, and then an application is made and sanctioned by the Court for investment of the moneys in the purchase of other land. The question is with reference to the charges of the Merchant Taylors Company on the purchase tkat is now being made. The Merciiant Taylors Company are the purchasers, and not the vendors. The costs of this purchase fall In re Merchant Taylors Company. 289 under the Lands Clauses Consolidation Act, and must no doubt be Chitty J. paid by the railway company. Now the question is, whether there is enough in the clause that I have read at the end of the 1 1th rule to exclude the scale, because the scale applies unless it is excluded. The language is — " In case of sales under the Land Clauses Consolidation Act, or any other public or private Act under which the vendor's charges are paid by the purchaser." It is argued that the words " vendor's charges are paid by the purchaser " do not apply to the Land Clauses Con- solidation Act, so that it is said that a transaction which arises in not only the sale but the purchase which takes place under the Lands Clauses Consolidation Act is also included within the exception. That appears to me to be a misreading of the clause, because I think the words " under which the vendor's charges are paid by the pur- chaser " are words which apply not only to the other Acts which are mentioned, but to the Lands Clauses Consolidation Act, and the reading of this proviso, therefore, is, in case of sales under the Lands Clauses Consolidation Act under which the vendor's charges are paid. But the question here is not with regard to the payment of the vendor's charges, but it is with regard to the payment of the purchaser's charges — that is, the charges of the solicitor of the Merchant Taylors Company. The vendor is some third party out- side the taxation altogether. There is no question about paying his charges at all ; he has to bear his own, as in the ordinary case. It appears to me that those words are material words, as showing that the proviso at the end of tlie 11th rule has not this large and extensive signification attributed to it by the railway company, who have asked me to review the Taxing Master's certificate, but has the more restricted meanmg which the Taxing ]\Iaster himself has taken. I hold, therefore, the Taxing Master to be right. Solicitors : W. F. Fearu ; A. G. Parson. 2'JO Fleming v. Ilardcastle. C'""- O'V FLEMING V. HAEDCASTLE. 1885. -j^ 9 (By permission, from 33 W. E. 776 ; 8. c. 62 L. T. 851.) (Before Peaeson, J.) Costs — Taxation — Solicitors' Remuneration Act, 1881, (44 <^' 4S Vict., c. 44)i s. S General Order of August, 1882, ss. S, 6 — Work begun before but finished after the 31st of December, 188S — Conveyancing Business in an Action Preparation by Purchasers' Solicitor of Contract of Sale — Election. A decree for administration of an estate was obtained. The trustees afterwards sold certain pieces of land— part of the estate — to a railway company, and re-purchased from the company part of the lands sold, as having become superfluous land. The conveyancing v/ork was com- menced before but finished after the 31st of December, 1882, when the General Order under the Solicitors' Remuneration Act, 1881, came into operation. In the case of the re-purchase from the railway company it was agreed that the purchase by the company, which had not been completed, should not be carried out, and that the trustees should accept such an assurance aa would revest the land in them. There was no investigation of tide, and the solicitor for the trustees prepared the contract. Held, that the Act and General Order applied to the costs of the trustees in relation to the conveyancing work ; but that they were en- titled to charge for the preparation of the contract in addition to the scale fee fixed by Part I. of Schedule I. of the General Order. Ante, p. 278. In re Field, ante, p. 553, and Stanford v. Roberts, 32 W. B. 404, 26 Ante, p. 248. Ch. D. 155, followed. This suit was commenced in June, 1872, by John Edwarrl Arthur Willis Fleming, an infant, by Edward John Treffry, his next friend, against Joseph Alfred Hardcastle, Edward Lambert, William Bigoe Buchanan, John Horton, and Ida Mary Sheldon Fleming, for the purpose of making the infant plaintiff a ward of court, obtaining a scheme for his maintenance and education, and for the management of his property under the direction of the Court. The defendant Ida Fleming was the mother of tiie infant plaintiff. The other defendants were trustees of the Fleming estates, to which the infant plaintiff was entitled as tenant in tail in possession. A decree in accordance with the pi-ayer in the bill in the suit was obtained on the 22nd of June, 1872. By a memorandum of agreement made on the 10th day of January, 1882, between William Mosse, of the one part jjnd Fleming v. Ilardcastle. 291 1885. Joseph Alfred Hardcastle and Edward Lambert, by Richard ^''"^gl^ Pink, their agent, of the other part, a piece of land at Soutliamp- ton was contracted to be sold to Hardcastle and Lambert for the sum of £1,050. This contract was approved by the Court on the 19th of April, 1882; but the purchase was not completed unlil the 7th of March, 1883. By articles of agreement made the 13th day of November, 1882, between the Isle of Wight (Newport Junction) Railway Company, of the one part, and Horncastle and Lambert, by Richard Pink, their agent, of the other part, a piece of land, forming part of tlie superfluous land of the company, was contracted to be sold to Hardcastle and Lambert for the sum of £60. This contract was approved by the Court on the 3rd of February, 1883, but the pur- chase was not actually completed until the 29th of May, 1883. Part of the land comprised in this agreement had been sold by defendant to the company under their statutory powers, but the purchase by the company had never been completed, and the agreement provided that the purchase should not be carried out, but the defendants should accept such assurance as would revest the property in them, and no investigation of title was made with reference to the property repurchased by the company. Consider- able negotiations took place with respect to this agreement. By an agreement made the 16th of June, 1883, between Pink, as agent for Hardcastle and Lambei-t, of the one part, and Frede- rick Julius Macaulay, as agent for the London and South "Western Railway, of the other part, a piece of land at Southampton was agreed to be sold to the company for the sum of £25. This con- tract was subsequently approved by the Court. On the 6th of December, 1883, an order was made for taxation of the defendants' costs incurred in relation to the above trans- actions. The Taxing Master disallowed a considerable number of items, and cut down otiier items. On the 16th of February, 1885, certain objections to taxation were made by the defendants, but disallowed by the Taxing Master ; and the defendants thereupon took out the present sum- mons, asking for a review of taxation. The questions to be decided were:— (1) Whether the Solicitors' 292 Fleming v. Hardcastle. Chan. pU Eemunei-ation Act, 1881, and tlie General Order of August, 1882, made thereunder, applied to the costs of business commenced before, but concluded after, the 31st of December, 1882, when the order came into operation ; (2) Whether the Act and Order applied to conveyancing business done in an action ; (3) Whether tlie defendants' solicitor, by sending in his bill made up in accord- ance with Schedule II. of the Order, elected, at the earliest oppor- tunity, under sub-section 6 of the Order, to charge according to Schedule II. ; (4) Whether the Order applied since the whole of the business to which the scale fee prescribed by Part I. of Schedule I. relates had not been performed, as the whole of the title of the property purchased has not been investigated ; and (5) Whether, as the purchaser's solicitor had prepared the agreement of the 13th of Kovember, 1882, although the scale fee does not, in the case of the purchaser's solicitor, mention the preparation of the contract, he was entitled to charge for so doing in addition to the scale fee. S. DicMnson for the defendants : — The Act and General Order do not apply to costs for work done before the 1st of January, 1883 : General Order of August, 1882, Ante, p. 238. sub-section 2 (c). In the case of In re Lacey (1), the work done was not commenced before the Act came into operation. The Act is not Ante, p. 278. retrospective : Ward v. Eyre (2). In the case of In re Field (3) llie solicitor sent in his bill according to the scale in Schedule I., Part II., and was consequently prevented from objecting. The Act and Order do not apply to conveyancing business done in an Ante, p. 248. action : Stanford v. Roberts (4). The defendants' solicitor by sending in his bill made up according to Schedule II. of the General Order, elected to be remunerated under the old system as altered by Schedule II. : General Order of August, 1882, s. 6, T'he General Order does not apply, because the whole of the work tn which the scale fee prescribed by Part I. of Schedule I. relates was not performed, since the title to the property was not inves- Anie, p. 2?,8. tigated : In re Lacey. [He also referred to In re Denne (5)1. The Ante,j>. 206. '^ -^ '- ^ '-I '(]) 32 \V. R. 233, 25 Ch. D. 301. (4) 32 W. R. 404, 26 Cli. D. 155. (2) 28 W. R. 7 1 2, 15 Ch. D. 1 30. (5) 29 S. J. 28. (3) Ante, p. 553 Fleming v. Hardcastle. 293 defendants' solicitor is entitled to remuneration for the preparation Chan.Dlv. of the agreement of the 13th of November, 1882, although the scale does not, in the case of the purchasers' solicitor, mention the preparation of the contract. Cookson, Q.C., and W. Latham, for the plaintiff. Pearson, J. : I am of opinion that I am bound by decision of the Court of Appeal in the case of In re Field. It has been contended that, ^«««- p- 278. inasmuch as the work to which the costs in question relate was commenced before the 31st of December, 1882, when the General Order of August, 1882, made under the Solicitors' Remuneration Act, 1881, came into operation, the old fees are chargeable for work performed before that date, while the new scale applies to work done subsequently. This would have occasioned great diffi- culty, for the Taxing Master would have had to decide what work was before and what after the 3.1st of December, 1882. But it has been settled by the Court of Appeal that the Order applies where the taxation takes place subsequently to the 31st of December, 1882, and I must follow that decision, and hold that the Taxing Master has taken a right view of the case. The next question is whether the Act and Order apply to conveyancing work done in an action. This has been decided in the case of Stanford v. Roberts, Ante, p. 24S. with which I agree, and I hold that the Aet and Order apply to conveyancing work transacted in an action equally with other conveyancing work. Then it was urged that, as the work was done in an action, the defendants' solicitor, by sending in his bill made out according to the old system, as altered, by Schedule 11. of the Order, had elected, under section 6 of the Order, at the earliest opportunity, to charge according to the old system, as altered by Schedule II. To my mind that was no election at all. A solicitor must elect before he commences the work, and it is too late to elect when he sends in his bill. It was also contended, on the authority of In re Lacey, that Schedule L does not apply to Ante, p. 238. the charges in relation to the agreement of the 13th of November, 1882, because there was no investigation of title by the defendants except as to a small part of the property comprised in it. But 294 III re Merchant Taylors Company. ^^^HH?^"' ^^® ^'^^^^ ^^^ investigated so far as investigation was necessary, and I tliink that, substantially, the title was investigated, and that the Ante, p. 278. remarks of Fry, L. J., in la re Field covered this case. The costs of the preparation of the agreement of the 13th of November, 1882, ought to have been allowed. As the solicitor for the defen- dants—the purchasers prepared the agreement — he is entitled to cliarge for so doing in addition to the scale fee, which does not, in the case of the purchasers' solicitor, include the preparation of the contract. The objections must be overruled, except that the costs of the preparation of the agreement of the 1 3th of November, 1882, must be allowed. The costs of tliis application will be costs of the action. Solicitor : Richard Fetch. Appeal Jn re MERCHANT TAYLORS COMPANY. 1885. iBy permission, from 30 Oh. D. 28 ; s. c. 33 W K. 693, 52 L. T. 775, 64 L. J. Oil. 867.) June 2, 17, 20. Reinvestment under Lands Clauses Consolidation Act, 1845 (8^9 Vic, c. 18) ^Revised Ed. Statutes, vol. ix., p. 628] — Costs — Solicitors'' Remuneration Act, J 881 (44 §r 45 Vic, c. 44), s. 2— General Order of August, 1882, rule 2, ScTtedule I., Part I., rule 11. Money arising from the sale of land belonging to a corporation, and taken by a railway company under their statutory powers, was reinvested in land utder the direction of the Court. The solicitor of the corpora- tion charged the ad valorem scale fee prescribed by the rules under the Solicitors' Remuneration Act, 1881, Schedule I., Parti., "for investi- gating title and preparing and completing the conveyance: " — Beld (affirming the decision of Chitty, J.), that the exception in Sched. I., Part I., rule 11, which provides that the scale shall not apply in case of sales under the Lands Clauses Act, or any other private or public Act under which the vendor's charges are paid by the purchaser, was not applicable to the case. Ante, p. 248, Held, also (approving the decision of Kay, J., in Stanford v. Roberts, 26 Ch. D. 155), that the words of rule 2— "not being business in any action or transaction in any Court or in the Chambers of any Judge or Master "—apply only to the "other business" mentioned immediately before— i.e., to business not being conveyancing business, and do not exclude from the scale conveyancing business done under the direction of the Court. Held, also, that as the purchaser's solicitor had had to do all the things Ill re Merchant Taylors Company. 295 which he would have had to do in a purchase not under the direction of Appeal. the Court, the case was not taken out of the scale by the fact that, in a purchase under the direction of the Court, he did not incur as much responsibility as in a private purchase : — Held, therefore, that the scale fee was properly chargeable. This case came before the Court of Appeal from a decision of Mr. Justice Cliitty (1). ^^tc, p. 287. Lands belonging to the Merchant Taylors Company had been taken partly by the Great Eastern Railway Company and other railway companies, and partly by the Metropolitan Board of Works, under their statutory powers, and the purchase-moneys had been paid into Court. These moneys were reinvested under the direction of the Court in the purchase of an estate, the title to which was investigated in Chambers in the ordinary way. The solicitor of the Merchant Taylors Company made out his bill of costs relating to this purchase on the footing of the scale in the order made under the Solicitors' Remuneration Act, 1881, Sched. I., Part I., charging the ad valorem amount tliere prescribed for investigating the title and preparing and completing the convey- ance. The railway companies objected to this charge, contending that the case was within the exception in the latter part of the 11th rule to Sched. I., Part I. : — " In case of sales under tlie Lands Clauses Consolidation Act, or any other private or public Act under which the vendor's charges are paid by the purchaser, the scale shall not apply." The Taxing Master allowed the charge. The railway companies took out a summons to review his taxation. Mr. Justice Chitty agreed with the Taxing Master, and dismissed the summons. The railway companies appealed. The Metropolitan Board also presented a similar appeal. W. Pearson, Q.C., and F. Pownall, for the Metropolitan Board Jane 2. of Works, and Macnagliten, Q.C., and Smart, for the railway companies : — We contend that the rules under the Solicitors' Eemuneration Act do not apply to this particular business. The 11th of the rules in Sched. I. says that the scale shall not apply to cases of sales under the Lands Clauses Consolidation Act, or any other (1) 29 Ch. D. 209. 296 In re Merchant Taylors Company'. Appeal. private or public Act under which the vendor's charges are paid 1885. by the purchaser. [Cotton, L.J. — Nothing is said there about purchases.] We submit that in carrj'ing out the 80th section of the Lands Clauses Act there must be the same scale of costs throughout the transaction, including the reinvestment in land. The 80th section of the Lands Clauses Act puts all the costs together — those re- lating to the purchase of land by the company and those relating to its reinvestment, and in taxation under section 83 a distinction cannot be drawn between one transaction covered by section 80 and another. The word "sales" in rule 11 carries with it every- tliing that follows from the sale, and the reinvestment is a result of the .sale. Another view is this : — A purchase from a person who can convey only by virtue of the Lands Clauses Act is not a purchase for money ; it is a purchase for money which is to be treated as land, and is only temporarily invested in consols. Until it has been reinvested in land the sale is not complete. It is, in fact, an exchange. Then we say that rule 2 of the Order excludes this business as it was transacted in Chambers. The words " not being business transacted in any Court, &c.," must apply to the whole of what goes before, otherwise they have no sense, as the Order does not provide for anything but conveyancing business. Ante,^.2i%. Stanford v. Roberts (l) cannot, we submit, be sustained, neither can it be sustained on another ground ; the solicitor here did not investigate the title within the meaning of the scale, it was investi- gated by the Chief Clerk. Homer, Q. C, and Hood, for the Merchant Taylors Company : — The argument for the appellants comes to this, that in rule 11, instead of " sales," we are to read " purchases or sales." [COTTOX, L.J. — There is another question, whether the sohcitor has done th(j business for which by rule 2 remuneration according to the scale is provided. As the investigation of title was in Chambers, did he within the meanmg of rule 2 investigate tiie title?] He investigates the title in tlie same way as he does in any otlier ease in which the abstract is sent to counsel. He goes (1) 26Ch. D, 155. In re Merchint Taylors Company. 297 tlirougli exactly the same process in the one case as in the other, Appeal. ■with this exception, that in a purchase in Court he lias to go before the Court and do things which he would not have to do on an ordinary sale. [Fry, L.J. — Take this entry: "Writing Messrs. Pilgrim re- questing them to produce to the Chief Clerk" a certain document. In an ordinary sale the solicitor would have the responsibility of seeing whether it was duly executed. In the present case the Chief Clerk would see to it. Then, again, there is an entry as to attending the Cliief Clerk to approve the conveyance. In a sale out of Court the solicitor would do that for himself.] No doubt the solicitor's responsibility is to some extent lessened, but he has just the same amount of trouble. The Chief Clerk does not take the business out of his hands. [CoTTOJf, L.J. — The object of tlie rules was only to deal with the remuneration for conveyancing business. What, then, was the object of the words "not being business in any action or transacted in any Court, &c.," unless it was meant to exclude conveyancing business done in Court or in Chambers !] The objection that tlie solicitor had not investigated the title within the meaning of the rules was not taken in the objections, and cannot now be raised. The Court thought that it would be the fairest course that the objections should be amended, so as distinctly to raise this point, and leave was given so to amend and take the opinion of the Taxing Master, after which the case was to come back direct to the Court of Appeal. The objections were accordingly amended by adding the follow- ing objection to tlie allowance of the scale fee : — " (A 2). Because the conduct of the inquiry directed by the above-mentioned order whether a good title could be made to the lands therein mentioned was not an investigation of title within the meaning of Sched. I. to the General Order, made in pursuance of the Solicitoi's' Eemuneration Act, 1881." The Taxing Master" disallowed the objection, and gave the fol- lowing reasons ; — 298 III re Merchant Taylors Company. Appeal. « (J^ 2). It was decided by Mr. Justice Kay in Stanford v. Ante, -p. 248. Roberts (1) that the scale of charges in Sched. I., Part I., to the Order referred to in the amended objection, applies to convey- ancing business transacted in an action ; and Mr. Justice Pearson, in Ante, p. 290. Fleming v. Hardcastle (9th May, 1885), expressed his concurrence in the decision of Mr. Justice Kay. " It has, ever since the Solicitors' Remuneration Order came into operation, been tlie invariable practice in the Taxing Master's Office to apply ' the scale ' to all sales and purchases made by the direction or with the approval of the Court, and to allow, in addi- tion to ' the scale fees,' the fees prescribed by the rules of the Supreme Court, 1883, for the extra work occasioned by the inter- vention of the Court. " The course of the business {i e., tlie work done by tlie solicitor) for icliich the scale fee is allowed, is precisely the same whether or not the sale or purchase is carried out under the direction of the Court, except that, when the approval of the Court is necessary, the conveyancing counsel employed is selected by the Court instead of by the solicitor. " In both cases the vendor's solicitor draws the contract, draws the abstract of title, produces the deeds for examination with the abstract, answers the requisitions on title, peruses the conveyance, hands over the conveyance and title-deeds on completion, and makes and carries on (on the part of the vendor) all the attendances and correspondence arising out of the sale. " And the purchaser's solicitor peruses the abstract and examines it with the deeds, prepares the requisitions grounded on the opinion of the conveyancing counsel on the title, draws and engrosses the conveyance, makes the searches for judgment, &c., receives the conveyance and the title-deeds on completion, and makes and carries on (on the part of the purchaser) all the attendances and correspondence arising out of the purchase. " All the foregoing business is covered by the ' scale fee,' whether the sale or purchase takes place ' in Court ' or ' out of Court.' " The additional work created by the intervention of the Court consists of the preparation of two or three affidavits and of a Chief Clerk's certificate, a few attendances on the Chief Clerk, the drawing up of one or more orders, and (in case of a sale) of an //( re Merchant Taylors Company. 299 advertisement in the London Gazette. For this extra worlt the ^PP^- fees prescribed by the rules of the Supreme Court, 1883, are allowed. I cannot see any reason why the intervention of the Court should operate to deprive a vendor or purchaser of the great benefit which results from the application of ' the scale ; ' and ' the scale ' applying {Stanford v. Roberts (1) and Fleming y. Hard- Ante, p. 248. castle) to sales and purchases effected in the course of an adminis- tration, action, or other similar proceeding, I am unable to draw a distinction between the ordinary case and a case in which, as in the present, the purchase sanctioned by the Court has to be completed out of a fund paid into Court under the Lands Clauses Consolida- tion Act. " It is to be observed that should the decision in Stanford v. Ante, p. 248. Roberts (1) be overruled, the scale will cease to be applicable to leases of property under administration by the Court, so that, whenever a lease is granted with the approval of the Court, the costs will, instead of being a gross sum easily ascertainable in advance (a matter of no small moment to the lessee, upon whom the costs generally fall), consist of a series of charges in detail increased by the operation of the 2nd Schedule to the Remunera- tion Order. The result will be that the cost of a lease granted by the Court will, in the majority of cases, greatly exceed the cost of a lease of property of the same rental value not administered by the Court, the work done (exclusive of the attendances on the Chief Clerk and the preparation of affidavits, certificates, &c., the costs of which are costs in the action, and not paid by the lessee) being the same in both cases." F. Pownall, for the Metropolitan Board of Works : — June 17. The Taxing Master has gone on Stanford v. Roberts. We say Ante, p. 248. that, assuming that case to be correctly decided, it does not govern the present. We say that the mere conduct by the solicitor of an inquiry in Chambers as to title is not an investigation of the title within the meaning of the schedule. The mechanical part of the business done is no doubt the same, whether the purchase be con- ducted in Chambers or without the intervention of the Court, but the responsibility of the solicitor is quite dift'erent in the two cases. (1) 26 Ch. D. 155. 300 In re Merchant Taylors Company. Appeal. First of all, the scale fee includes the perusal and completion of the ^^^^' contract. A purchaser's solicitor conducting a purchase out of Court has to consider whether he will assent to the terms of the contract, having regard to special provisions as to commencement of title, or any other matter, and he must decide on his own re- sponsibility. In the case of a purchase under the direction of the Court he is free from responsibility. The Court decides the question for him. No doubt, in a purchase out of Court, the solicitor fre- quently consults counsel, but he often has to advise his client whether requisitions suggested by counsel should be insisted upon, and he may have to assume a serious amount of responsibility. In a purchase in Court he is bound by the directions of the Chief Clerk, who acts according to the advice of the conveyancing counsel of the Court. Then, as to the observations at the end of the Ante, p. 248. Taxing Master's answer, if Stanford v. Roherts (1) is overruled it must be on the ground that the Act and Orders do not apply to con- veyancing business transacted in Cliambers, and.Sched. II. cannot apply any more than Sched. I., so that the solicitor and client are thrown back upon the scale of charges existing before the Act, not upon that scale as modified by Sched. II. We say then (1) that the matter is not within the Order at all, being business transacted in Chambers ; (2) that if it is, there is no item which applies to it, for that this is not an investigation of title by the solicitor ; and (3) that "sale under the Lands Clauses Act" includes every- thing up to and inclusive of the reinvestment iu land. Romer, Q.C, and flood, for the respondents : — As to the question whether the 11th of the rules in Sched. I. excludes the transaction, we say that there are two conclusive answers to the appellant's case : (1) that this is not a sale ; and (2) it is not a case where the vendor's charges are paid by the pur- chaser. Then, as to the objection that this is business in Chambers, that depends on the question of construction whether the words, "not being business in any action," &c., apply only to the last antecedent " other business," or to the whole of what goes before. The natural grammatical meaning of the words is to apply them only to the last antecedent, the second " in respect of '' breaking (1) 26 Ch. D. 155. In re Merchant Taylors Company. 301 vip tlie matter into two branches ; and there is no reason for de- ^^^' parting from the natural construction. The sohcitor does the same work in two cases. [Fey, L.J. — Surely the responsibility is very different. In a purchase iinder the Court the solicitor refers all his difficulties to the Chief Clerk.j There is practically very little difference between the responsi- bility in a purchase under the Court and a purchase out of Court where he instructs coimsel. Stanford v. Roberts (1) is a decision Ante, p. 213. in our favour, and Mr. Justice Pearson has expressed his agree- ment with it. Pownall, in reply : — The observations of the Taxing Master in Stanford v. Roberts Ante, p. 248. forcibly put our case, and Mr. Justice Kay arrived at his conclu- sions with great doubt. Sect. 4 of the Act cxpi-essly refers to responsibility as an element to be taken into account. Cotton, L J. : — This is an appeal from the refusal of Mr. Justice Chitty to review the Taxing Master's certificate. The costs were taxed under these circumstances : — Money was paid into Court under the Lands Clauses Consolidation Act by several companies for land taken in pursuance of that Act, and it was to be rein- vested. The bill of the costs of the solicitor of the landowner relating to the reinvestment was objected to by the railway companies on the ground that it contained as its first item a per- centage charge on the amount of the money to be reinvested, which is admitted to.be the proper charge if the case comes within the rules made under the Solicitors' Kemuneration Act, 1881, and Sched. I. thereto, being the charge provided by Sched. I. as pay- able to a purchaser's solicitor " for investigating title to freehold, copyhold, or leasehold property, and preparing and completing conveyance (including perusal and completion of contract, if any)." Three grounds of objection were taken. One was that, having regard to Rule 11 in Sched. I., Part L, the schedule did not apply to a case like this, because that rule provides that — " In case of (1) 26 Ch. D. 155. 1885, 302 In re Merchant Taylors Company. Appeal. sales under the Lands Clauses Consolidation Act, or any other public or private Act under which the vendor's charges are paid by the purchaser, the scale shall not apply." It was said that that exception ought to be held to apply to the present case on the ground that, although this is the reinvestment of money, yet really it is part of what is referred to by the rule as a sale under the Lands Clauses Consolidation Act, since the sale under the Act involved the reinvestment in land, and therefore reinvestment ouflht to be considered as included in the words, " in cases of sales under the Lands Clauses Consolidation Act." In my opinion that argument cannot prevail. The terms are distinct. " In cases of sales under the Lands Clauses Consolidation Act, or any other private or public Act under which the vendor's charges are paid by the purchaser." That is not the case here. The vendor's charges are not paid by the purchaser. What we are dealing with is, no doubt, a consequence of the sale. But if it had been in- tended to include not only the costs on sales, but also the costs on reinvestments, it would have been so stated in the rules. The next ground of objection was, that transactions like this were excluded from the scale by rule 2, which says that " the remuneration of a solicitor in respect of business connected with sales, purchases, leases, mortgages, settlements, and other matters of conveyancing, and in respect of other business not being business in any action or transacted in any Court or in the Chambers of any Judge or Master, it is to be regulated as follows ; " and then it says what the remuneration is to be. It was said that in this case the words " not being business in any action or transacted in any Court or in the Chambers of any Judge or Master " apply not only to the words " other business," but to the entirety of the matters dealt with in this second rule. There is, no doubt, a little obscurity in this rule, and I think the difficulty has arisen in this way — that although the remuneration and charges provided for by the Schedule are simply for what may be called conveyancing business, the rules have adopted nearly all the words of section 2 of the Act which enables rules to be made and a scale to be fixed, not only for such business as is provided for by the rules which have been made, but for other business " not being business in any action or transacted in any Court or in the Chambers of any In re Merchant Taylors Company. 303 Judge or Master, and not being otherwise contentious business." Appeal. . . . 1885. Under tlie Act I think it clear that what was meant was business other than conveyancing business, and not behig business in Chambers or other contentious business, and that the words " not being business in any action," &c., do not apply to the previous part of that section. When we come to the use of the same words in rules which provide only for conveyancing business there undoubtedly is a difficulty. Still, in my opinion, we ought to hold that in the rule these words — " not being business in any action or transacted in any Court or in the Chambers of any Judge or Master" — apply only to what is called other business. The Order had already defined what the business was to be, the fees for which were to be regulated by the Order — viz., " business con- nected with sales, purchases, leases, mortgages, settlements, and other matters of conveyancing;" and then, I suppose, ex abundanti caidela, but causing a difficulty from that very abundant caution, the words are added, " or other business not being business in any action," &c. The third ground of objection raises a more difficult point. We have already laid down that to entitle a solicitor to the ad valorem charge fixed by the Schedule he must do the whole of the things which are mentioned collectively as constituting the business for which the scale fee is allowed. In onQ c&se— In re Wilson (\) — we had to consider the right of a vendor's solicitor to charge the scale fee "for conducting a sale of property by public auction, including the conditions of sale." We held that although em- ploying an auctioneer did not prevent the scale from applying, because of course the solicitor could not take the bids, yet if substantially the auctioneer did business which was part of the conducting of the sale besides receiving the bids, then the solicitor who employed that auctioneer was not entitled to the scale fee, because he had not done all that was referred to; he had not conducted the sale, he had only done part of the conducting of the sale. Here we have to consider whether the solicitor of the Merchant Taylors Company has, within tlie meaning of the rules and of the Schedule, investigated, the title to freehold, copyhold, or leasehold property, and prepared and completed the conveyance. (1) 29 Ch. D. 790. 304 In re Merchant Taylors Company. Appeal The question really is whether he has investigated the title. On ^^^^' that we have felt considerable doubt. This objection was not originally taken by the railway company, and Mr. Romer desired that the matter should go back to the Taxing Master, so that this objection should be stated, and that we should have the reasons of the Taxing Master for holding the scale fee to be payable. I must say for myself I am glad that that course was taken, because we have had, in consequence, considerable assistance from the Taxing Master in the reasons which he has given, and which, as I understand, were submitted by him to two at least of the other Taxing Masters, so that he had their assistance ; and since then we have also had the assistance of one of the Chief Clerks, who knows what is done in cases of purchases under the direction of the Court. The argument in support of the objections was that the scale of charges is fixed with reference, not only to the work done, but to the responsibility undertaken by the solicitor. Un- doubtedly that is so, for, of course, mere doing of work without responsibility would not be paid for at the same rate as work with the responsibility attaching to the due and proper performance of it. It was urged that conducting an inquiry in Chambers as to whether there is or is not a good title does not put upon the solicitor the same responsibility as he is subject to if he himself, not under the direction of the Judge in Chambers, has to investi- gate a title for anyone who is purchasing. Considerable weight is due to that objection. But then we learn, not only fi"om the Taxing Master's reasons, but from the inquiries which we have made, that a solicitor acting for the purchaser under the direction of the Court does all whicli he would have to do if he were independently investigating the title, though he has not the same responsibility in the one case as the other. Therefore, in my opinion, as the solicitor acting under the direction of the Judge does everything which he would do in an independent investigation of the title, the case comes within the words of the rules and Schedule, and I do not see any such manifest inconvenience in allowing the scale to be applied to such a case as would justify us in saying that it does not apply. There are, as was pointed out by the Taxing Master, conveniences in allowing the scale to apply to such a case as the present. It reduces matters to something In re Merchant Taylors Comioany. 305 like uniformity, and it enables parties to know, without difficulty, Appeal 1885. what will be the charge they will have to bear, whether the investi- gation is out of Court, or whether it is in Court, by inquiry in Chambers as to the title. In my opinion, therefore, as the case comes -within the words (because, as a matter of fact, the solicitor has investigated the title) we ought not to be hindered from so construing the words as to include this case, simply because we think that the solicitor does not incur the same amount of I'e- sponsibility as if he had acted independently. In my opinion, therefore, the appeal fails. LiNDLEY, L.J.: I am of the same opinion. The question whether this re-in- vestment of money in land comes within the expression "sales under the Lands Clauses Consolidation Act, or any other private or public Act under which the vendor's charges are paid by the purchaser," appears to me one that is very easily disposed of. This is a purchase. It is not a sale under the Lands Clauses Consolida- tion Act at all, nor is it a sale in which tlie vendor's charges are paid by tlie purchaser. Eule 11 of Schedule I. therefore does not apply. Now, as to the second rule of the General Order under the Solicitors' Kemuneration Act, Id appears to me that the construction which was put upon it by Mr. Justice Kay in Stanford v. Roberts (1) Ante, p. 248. was right, and that the words " not being business in any action or transacted in any Court, or in the Chambers of any Jud"-e or Master," do not refer so far back as " business connected with sales, purchases, leases, mortgages, settlements, and other matters of con- veyancing," but are referable, according to the proper construction, to the last antecedent " other business" — that is to say, other than that which is speciGcally mentioned. Then there remains only the third point, which is, whether the expression of Schedule I. Part I. " for investigating title " applies to a solicitor who effects a purchase under the direction of the Court, or whether it ought to be confined to a solicitor investigatino- title under ordinary circumstances. The expression " investigating title " appears to me to be as applicable to the one kind of busincfs (1) 26 Ch. D. 155. X 306 In re Merchant Taylors Company. Appeal. as to the otliei-. The Taxing Master states that, in point of fact, SO far as the actual investigation or title is concerned, there is no material difference, but it is certainly true that a solicitor, who conducts a sale or has the management of a purchase under the direction of the Court, is relieved to a certain extent, and not to an inconsiderable extent, from responsibility. The responsibility of deciding difficult questions is taken by the Chief Clerk or by the Judge in lieu of the solicitor. But when we come to look at the question whether this ought to make any difference in the construc- tion of the schedule, I am of opinion that it ought not. The scale, if our construction of the rules is right, ia, in point of language, as applicable to the one class of business as to the other, and the scale was fixed by persons who knew perfectly well what they were about, and whose duty it was, under the Act of Parliament, in fixing the scale, to consider tlie skill, labour, ard responsibility involved in the business for which the remuneration was fixed. There is no trace of any such thing as varying the scale in individual cases in respect of refponsibility incurred in one case and in another. Take the case, lor example, of a solicitor employed by an eminent conveyancer. The solicitor comes to a difficulty, and reports it to his client. The client says: "I am willing to take the risk of that." There is nothing that I can find which shows that the solicitor, although exonerated from responsibility in such a case as that, is to be paid otherwise than by the scale. Neither do I see any indication of an intention to make a difference in the charge because the responsibility is less in the cases of sales and purchases in Chambers. I think the Taxing Master is right when he says that the business and work done is at least as onerous. I rather fancy that it is more troublesome than when the sale or purchase is not conducted in Chambers. It is verj true there are attend- ances for which charges can be made; but I do not see any reason to suppose that solicitors are better paid for sales and purchases under the direction of the Court than they are in other cases, and, in fact, I think they are probably rather worse paid. It appears to me to be of the utmost importance that we should lay down a rule which can be applied readily to matters of business, and not give rise to subtle distinctions which lead to constant em- barrassment; and on the true construction of the Act, the rules. In re Mercliartt Taylors Company. 307 and the scale, it appears to me that the view taken by the Taxing Appeal. Master is right — that this is a case in which the purchaser's solicitor has investigated the title within the true meaning of Part I., Schedule I., and that the appeal ought to bo dismissed. Fey, L.J.:— I am of the same opinion. With regard to the first point, Avhich arises on the 11th rule, it appears to me to be plain that the investment of money produced by a sale under the Lands Clauses Consolidation Act does not come, within the words " In cases of sales under the Lands Clauses Con- solidation Act." Ingenious as was the argument addressed to us on this point, it is one which cannot possibly prevail. Then with regard to the second question, which arises upon the construction of the words, " in respect of other business not being business in any action or transacted in any Court or in the Chambers of any Judge or Master," I am of opinion that the same construction must be put upon those words in the Act of Parliament and in the General Order. 1, like my brother Judges, have arrived at the conclusion that the words " not being business," &c., refer to the immediate antecedent " other business," and are not to be ex- tended as an exception to apply to the whole of the business Avhicli is referred to in the previous words of the section of the Act of Parliament and the rules of the General Order. I think that the reasons which have been given, both by my learned brethren and also by Mr. Justice Kay, in the case in which the question first arose, are correct. Then upon the third point, which is whether the solicitor who • assists the Chief Clerk or the Judge in Chambers in answering the inquiry whether a good title can be made, is entitled to the scale fee for investigating the title. I had for some time considerable doubt, but it appears to me that the solicitor, before he can render proper assistance to the Judge in Chambers, must investigate the title, and that, therefore, the business which he transacts is within the words of the scale. I rely also very much upon the statement made by the Taxing M aster (and which is borne out distinctly by the statement made to us by the Chief Clerk, whom we have consulted), that "the course of the business — viz., the work done bv the 308 In re Glascodine and Carlyle. Appeal, solicitor, for which the scale fee is allowed — is precisely the same 1885 L J whether or not the sale or purchase is carried out under the direc- tion of the Court, except that where the approval of the Court is necessary the conveyancing counsel employed is selected by the Court instead of by the solicitor." Undoubtedly it is quite true that the responsibility of the solicitor in assisting the Judge in answering the inquiry is somewhat less tlian it is when he takes upon himself the investigation of the title for a lay client. But it appears to me that we ought not to draw fine distinctions between the different cases of responsibility of a solicitor investigating title, and that the decision at which we have arrived is a decision not only in accordance with the very words of the scale, but also in accordance with the course of business and the convenience of the suitors of the Court. The apjieals, therefore, will be dismissed with costs. Solicitors : W. F. Fearn ; A. G. Parson ; R. Ward. Appeal Re GLASCODINE and CARLYLE. 1885. June 20. {By permission, from 52 L. T. 781). (Before Cotton, Lindley and Fey, L.JJ.) Solicitor and Client — Costs — Mortgage to Secure Balance of Purchase-money — Investigation of Mortgagor's Title — Taxation after Payment — Special Circumstances — Mutual Mistake of Law — Solicitors' Act, 184.3 (6 §• 7 Vict, c. 73), s. 41 — Solicitors' Remuneration Act, 1881, General Order of 1882, Sched. \, part 1 . When part of the purchase-money is allowed to remain on mortgage of the property sold, the solicitor of the vendor-mortgagee cannot charge the scale fee under Sched. I ., part I, of the General Order under the Solicitors' Remuneration Act, 1881, for investigating the mort- gagor's title. But where a fee of £95 was charged for such investigation, under a common mistake of the parties that the scale applied, the Court refused to accede to an application, made after payment, for taxation. The Swansea Dry Docks and Engineering Company, Limited, on the 25th May, 1883, agreed to purchase a certain dock for £32,000, of which £20,000 was to be secured to the vendors by a mortgage of the dock. In re Glascodine and Carlyle. 309 Messrs. Glascodine and Carlyle acted as solicitors for the vendors, Appeal. 1885. and on their behalf furnished the abstract of title, and acted on their behalf during the investigation of the title and the conix)lc;tlon of the sale. They also prepared the draft and engrossment of the mortgage. The solicitors of the company procured the execution of the mortgagor, and the mortgage was delivered and the purchase com- pleted at the same time, on the 31st October, 1883. On the 27th October, 1883, Messrs. Glascodine and Carlyle wrote to the company's solicitor asking for an appointment to complete, and stating that their charges for the mortgage would be £120. On the 31st of October a clerk of the dock company's solicitor attended at Messrs. Glascodine and Carlyle's offices at Swansea to complete, but the completion stood over till the next day, when the clerk was provided with the money necessary to complete, but not with money enough in addition to pay the stamps on the convey- ance and mortgage, or the costs. On being required by Messrs. Glascodine and Carlyle, the clerk gave them the following under- taking on behalf of his employer : — " As solicitor to the above company, I undertake to obtain and to make to you payment of your costs as mortgagees' solicitors, according to the ad valorem scale under the Conveyancing Act, 1881, {sic.) in relation to the mortgage for £20,000 to [the mortgagees] herein, and the amount of tlie stamp duty on the conveyance of tlie . . . dock, and the said mortgage thereof." By their bill of costs, delivered on the 1st of November, 1883, Messrs. Glascodine and Carlyle charged the company in respect of the mortgage — For investigating title, preparing and completing mortgage for £20,000, £95 ; stamp duty on mortgage, £25 ; total, £120. This bill was forwarded to the secretary of the company by the clerk to their solicitor, and was paid by their secretary on the 26th November. On the 20th of May, 1884, the company took out a summons for taxation of the bill, but, Bacon, V.C, was of opinion that the applicants had shown no special circumstance justifying taxation after payment, and dismissed the summons with costs. The applicants appealed. 310 In re Glascodine and Carlyle. Appeal. w. Renshaw for the appellants : — 1885. -^ ^ The respondents have been paid their costs as vendors' solicitors, and have not investigated the title. They are not, therefore, entitled to make the charge for negotiating under Schedule I., pai't 1, of the Order under the Solicitors' liemuneration Act, 1881, Ante, p. 233. which they claim to be entitled to make : Re Lacey and Son (1). [Cotton, L.J. — The charge is utterly wrong. It is made in respect of work which has not been done, but there has been no fraud.] [LiNDLET, J. — There seems to have been a common mis- apprehension that the scale applied.] The bill having' been paid, it is necessary to show special circumstances to justify taxation. In this case it is unnecessary to prove pressure, as there is gross overcharge amounting to fraud. [Fey, L.J. — That means taking an unfair advantage whicii no decent man would take.] He also cited Horlock v. Smith (2) ; Re Strother (3), Vernon R. Smith, for Messrs. Glascodine and Carlyle, was stopped on consenting not to press for the costs of the appeal. Cotton, L.J. : This IS an appeal from a decision of Bacon, V.C, refusing io order taxation of a bill of costs after payment of the bill. In such a case the applicant for taxation must show that the payment was made under special circumstances. Overcharge and pressure are generally the special circumstances alleged, but an overcharge may be of such a nature that payment of the bill may be said to have been obtained by fraud ; and that alone, without pressure, would be a special circumstance ju-tifying an order for taxation. Here then is a large charge which the mortgagees' solicitors were not entitled to make because they had not investigated the title. The solicitors of the mortgagees thought that they were entitled to make the charge under the Order under the Solicitors' Remuneration Act, and the solicitor on the other side took the same view. Though the charge was one which the respondents were not entitled to make they were guilty of no misrepresentation. Both slices were (1) 49 L, T. Eep. N. S. 755 ; 25 Ch. Div. 301. (2) 2 My. & Cr. 495. (3) 30 L. T. Eep. 0. S. 63 ; 3 K. & J. 518. 1886. Ooodbody Sf Co. i\ Gallaher. 311 under a mUapprehension as to the law, and in my opinion the appeal ^J['^lf' must be dismissed, but without costs. LiNDLEY, L.J.: — I am of the same opinion. There is no pretence for saying that the respondents were guilty of any fraud, it was a case of misappre- hension of the law. Both sides knew the facts, and thought ihe case was within the scale in the Solicitors' Remuneration Order. This was a wrong charge, but there were no special ciicurastanccs justifying taxation of the bill after payment. Fet, L.J. :— I am of the same opinion. Without defining " special circum- stances," I must say that I think no such circumstances existed in the present case. Tliere is nothing approaching fraud or suppres- sion of facts. Both sides had full knowledge of the facts, and misconstrued the Remuneration Order. Appeal dismissed loUhoiit costs. Solicitors for the appellants: Pritchnrd and Sons, for F. Vaughan, Cardiff. Solicitor for the respondents : //. C. Lamhert. GOODBODY & CO. v. GALLAHER. q. g. c;„. 1885. (By permission, from 16 L. R. Ir. 336.) June 26, 29. (Before O'Brien and Johnson, JJ.) Defence — Payment into Court for Debt and Costs— Acceptance— Costs — General Order XXX., r. 4 — Appendix B., Form 6— Practice. In an action for a money demand the defendant pleaded an agreement, after action brought, by the plaintiflfs to take a certain sum for debt and costs, and brought that amount into Court on foot of debt and costs. The plaintiffs' solicitor served notice on the defendant accepting the sum so paid into Court "in satisfaction of the plaintiffs' claim, in respect of which it was paid in " :^ HM, that the plaintiffs were not entitled to any costs beyond the sura, lodged in Court. 312 Goodbody S,- Co. v. Gallahef. Queen's Bench. SuMMONS by the defendant for an order that the taxation of the plaintiffs' costs should reviewed, and that the Taxing Officer be directed to disallow the plaintiffs all costs. The writ of summons was issued on 2nd day of April, 1885, claiming £42 3a. 4d, price of goods sold and delivered. The defendant entered an appearance. Messrs. Sharp & Co. of Liverpool, being indebted to the de- fendant in the sum of £37 15*. "id., were directed by him to pay that amount to the plaintiffs on account of their demand, which was done on the 28th day of April, 1885, and same was accepted by the plaintiffs in part payment, leaving still due £4 8s. 2c?., balance of the sum claimed in the writ of summons. On the 29th day of April, 1885, the solicitor for the plaintiffs wrote to the defendant demanding payment of £7 17a. M., being for balance of debt and costs, to which the defendant replied on the 30th day of April, stating that the only amount due was £5 14a. lOd., and sending a cheque for that amount. On the following day the solicitor for the plaintiffs returned the cheque for £5 14«. lOrf., declining to receive the defendant's cheque, and requiring a draft for the full amount — £7 1 7a. Zd. ; to this the defendant replied on the next day, sending a draft for £5 14a. lOd., which was returned on the 4th of May. On the 5th day of May the plaintiffs served notice of a motion for final judgment for the sum of £4 8a. 2c?., balance of the said sum of £42 3a. 4c?. and costs ; upon which application the Court made no rule. The defendant delivered his defence on the 22nd day of May, and, amongst other defences, pleaded an agreement after action brought by the plaintiffs to take £43 10a. in discharge of their claim, the payment by Sharp & Co. of £37 15a. 2d., and the tender by the defendant of the said sum of £5 14a. 10c?., and the defendant brought into Court the said sum of £5 14a. 10c?., and submitted that in no event were the plaintiffs entitled to any further or other sum for debt or costs in the action. On the 9th day of June, 1885, the defendant was served with a notice in the following terms : — " Sir, — Take notice tiiat the plaintiffs accept the sum of £5 14a. 10c?., paid by you into Court in satisfaction of the plain- tiffs' claim in respect of which it is paid in." Goodbody ^ Co. v. Gallalier. 313 The plaintiffs having taken out of Court the money lodged, QweyCs Bench. iinder the plea as above stated, proceeded to have their costs taxed, and the Taxing Master taxed them up to payment out of tlie money lodged in Court, and certified them to the sum of £11 Os. 2d. Gordon, for the defendant : — This is not a plea puis darrein continuance, but a plea to the further maintenance of the action. The money paid into Court was, according to the express terms of the plea, paid in on foot of debt and costs, and the plaintiffs, as stated in the notice they served on the defendant, drew it out in satisfaction of the claim in respect of which it was paid in. They are not entitled to any further costs. Counsel referred to Garratt v. Quin (1), " Bullen and Leake's Precedents of Pleading," p. G63; Section 73 of the Common Law Procedure Act, 1853 ; Tetley v. Wanleas (2). Matheson, contra : — The defendant lodged the money in Court in the ordinary way under General Order, rules 1 and 4. The word " claim " in the form of notice of accepting the money, taken with the rules, means the cause of action relied on by the plaintiff. This form of plea formerly concluded witli an undertaking to pay the costs. The rule gives no power to pay money into Court on account of costs. Gordon, in reply : — The old plea that concluded with an offer to pay the costs was where the plea did not purport to deal with the costs. Cur. adv. vult. The judgment of the Court was delivered by O'BrieiV, J. : — June 29. In this case, whicli involves a point of some novelty and difficulty to a money demand, the defendant has pleaded to the further maintenance of the action by way of accord and satisfaction of the causes of action, and also of the costs, an agreement by which another person was to pay a sum of £37 ; and he was to pay a (1) Ir, R. 2 C. L. 251, (2) 36 L. J, Exch, (N, S.) 153. 314 GoodboJy Sf Co. «. GalUher. Queen's Bench., further sum, the latter exceeding by £1 6s. 8d. the balance of the 1886. ' p , 1 , . . . demand, alleging a tender of that further sum, and bringing it into Court. The plaintiffs contend that in such a case, on taking the money out of Court and stopping his proceedings, he is en- titled, under Order XXX., rule 4, to have his costs taxed, and the Taxing OiScer having adopted that view, we are called upon to review his decision. The defendant, on the other hand, says why should he be subjected to the costs when he has compounded for them by the agreement ? The plaintiff claims them by force of the positive terms of the rule ; but if the effect of the rule were to give hiril costs, to which he is certainly not entitled otherwise than by it, that would rather lead to the argument that the rule was not intended to apply to a case in which it could not be sepa- rated from such an unjust consequence. The point was approached, but not necessary to be determined, in the case of Staffordshire Banking Co., v. Emmott (1), where there was a composition in bankruptcy after action brought, and the principal question was, whether the defendant was bound to plead that defence to the further maintenance, or could avail of the deed under Section 198 of the Bankruptcy Act to prevent execution on the judgment without any pleading. Baron Bramwell put the case that, if the defendant pleaded the deed, the plaintiff could confess the plea and have his costs; whereas, if he went on to judgment and was put to more costs, he could have none. But he seems not to have adverted to the fact that the deed was a release, not only of the debt but of the costs ; and the editors of " Bullen and Leake's Precedents " have noted the very point now in issue, by the observations made on that ease, that it seems doubtful how far the Eule can apply to a plea of composition under the Bankruptcy Acts, releasing all actions and costs as well as debts. Substitute plea for deed of release, and we have the exact case at present. Now, I would like it to be considered whether it is possible at all in law to make the agreement relied on in this defence ; for, unless it be impossible, it must be capable of having effect given to it in someway. But it is so far from being impossible that, in Crowther v. Farrer (2) ; an action was brought to enforce the (1) L. E. 2 Ex. 203. (2) 15 Q. B. 6V7. GoodhoJy 4- Co. v. Gallaher. 315 very terms of the agreement of compromise, and held to^ be Queen^s Bench. maintainable on the principle that the agreement was an extinc- tion of the original action. And the casual observation of Lord Campbell in that case, that the question was not on a plea to the further maintenance of the action, but whether there was legal consideration for the agreement, is met by tlie observations of judges in other cases, which treat the effect of the new agree- ment as the same for either purpose. Trying to find my way out of the supposed logical dilemma that is presented to us, I consider the true solution of the matter to be, that the rules as to the pay- ment of money into Court and taking it out do not apply at all to this case. The money is not paid into Court in respect of plaintiffs' claim, but in respect of the new agreement ; it is not paid in upon a plea of tender, because tender has the same mean- ing in the Rule that it has in the usual language of pleading, and that means tender before action brought ; it is not paid in in satis- faction of the cause of action, but of a contract by which the cause of action is displaced. Plaintiffs' counsel, indeed, contends that the payment into Court was erroneous ; but it would seem from that to follow necessarily that the Rule can only give costs on taking it out when the payment is properly made. The result is that the plaintiffs have, in fact, the money which was agreed to be paid, and that is the same thing as if the money were handed over to them when the agreement was made. If they challenge the case, that the accord was in respect of the costs as well as the cause of action, they could have gone on and tried the issue on the defence, and would have been entitled, as in Cooke v. Hopewell (1) to judgment for nominal damages and the costs. Not challenging it, they must be taken to admit it is true, and to give them the costs, when by the confessed agreement they have given them up, would be simply iniquitous absurdity. Solicitor for the plaintiffs : Goodbody. Solicitor for the defendant : T, Carey. (l)llExcli. 558. 316 Humphreys v. Jones. ^ppe^i- HUMPHREYS «. JONES. 1885. Oct. 27. (1881. H. 1954.) ( By fermtssim, from 31 Ch. P. 30; s. c. 34 W. R. 1, 53 L. T. 482, 55 L. J. Ch. 1). Solicitor — Costs — Solicitors' Remuneration Act, 1881 (44 ^ 4.5 Vict., c. 44), s. 2 — General Order, Aitgust, 1882, )•. 2, sm6. s. (c.) — Partition Action — Costs of Defendants' Solicitors — Conveyancing. In a partition action an erder was made for the sale of the estate, and payment of the costs of all parties out of the proceeds. The plaintiff, who was the owner of one-fourth of the estate, had the conduct of the sale, and his solicitor was paid his costs in accordance with Rule II., sub-sect, (a) of the General Order under the Solicitors' Remuneration Act, 1881 :— Beld, (reversing the decision of Bacon, V.C.), that the solicitors of the defendants, who were the owners of the other three-fourths of the estate, were entitled to be paid the costs of perusing the conveyance and obtaining its execution by their clients under Rule II., sub-sect. (c). The action in this case was brought for the partition of an estate, and an order was made by Vice-Chancellor Bacon for the sale of the estate and for payment of the costs of all parties out of the proceeds. The plaintiff, who was the owner of one-fourth of the estate, had the conduct of the sale. The defendants, who were entitled to the remaining three-fourths, appeared by two separate solicitors. The plaintiff's solicitors claimed costs, as the vendor's solicitors, under Part I. of Schedule I. of the Solicitors' Remuneration Order of August, 1882, and th^se costs were allowed by the Taxing Master. The defendants' solicitor claimed the costs of perusing the con- veyance on behalf of their respective client?,, and for obtaining the execution of the conveyances by them, on the scale laid down in Schedule II. of the Order. The Taxing Master disallowed these charges, and in his reply to the defendants' oljection gave his reasons as follows : " The plaintiff and defendants were tenants in common and all of them vendors. As such they are entitled to one scale charge under Schedule I. of the General Order made in pursuance of the Solicitors Act, 1881, and no more. On the sale they should have but one solicitor." Humphreys v. Jones. 317 The Vice-Chancellor, on the matter being brought before hun, /'g^g'? ' affirmed the decision of the Taxing Master, and the defendants appealed. Maidlow, for the Appellants; — The question turns upon the construction of the 2nd Rule of tlie General Order under the Solicitors' Remuneration Act, 1881. That Order has been held to comprise business done in connection with the sales under the Court as well as those out of Court: Stanford Ante, t^. 248. V. Roberts (1). That being so, the plaintiff's solicitors, having the conduct of tiie sale, liave been remunerated under sub-sect, (a) of that rule; and the solicitors for the defendants claim to be remune- rated under sub -sect, (c) according to the scale of charges in Schedule 11. Under the old system there is no doubt they would have been entitled to these charges, and sub-sect, (c) provides that " in respect of all other business the remuneration for which is not hereinbefore, or in Schedule I., hereto prescribed, the remuneration is to be regulated according to the present system as altered by Schedule II. hereto." A mortgagee is entitled to his costs of joining in a conveyance; In re Beck (2) ; and, on the same principle, the Ante,^. 235. owner of a share in an estate which is sold is entitled. Russell Roberts, for the plaintiff : — The first part of Rule 2, sub-sect, (c) which refers to sales, mortgages, &c., only provides for the remuneration of the solicitor havinf the conduct of the business. The last part does not apply to business connected with sales, &c. Therefore the appellants do not come within either part. In the present case there was no occasion for the defendants to employ separate solicitors. They were all vendors, and the plaintiff's solicitor represented them all. That would have been the case under the old practice : Dixon v. Pyner (3) ; Dale v. Hamilton (4). And under the present practice, Order LV., rule 40, recognises the same principle by giving power to the Judo-e to appoint one solicitor to represent all parties. (1) 26 Ch. D. 155. (3) 7 Hare, .S31. (2) 24 Ch. D. 60S. (4) 10 Hare, App. vii. 318 Humphreys v. Jones. -^Zf- Baggallay, L..T.: I am of opinion that this appeal must be allowed. Under the old system in similar circumstances the defendants' solicitors would have been allowed their charges. In the present case the charges have been disallowed, and if that disallowance is proper it must be sounder the Solicitors' Kemuneration Act, 1881, and the Order made in pursuance of it. That Act gave power by the 2nd section to the Lord Chancellor and certain other persons to make a General Order " regulating the remuneration of solicitors in respect of business connected with sales, purchases, leases, mortgages, settle- ments, and other matters of conveyancing, and in respect of other business not being business in any action, or transacted in any Court, or in the Chambers of any Judge or Master." Then it became a question whether the words of that section had reference to sales made under an Order of the Court in an action as well as those made out of Court, and it was decided by Mr. Justice Kay in Ante, p. 248. Stanford v. Roberts (1), that the clause applied to all sales whether made under an Order of the Court or not. That decision was not appealed from, and I entirely approve of it. The introductory part of the 2nd Kule of the Order, which was made in pursuance of the section of the Act, follows the words of that section, and provides that the remuneration of a solicitor in respect of business connected witli sales, &c., and in respect of other business not being business in any action or transacted in any Court, or in the Chambers of any Judge or Master, shall be regulated as laid down in three sub- sections. Sub-sect, (a) relates to the remuneration of the solicitor having the conduct of completed sales and mortgages. Sub-sect. (b) relates to the remuneration of solicitors having the conduct of completed leases or agreement for leases ; and then sub-sect, (c) is as follows. [His Lordship read the sub-section.] 1 think that this sub-section comprises all the business referred to in the introductory Avords of the rule which is not included in sub-sects. («) and (b), and that it applies exactly to the present case. I am, therefore, of opinion that the Taxing Master was wrong in his decision, and that the defendants' solicitors are entitled to the remuneration which they claim. The Taxing Master appears to have thought (1) 26 Ch. D. 155. River Bann Navigation Act, 1879; Ex parte Olpherts. 319 that tlie plaintiff's solicitor acted for all parties. I do not think Appeal. that is correct-. The appeal must be allowed. BowEN, L.J. : — I agree, and for tlie same reasons. Fey, L.J.:— I am of the same opinion. Solicitors: Bolton, Rolhins, Bush ^ Co. ; Chester ^ Co. In the Matter of the ElVER BANN NAVIGATION ACT, M. x. 1879; ^.rj»arteOLPHEETS. ^^^^- Feb. 8, 22. iBp permission, from 17 L. R. Ir. 168.) Coats — Taxation — Pei-usal of Deeds in Abstract of Title— General Order under Solicitors' Remuneration Act, 1881, Sch, II. Under an order to tax the costs awarded to the owner of lands com- pulsorily taken by a company his solicitor is not entitled to 1 s. per folio for perusing deeds referred to in the abstract of title furnished. The General Order made in pursuance of the Solicitors' Bemuneration Act, 1881, Schedule II., does not apply to such taxation. Motion to review the taxation of a bill of costs in respect of cer- tain items disallowed by the Taxing Master. The order under which the taxation was had and the items are stated in the judg- ment. # Mr. Shekleton, Q.C., for the petitioner, referred to In re Ante, ji. 27S. Parker (1). Mr. Matheson, for the Coleraine Harbour Commissioners : — The arguments on both sides are referred to in the judgment. The Master of the Rolls: — This case comes before me on an appeal from the decision of the Taxing Master, disallowing certain items in a bill of costs. The (1) 54 L. J. (N. S.) Ch. D. 959. 320 River Bann Navigation Act, 1879; Ex parte Olpherls. Bulls. question arises as follows: — Eichard Olpherts was tenant for life 1886 of certain lands taken by the Ooleraine and River Bann Naviga- tion Company under tlie Lands Clauses Consolidation Act, 1845, the provisions of which are incorporated in their Act — the River Bann Navigation Act, 1879. The solicitors for the company called on Mr. Olpherts for an abstract showing his title as tenant for life, and he presented a petition, on which an order was made, directing the purchase-money, £859 18s. Ad., to be invested in Three per Cent. Stock, and the dividends to be paid to the petitioner till further order, the company to pay to him the costs of the petition and order and proceedings thereunder, together with all costs pro- perly and necessarily payable under the provisions of the Lands Clauses Consolidation Act, 1845. Under that order the costs of the abstract were drawn by tlie petitioner's solicitor, who was pro- bably tlie solicitor for the family, and furnished to the substantial sum of £56 19.9. lid. That bill of costs went before the Taxing Master, and the question arises as to items 2, 3, 4, 5, 6, 7, and 11. Item No. 2 is, " Perusing the following deeds and documents pre- pai'atory to drawing abstract — viz. : Marriage settlement, dated 7th August, 1834, Rev. Richard Olpherts with Miss jNIary Richard- son; 195 folios, at Is. per folio, £9 15s." From that charge the Taxing Master has taxed off £9 2s. 6^., allowing 12s. Gd. for the item. The next item, No. 3, is, " Perusing mortgage for £3,000, dated 24tli October, 1844 ; 200 folios, £10," off whicli £9 7s. / Solicitor aiid Client — Lease — Costs — Taxation— Election — " Undertaking any Business" — " Client" — Solicitors Eemmi,eration Act, 1881 (44 <£• 45 Vict., c. 44), s. 1, sub-s. 3 — General Order under Solicitors Betnuneration Act, 1881, rr. 2, 6, Sched. I., Part 11. The solicitors of the assigns of a lease of copyhold land wrote to P., the copyholder, asking for renewed leases to their clients under a covenant in the original lease. On the 25th of July P.'s solicitors wrote to the solicitors of the applicants stating that P. had called on them with the letter, and that the matter therein referred to should have their atten- tion, and asking for evidence of the title of the applicants. The evidence required was furnished. Some delay took place in consequence of the necessity of P. being admitted, and obtaining a license to demise. On the 16th of October P.'s solicitors were informed by the steward of the manor that P. could be admitted, and that license to demise would be given. On the 19th of October P.'s solicitors gave him written notice of their election to be remunerated according to the old system as modified by Schedule II. to the rules under the Solicitors Remuneration Act. In the books of the solicitors was an entry under that date "instructions for drawing new leases," but there was no evidence as to the circumstances under which it was made. On the 2l8t of October P.'s solicitors sent to the applicant draft leases. The leases were granted, and the lessees, who were bound to pay the costs of the lessor's soli- citors, insisted that the remuneration must be according to the scale in Schedule I. : — Seld, by the Court of Appeal (affirming the decision of Kay, J.), that the election on the 19th of October was too late, for that business had been undertaken on the 25th of July, and that the taxation must be according to the scale. Held, by Kay, J., that where, under a lease containing a power of renewal, the assigns are liable to pay the costs of a new lease, the only person to whom any notice of election under rule 6 need be given by the lessor's solicitor is the lessor himself, the assigns not being " clients " of the solicitor within section 1, sub-section 3, of the Solicitors Re- ' muneration Act, 1881, so as to make any notice to them necessary. On the 29th of January, 1823, J. F, Brown granted to OuUingham, a builder, a lease of a piece of copyhold land at Brentford, ■with ten houses upon it, for twenty-one years from Michaelmas, 1822, and covenanted for three successive renewals for twenty-one years, and a final renewal for fifteen years, making up ninety-nine years hi re Allen. 349 in the whole. Provisions were made for granting separate leases Appeal. of the different parts of the property if required. Brown covenanted to procure at his own expense the licenses from the lord of the manor, and to indemnify Cullingliam from all copyhold rent?, dues, and services. Every lease and counterpart was to be prepared by the solicitor of Brown, his heirs or assigns, but at the costs of the lessees. Mr. Parr was the successor in title of the lessor. The lease had been twice renewed, and the leasehold interest in some of the houses had become vested in Mrs. Hepburn, in others in Mrs, Eussell, and in the rest in Miss Martin. On the 24th of July, 3885, the solicitors of these ladies wrote to Mr. Parr a letter shortly stating the title of the three ladies under an appointment by will to the houses, the existing lease of which (that for the third term of twenty-one years) would expire at Michaelmas, 1885, and saying: "It is proposed that on the expiration of the present lease there shall be three leases granted for the renewed term, one to each of the ladies in question of the houses appointed to her. We shall feel obliged if you will put us in communication with your solicitors, and will instruct them to prepare the leases accordingly, and we shall be glad to produce to them the marriage settlement of Mr. and Mrs. Martin and the probate of Mrs. Martin's will, by which the appointments in ques- tion were made." On the 25th of July Messrs. Allen, Mr. Parr's solicitors, wrote to the lessees' solicitors: "Our client, Mr. E. Parr, has seen us with your letter of yesterday addressed to him, and the matters therein referred to shall have our attention. We may say that we think we should be furnished with sufBcient extracts from or abstracts of the marriage settlement and probate referred to in your letter." On the 11th of August the abstract required was sent to Messrs. Allen. On the 1 2th of September the lessees' solicitors wrote to Messrs. Allen, saying that they should be glad to receive draft leases. On the 21st Messrs. Allen wrote : " We are in communi- cation with the steward of the Manor of Ealing as to the admission of our client to this property, and when this has been done we will send vou the draft leases for perusal. In the meantime we propose 350 Ir^ re Allen. Appeal. to attend at your, office to-morrow afternoon about three o'clock to 188fi inspect the documents comprised in the abstract of title which yon have supplied." On the 2nd of October the lessees' solicitors wrote again to hasten the matter, and on the 9th Messrs. Allen wrote expressing regret at the delay and hoping to let them have the drafts in a few days. On the 16th of October the steward informed Messrs. Allen that Mr. Parr would be admitted, and that license to demise ■would be given. On the 20th of October Mr. Parr was admitted, and license to demise obtained. On the 21st of October the draft leases were sent. In the meantime, on the 19th of October, Messrs. Allen had written to Mr. Parr the following letter: — " In order to enable us to endeavour to obtain from the lessees the whole of the costs incurred on the renewals of the leases of Brentford property it is necessary for us to give to you the enclosed notice. You will of course see that the reason for giving it is to save you from as much of the costs incurred as possible." The notice referred to was as follows: — " We beg to give you notice that on the grant of the renewed leases of the premises at Brentford (describing them) it is our intention to charge our costs thereof and incidental thereto in accordance with Schedule II. to the General Orders made in pur- suance of the Solicitors Remuneration Act, 1881." In the diary kept at Messrs. Allen's office there was an entry under date of the 19th of October, 1885, " Parr's trusts. Instruc- tions for, and drawing three new leases.'' There was no evidence as to what passed in July when Mr. Purr took the letter of the 24tli of July to Messrs. Allen, nor as to the giving instructions on the 19th of October. When the leases had been granted Messrs. Allen sent to the solicitors of the lessees three bills of costs, one in respect of each lease, each amounting to £16 ^s., total £49 7s.; made out on the old system as modified by Schedule II. of the Rules to the Solicitors Remuneration Act. The lessees obtained an order to tax. The Taxing Master taxed off £11 15«. from the aggregate amount of the three bills. Objections to tlie taxation wpre carried in by the lessees, who insisted that the costs ought to be made out according Ii). re Allen, 351 to the scale in Schedule I., Part II. The Taxing Master disallowed Jppml,. the objections, and gave his reasons as follows : — "On the taxation, after reading the evidence, including tlie correspondence, 1 came to the conclusion that the business of pre- paring the lease to be granted in pursuance of the lessor's cove- nant was not undertaken until the lessor's solicitor had satisfied himself that the person who applied to the lessor to grant the lease was a representative of the original lessee and so entitled to have a lease granted to her, and that the letter which the solicitors wrote to the lessor and which he in his affidavit states he received on the 19th of October, 1885, was an election by writing under their hand communicated to the client before undertaking the business of preparing and completing the lease in and about which the lessor states he employed him, and consequently that the solicitors are entitled to be paid for that business according to Schedule II. of the Order and not according to the scale of Schedule I. I was also of opinion that the investigation of the title of the person claiming the right to have the lease granted is not such business connected with the lease as was in the case of In re Field (1) and Ante, p. 278. In re Emanuel and Simmonds (2), decided to be so connected with ■^'''«' V- 332. the lease as to be included in the fee allowed by the scale Schedule I., and that it is distinct from the preparing, settling, and completing the lease and counterpart. It might have resulted in a failure by the claimant to show a title, and such investigations might occur several times. The lease of the 29th of January, 1823, contains the agreement for a new lease, and fixes all the conditions on which it is to be granted ; there could not therefore be, and in fact there were not either an agreement for or negotiations for the lease in the ordinary sense of negotiations for a lease. I have considered the objections, and am still of ihe same opinion, and I disallow them." The lessees applied to vary tliis certificate, and the application was heard by Mr. Justice Kay on the 16th and 18th of Nov- ember, 1886. Haldane, for the applicants: — The question is whether the election under Rule 6 of the General Order to the Solicitors Remuneration Act, 1881, was made in time, (1) 29 Ch. D. 608. (2) 33 Ch. D. 40. 352 Til re Allen. Appeal. That rule says that: "In all cases to which the scales prescribed in Schedule I., hereto shall apply, a solicitor may, before under- taking any business, by writing under his hand communicated to tlie client, elect that his remuneration shall be according to the present system as altered by Schedule II., hereto; but if eo such election shall be made, his remuneration shall be according to the scale, prescribed by this Order." Under that rule the election must be made " before undertaking any business." Therefore, in the present case, notice of election ought to have been given before any part of the business was undertaken. 1 say the "business " began and was " undertaken " on the 25th of July, 1885, and that there- fore the election purporting to be made on the 19th of October was too late. " Before undertakinar business " means before entering into a contract to do it. [Kat, J. : — The words seem to mean, reading thorn in a common- sense view, " before beginning the woi-k."] ■ I say the solicitors did begin the work when they wrote on the 25 th of July. Having regard to rule 2 (c) of the General Order the lump sum in the Scale in Schedule I., Part II., "for preparing, settling, and completing lease and counterpart " includes all the negotiations for Ante, p! 332! the lease, In re Field, (1) ; In re Emanuel and Simmonds (2). The notice of election was in itself bad, as the letter accompanying it misstated its object, Millar, Q. C. and A lien, for the solicitors : — Tlie real question is, what is the meaning of the expression "undertaking any business?" We submit it means "taking in hand any business." We did not " undertake " the business till we began to prepare the lease. A solicitor cannot be said to " under- talte " business when he makes preliminary negotiations with a view to seein^g whether he will elect under rule 6 or not. As soon as he elects he may be properly said then to " undertake " the work. //* re Anie, p. 278. Field and In re Emanuel and Simmonds were not cases under rule 6; the question there was whether a solicitor could, in addition to the cliarge for " preparing, settling, and completing lease and counterpart," make a charge for preliminary negotiations ; and it (1) 29 Ch. B. 603. (2) 33 Ch. D. 40. Anie, p. %'> In re Allen. • 353 was held that a solicitor who took his stand on Schedule I., Part II., Appeal. could not make the additional charges. But from the judgments in Li re Field it is to be inferred that notice of election may be Ante, p. 278. given after negotiations have commenced. The only definition of the " business " to be " undertaken " is that in Schedule I., Part IL, namely, " preparing, settling, and completing lease and counterpart;" and we submit that if an elec- tion is made " before undertaking any business," as there defined, it is in time. The applicants being liable under the original lease to pay the costs of renewal it would seem that they fall within the definition of " client " in sect. 1, sub-sect. 3, of the Act ; that is to say, they are " persons for the time being liable to pay to a solicitor, for his services, any costs, remunei'.ation, charges, expenses, or dis- bursements." If that is so, it may be that the right of election under rule 6 still subsists as against the applicants. They also cited Fleming v. Hardcastle (,1). j.nte, p. 290. Haldane, in reply : — The rules in Schedule I., Part II., dealing with the extra work, indicate that any other charges that might arise incidental to " pre- paring, settling, and completing lease and counterpart " are already provided for by ihe General Order. Kay, J. :— 1886, Nov. 22. I delayed pronouncing judgment in this case to give myself an opportunity of considering the General Order under the Solicitors Kemuneration Act, 1881. A novel question has been raised, which if, shortly, at what time does the " undertaking any business " mentioned in rule 6 begin ? The Order provides (rule 2) that the remuneration of a solicitor " in respect of business connected with," amongst other things, '•leases," is to be (rule 2 (b)), when the transaction is completed, "that prescribed in Part II. of Schedule I." Turning to that Schedule I find, under the head of " lessor's solicitor for preparing, settling, and completing lease and counterpart," a charge varying with the rent. It is obvious that this included everything which is called in rule 2 " business connected with" leases, and not merely (1) 52L. T.(N. S.) 851. 2 A 354 » In re Allen- Appeal, the preparation of tlie lease and counterpart; and it has been so Ante p 278 decided in two recent cases in the Court of Appeal: In re Field (1) Ante, p. 332. and In re Emanuel and Simmonds (2). The parlicular rule on which the present question arises is rule 6, ■wliich provides that in cases to which Schedule I. applies a solicitor may, "before undertaking any business," by writing "communi- cated to the, client," elect to take his remuneration according to the old system as altered by Schedule 11. ; " but if no such election shall be made, his remuneration shall be according to the scale prescribed by this Order." This is a completely one-sided provision. No option in tlie matter is given to the client. It is altogether in favour of the solicitor; and the condition that he shall elect before under- taking the business is most material, because, if he were at liberty to carry it on until he saw which was most to his benefit and then elect, the client might in every case be put at considerable disad- vantage, and practically the scale would never be allowed to apply except where it was larger than the ordinary remuneration. I am clearly of opinion that this was not intended ; but that it is essential that the election should be made before the business which is covered by the scale-charge is undertaken ; and the two decisions I have already refered to are important as showing what is the Ante, p. 278. business covered by this scale. In the former of them, In re Field (3), it was decided that the costs in respect of the preliminary negotiations for the lease were so included. In the latter, In re Ante, p. 332. Emanuel and Simmonds (4), the costs connected with the prior agree- ment — though it contained certain stipulations as to repairs to be done by the lessor before the lease — were also included. Each case must depend upon its own circumstances ; but, speaking generally, I should say tliat after a solicitor has accepted the employ- ment and done any work in it for his client for which he could charge him if the scale did not apply, he has undertaken the business, and it is (00 late for him to elect under rule 6. Now let me apply this rule to the case before me. The facts are these. The assigns of a lease were desirous to obtain from the lessor a renewal according to a provision for that purpose in the lease. Their solicitor accordingly wrote to the lessor on the 24th (1) 29 Ch. D. 608. (3) 29 Ch. D. 608. (2) 33 Ch. D. 40. (4) 33 Ch. D. 40. In re Allen. 355 of Jul}', 1885, asfoUows: — [His Lordship read the letter, the efFect Apptal. of which is above stated, and continued] : — Thereupon the lessor, on the 25th of July, saw his own solicitors, and they, by his instruc- tions, wrote on the same day as follows: — [His Lordship read the letter, the effect of which is above stated, and continued] : — that is to say, having been instructed in the matter by the lessor, they ask for proof tliat the applicants are the proper persons to call for the renewal. According to the dlai'y of the clerk of the lessor's solicitors, they, on the 27th, "looked up the deeds," meaning, I suppose, the lease. On the 11th of August the applicants' solicitors sent an abstract of their title as assigns of the lease. On the 12th, accord- ing to the diary, the lessor's solicitors perused them, the entry being, "per Abst. 6 B, S." — meaning six brief sheets — the usual entry on which to found a charge for costs. On the 14th they attended on the lessor. On the 12th of September the applicants' solicitors wrote pressing for the draft lease for approval. On the 14tli the lessor's solicitors wrote to the lessor for instructions, and on the 19th they attended on him. On the 21st they wrote to the applicants' solicitors, stating that they were in communication with the steward of the manor as to the admission of the lessor, and that when this was done they would send the draft leases for approval, and that they proposed to attend at the office of the applicants' solicitors to inspect the documents comprised in the abstract which had been sent. The property being copyhold, and a license to demise being requested, the same day they wrote to the steward of the manor. On the 22nd of September they attended and examined the abstract of the applicanti' title, with the deeds and documents. On the 2nd of October the solicitors of the assigns wrote pressing for completion. On the 9th the lessor's solicitors answered, expressing their regret for the delay, and sayihg that the matter was having their attention, and that they hoped to send the draft leases in a few days. At this stage of the matter the lessor's solicitors, on the 19 th of October, sent him a formal notice that on the grant of the leases " It is our intention to charge our costs thereof and incidental thereto in accordance with Schedule II." — that is, not according to the scale in Part II. of Schedule I. With this they sent an ex- 356 Jn re Allen. Appeal planatory letter stating that the object of the notice was " to endeavour to obtain from the lessees " thejr costs on this footing. I am of opinion that, as between the lessor and his solicitors, the business was undertaken when they wrote to the solicitors of the assigns the letter of the 25th of July, which was part of the busi- ness for which they could charge the lessor; and that after that it was too late for them to elect. The Taxing Master's view seems to be that nothing before the 19th of October was business connected with the lease. With that I am unable to agree. Then it was suggested that possibly they were not too late to elect against the assigns of the lease. These, by the terms of the power of renewal in the original lease, were liable to pay all costs except the lessor's costs of procuring the proper licenses and autho- rities to grant the same. The suggestion, as I understand, was that this might bring the assigns within the definition of " clients " in the Act of 1881. I do not find any evidence that notice of the intention to elect was given to the applicants ; but I do not think that, even if such notice were given, it ivould be material. In my opinion the only person to whom notice to elect need be given is the lessor, and notice must be given before undertaking the business for him. The business, which commenced with the letter of the 25th of July, was all undertaken for the lessor, and was business for which his solicitors might charge him costs which the assigns under the provisions of the lease would have to repay, except only such part as related to obtaining the license to demise. The iipplication mush be allowed, with costs. The solicitors appealed, and the appeal was heard on the 12tli of January, 1887. Millar, Q.C., and Allen, for the appeal: — The question turns on the interpretation of the expression " before undertaking any business." We contend that the business was not undertaken till the 1 9th of October, 1885, when instructions were given to prepare draft leases, and on the same day notice of option to charge under the old system was given. In July persons un- known to the lessor applied for a renewal. The business of the granting leases was not undertaken then, as it was necessary for the In re Allen. 357 applicants to show their title, and till it was shown that they had Appeal. a title the business of granting the leases could not arise, nor until it was known that the lessor could obtain license to demise. The business for which the scale fee is given is " preparing, settling, and completing lease and counterpart." Suppose that in order to perfect the lessor's title it was necessary to take out letters of administration, could it be said that obtaining them was part of the business ? Tiiis rule was intended to benefit solicitors, and it cannot have been intended that a solicitor should be precluded from his election by taking preliminary steps without which he could not know how to elect. The rule is properly construed- as meaning that he must elect before undertaking the substantial part of the business. The business before the 19th of October was not business connected with the lease. In re Emanuel and Simmonds (1) shows that there may Ante, p. 332. be collateral matters which can be separately charged for. Haldane, contra, was not called upon. Cotton, L.J. : — The question is whether the solicitors were sufficiently early in declaring their election to be remunerated according to the old system as modified by Schedule II. The rules fix the remuneration of solicitors for certain kinds of work, and they, no doubt, were framed after full inquiry what would be a fair remuneration for that class of work. It would be wrong to allow a solicitor, after he has done any part of the business covered by his retainer, to turn round and say, " The scale fee will not remunerate me ; I elect to be paid according to the old system." This would give a solicitor a power of dealing with the scale in an unfair way by going on with the business until he found out which mode of remuneration would be most advantageous to him. Rule 6 says that the solicitor is to declare his election " before undertaking any business." It is argued that we must look to the schedule to see what the business is for -which the scalefee is given, and that the business of "preparing, settling, and completing lease and counterpart" had not been under- taken when the notice was given. This would be a strong argument if we had only the schedule to look to, but we must also look at the (1) 33 Ch, D. iO. 358 In re Allen. Appeal. rules, and we find in rule 2 that the remuneration in the scale is given " in respect of business connected with leases." It includes, therefore, the whole of such business as can fairly be considered incidental to the granting of the lease. Now, according to my understanding of the J2nglish language, a solicitor " undertakes" a business when he accepts a retainer and agrees to do it. Had the solicitors accepted a retainer and undertaken to do this business before the 19th of October? In nly opinion they had. The respondents instructed their solicitor to write to Mr Parr, which he did, stating that the respondents were entitled to renewed leases, and asking him to instruct his solicitors to prepare drafts. Mr. Parr took this letter to his solicitors and put it into their hands, and that is all we know of what passed on that occasion — there is no evidence as to what was said or what instructions were given. The proper inference, to ray mind, is, that when Mr. Parr put the letter into the hands of his solicitors he directed them to act for him and prepare leases if the respondents were entitled to ihem, and if he had power to grant them. If it turned out that the respondents were not entitled, or that he had not power to grant the leases, the transaction would have been an incomplete trans- action, for which the solicitors would have been entitled to be paid according to the old system as modified by Schedule II. But the transaction was completed, and, as it seems to me, it was completed in pursuance of the instructions given to the solicitors on the 25th of July. They wrote on that day to the respondents' solicitors : " Mr. Parr has seen us with your letter of yesterday, and the matters therein referred to shall have our attention " — i.e., the whole of the matters, including the preparation of the leases if the respondents show themselves entitled to them. The business, as I think, was then undertaken. I do not suspect any wrong motive in making the entry of the 19th October in the diary, but I do not think that in the absence of any evidence as to what took place, or as to any , fresh instructions or any new authority having been given, we can come to the conclusion that the business was not undertaken till that time. I do not give my opinion whether some part of the business done is not extra business not covered by the scale fee that is not at present before us. We only decide that the solicitors undertook the business within the meaning of the rule when they Ill re Allen. 359 were instructed by Mr. Parr in July, and that the business is Jppeai. therefore not to be paid for according to the old system. LiNDLF.Y, L.J. : — I am of the same opinion. The difficulty arises from the use of the obscure expression " before undertaking any business." Rule 2 provides that " the remuneration of a solicitor in respect of bu,-i- ness connected with sale?, purchases, leases .... and other matters of conveyancing," shall be swell as is prescribed by Schedule I. Apart from election, then, all the business connected with gi'anting a lease is to be paid for according to the scale, and the solicitors here have to show that their remuneration is not to be according to this scale. Rule 6 provides that in cases to which the scale applies the solicitor may, " before undertaking any busi- ness," elect that his remuneration shall be according to the old system as modified by Schedule II. I cannot, in the present case, see any ground for saying that the business was undertaken so late as October; it appears to me to have been undertaken in July. Persons claiming to be entitled to the old lease apply in that month to the lessor for fresh leases under a covenant for renewal. The lessor shows the letter to his solicitors, and asks them to attend to it. The solicitors, accordingly, enter into communication with the applicants, and the matter is carried on to completion. The soli- citors, therefore, it is clear, undertook to attend to the business when the letter of the applicants was shown to them ; and in my opinion that was " undertaking" the business within the meaning of the rule. It may be that some part of the business done was not business so connected with the granting the lease as to be covered by the scale fee ; but to treat the business as not undertaken until the solicitor begins to prepare the drafts would be contrary to the true meaning of the rules. "o Lopes, L.J. : — I am of opinion that, as between the lessor and his solicitors, the business was undertaken on the 25th of July. The solicitors, by their letter of that date to the solicitors of the lessees, say: " Mr. Parr has seen us with your letter of yesterday addressed to him, and the matters therein referred to shall have our attention. We may say 360 Hester v. Hester. Appeal. that we think we ought to be furnished with sufficient extracts from or abstracts of the marriage settlement and probate referred to in your letter." Tliat comes to this : " "We have been instructed by the lessor to act for him in this matter, and we ask for evidence of your client's title." In my opinion the business was then under- taken, and the election by the appellants was too late. Solicitors: Parker, Garrett, Sf Parker; Allen Sf Son. Appeal. HESTEE V. HESTER. 1886. Nov. 26. (1879. H. 457.) Dec. 4. - oo» (Bv permiisim, from 34 Ch. D. 607 ; s.c. 33 W. R. 233; 55 L. T. S62; 56 L. J. Oh. 247.) (Before Kay, J.) Taxaticm — Bill of Costs — Solicitor- and Client — Election Notice — " Under- taking any Biuiness " — " Client " — Mortgagee — Suhsegvent Iiicunibrancer — Mortgagor — General Order under Solicitors Remuneration Act, 1881, rr. 6, 8. The notice of election under Rule 6 of the General Order to the Soli- citors Remuneration Act, 1881, must be given by the solicitor before he undertakes any business at all in the particular matter for his client. After having done any work in the matter for which he could charge his client if the scale under the order did not apply, it is too late for him to elect. Ante, p. 318. In re Allen (1) followed. Per Kay, J. : — Where notice of election under the rule has been pro- perly given by a solicitor to his client, a first mortgagee, it is binding on a subsequent incumbrancer, and also on the mortgagor. A solicitor who acted for a mortgagee in relation to the mortgaged property received from the solicitors of the persons entitled to the equity of redemption a request that the mortgagee would sell under his power of sale, and in pursuance of this he, without any express authority from his client, did work in relation to the contract for sale for which if authorised he would, apart from the rules, under the Solicitors Remu- neration Act, have been entitled to be paid, and which would be covered by the scale fee. The sale was completed : Held (affirming the decision of Kay, J.), that a notice of election to be remunerated according to the old system, which was given by the solicitor after work of the above description had been done, was too late, although given before the contract was signed, for that as the client had ratified his proceedings he stood in the same position as if he had (1) U Ch. D. 433. Hester v. Hester. 361 received previous authority, and must be treated as having undertaken Appeal. the business as soon as he did any work of the above description. liiQ, The Taxing Master having taxed according to the scale, an objection was taken, solely grounded on the notice to elect : Held, that the Court could not enter upon the question whether there had been an agreement between the mortgagee and his solicitor that the latter should be remunerated according to the old system. Whether, if the right to elect was gone, any such agreement would bind the parties entitled to the equity of redemption, qucere. Summons to review taxation. The action was by Mrs. Hester and her children, some of whom were infants, for the administration of the trusts of her marriasje settlement. Part of tlie settled property consisted of the equity of redemption in a leasehold house at 7 Worthington-terrace, Forest Hill, Kent, which was subject to a first mortgage to Messrs. Kibble, Neighbour & Dudley, on which about £525 were due for principal, and to a second mortgage to one Becker. None of the mortgagees were parties to the action. It was. desired to sell this house, and on the 21st January, 1884, Mr. Sidney Chapman, the plaintiffs' solicitor, wrote to Messrs. R. Smith & Wilmer, who had for some time acted as solicitors to the first mortgagees in relation to this property, stating that there was difficulty in preparing a contract of sale, as the trustees of the settlement had been discharged and no new ones appointed, and proposing an arrangement that the first mortgagees should sell under their jjower, with the sanction of the Court to be embodied in an order. On the 20th of June, 1884, an order was made, on the application of the plaintiffs, and on hearing solicitors for the incumbrancers, authorising the first mort- gagees to sell the property under their power of sale to one Scott for £800, and directing them to retain out of the proceeds the amount of their mortgage debt, with interest from a given day, and an agreed sum for costs up to the 19th of December, 1883, and also their subsequent costs as mortgagees, such subsequent costs to be taxed by the Taxing Master, and £6 8«. for their costs of that application, and then to pay to the second mortgagee his debt and taxed costs and £5 4s. for his costs of the application, and to pay the balance, if any, of the purchase money into Court. A contract was then prepared and sent to the plaintiffs' solicitor, at his request, but Scott, the proposed purchaser, refused to proceed 362 Hester v. Hester. Appeal ^ith the purchase ; and after considerable negotiation a contract dated the 27th of June, 1885, was concluded for the sale to him at the price of £775, an order having been obtained by the plaintiffs' solicitor on the 5th of December, 1884, modifying the order of the 20th of June by authorising the first mortgagees to sell at that price instead of £800. On the 4th of June, 1885, prior to the contract being entered into, Messrs. Smith & Wilmer wrote the following letter to the plaintiffs' solicitor:^ " 26 Lincoln's Inn Fields, " ith June, 1885. " 7 Worthington-terrace. " Dear Sir, — Messrs. Lewis & Son have now returned draft contract for sale of the leasehold Interest in these premises to Mr. Scott for £775 approved, subject to certain alterations which they have made therein, the principal one being that they have struck out a clause which we inserted that, although the abstract should commence with the lease of 6th August, 1862, the vendors should not be bound, except at the purchaser's expense, to supply any abstract of title between such lease and the assignment to Mr. Hester. This we did because we find that the abstract with the title deeds, and which was delivered on Mr. Hester's mortgage, •occupies fifty-seven brief sheets, and if to this is added, say, three sheets for the abstract of the mortgage and the transfer to the pre- sent trustees, the mere copying would come roughly to £10, leaving, if the charges are made according to the scale, only £2 to cover the costs of the present sale. It Is clear that we cannot undertake to act as vendor's solicitors upon these terms; and as, under the 6th of the General Eules (in pursuance of the Solicitors Remunera- tion Act, 1881), we are at liberty to elect that our remuneration shall be according to the system existing at the date of such orders as altered by Schedule II., upon notice communicated to our client, before undertaking the business, we wish to inquire whether, as representing the persons entitled to the equity of redemption, you will agree to our costs, as vendors' solicitors, being paid as if we had given such notice. In any case we must, of course, make proper charges for the abortive contract, but this Is a separate matter. — Yours truly, "E. Smith & Wilmer." Hester v. Hester. 363 On the llth of June, 1885, the plaintiflPs' solicitor replied that, ^Pm^- as representing the parties entitled to the equity of redemption, he did not see anything objectionable in Messrs. Smith & Wilmer's election to charge on the old scale as altered by Schedule II., and that he would ascertain whether the second mortgagee entertained any objection. On the following day he wrote to Messrs. Smith & Wilmer to the effect that the second mortgagee appeared to have no objection. The following letter was then written from Smith & Wilmer's firm to Kibble, on behalf of himself and the other first mortgagees: " 26 Lincoln's Inn Fields, " Idth June, 1885. " 7 Worthington-terrace. " My deae Sir, — I am glad to tell you that the solicitors of Mr. Scott, the proposed purchaser of these premises, are now instructed that he will give £775 for them, and enclosed I send you for sig- nature, as one of the vendors, the form of agreement which has been prepared, and which please sign and return to me, that I may obtain the signatures of your co-trustees. As the abstract of title in this case is rather long, owing to the numerous dealings that have taken place with reference to the property, I have communi- cated with Mr. Sidney Chapman, as the solicitor entitled to the equity of redemption, as to what would be the proper arrangement as to costs; and in accordance with the General Orders made in pursuance of the Solicitors Remuneration Act, 1881, 1 may mention that my firm elects that our remuneration should be according to the system existing previously to the Act as altered by Schedule II. annexed to the said orders. As the purchase-money is amply sufficient to pay the principal and interest due to the first mortga- gees, as well as the costs, I should not refer to the latter, but the provisions to the Act above referred to seem to render it necessary that I should do so in order to prevent any question being hereafter raised by the second mortgagees. — Yours very truly, " EicHARD Smith." It appeared that until the writing of this letter Messrs. Smith & Wilmer had had no communication with their clients as to this sale. 364 Hester v. Hester. Appeal. The bill carried in by Messrs. Smith & Wilmer, the solicitors to 1886. the first mortgagees, for taxation under the order of the 20th of June, 1884, was made out according to the system existing at the date of the Greneral Order under the Solicitors Remuneration Act, 1881, as altered by Schedule II. to the order. The Taxing Master, however, refused to lax the bill, except upon the scale in Schedule I., Part I., to the order. According to this scale the charge allowed to the " vendor's solicitor for deducing to freehold, copyhold, or leasehold property, and perusing and completing conveyance (in- cluding preparation of contract or conditions of sale, if any "), is 30s. per £100 up to £1,000; so that the charge in the present instance, upon that scale, was £12; but it appeared that the cost of the abstract alone delivered by the vendors, the first mortgagees, amounted to £12 10s., their solicitors being thus 10s. out of pocket. The first mortgagees objected to their solicitors (whose costs were by the order of the 20th of June, 1884, to be added to the mortgage debt) being allowed a remuneration upon that scale only, alleging, as the ground for their objection, that their solicitors, " before undertaking the business, by writing under their hands communicated to them, elected that their remuneration should be according to the system in use at the date of the said General Order as altered by Schedule II. thereto." The following were the Taxing Master's answers to the objec- tion : — "It does not appear that Messrs Smith & Wilmer gave to their clients the notice in manner prescribed by the 6th clause of the preliminary part of the General Order made in pursuance of the Solicitors Remuneration Act, 1881. They gave such notice to Mr. Chapman, the solicitor for the mortgagor, an infant. There may be a surplus coming to this infant. The second mortgagee may also raise an objection. And if the notice had been given as prescribed by the 6 th clause, I think that it would not operate against anyone but the client. The client, on receiving such notice, can refuse to let the solicitor proceed — a third party has no such option." The Taxing Master then certified the taxation according to the scale in the General Order, whereupon the first mortgagees took out this summons, asking that their objections to the taxation might be allowed, and for a reference back to the Tax- ing Master to vary his certificate accordingly. "Hester v. Hester, 365 It appeared that the second mortgagee, who had been served with App0al. the summons, had been paid, and that the plaintiffs, who had also been served, had declined, through their solicitor, Mr. Chapman, to oppose the application. The summons was heard before Mr. Justice Kay on the 26th of November, 1886. Ingle Joyce, for the summons : — The Taxing Master insisted that to be effective the notice under rule 6 should have been given to all the parties interested in the property, and not merely to Messrs. Smith & Wilmer'sown clients, the first mortgagees. I submit that he was wrong. Taxation is as between the solicitor and his client. The. question is, who is the " client " within the meaning of rule ? By rule 8 the word " client " is to have the meaning ascribed to it in the 3rd sub-section of sect. 1 of the Sohcitors Eemuneration Act, 1881, but that sub-section does not apply to this case, for it does not include the owner of the equity of redemption. I say the " clients " here were-the first mortgagees, as being the " persons liable to pay the solicitor ; " and therefore Messrs. Smith & Wilmer were right in giving notice to the first mortgagees alone. It is true that under the third party clause, sect. 38, of the Attorneys and Solicitors Act, 6 & 7 Vict. c. 73, a mortgagor may obtain taxation of a bill paid by his mortgagee, because that section entitled any person, not being " the party chargeable " with the bill, but liable to pay, to have the bill taxed, though, even then, the taxation is as between the solicitor and his client, the mortgagee : In re Wells (1). Under the Solicitors Eemu- neration Act, 1881, the party chargeable with the bill, and no one else, is the "client." Kat, J.:— Before giving judgment I will speak to the Taxing Master on the point. Kay, J. :— ^g^g ^^^ ^ This case came upon a summons to review taxation. The question raised is the same as that in a case I had before me a few days ago, In re Allen (2), upon the construction and meaning Ante,^. 348. of rule 6 of the General Order under the Solicitors Eemuneration (1) 8 Bear. 416. (2) 34 Ch. D. 433. 366 Hester v, Hester. ^i^^t"'" ^cN 1881. The question seems to be whether proper notice of election was given by the solicitors to their clients, the mortgagees, before they undertook the business. Having some doubt as to what the exact ground of the Taxing Master's decision was, I said I would communicate with him, and he has been good enough to explain to nie what the ground was. The answer he is stated to have given to the objection to the taxation was that the solicitors, Messrs. Smith & Wilmer, did not give their clients notice in accord- ance with the 6th clause of the preliminary part of the General Order. He now informs me that the ground was tliat the notice was not given in time. The facts of the case are these. [His Lordship stated them, and after reading Smith & Wilmer's letter of the 13th of June, 1885, continued] : — The Taxing Master's view is that the notice of election was too late, and in that view I entirely concur. As I stated in Ante, p. 348. 7,j ^g Allen (1), the meaning of rule 6 is, that before undertaking the business the solicitor must make his election. He is not to begin the business and then, when he comes to a certain point, say he elects. That would be contrary to the meaning of the rule. The solicitor must elect in the first instance before he undertakes the business at all. Here the solicitors had most certainly under- taken the business before they wrote the letter of the loth of June, as in fact appears from the terms offered. As I stated in the former case, after a solicitor has accepted employment from his client, and has done any work in it for which he could charge him if the scale under the order did not apply, it is too late for him to elect. Here the solicitors had done for their clients, in this very transaction, business for which they could have charged their clients under the old practice : — therefore, in my opinion, it was too late for them to elect. There is another matter, which it Is not absolutely necessary for me to consider for the purpose of my decision, but upon which I should state my opinion, because It is of importance. The Taxing Master seems to have considered that even if the notice of election had been properly given. It would not have been binding upon the second mortgagee. "With that opinion I do not (1) 31 Ch. D. 483. HesUr V. Hester. 367 agree. Election is a matter entirely between the client — here the Appeal. . ■' . 1886. clients are the first mortgagees — and his solicitor. An election only puts the solicitor in the position in which he was befoi'e the scale was adopted ; and there, appears to me to be no hardship in saying that if the election is properly made as between the solicitor and hia own client, a first mortgagee, it would be binding as between the solicitor and a subsequent mortgagee. In my opinion it would be binding both as against the mortgagor and the second mortgagee. My opinion is that the election made by the letter of the 13th of June was too late, consequently the decision of the Taxing Master is right, and the summons must be dismissed with costs. Smith & Wilmer appealed, and the appeal was heard on the 19th of January, 1887. No one appeared to oppose it. Ingie Joyce, for the appeal : — 1887. Jan. 19. The decision of Mr. Justice Kay in In re Allen (1) having been Ante, p. 348. affirmed by the Court of Appeal, it is necessary for me to distin- guish this case from that. I say that, according to In re Allen, Ante, p. 348. the business was not undertaken here till the 13th of June, since there has been no communication with the clients, and in In re Ante, p. 348. Allen the accepting a retainer was considered as fixing the time of undertaking the business ; there cannot be an " undertaking " without authority ; the word must mean engaging with the client to do the business. [Lopes, L.J. : — If a solicitor begins to do work without authority and then the client authorises it, does not the ratification relate back so as to carry back the " undertaking '' to the time when the solicitor begins to do the work T\ I should say no. The solicitor is not bound to go on with the work unless he has communicated with his client. There is, therefore, no undertaking it in any proper sense of the word. [Lopes, L.J. : — Does not the rule mean that a solicitor must elect before doing, in connection with tlie business, anything for which he would be entitled to be paid?] The rule says before he has undertaken the business, and he has not undertaken it while he remains at liberty to withdraw. (1) 34 Ch. D. 433. 368 Heater v. Hester. Appeal. The business done was not really the business which Messrs. Smith 1887 & Wilmer originally contemplated, the alteration in the length of the abstract having entirely altered the circumstances. [LiNDLEY, L.J. : — It occurs to me that possibly the corres- pondence may amount to a contract that the solicitors should be paid under the old system.] Cotton, L.J. : — This is an appeal from a decision of Mr. Justice Kay, who held that a notice of election to be remunerated according to the old system as modified by Schedule II., and not according to the scale in Schedule I., was too late. The clients were first mortgagees, and the trusts of the equity of redemption were being administered in a suit to which they were not parties. An order was made giving the first mortgagees liberty to sell under their power for £800. The negotiations with the purchaser went off, and subsequently an order was made giving theln liberty to sell for £775. On the 13th of June, 1885, the solicitors wrote the letter electing to be paid not according to the scale, and the ques- tion is whether before that time they had undertaken the business, rule 6 requiring the election to be declared " before undertakincr Ante, p. 348. any business." It was decided in In re Allen (1) that the business includes everything covered by the scale charge, though it be only something connected with the main business, and that the business has been undertaken if anything covered by the scale charge has been done. Now, before the 13th of June what had taken place? The solicitors of the owners of the equity of redemption communicated by letter with Messrs. Smith & Wilmer, who were known to act for the first mortgagees about this property. Messrs. Smith & Wilmer received the letter, and acted upon it by doing various matters which would be covered by the scale charge. It is urged that they cannot be said to have undertaken the business, because they have not had any communication with their clients in the matter. I do not give any opinion how the case would stand if a solicitor who had no business relations with A. B. assumed to act for him, and then went to him saying, " I have taken these steps on your behalf (1) 34 Ch. D. 433. Hester v. Hester. 369 ■without authority, may 1 act for you in the matter?'' Here the Appeal. solicitors had acted for the first mortgagees for more than a year in relation to this property. I do not forget what was said by Lord Justice James in Saffron Waldea Second Benefit Building Society V. Rayner (1) that it is a fallacy to suppose that a man has got a solicitor as an official solicitor, who, because he has been in the habit of acting for him, is to be considei'ed his agent, to bind him by what he says, or to bind him by receiving notices or information. But, in my opinion, where a man employs a solicitor as to a particular property, the solicitor has a general authority not to do acts which bind the client without communication with him, but to enter into negotiations on his behalf. Here, before the 4th of June, 1885^ Messrs. Smith & Wilmer having their general authority, prepared a draft contract and sent it to the proposed purchaser. Their acts not having been repudiated by their clients, they must be treated as having acted by their authority all along, and as having under- taken the business, not on the 13th of June but at a much earlier date, on the strength of an implied authority which has been ratified. Their notice of election, therefore, came too late. It is said that after Messrs. Smith & Wilmer had begun to deal with the contract an alteration was made as to the length of the abstract to be furnished, which made such an alteration of circum- stances that the business to be done cannot be considered the same as was originally undertaken. If the alteration had been the substitu- tion of one estate for another, then probably there would liave been the undertaking of a different business, but hers the negotiations relate to the same estate, and there it is only a variation in the terms of the contract. The case is a hard one on the solicitors, but as the scale fee for a sale covers all expenses connected with the contract, though incurred before the contract is entered into, for Schedule I. expressly states that the scale fee to the vendor's solicitor includes the preparation of the contract (if any), we cannot avoid holding that work covered by the scale fee had been done before tlie 4th of June, and that the business had therefore been undertaken before that date. It was suggested by Lord Justice Lindley that what passed may have amounted to a contract that the remuneration should not be (1) 14 Cb. D. 406. 2 B 370 Hester v. Hester. Appeal, according to tlie scale. But this question is not raised by the 1887 ° objections taken in to the Taxing Master, nor is there anything to show that the client agreed to the terms of the notice. This point ought to liave been brought before the Taxing Master and evidecce adduced upon It, and as that was not done we are precluded from considering the question. Supposing such an agreement with a client were proved the solicitors still would not have a clear case, for if they had lost their opportunity of giving an effectual notice of election, it is questionable whether any agreement by their client with them as to their remuneration would bind the subsequent mortgagees or the parties entitled to the equity of redemption. The appeal must be dismissed. LiNDLEY, L..T. : — I have come to the same conclusion. The bill is made out according to the old system as modified by Schedule II. The Taxing Master thought that wrong, and considered that the remuneration must be according to the scale. An objection to his taxation was taken in, not on the ground that there was an agree- ment for remuneration otherwise than according to this scale, but on the ground that the solicitors on the 13th of June had given notice of election to be remunerated according to the old system. The right to elect is quite independent of agreement, and as the solicitors' objections went on the right to elect, we are confined to the question whether they had that right. This turns on the question whether they had previously " undertaken the business." Ante, p. 348. t admit that the -case is different from In re Allen (1), because here the, client has given them no directions to act for him before the 13th of June. But if a solicitor commences a business on the faith of a general retainer, and in the belief that his client will adopt what he does, he cannot be heard to say that the business was not under-, taken when he first did any work covered by the scale fee. I therefore agree that the notice of election was too late. Lopes, L.J. : — I am of the same opinion, and have nothing to add. Solicitors: Smith 4" Wilmer. (1) 34 Ch. D. 433. Ex parte Mayor of London, 371 Ex parte MAYOR OF LONDON. ^"ii// (1885. L. 1,192.) J*"- 13- (Sj/ permission, from 34 Ch. D. «2; a o. 35 W. R. 210, 66 L. T. 13, 5S L. J. Cli. 308.) (Before Kay, J.) Solicitor — Bill of Costs — Taxation — Purchase — Statutory Title — Scale Charge — Percentage — "Investigating Title" — General Order imder Solicitors Re- muneration Act, 1881, Schedule I., Part I. The Corporation of London resolved to purchase the old Bankruptcy Court, which', under section 68 of the Bankruptcy Act, 1861, was vested in the Public Work Commissioners, the purchase money — £93,500 — being payable out of funds in Court under various Acts, including the Lands Clauses Act, and representing lands of the Corporation taken by certain public bodies. On applying to the Commissioners the Corporation were informed that the property was vested in the Commissioners under the above section, and that they "did not agree to furnish any evidence of title," but would apply to the Lord Chancellor, under the section, for his authority to sell ; and they subsequently wrote that the Lord Chancellor had authorised the sale by his secretary. The city solicitor, however, having regard to the terms of the section, required a written authority, signed by the Lord Chancellor himself, which was duly obtained. The solicitor, having thus satisfied himself as to the Com- missioners' title, obtained, on summons in Chamber, an order sanctioning the purchase, the Chief Clerk, upon the production of the Lord Chan- cellor's authority, and at the request of the solicitor, dispensing with the usual reference as to title. The purchase having been completed, the Corporation carried in their solicitor's bill for taxation, containing a charge of £278 15s. Od., according to the scale in Schedule L, Part I., of the General Order under the Solicitors Remuneration Act, 1881, for "investigating title and preparing and completing conveyance." The Taxing Master disallowed the charge on the ground that there had been no investigation of title, and that, therefore, the scale charge did not apply : In re Lacey & Son (25 Ch. D. 301). Ante, p. 238. On a summons by the Corporation to review the taxation : B.eld, that there had been an "investigation of title" within the terms of the General Order, and that, therefore, the scale charge applied. Adjourned Summons. — In May, 1885, the Court of Common Council of the Corporation of London passed a resolution to pur- chase from the Commissioners of Her Majesty's Works and Public Buildings tlie buildings and site of the old Bankruptcy Court in Basinghall-street for £93,500. As the purchase money had to 372 Ex parte Mayor of London. Kay, J. te provided out of the funds in Court representing purchase money of lands of the Corporation taken, under the Lands Clauses Act and certain Acts relating to the metropolitan railways and to the improvement of the metropolis by the Metropolitan and Metropolitan District Kailway Joint Committee and the City Commissioners of Sewers, the costs of the re-investment of those funds were payable by those two bodies. No formal agreement for the purchase was entered into ; but, in reply to a letter from the city comptroller announcing that, at a meeting of the Court of Common Council, the Corporation had agreed to purchase the property, the solicitor of the Treasury, on the 24th of June, 1885, wrote thus : — " The property was vested in the Commissioners of Her Majesty's Works, &c., under and by virtue of the Bankruptcy Act, 1861 (24 and 25 Vict., c. 134, s. 68), and is to be appropriated to such purposes as the Lord Chancellor shall direct. The Commissioners do not agree to furnish any evidence of title, but they will apply to the Lord Chancellor for directions to sell and convey the property to the Corporation. In the meantime a draft conveyance may be sent to me for perusal." Li a subsequent letter the Treasury solicitor stated that the Lord Chancellor had authorised the Commissioners of Works to sell the property to the Corporation. The matter was then referred to the city solicitor, who, upon perusing the Bankruptcy Act, considered that an authority signed by the Lord Chancellor should be obtained ; whereupon, the city compti'oller, at his suggestion, wrote asking for a copv of the • document signed by the Lord Chancellor authorising the sale in order that it might be set out in the summons for payment of the purchase money out of Court. In reply, the Treasury solicitor said the only document the Commissioners then had was a letter from the Lord Chancellor's secretary, but that he would obtain a formal autliority signed by the Lord Chancellor himself. This formal authority was shortly afterwards obtained and sent to the city comptroller. The city sohcitor then proceeded to instruct counsel to prepare the necessary summons for the sanction of the Court to the purchase, and in the draft the usual clause was inserted asking for an inquiry whether a good title could be made to the property, Ex parte Mayor of London. 373 and that, in case a good title could be made, a proper conveyance ^<^y, J- might be settled by the judge in the usual way. Subsequently, however-, upon examining and perusing the 68th section of the Bankruptcy Act, 1861, and the formal direction or authority signed by the Lord Chancellor, the city solicitor satisfied himself as to the title of the Commissioners, and, to save time, instructed counsel to amend the draft summons by striking out the clause asking for an inquiry as to title, as he hoped, after his own investigation, to be able to satisfy the Chief Clerk that the title was good without a formal reference to the conveyancing counsel to investigate it. Upon the summons coming on before the Chief Clerk he, upon the production of the Lord Chancellor's direction, and upon the representation of the city solicitor, made an order sanctioning the purchase, the inquiry as to title being dispensed with, and the only reference being to the conveyancing counsel to settle the conveyance. The costs of the Corporation of, and incident to, the purchase and the re-investment were, in the usual form, directed to be taxed. The conveyance having been executed, and the purchase duly completed, the Corporation carried in their solicitor's bill of costs for taxation. One item was a charge under the scale in Part I. of Schedule I. to the General Order to the Solicitors Remunera- tion Act, 1881, as follows: — "Scale charges on purchase money, £93,500. Purchase, £278 15«." The Taxing Master held, on the authority of In re Lacey Sf j^nte, p. 238. Son (1), that the scale did not apply to the case as there was no investigation of title on the part of the Corporation, and that consequently the charge should not be made by scale under Schedule I., but should follow the old system of charging prior to the Act as altered by Schedule 11. The item was accordingly disallowed. The Corporation then carried in objections to the taxation, insisting that Schedule I. applied, but the Taxing Master overruled the objection. The Corporation then took out the present summons to review the taxation. The summons was supported by an affidavit by the city solicitor of the facts above stated. (1) 25 Ch, D. 3W. 374 Ex 'parte Mayor of London. Kay, J. Sir A. Watson, Q.C., and Tweedy, for the Corporation: — Ante, p. 238. In re Lacey Sf Son (1) merely decides that the scale in Schedule I. to the General Order under the Solicitors Remuneration Act, 1881, does not apply unless the whole of the business in respect of which the charges imposed is done. The charge in Part I. of Schedule I. "for investigating title to freehold, copyhold, or leasehold property, and preparing and completing conveyance (including perusal and completion of contract, if any)," is applic- able to the present case. Here the whole of that business has been done, including investigating the title ; for, as a matter of fact, our solicitor did investigate the two documents of title — namely, the Bankruptcy Act, 1861, and the Lord Chancellor's direction. The scales under the Solicitors Eemuneration Act apply to all conveyancing business, whether done in an action or Ante, p. 248. matter or out of Court: Stanford v. Hoberts (2) : In re Merchant Ante, -g. i9i. Taylors' Company (3). Fairwell, for the Metropolitan Joint Committee and the Com- missioners of Sewers : — • The charge is excessive for merely reading a letter and an A ct of Parliament, and ought not to be allowed. The title was a statutory one, open to the world, and one which everybody knew. There was in reality no " investigation of title " at all ; and, in fact, the Commissioners decline to furnish any evidence of title. Ante, p. 238. Consequently, In re Lacey Sf Son and also Re Glascbdine and Ante, p. 308. Carlyle (4) apply. Kay, J. :— I am extremely sorry I cannot in this case agree with the Taxing Master. The question arises under these circumstances — [His Lordship stated them, and continued] : — so that what the city solicitor did was this : being referred by the vendors to a Public Act under which they acquire their title, and under which they were pro- ceeding to sell, he read it, examined it, and came to the conclusion upon it that something more was wanted than a mere Act of Par- (1) 25 Ch. D. 301. (3) 30 Ch. D. 28.. (2) 26 Ch. D. 155. (4) 52 L. T. (N..S.) 781. E.i parte Mayor of London- 375 liament, and tliat a formal autliority signed by tlie Lord Chancellor Kay, J 1887 was required. Accordingly, he applied for and obtained that formal autliority, whicli he would not have understood was wanted without having investigated the Act of Parliament; and thereupon he satisfied the Chief Clerk that it was not worth while to have a reference to the conveyancing counsel as to title, and the purchase was completed on that investigation. Now, I am told that this is not an investigation of the title. I have put several points to counsel, which have not, to my mind, been satisfactorily answered. Suppose, instead of one Act men- tioned by the vendors, they had mentioned half a dozen public Acts, and said — " Under and by virtue of all these six Acts of Parliament which we give the reference to, all being public Acts of Parliament, these properties are vested in us, and we have the power of sale ; " and suppose the city solicitor, instead of reading one, had read six Acts of Parliament, would that have been an investigation of title or not ? To my mind there is only one possible answer. It does not matter how many Acts there were, or how long or short the title was. The question is, was the title investi- gated ? Again, it is said no abstract was furnished, the vendors saying — " We are not going to give you any evidence of title ; " but did that make it less necessary for the solicitor to investigate that , which thev said was their title? There may be an investigation of title" without any abstract. There may be investigation of title without any evidence of title being furnished by the vendor. The reason here is manifest. The Commissioners in effect said — " We are not going to give you any evidence of title, because the evidence of this title, being a public Act of Parhament, is so easily accessible to you that we need not supply you with a public Act of Parhament." That is all the Commissioners meant. They did not mean that the city solicitor was not to investigate that public Act of Parliament, and the solicitor would have been grossly wanting in his duty if he had not investigated it with the utmost possible care. Again, I put this question to counsel, to which no satisfactory answer has been given. Suppose this inquiry as to title had been retained, and the title had been referred to the conveyancing 376 Ex parte Mayor of London, Kay, J. counsel; after the solicitor had read the Act of Parliament, suppose he had not been quite satisfied without the opinion of the conveyancing counsel, and had proceeded to take it, would there have been no investigation of title then ? I have heard no answer to that at all ; you cannot say there is no investigation of title because the title is a very short one, or because the title is a very easy one to investigate, or because the investigation took only five minutes instead of ten days. The question is, has there been an investigation of title ? Here the title was a public Act of Parlia- ment, which vested this property in the vendors. WTiether it gave them a power of sale or not was a question which the city solicitor had most carefully to consider, and his consideration of it led to his requiring a formal authority from the Lord Chancellor. It was in consequence of that investigation of the Act that the formal authority was obtained. Now, it is not my duty to consider whether the General Order under the Solicitors Eemuneration Act produces a hardship or not. In this case this work is, beyond all question, greatly ovei-paid ; and it is not the first case which has come under my personal notice in which solicitors have got very great advantage by this General Order, but I have nothing to do with that. If the Act and the Order under it have produced that effect, that is what the Legislature, I presume, intended. I am not going to misconstrue the General Order, or refuse to carry it into effect, or to make that which I think would be bad law because it produces a hard- ship. This is an argument I cannot listen to for a moment. I say I should have been very glad, indeed, if I could have come to another conclusion; but this would be impossible, unless I could satisfy myself that there had been no investigation of title what- ever. I am not satisfied of that ; I think there has been investi- gation of title. The General Order refers to several things. It says that the scale charge in Schedule I., Part I., applies " for investigating title to freehold, copyhold, or leasehold property, and preparing and com- pleting conveyance (including perusal and completion of contract, if any)." All that has been done in this case. The conveyance has been prepared and completed. There was no contract to peruse ; but the scale charge applies whether there was a contract 1887. Re Greys Breicery Company. 377 or not. ■ It is, said, however, that the one other item — the inves- Kay, J. tigation of title — has not been made. From that I dissent; there has been an investigation of such title as there was, and I therefore am sorry to say that I must differ from the Taxing Master, and allow the summons, with costs. Solicitors : The City Solicitor, Baxters ^ Co. Re GREY'S BREWERY COMPANY. OhUty, j. 1887. ( By permisiim, from 56 L. T. 298 ; s. c. 31 s: J. 219.) jj,jj 20 (Before Chittt, J.) Solicitor — Taxation — Estate sold subject to incumbrances — General Order undent' Solicitors Remuneration Act, 1881 ; (44 <^ 45 Vict. c. 44)i P"-^ -^-i ''• ^• The property of a company in liquidation was sold by the solicitors of the official liquidator for £24,000 (subject to a mortgage of £900), and after the satisfaction of the claims of former successive owners a sum of £1,750 remained for the official liquidator. The sale was confirmed by an order made in the liquidation, and the parties to the conveyance were the company, the official liquidator, the original owners, and certain intermediate purchasers who had claims for unpaid purchase money. The solicitors on taxation included in their bill of costs scale charges as upon a sale for £24,900 as follows: negotiating, £102 53., deducing title and completing, including contract, £107 6s. The Taxing Master disallowed the negotiating fee, and only allowed the scale charge upon the £1,750. On summons to review taxation: Meld, that the Court could look not only at the contract but at the substance of the transaction, and that, having regard to the whole of the matters with reference to the provisional contract coupled with the order, the liquidator's name was only used for the purpose of conve- nience, and that the Taxing Master's decision was right. The original owners of the Grey's Brewery and of a number of public houses attached to the brewery sold these properties in the year 1878 to a firm of practical brewers. The brewers were unable to pay the whole of the purchase-money. The original owners, however, deduced their title to the property under the agreement for sale, and let the brewers into possession, but they did not execute a conveyance of the property, and retained possession of the title 1887. 378 Re Grey's Brewery Company. Chitty, J. deeds. The brewers in the year 1879 sold the property at an advanced price to a person whom they let into possession on com- pletion of the contract, and who immediately transferred the pro- perty to the Grey's Brewery Company, Limited, again at an advanced price, and ^yithout completing the purchase. As the transferor to the company did not carry out his contract with the brewers they brought an action against them, and obtained an order for specific performance. In 1882 the Grey's Brewery Company was ordered to be wound-up compulsorily, and an official liquidator was appointed. In the year 1884 the original owners pressed for a sale of the brewery in order that their unpaid purchase-money might be paid off, and the official liquidator requested them through their solicitors to find a purchaser. Accordingly the solicitors, with the official liquidator's sanction, arranged with the solicitors of the liquidator to act as their agents in the matter, and finally they found a purchaser of the property for £24,000, subject to a mortgage for £900. The purchaser was represented in the negotiations by an auctioneer and valuer, but no auctioneer or valuer was employed or paid any commission on behalf of the vendors. The solicitors then prepared a contract between the liqui- dator, as vendor, and the ultimate purchaser, which was executed on the 13th June, 1885, and a deposit of £1,500 was paid by the purchaser to the liquidator. An arrangement was come to between the liquidator and the parties having liens on the property that the purchase-money should be divided as follows: — "Purchase money, £24,900; to be left on mortgage, £900; balance, £24,000. The purchase-money was made up thus ; deposit, £1,200 ; to be paid to original owners, £21,000; to be paid to the brewers, £1,800." The solicitors did not act for the brewers or for the ultimate purchaser, both of whom were represented by other solicitors. A further arrangement was made between the liquidator and the brewers that, upon completion, the brewers should pay to the liquidator on behalf of the company £550 by way of compromise, and in discharge of all claims of the liquidator upon them. By an order made in the liquidation in June, 1885, the sale was confirmed on the footing that the liquidator was to receive £1,750, and the court fee (No. 69 in the Supreme Court Fees Order, 1884) was calculated upon the £1,750. Re Grey's Brewery Company. 379 The sale was completed in August, 1885, and a conveyance Chiuy, J. executed, the parties to which were the company, the liquidator, the original owners, the brewers, and the person to whom the pro- perty had been conveyed preparatory to the formation of the company. In November, 1885, the solicitors' costs were taxed in the liqui- dation, and they included in their bill scale charges as upon a sale of £24,900 as follows: — "Negotiating, £102 5s.; deducing title and completing, including contract, £107 5s." The Taxing Master disallowed the negotiating fee, and only allowed £22 10s. for deducing and completing, being the scale charge upon the £1,750 received by the liquidator. The solicitors carried in objections to the taxation, contending that the company was owner in equity of the property, and that the official liquidator was, throughout the transaction, responsible as vendor; that the business of the brewery had . greatly depreciated, the company realising much less than had been anticipaj;ed, but that nevertheless it was essential in the winding-up of the company that the assets should be sold ; that the official liquidator and the solicitors arranged the sale and price, and the terms and conditions thereof, and that no commission was paid to any auctioneer or estate or other agent; and the solicitors claimed that the negotiating fee and the deducing scale fee must both be calculated upon the entire and undivided amount of the purchase money. The Taxing Master disallowed the objection on the ground that the solicitors were also the solicitors for the original owners, the parties most interested in the sale of the property, and who received the greater portion of the purchase- money, and that the order sanctioning the sale provided for the payment to the liquidator of £1,750, and that the court fee was only fourul on that sum, and that he had, therefore, allowed the scale charge on that amount. The Taxing Master further stated that the amount paid for the property included plant, goodwill, fixtures, &c., and that the solicitors could not, in any case, be entitled to the scale charge on the value of that portion of the property, they being only entitled, in any case, to charge on the value of the leasehold premises, and that the amount paid to the liquidator was not the balance on taking an account, but a lump sum for tlie liquidator's interest, whatever it might be. 380 Re Grey's Brewery Company. cutty, J. This was a summons to review the taxation, 1887.. Whitehorne, Q.C., and Beale, for the summons, submitted that the Taxing Master's decision was Avrong on the true construction of rule 9 of Part I. of the General Order to the Solicitors Kemuneration Act, 1881, which provides that " where a property- is sold subject to incumbrances, the amount of the incumbrances is to be deemed a part of the purchase-money, except where the mortgagee purchase?, in which case the charge of his solicitor shall be calculated upon the price of the equity of redemption." Romer, Q.C., and Beddall, contra, were stopped by the Court. Chitty, J. : — The view of the Taxing Master was, that this was a sale by the liquidator for £1,750, and in calculating the scale fee he acted on that footing. It is true that the solicitor for the liquidator took no active part in the negotiations which resulted in the sale, which were carried through by the solicitors for tlie original vendors. But the only solicitor recognised by the Court on this application is the solicitor to the liquidator. There was a formal contract entered into by the official liquidator, according to which the property was to be sold for £24,000. If I had to decide the case upon the formal contract alone, the Taxing Master's decision would be erroneous; but that is not the whole of the case. Here the original vendors sold the property to the intermediate purchasers, who in their turn sold it to the company. The original vendors had a lien on the property to the extent of £2t,000, and they had not parted with the legal estate. There was nothing coming to the company out of the sale for £24,000, because the claim of the first vendors exceeded £21,000, and the claim of the intermediate purchasers more than exhausted the balance. The official liquidator came to the arrangement for the sale in order that he might obtain the settlement of a cross-claim which he had against the intermediate purchasers, who had been promoters of the company. The contract for the sale for £24,000 entered into by the ofHcial liquidator was not binding until it had been sanctioned by the Court. The order was one which bound all parties, as it Re Grey's Brewery Company. 381 provided that £21,000 should be paid to the original vendors, Chitty.J. 1887 £1,800 to the intermediate purchasers, and £1,750 to the official liquidator, by way of compromise and in full discharge of any claims he might have against the intermediate purchasers. In the affidavit made by the official liquidator upon the application for the order to confirm the contract, he stated that the intermediate purchasers had requested him to sell the property, and as an inducement to him to do so, they offered to pay him £1,750 in compromise of his claims against them, and also in discharge of the claim for costs set up by the former solicitors to the company; and on this understanding the official liquidator allowed his name to be used as a matter of convenience. The official liquidator's instruc- tions to his solicitors with regard to the preparations of the contract were, that he was willing to concur in the sale of the company's interest in the brewery for £24,000. To hold, however, that the official liquidator was merely a concurring party would be to take too narrow a view as against the solicitors. The substance of the case, when the matter is looked at in all its beai'lngs, is that the liquidator sold whatever interest the company had in the concern for £1,750. It was argued that it was a sale subject to incumbrances; but on the facts as stated it was not that, inasmuch as the liquidator would get his £1,750 whatever the amount of the incumbrances might be ; therefore it was the sale of the interest of the company for £1,750, and that being so, the Taxing Master was right in applying the scale to that amount. The Taxing Master allowed nothing for the negotiation, and in this, I think, he was right, because the negotiations were those of the vendors, the parties principally interested. There were no negotiations for a sale on behalf of the official liquidator, though there were some with reference to a compromise of a claim. As a matter of principle as between a vendor and his own solicitor, I think in many cases it would not be right to look at the contract for sale ; but I think the substance of the transaction should be gone into. But in no case would the solicitor, even if he were so minded, be allowed to put the transaction in such a form as to be entitled to the larger fee. However, there Is no pretence for making such a suggestion in the present case. My judgment turns mainly on this consideration, that, looking at the whole of the matters witli reference to the 382 Long v. Fitzgihbon. cutty, J. provisional contract, coupled with the oi'der which made it binding on all the parties interested in the property, the liquidator's name was used in the provisional contract merely for the purpose of convenience, namely, for the convenience of all the parties. The result therefore is, that the Taxing Master's decision must stand. Solicitors: Cro/t, Lawrence, Bake?; and Waldron, ^'^^Quer. LONG V. FITZGIBBON. Ioo7. Jan. 27, 29. (188G. J. No. 402.) (BypermUsim, from 20 L. R. Ir. 12; s. c. 21 Ir. L. T. E. 13.) (Before DowsE, B., and Andeews, J.) Costs — Judgment for £20 — General Order VIIT., r. 3 — Common Law Pro- cedure Act, 1853, s. 243 — Practice. A judgment for £20, exclusive of costs, entered, by leave of the Court, under General Order XIII., r. 1, after appearance carries only such coats as are allowed by General Order VIII., r. 3. Motion for an order to review the taxation of the plaintiffs' costs. The action was brought to recover the sum of £20, arrears of rent, due by the defendant out of premises situate in Bath-avenue, Donnybrook, county Dublin, and held by the defendant under a monthly tenancy. The writ was specially indorsed with the particulars of the plaintiifs' claim. The plaintiffs resided in the city of Dublin and the defendant in the county of Dublin. The defendant entered an appearance, and the plaintiffs thereupon moved for final judgment. On the 19th November, 1886, an order was made for final judgment and costs. On the 6th December, 1886, judgment was entered for £20. The plaintiffs lodged their bill of costs, amounting to £13 Os. 9d., with the proper ofiScer for taxation. The bill was accordingly taxed by Mr. Robinson, one of the taxing officers; and the Taxing Master made the deductions specified in General Lovg V. Fitzgilbon. 383 Order VIII., rule 3, and allowed the plaintiffs half the costs of Exchequer. the action. The plaintiffs having objected to the taxation, the bill came a second time before the Taxing Master on the 20th January, 1887, and on that day the Master certified the amount of the taxed costs at £5 9s. Id. On the 24th January, 1887, the Taxing Master reported that under General Order VIII. (of April, 1878), rule 3, the plaintiffs were entitled to half costs. Samuels, in support of the motion : — The plaintiffs are entitled to the full costs of the action. Section 243 of the Common Law Procedure Act, 1853, provides " that in case the plaintiff in any action of contract . . . shall recover, exclusive of costs, less than £20 " he shall be entitled to no more than one-half the ordinary costs. In this case the plaintiffs' claim is above the limit laid down in that section. Section 53 of the Judicature Act preserves the former provision. That question was decided in Lapsley v. Blee (1), in which case it Ante, p. 200. was held that the 53rd section of the Judicature Act, arid Order . VIII., rule 2; of 1878, did not repeal the provisions of the 97th section of the Common Law Procedure Act, 1856, and that the provisions of the latter section remain in force. It is clear, there- fore, that section 243 of the Act of 1853, as well as section 97 of the Act of 1856, which are the two sections dealing with costs, remain in full force and effect, and that the amount here is above the limit giving only one-half the costs. The Taxing Master relied on General Order VIII. (Eiffe, 696). That Order is headed " Costs in Cases of Settlement of Action, Judgment by Default, &c." Kule 2 of that Order deals with costs of judgment by default, and rule 3 deals with cases of settlement. This is not a judgment by default or a case of settlement. The latter rule contains the words, " the principal sum for which judgment shall be marked ;" but the words " on settlement of an action " must be read into the rule, and the rule as it is worded could not be said to repeal the provisions of the Common Law Procedure Act, 1853. The Order itself was clearly intended to deal with cases of settle- ment of action and jurlgment by default, and the only way in which it could be construed as applying to other cases would be (1) 6 L. E. Ir. 155, 161. 384 Long v. Fitzgihbon. Exchequer, the Word " &c." It would be a very wide interpretation to put on that word ; and if the framei's of the Order intended it to govern all cases it is unlikely it would have been headed in this way. The word " &c." applies to the fourth rule of the Order, providing for the taxation of costs where two actions are brought upon the same bill of exchange. There was no appearance for the defendant. Cur. adv. vult. Jan. 29. DoWSE, B. : — This was an application for an order on the Taxing Master to review his taxation of a bill of costs. The plaintiff has brought his action to recover a sum of £20. He made an application for final judgment on the writ, which was specially indorsed. The Court made an order for judgment. The plaintiff marked judg- ment for £20, and when he brought his costs for taxation the Taxing Master refused to allow him the full costs of the action. The plaintiff relied on section 243 of the Common Law Pro- cedure Act, 1853, which enacts that if the plaintiff shall recover, exclusive of costs, a sum less than £20 he shall only get half the costs of the action. Mr. Samuels argued before the Taxing Master and here that having recovered £20 he is entitled to his full costs. No doubt, by section 53 of the Judicature Act the statutes regu- lating costs purport to be preserved in full force and effect. That statute deals with costs " subject," as it says, " to all existing enactments," &c. ; and if the case depended on this section alone Mr. Samuels would be probably right. The 61st section, however, of the same Act, sub-section 3, gives full power and authority to the judges to make rules regulating the costs of proceedings in the Superior Courts. An order made and approved of, as pointed out in that section, has the effect of an Act of Parliament ; and an Order has been made, entitled General Order VIII., to be found in page 696 of Eiffe, upon the provisions of which Order this case depends. General Order VIII. is entitled " Costs of Cases of Settlement of Action, Judgment by Default, &c." Mr. Samuels contends that this Order does not refer to any judgment marked, unless by way of settlement of the action, or by default ; and, in answer to me, he says that the " &c," is explained by the provisions 1887. Long V. Fitzgihbon. 385 contained in E,ule 4 of General Order VIII. I do not take that Ex. He has to read the document which has been drawn and fair-copied in a very different way from that in which it is usually necessary to peruse documents of title. He has to examine it with the most watchful care and anxiety in order to see that there is in it no provision inimical to the interests of his client, and for this service he is very properly allowed to make a charge of Is. per folio. I think that the Master was quite right in refusing to allow it upon the taxation of the costs. Wills, J. :— I am of the same opinion, and entirely agree with my brother Day. To allow a charge of Is. per folio for every perusal of docu- ments which becomes necessary in tlie course of a solicitor's business would be, in my opinion, unreasonable. It is a matter of consider- able consequence, and it is desirable that there should be uniformity of practice with respect to it. If I thought that the decision at which we have arrived was inconsistent with the decision of Chitty, J., in In re Parker and Others (1), I should have desired a Ante,-p. 273, further opportunity of considering the matter and of consulting the Chancery Judges ; but I do not think that the view we take is in any way inconsistent with the decision of the learned Judge in that case, that the words " other documents " in this Order do not include abstracts of title. Moreover, it is undesirable that there should be one rule with respect to this matter in England and another in Ireland ; and I find that in the case of He River Bann Navigation Act, 1879, Ex parte Olpherts (2), the Irish Courts ^nte, p. 319. took exactly the same view, holding that, under an order to tax the costs awarded to the owner of lands compulsorily taken by a company, his solicitor is not entitled to 1«. per folio for perusing deeds referred to in the abstract of title furnished. The General Order, pursuant to the Solicitors' Remuneration Act, 1881, dis- cussed in that case is substantially the same as that which we are now discussing, and the Master of the Rolls said, with reference to it — " The contention on the part of the solicitor for the vendor, the tenant for life, is that the 2nd Schedule includes the reading (1) 29 Ch, D. 199, (2) 17 L. Eep. Jr. 168. 394 In re Robertson, Q. B. D. of all deeds, no matter how numerous, relating to the matter in 1887. . . hand. The contention on the other side is, that the 2nd Schedule does not apply to the mere perusal of an old deed, but simply to the case of perusing and approving a new deed or draft deed, the perusal of which requires professional skill or advice, and that it was for that that remuneration was given by Schedule 2 ; " and at a later period of his judgment — " In my opinion the context plainly shows that in that Schedule " the drawing and perusing " were intended to apply to the same document, and that the fee of 1«. for perusing deeds does not apply at all to any other con- veyancing matter, the remuneration for which was to be regulated according to the present system." The extravagant consequence that would have resulted in that case from a contrary decision — allowing a charge of Is. per foUo — would have been that the solicitor would have received £19 15«. for perusing a marriage settlement and a mortgage deed, and the learned Judge very pointedly remarks — " If that charge be valid and legal it discloses a very unsatisfactory state of the law, and it is more than question- able whether it ought to be permitted to remain so. For a fee of two or three guineas the services of a competent barrister would be obtained, not for perusing the two deeds only, but for advising on their construction, and, I incline to think, also drafting a further deed, if necessary." By applying the words to documents drawn by an opponent it is possible to give them a reasonable and a natural construction. In perusing such documents the task of a solicitor is highly responsible, and there is a possibility, if he does not exercise his utmost vigilance, that he may be led to overlook some provision injurious to his client's interest; but there is nothing in the circumstances under which the Solicitors' Remuneration Act, 1881, was drawn to suggest that the framers of the General Order meant that there should be a charge of 1«. per folio for the perusal of documents of every description. In my judgment, therefore, the order of the Judge must, so far as this point is concerned, be set aside, and the order of the Master restored. Appeal alloiced. Solicitor for appellant : E. P. James. Solicitor for respondent : C, H. de Grey Robertson. Tisdall V, Richardson. 305 TISDALL V. RICHAEDSON. ^«A.,„e,-. 1887. (1886-E. No. 264.) April 18. (Bji permution, from 20 L. R. Ir. 199). (Before Palles, C.B.) Practice — Taxation of Costa — Fees to Counsel on Settlement of Writ of Summons and Joinder of Issue. The Taxing OfiScer has discretionary power to allow, as between party and, party, fees to counsel on (a) settlement of writ of summons, (6) settlement of reply, though the latter is simply a joinder of issue on the preceding pleading. Summons by the defendant to review the taxation of bill of costs between party and party. The action was brought, and the writ endorsed, to recover the sum of £200 for money had and received, money lent, and money found to be due on accounts stated, and damages for fraudulent misrepresentation. The statement of claim followed the writ, and defendant filed his defence, whereby he traversed the several alle- gations in the plaintiff's statement of claim, and also pleaded certain special defences. The plaintiff filed his reply, simply joining issue on the defence. The action was tried in the Trinity Sittings, 1886, before Baron Dowse, and a jury ; and the pleadings having been amended by confining the plaintiff's case to one cause of action, namely, fraudu- lent misrepresentation, the jury found a verdict for the plaintiff for £200. On the application of the plaintiff judgment was entered for him, but execution was respited on lodgment of the £200 in Court, within fourteen days, which was done. The defendant subsequently obtained a conditional order to set tiside the verdict and judgment ; but on cause shown by the plain- tiff, the conditional order was discharged with costs. Notice of appeal was served by the plaintiff, but was subsequently withdrawn. The plaintiff duly lodged his bill of costs for taxation, and the Taxing Master taxed them and certified the amount. The defend- ant now applied on summons to review the taxing in respect of 13 4 3 4 1 1 6 8 3 4 1 1 396 Tiadall v. Richardson. Sxchequer. certain items allowed by the Taxing Master, and sought that these items should be disallowed. Amongst the items objected to were the following: — £ s. d, 3. Instructions for counsel to prepare writ of summons - - - - - 4. Attending counsel therewith 5. Paid him fee - - - - - 70. Instructions for counsel to prepare joinder of issue - . - - 71. Attending him therewith - - - 72. Paid him fee Blood, for the defendant in support of the summons. P. A. O'C. While, for the plaintiff, contra: — 3, 4, and 5 are proper items to be allowed plaintiff. They have Ante, p. 343. been allowed in this Division, in M'N'amara v. Malone (1). True, that was an action of ejectment, which is regulated by the General Orders of 1854; but the principle on which the decision in that case proceeded was not limited, on this point, to cases of ejectment. These items are within Order X., Rule 12, of April, 1878, A writ is a proceeding. By section 3 of Judicature Act, " action " is defined as "a proceeding" commenced by writ. As to items 70, 71, and 72, counsel's fee should be allowed In any case where a fee to counsel would have been allowed for settling issues under the Common Law Procedure Act, 1853 and 1856. Such a fee would not have been allowed in a simple action for goods sold and a traverse, but, in this action, there were seven counts in the statement of claim, and twenty-four paragraphs in the defence, many of tliem being of a very special nature, which could not be dealt with except upon the advice of counsel. The Lord Chief Baron held that the Taxing Officer was right in allowing the items 3-5 and 70-72, Solicitor for the plaintiff: G, Byrne. Solicitor for the defendant: H. F. Leachman. (1) 18 L. R. Ir. 269. M^Shfffrey v. Lanagan. 397 M'SHEFFREY v. LANAGAN. {By permitsion, (lom 20 L. R. Ir.E38). (Berore Lord Ashbourne, C, and FitzGibbon and Barry, L.JJ.) Slander — l^^ominal Damages brought into Court and accepted— Costs — Taxa- tion — General Order XXX., B. 4^— Judicature Act, a. 63 — Common Law Procedure Act, 1853, s. 126 — Practice. The defendant in an action of slander paid Qd. into Court, and the plaintiff accepted it in full satisfaction of his claim. The Taxing Master refused to tax the plaintiff's costs, upon the ground that the plaintiff was only entitled to 6i. costs, and the Queen's Bench Division affirmed his ruling: — Seld, by the Court of Appeal (Lord Ashbourne, C, and FitzGibbon and Barry, L.JJ.) that the plaintiff was entitled to tax his costs neces- sarily and properly incurred in the action. Query, however, whether the Court had not jurisdiction, under s. 53 of the Judicature Act, in such a case, to deprive the plaintiff of the costs on a proper case being made for such exercise of direction. Appeal from an Order of the Queen's Bench Division of the 11th February, 1887. The action was brought for damages for alleged slander. The defendant paid into Court sixpence, which the plaintiff accepted in full discharge of the cause of action. The case came on before the Taxing Master for taxation of the plaintiff's costs, and the Taxing Master decided that, as tlie plaintiff had only recovered sixpence damages he Avas only entitled to sixpence costs. The jjlaintiff thereupon took out a summons to review tlie taxation, or for an order declaring the plaintiff entitled to all costs properly and necessarily incurred in. the action, when taxed and ascertained, and directing the Taxing Ofl:cer to tax the same. The Queen's Bench Division refused this application, and from this refusal the present appeal was brought. J. 0. Wylie, for the appellant: — Under Order XXX., Rule 4, the plaintiff is entitled, if he accepts the sum paid in in salisfitction of the entire cause of action, to tax his Appeal. 1887. April 18. August 2. 398 M'Sheffrey v. Lanagan: Appeal, costs, and in case of non-payment within forty-eight hours, to sign judgment for the costs so taxed. The Judicature Act, section 53, provides that, subject to all existing enactments limiting, regulating, or affecting the costs payable in any action by inference to the amount recovei'ed therein, tlie costs shall follow the event. The only statute affecting the costs payable in an action of slander is section 126 of the Common Law Procedure Act, 1853, which pro- vides that in all actions for slander, if the jury shall find the damages to be under the value of forty shillings, the plaintiff shall not recover more costs than damages. Tiiis, however, only applied to cases where there was a verdict of the jury: Wigens v. Cook{\) ; Frean v. Sargent (2) ; Griffith v. Thomas (3) ; decided on the corresponding English statute. Section 243 of the Common Law Procedure Act, 1853, does not apply to actions of slander. The proviso as to actions of libel iti section 53 of the Judicature Act only is " where i\iti jury shall give damages under forty shillings." There being, therefore, no statute to deprive the plaintiflTs of the costs, they are entitled to full costs, and the Taxing Master was wrong in refusing to tax them. D. Henry, for the defendant: — This case is within the spirit and intention of section 126 of the Common Law Procedure Act, 1853, and the intention of statutes should be considered: Ex parte Greenwood (4). Order XXX., Rule 4, only means that where the plaintiff is otherwise entitled to costs the Taxing Master is to tax the costs. The statutes regu- lating the costs payable by reference to the amount recovered Ante, p. 200. therein apply, whether there was a trial or not: Lapsley v. Blee (5). Aug. 2. LoED Ashbourne, C. : — In this case the action was for slander, and the plaintiff claimed £500 damages. The defendant paid into Court the sum of six- pence, which the plaintiff accepted in full discharge. The case came before the Taxing Officer (Mr, Eobinson), who decided that the plaintiff, having only recovered sixpence damages was only entitled to sixpence costs. (1) 6 C. B. (N. S.) 784. (4) 27 L. J. Q. B. 28. (2) 2 H. & C. 293. (S) 6 L. R. Ir. 155 ; 13 Ir. L. T. E. 174. (3) 4 D. & L. 109. M'Sheffrey v. Lanagan. 399 The Queen's Bench Division affirmed the decision of the Taxinu Appeal. 1'887 OflBcer, and the question has come before us on appeal. The plaintiff admits that if by a verdict of a jury he had been awarded a sum of sixpence damages, he would only have been entitled to a like sum of costs, but contends that inasmuch as the defendant lodged said amount in Court (there being no finding of a jury), the plaintiff is entitled to full costs. Section 53 of the Irish Judicature Act, 1877, deals with costs " subject to all existing enactments, limiting, regulating, or affecting the costs payable in any action, by reference to the amount recovered therein." One of these existing enactments was the Common Law Proce- dure Act, 1853, section 126, which provides that in actions for slander, " in case the jury shall find the damages to be under forty shillings," the plaintiff shall not recover more costs than damages. The plaintiff and appellant contended, that having due regard to these sections, under Order XXX., Rule 4, he was entitled to full costs. The costs here depend on the construction of that Rule, for the sixpence damages were not awarded by the verdict of a jury, and are, therefore, not within section 126 of the Common Law Procedure Act, 1853. [His Lordship read the Rule.] That Rule is not confined to slander, but deals with all actions, and any decision on its application would have a far-reaching effect. In my opinion it applies to and governs this case. The plaintiff has accepted the amount lodged in satisfaction of the cause of this action in respect of which it ivas paid in, and should, therefore, be at liberty to tax his costs, and, in case of non-payment within forty- eight hours, to sign judgment for his costs so taxed. I, therefore, think that the Taxing Officer should have taxed the costs as asked, and that the order of the Queen's Bench Division, upholding his ruling, should be reversed. I do not myself think this a very satisfactory result, and I am disposed to think that the frame of Order XXX., Rule 4, might possibly be reconsidered, with a view to seeing if costs in actions like the present could not be dealt with in another way. As this question so much affected the Common Law Divisions, we thought it right to communicate with the Lord Chief Justice and the Lord, Chief Baron. The Lord Chief Baron concurs in the conclusion 400 MSheffrey v. Lanagan. Appeal. wlucli I have announced, but the Lord Chief Justice thinks the 1 887 Queen's Bench Division right, and that if this Court differs from it that Rule 4 shall be reconsidered. The result will be that the appeal will be allowed. FrrzGiBBON, L.J. : — This case comes before us upon the refusal of the Taxing Officer to tax the costs at all ; and it seems to me that if he was bound under the Act and Rules to enter upon any taxation, it will follow that the plaintiff is entitled to succeed on his summons, which seeks in the alternative " an order declaring the plaintiffs entitled to all costs properly and necessarily incurred in this action when taxed and ascertained, and directing the Ta.xing Officer to tax same." Under the Judicature Act, section 53, "subject to the provisions of the Act and Rules the costs of and incident to every proceeding . . . shall be in the discretion of the Court — provided that (subject to all existing enactments regulating the costs payable in any action, by reference to the amount recoverable therein) the costs of every action, question, and issue tried by a jury shall follow the event, unless, upon application made, the Judge at the trial or the Court shall for special cause shown and mentioned in the order otherwise direct," &e. The decisions upon the analogous English statutes, of which Wigens v. Cook (1) is an example, establish that the statutes regulating the costs by reference to the amount recovered do not apply, as the action never reached the stage at which the existing enactments on the subject might have come into operation. All these enactments, according to their terms, limit the costs only upon verdict after trial. It is further to be observed that one of these provisions is to be found in this very section — " Provided also that in all actions for libel where the jury shall give damages under forty shillings the plaintiff shall not be entitled to more costs than damages." It follows that the costs in question are costs which are "within the discretion of the Court," unless they are subject to some provision of the Judicature Act, or of the Rules made under it, and thus the right to them depends altogether upon the construction of that Act and of the existing Rules. The question whether the (1) 6 C. B. (N. S.) 784. 1887. ArSheffrey v. Lanagan, 401 Court has discretion as to these costs has never been raised ; no 4^i'f?'- materials for guiding the exercise of such discretion has been given, and the defendant has rested his case entirely upon Order XXX., and the Eules included in it. The refusal of the Taxing Officer to tax the costs, and the decision in the Court below have also pro- ceeded on the same ground. Schedule Rule 30 provides that " any defendant may, at any time before or at any time of delivering his defence, or by leave at any later time, pay into Court money by way of amends." Order XXX., Rule 4, then enables the plaintiff before reply to accept money so paid in, in which case^ on giving notice to the defendant, he " shall be at liherty, in case the sum paid in is accepted in satisfaction of the entire cause of action, to tax his costs, and i« case of non-payment within forty-eight hours to sign judgment for his costs so taxed." Really the contention of the defendant here is, that in a case coming within the very terms of the Rule, the Rule has no effect, and means that the plaintiff may tax nothing, and in case of non- payment, may sign judgment for nothing. He is entitled to go before the Taxing Officer, but only to be told that he is to have no costs. I think such a construction would turn the Rule into a trap for the plaintiff. It not merely entitles him to tax the costs, but, in the case of non-payment of them, it entitles him to sign judgment for the costs so taxed. How can there be non-payment of no costs, or a signing of judgment for costs taxed to nothing? I think the fair construction of the Rule is that, in every case coming within it, the plaintiff shall be entitled to some costs. The question still is, how much? And there is no existing enactment or rule limiting the amount. The term "costs," and not " full costs,'' has been consistently used from the time of the Statute of Gloucester until now in Acts, Rules, judgments, and other legal documents, under which ''costs of suit" are pavable in full, and I cannot narrow the meaning of "costs," for the first time, in this Rule. Whether the Statute of Gloucester has been repealed or not seems to me to be wholly immaterial, because, if it be, the Judicature Act and Rule are substituted for it, and give the plaintiff his "costs." It is to be observed that the decision appealed from would give a different meaning to the terni "costs" in different events, and would impute to the Rule the me;ining that whether there are any costs to 2 I) 402 Al^Slieffrey v. Lanagan. Appeal. te taxed or" not is to depend upon tlie amount paid into Court. I cannot read it in that way; and, so long as this Rule stands, I must hold the plaintiff entitled to the costs which it purports to give him. I should like to say for myself, that if the propriety of the Rule is to be reconsidered, it appears to me that a great deal may be said in its favour, and against indiscriminately depriving the plaintiff of his costs in every case where a defendant lodges a small sum in Court by way of amends. There may be actions of defamation in which the character of the plaintiff would be vindicated by nominal damages, though the action itself was far from frivolous. If, in the case of a libel, the defendant were permitted to lodge a small sum by way of amend?, without liability to costs, the plaintiff would be met by the dilemma, that if lie drew it out in full satisfaction, he had not recovered more than 40,?., and therefore must pay his own costs ; cr, if he went to trial, probably at great expense, he would be charged with having done so, not on the issue of his character, for the vindication of which he had properly brought the action, but on the mercenary issue, whether the amount lodged was sufBcient. In the case of newspapers an apology, with lodgment of amends, entitles the plaintiff to his costs, and I do not see why a private libeller who withdraws his charge should not be in the same position. Even at the trial, after all the expense has been incurred, there is no more common or proper termination of an action for defamation than a withdrawal of the charge, the defendant paying costs and apologising; and I cannot see wliy a rule of Court which enables him to do so at an earlier stage is to be treated as manifestly absuid. For tlie present, however, we have only to say that upon the true construction of Order XXX., Eule 4, the plaintiff in this case was entitled to tax his costs properly and necessarily incurred in the action. Barry, L.J. : — I concur in the decision arrived at, and for tlie reasons given by Lord Chancellor and Lord Justice FitzGibbon, and I do not say anything more, except that I pronounce no opinion as to whether, under the section of the Judicature Act, the Queen's Bench Divi- sion might not, on a proper proceeding being instituted for the purpose, having deprived the plaintiff of his costs in this case— that Re The Bridewell Hospital. 403 is, exercised their discretion over the costs. But no such order was Appeal. 1 887 obtained, no such order was applied for, no such argument was advanced here; for I asked whether the respondent's counsel contended that the order of the Queen's Bench Division amounted to an order exercising their discretion and depriving the pluintifF of the costs, and this was not contended for. I agree that the order appealed from was wrong, and must be reversed. Solicitors for the plaintiff : O'Doherty ^- Toland. Solicitor for the defendant: P. Gallagher. Re THE BRIDEWELL HOSPITAL AND THE METRO- ChHty.j. 1887. POLITAN BOARD OF WORKS. June 27. {By permission^ from 57 L. T. 155.) (Before Chitty, J.) Solicitor — Costs — Election to he paid under old system — General Order under Solicitors' Remuneration Act, 1881 (44 & 45 Vict., c. 44), c. 6. Where money is paid into Court under statutes incorporating s. 80 of the Lands Clauses Consolidation Act, 1845, the solicitor for the vendor may entitle himself to detailed charges, provided lliat he signi6es his election " before undertaking the business." A sum of money was paid into Court by the Metropolitan Board of Works for lands belonging to the governors of a certain hospital. The hospital proposed to purchase certain ground rents out of the fund in Court, and instructed their solicitor accordingly. The solicitor wrote saying that he elected that his remuneration for all business connected with the purchase should be in accordance with the system in force pre- viously to the coming into operation of the Solicitors' Eemuneration Act, 1881, as altered by schedule II. of the General Order made under that Act, and he requested the clerk of the hospital to inform the soli- citor of the Board of his intention. The solicitor of the Board replied by saying that they required that the remuneration should be according to schedule I. to the General Order under the Solicitors' Remuneration Act, 1881. The Court approved of the proposed investment, and made an order that the Board should pay to the Governors of the hospital their costs, including all reasonable charges and expenses incident thereto of the' reinvestment of the amount payable under the agreement fur purchase and of obtaining the order, and all proceedings relating thereto. 404 lie y'he Brideioell Hospital. Chilly, J. with such costs, charges, and expenses to be taxed in case the parties 1^87. differed. On delivering the bill the solicitor had charged in detail for the conveyancing business. The Taxing Master upon taxation decided that the election made by the solicitor was binding on the Board, and allowed the detailed charges. The Board carried in objections, which the Taxing Master overruled. The Board then took out a summons to review the taxation, and raised the question, whether upon a reinvest- ment in land of purchase- money paid into Court by promoters under the Lands Clauses Consolidation Act, 1845, the solicitor for the landowners obtaining the reinvestment could, as against the promoters, elect to be paid otherwise than accordine; to the scale in Schedule I., Part I. of the General Order made pursuant to the Solicitors' Remuneration Act, 1881. Held, that there was no ground for introducing any exception into rule 6 of the kind contended for by the Board. This was an adjourned summons to review a taxation of costs. The question to be determined was wliether, upon a reinvest- ment in land of purcliase-money paid into Court by promoters under the Lands Clauses Consolidation Act, 1845, the solicitor for the landowners obtaining the reinvestment could as against the promoters elect to be paid otherwise than according to the scale in Schedule I., Part I. of the General Order made in pursuance of the Solicitors' Remuneration Act, 1881. The circumstances of the case were as follows: — At the date of the order hereinafter mentioned, the sum of £11,074 5s. ocl. Consols, representing purchase-money paid into Court by the Metropolitan Board of Works for lands belonging to the Governors of Bridewell Hospital, was standing in Court to the leger credit, *' Ex parte The Metropolitan Board of Works; in the matter of the Metropolis Improvement Act, 1863, in the matter of the Estate of Bridewell Hospital," respecting purchase-moneys for hereditaments purchased by the Board from the Governors for the purposes of the improvements authorised by the Metropolis Im- provement Act, 1863. On the 18th December, 1885, the clerk of the Governors wrote to the solicitor of the Board, saying that the Governors were pro- posing to purchase from W. A. T. Amherst certain ground rents at Hackney, the purchase-money (£6,200) for which would be paid out of a fund in Court standing to the credit of the Board, the account of the hospital, and that on sending instructions to the Governors' solicitor to act for the hospital in the matter the solicitor had wriitcn to the clerk a ktler, dated the 10th December, 1885, Be The Bvidewell Hospital. 405 a copy of which letter the clerk forwarded to the solicitor of the CUHty, J. Jioard. The solicitor of the Governors ia his letter of the 10th Decem- ber, 1885, said, referring to the instructions to him to represent the Governors on the purchase by them from W. A. T. Amherst of tlie ground rents, that he elected tliat his remuneration for all business connected therewith should be according to tlie system in force previously to the coming into operation of the Solicitors' Remunera- tion Act, 1881, as altered by Schedule 11. to the General Order made under that Act. He added that, as tiie purchase-money would be raised by a sale of a portion of the funds then in Court to the credit of the Metropolitan Board of Works, the account of Bridewell Hospital, being compensation money paid into Court under the Lands Clauses Consolidation Act, 1845, the costs of the intended purchase would be payable by the Metropolitan Board of Works, and he requested that their solicitor should be informed of the object of this letter. On the 22nd December, 1885, the solicitor of the Board replied to the clerk of the Governors (referring to his letter of the 18th December enclosing a copy letter from the solicitor of the Gover- nors signifying his election that his remuneration for all business connected with the proposed re-investment in land of the sum of £6,200 belonging to the Governors should be according to the system in force previously to tlie coming into operation of the Solicitors' Remuneration Act, 1881, as altered by Schedule II. to the General Order under that Act), and stated that, in his opinion, it was not competent for the solicitor of the Governors as against the Board to make such election, and that he should so contend before the Taxing Master. He also said that the Board required that the remuneration should be according to Schedule I. to the General Order under the above-mentioned Act. Application was duly made to the Court for approval of the proposed investment, and on the 3rd June, 1886, Chitty, J., made an order for sale of part of the above-mentioned Consols sufficient to produce £6,200, and for investment of that sum in the purchase bv the Governors of freehold hereditaments at Hackney, part of the estate of W. A. T. Amherst, and the order directed that the Board should pay to the Governors their costs (including therein all 406 Rn The Bridewell Hospital. Chttty, J. reasonable cliarges and expenses incident thereto of the re-invcst- 1887 o I. . ^ ment of the amount payable under the agreement for purchase in. the purchase of the hereditaments therein comprised, and of obtaining this order and of all proceedings relating thereto), such costs, charges, and expenses to be taxed and settled by the Taxing Master in case the parties differed. The investment having been completed, the firm of solicitors of the Governors delivered their bill of costs, charging in detail for the conveyancing business. Upon taxation the Board contended that the scale fee and not detailed charges were payable, but the Taxing Master decided that the election made by the solicitor of the Governors of the 10th December, 1885, in his letter was binding upon the Board, and allowed the detailed charges. Objections to the taxation were carried in on behalf of the Board as follows: — The scale fee in Schedule I,, Part I., of the General Order made in pursuance of the Solicitors' Remuneration Act, 1881 (and not detailed charges) should have been charged and allowed for in respect of the conveyancing costs in the bill which related to a re- investment in land under the Lands Clauses Consolidation Act, 1845 ; that clause 6 of the General Order was not applicable to an invest- ment in land under the Lands Clauses Consolidation Act, 1845; and that the option given by clause 6 as between a solicitor and his client was not available as against a third party. The answers given by the Taxing Master were as follows: — In this case notice in accordance with rule 6 of the Remuneration Order was duly given by the solicitor to his client, the vendors, who through their treasurer forwarded the same to the purchasers, the Board of Worlis. The solicitor to the Board thereupon gave notice to the vendors that it was not competent for the solicitor to make such an election as against the purchasers, who would object to pay the costs except under Schedule I. of the Remuneration Order. The obligation to pay costs in this case is a statutory obligation out of which the purchasers had no power to contract themselves, but they did all they could do under the circumstances by giving the notice above referred to. Re The Bridewell Hospital. 407 Tliis may possibly distinguish the case from existing decisions. Ohitbi.J. If not, that scale which is most remunerative to the solicitor, and most onerous on the party liable to pay, will always be applied "where the statutory obligation exists. Notwithstanding the considerations I have suggested, as the judgment in (o) Hester v. Hester (1) lays it down without qualifica- ^'^^<=> V- 360. tion that, where notice of election lias been properly given to the client, it is binding on those who have to pay the costs. I do not feel at liberty to allow these objections, which I accordingly over- rule. A summons was thereupon taken out, on the part of the Board, asking that the Taxing Master might be directed to review the bill of costs taxed by him, and to allow the objections made by the Board to such taxation. The summons was adjourned into Court, and now came on to be heard. Romer, Q.C,and Pownall, for the Metropolitan Board of Works, in support of the summons, referred to Solicitors' Remuneration Act, 1881; Re The Merchants Taylors Jnfe, p. 287. Compani/ {2); Hester v. Hester (3). Ante, p. 360. Yate Lee, for the Governors of Bridewell Hospital contra. Chittt, J. : — I see no sufficient ground for introducing any exception of the kind contended for by the Metropolitan Board of Works in the present case. Rule 6 of the General Order made in pursuance of the Solicitors' Remuneration Act, 1881, provides that: — "In all cases to which the scale prescribed in Schedule I. hereto shall apply, a solicitor may, before undertaking any business, by writing under his hand, communicated to his client" — communicated to whom? To his client — "Elect that his remuneration shall be according to the present system as altered by Schedule II. hereto." In that way, of course, the scale would be excluded. The Board no doubt have failed to pay these costs. The Board, however, are (1) 65 L. T. Kep. N. S., 669 ; W. N., 1886, p. 208. (2) 52 L. T. Eep. N. S., 775 ; 29 Ch. Tliv., 209 ; 30 lb., 28. (3) 55 L. T. Eep. N. S., 669, 862; 34 Ch. Div., 607. 408 Re The Bridewell Hospital Chitty, J. not in the position of the client. It is clear that they cannot 1887. ' . dictate to the client what solicitor he shall employ; and no doubt the result is, that those who have to pay do not get the opportunity of dissenting from the election of the solicitor. To take a common case : the solicitor, before undertaking tlie business, elects that his remuneration shall be according to the old system. Thereupon the client may say, " I will go to another solicitor." Of course, in circumstances like the present the matter would be indifferent to the client, whether he paid tiie higher or lower sum. But still the 6th rule has given the option to the solicitor. It is not in reality so unfair as it seems to have appeared to the Board's advisers, because, after all, the solicitor who looks into the work beforehand, or makes some objection as to the amount of work that is to be done, onl}' claims to be paid according to the old system instead of being paid according to the new. He cannot get paid too much, because I understand that the Taxing Master moderates the amount of his charges. The Board gets the benefit of the Taxing Master's independent opinion. And while the experienced solicitor may object to accept less than he would be paid under the old system, he may, however, find that he has got a less sum than the scale "would have giveu. I see, therefore, no ground for introducing an exception to a rule which is so plainly expressed as the 6lh rule of the General Order. The result is, that I uphold what the Taxing Master has done, and dismiss this summons with costs. Solicitor for the Metropolitan Board of Works : Reginald Ward. Solicitors for the Governors of Biidovell Hospital: Still ^- Son. Blair V. Cordner. 409 BLAIR AND ANOTHER v. CORDNER. «■ f:/'- loo7. (By permission, from 19 Q. B. D. 516; s. c. 36 W. E. 109.) July 25. (Before Lord Esher, M.R., Lindley, and Lopes, L.JJ., sitting as a Divisional Court.) Solicitor — Bill of Costs — Interest on Disbursements and Costs — Demand from Client — Solicitors' Remvueration Act, 1881 (44 & 4S Vict. c. 44)> *• ^i General Order VII. By General Order VII. under the Solicitors' Remuneration Act, 1881 (44 & 45 Yict. c. 44), s. 5 . . . . the interest which a solicitor is entitled to recover under the Order on the amount due on business transacted by him is not to commence till the amount due is ascertained, either by agreement or taxation — and it is provided that a solicitor may charge interest at 4 per cent, per annum on his disbursements and costs, whether by scale or otherwise, from the expiration of one month from demand from the client. A solicitor delivered his bill to a client without claiming interest. The bill was taxed, and the client paid the amount allowed on taxation. On such amount being paid the solicitor claimed interest thereon at 4 per cent, from one month from the date of the delivery of the bill : — Held, that the solicitor was entitled to such interest. Appeal, from the City of London Court. Tlie plaintiffs, a firm of solicitors, sued the defendant for £1 Is. 2d., being interest at the rate of 4 per cent, per annum, commencing one month after the delivery to the defendant of the plaintiffs' bill of costs and disbursements, upon £89 13s. lOd., the amount of such bill of costs and disbursements which was allowed on taxation. It appeared that on December 3, 1886, the plaintiffs delivered to the defendant a bill amounting to £133 I8s. dd. At the time of so doing they did not claim interest. The bill was taxed, and on March 30, 1887, the Master certified that £89 13s. lOd. was due, and made an order that the defendai:it should pay this sum to the plaintiffs within twenty-one days from the date of service of the order. The order was served on March 31, and on April 21 the defendant in com- pliance therewith paid the plaintiff the sum of £89 ISs. lOd. On April 22 the plaintiffs for the first time claimed from the defendant £1 Is. 2d., being interest on £89 13«. 10c/. at 4 per cent, from January 3, or one month from December 3, the date of the delivery 410 Blair v. Curdner. I B. D. of the bill of costs and disbursements, to April 22. The Judge 18S7 found a verdict for the plaintiffs. Gould, for the defendant : — The plaintiffs have no right to interest under General Order VII. Their right depends on a " demand from the client." This may mean either a demand of the amount of the bill or a specific demand of interest at the statutable rate. Mere delivery of the bill is not a demand, and there was no demand, either of the amount due, or of interest at the statutable rate upon that amount as reduced by taxation, till after payment of the taxed bill. De Sausmarez, for the plaintiffs : — The right of the plaintiffs to interest commenced under General Order VII. one month after delivery of their bill. This delivery was a statutable "demand." The order does not make it necessary to claim interest, and by its terms interest is payable on the true amount of the bill as fixed by taxation. The plaintiffs claimed interest as soon as the amount on ^Yhich it was payable had been ascertained by taxation under General Order VII., and had become payable under the Master's order. Lord EsHEE, M.E. :— I am of opinion that this appeal should be dismissed. The ques- tion is as to the meaning of General Order VII. It is suggested that to send in a bill is not to demand payment of it, but this is a fanciful view. The words " from demand " mean " from sending in the bill." From the date of sending in the bill a solicitor becomes entitled under the Order to interest at 4 per cent, on the true amount of the bill as ascertained by taxation. I do not say what might have been the result if the solicitor had postponed claiming interest for an unreasonable time, but here he practically claimed the interest as soon as it had become due, and his title to it is clear. LiNDLEY, L.J. :— I agree. The true construction of General Order VII. is, in my opinion, that the solicitor is entitled to claim 4 per cent, interest Palmer v. Lode. 411 on the taxed costs at any time before they have been paid. Here Q- ^- /'• in effect when the taxed costs were tendered he claimed interest upon thera. Lopes, L.J., concurred. Appeal dismissed. Lord EsHER, M.E., stated tliat the Court had conferred with the Judges sitting in the other Division of the Court of Appeal (Cotton, Bowen, and I'ry, L.JJ.), and that they agreed with the decision. SoUcitors for plaintiffs : Blair Sf Girling. Solicitors for defendant : Burn Sf Berridge. PALMER V. LOCKE. Assize,. 1887. (Before Morris, C.J.) j , (By permission, from 21 Ir. L. T. K. 32.) Ejectment for non-pctyment— Costs of posting. Appeal by plaintiff from decision of County Court Judge (Waters, Q.C.,) granting decree in ejectment for non-payment of rent with ordinary costs, but disallowing costs of service by posting. The district was in a disturbed state, and the bailiff who served the processes in ejectment swore he would be afraid to serve them in the ordinary way. The extra costs of posting in the case would be Ss. 6d. The County Court Judge granting the decree directed the Clerk of the Peace not to allow the extra cost of posting. Morris, C. J., affirmed the decree, and directed that the plaintiff shoiild have his extra costs of service by posting, to which he was clearly entitled when such service was necessary. Solicitor for plaintiff : W. R. Fenton. Solicitor for defendant : J. B. Powell. 412 In re Metcalfe. Stirlmg,J. /« 7?. METCALFE. 1887. i^„^ ^g^ i^_ METCALFE v. BLENCOWE. (Bi/ permission, from 36 W. R. 137.) Solicitor— Bill of Costs— Taxatimi— Election— Notice — " Undertakiwj any business"— '' Client"— One of several Trustees— General Order under Solicitors' Remuneration Act, 1881 (U & 45 Vict, c. U), rr. 6, 8. The notice of election under Rule 6 of the General Order under the Solicitors' Remuneration Act, 1881, as to remuneration for conveyancing business arising in an action, must be given by the solicitor before he undertakes such conveyancing business. After having done any work in the matter which would properly be covered by the scale charge— e. jr., discussed with the client the mode of sale and questions relating to the title — it is too late for him to elect. Ante, p. 348. In re Allen, 35 W. R. 218, 34 Ch. D. 433, and Hester v. Hester, 35 W. Ante, p. 360.' R. 233, 34 Ch. D. 607, followed. Semhle, where a solicitor is acting for several trustees, notice of election must be given to them all. Summons to review taxation. The question in this case was as to the validity of a notice of election under Rule 6 of the General Order under the Solicitors' Remuneration Act, 188L This depended upon (1) whether the election was made in time ; (2) whether the election, being com- municated to only one of two trustees, could be supported. Messrs. Tamplin, Taylor & Joseph acted as solicitors for Mr. Blencowe and Mr. W. C. Metcalfe, who as trustees were defendants in an administration action. In the course of this action it became necessary to raise a sum of money for payment of costs. It was at first proposed to do this by way of mortgage ; but afterwards it was determined to sell a portion of the estate for the purpose. A summons was taken out in the action, and an order for sale made on the 7th of May, 188G. No steps were taken by the solicitors in the matter of the sale between that date and the 21st of June, 1886, on which day Messrs. Tamplin, Taylor & Joseph communi- cated their election in writing to Mr. Metcalfe, one of tlie trustees, in the following terms : — " Re Metcalfe, deceased. Referring to the proposed sale of the ' Metcalfe Arms,' we beg to inform j'ou and your co-trustee, Mr. Blencowe, that we hereby elect that our In re Metcalfe. 413 remuneration for such business shall be in accordance with the old Stirling, J. 1887 system of costs as altered by Schedule II. of the Eemuneration Orders." Shortly after the 21st of June, 188(), the sale was pro- ceeded with, and in due course completed. The bill of costs was made out on the footing of the above notice. The Taxing Master disallowed many of the items, on the ground that the remuneration should be according to the scale charge fixed by Schedule I. to the General Order under the SoHcitors' Eemuneration Act, 1881. The defendants objected to the disallowance of these items, urging that they were rightly included in the bill, being charges for conveyancing work done as fixed by Schedule II. to the Order, and because, before undertaking the business in respect of wliich such charges were made, the defendants' solicitors, by writing under tlieir hand, communicated to the client tbat they elected that their remuneration should be according to Schedule II. of the Order. The Taxing Master overruled tliese objections on the ground, inter alia, that the notice was given only to one ti'ustee, not to both, and that in his opinion a notice of this description should be given to all the trustees. The Taxing Master then certified the taxation according to the scale in the General Order, whereupon the defendants took out this summon', asking that their objections to the taxation might be allowed, and for a reference back to the Taxing Master to vary his certificate accurately. S. Dickinson, for the applicants. A . W. Itowden, for the plaintiffs, pointed out certain items in the solicitors' bill of costs (which are referred to in the judgment.) (He was stopped by the Court.) Dickinson replied. Stirling, J. — A point has been argued before me which was not brought to the notice of the Taxing Master, and on that point I decide the question. While, therefore, it is on that account unnecessary for me to discuss the reasons ad>'anced by the Taxing 414 111 re Metcalfe. Stirling, J. Master for the course which he has taken, I wish it to be under- stood that I do not disagree with those reasons. The question in this case is whether the election was made in accordance with Rule 6 of the General Order underthe Solicitors' Remuneration Act, 1881. That rule says that — "In all cases to which the scales prescribed in Schedule I. hereto shall apply, a solicitor may, before undertaking any business, by writing under his hand communicated to the cL'ent, elect tliat his remuneration shall be according to the present system as altered by Schedule 11. hereto ; but if no such election shall be made, his remuneration shall be according to the scale prescribed by this order." Now the business in this case was conveyancing business con- nected with a sale in the course of an administration action for the purpose of paying certain costs. It has been argued by Mr. Dickinson that, the order for sale being made on the 7th of May, 1886, and the notice of election being given on the 21st of June, 1886, and nothing having been done in the matter of the sale in the meantime, the election was in time. But I find in the solicitor's bill of costs an entry, under date the 24th of March, of a charge for preparing the summons for sale ; on the 31st of March a charge made for attending the summons, and on the 5th of April a con- ference is charged for, at which the question was discussed whether the sale should be by public auction or private contract, and the title was considered. In my opinion this case comes within the iHu, p! 3do: P"°'='P^^* l^i^ ^own in In re A lien ( 1 ), and Hester v. Hester (2), and it is too late, under the Gth rule of the General Order, for a solicitor to declare his election after holding a conference with the client for the purpose of discussing the mode of sale and the title to tlie property. Such a conference is properly business covered by the scale charge, and the election referred to in the rule must be, in my judgment, declared before undertaking any such business. As regards the reasons given by the Taxing Master, one of them raises a question of some importance, as to which it may be well that I should express an ojjinion. The Taxing Master says that notice to one of two trustees is not sufficient. It is not necessary for me to decide the point ; but, as at present advised, I consider (1) 35 W. R. 218, 31 Ch. D. 433. (2) 35 W. B. 233, 3i Ch. !>. 607. O'Meara v. D'Est'erre and Cox. 415 tliat a solicitor must pursue his right of election under the General Stirling, J. Order strictly, and that, as according to the rule notice must be communicated to " the client," and the client in this case consisted of two persons, notice to one of them was not sufficient. Solicitors : Tamplin, Taylor ^ Joseph ; Ernest Bevir. O'MEAEA V. DESTERRE and COX. V- c. 1887. Nov 29 {By permission, from 21 L. R. Ir. 135.) ^ '^ 1888. Practice — Costs — Taxation as between party and party — Addition to hill after Feb. 7. lodgment for taxation — Accideatal Omission — Oiders and Regrdations, 12th December, 1S68. Rule 8 of the Orders and Regulations of the 12th December, 1868, for the conduct of business in the offices of the Taxing Masters of the Court of Chancery in Ireland, applies to costs as between party and party, as well as to those between solicitor and client. Summons, on behalf of W. S. Cox, one of the defendants, for an order that the Taxing Master, to whom the taxation of the said defendant's costs stood referred, be directed to permit him to amend and alter the bill of costs lodged by him for taxation, by adding thereto the sum of £17 15s. IQd., being the amount of his expenses in attending the trial of the action, or to permit the said defendant to withdraw and cancel the said bill of costs, and to lodge a new one. The action, M'liich was tried by the Vice-Chancellor on oral evidence, was, on tlie 11th of February, 1887, dismissed with costs. The defendant, W. S. Cox, a civil engineer, attended the trial, and was examined thereat. His expenses, &c., were, as appeared by affidavits filed on his behalf, accidentally omitted- from the bill of costs lodged. An objection and requisition was accordingly presented to tlic Taxing Officer asking for liberty to add the said sum of £ 1 7 IS.'. \Qd. to the bill already lodged, or to present a new one ; but tlie Taxing Master, on'the 27th July, 1887, declined to do so, on tlie ground that he was precluded by the 8th Rule of tlie Orders and 41 G O'Meara v. D' Ester re and Cox. V- C- Regulations of the 12tli December, 1868, for the conduct of busi- 1887 ness in the offices of the Taxing Master, from allowing any addition or alteration in costs after lodgment (1). Mr. T. D. Rearden, in support of the application : — The principle applicable to cases of taxation between solicitor and client does not apply to cases of taxation between party and party. Sir John Romilly, !M.R., in Davis v. Earl of Dysart (No. 2) (2), says (at p. 132) :— " .... The bill of costs, as between party and party, is always susceptible of being added to or varied after it has been brought into the office. In this respect it is quite different from a bill of costs taxed under the statute, where an alteration cannot be made as against tlie client, except with his consent, after the bill has been brought in for taxation. In cases of taxation of costs as between party and party, the bill of costs is analogous to a statement of facts, and is a claim by one party against another party to a suit, and it may be amended in any way and at any time before the taxation is concluded. This has been the invariable practice, as I am informed on inquiry . . . . " See also Morgan and Davey on Costs (2nd edition),- pp. 432, 473. The practice as there laid down has prevailed in this country, and the rule by which the Taxing Master considered himself bound has never in practice been acted on between party and party. Mr. Bohert Robertson for the plaintiffs : — The General Order deals with this bill of costs in tlie same way as with one between solicitor and client. The Vice-ChanCelLor allowed the matter to stand over for a report from the Taxing Master. The Taxing Master, by his report, dated the 21st December, 1887, stated that the sum in question formed no part of the costs when lodged ; tliat after the costs were taxed the defendant's solicitor applied to have this sum added to his costs, which applica* tlon was strongly resisted by the plaintiff's solicitor ; and that, (1) Rule 8. No addition or altRratioii to be made in costs after they are lodged for taxation. (2) 21 Bcav, 124. Re,Rees ; Rees v. Rees. 417 after full discussion, the Taxing Master came to tlie conclusion ^■^^ that he would not be justified in allowing a claim of the kind, and refused the application on the above ground — that this charge formed no part of the costs when lodged for taxation, and, under Eule 8 of the General Order of the 12th December, 1868, the defendant was bound by the costs so lodged, and was not justified in making this claim, which the Taxing Master considered was altogether an after-thought on his part. The Vice-Ohancellok : — 1888. Feb. 7. Having regard to the report of the Taxing Master, and to the General Order referred to, I must hold the applicant bound by the bill of costs originally lodged by him, and make no rule on this application. Solicitor for the applicant : Mr. T. U. Kenny. Solicitor for the plaintiffs : Mr. P. S. Connolly, Re EEES ; EEES v. REES. Kay, j. 1887. {By permission, from 58 L. T. 69.) (Before Kay, J.) Administration action — Sale of leaseholds — Mortgagee — Costs — Solicitors Re muneration Act, 1881 {General Order in -pursuance of), r. 2 (c) ; sehed. 2. In an administration action, to which mortgagees of leaseholds were not parties, the plaintiffs obtained an order to sell the leaseholds, and that the money should be paid into Court. The order was made without the knowledge of the mortgagees. The plaintiffs wrote to the mortgagees sending draft particulars and conditions of sale as settled by the con- veyancing counsel to the Court "for your perusal." The mortgagees undertook to concur in the sale on condition that their mortgage debt and costs and expenses were provided for out of the proceeds of sale in Court, and they returned the conditions approved. The Taxing Master disallowed the fees charged at the rate of Is. a folio for perusing the conditions of sale, but allowed a fee of one guinea for reading them. One of the grounds of disallowance was that conditions of sale were not such documents as were intended by the word "documents" in Schedule 2 of the General Order made in pursuance of the Solicitors Remuneration Act, 1881. 2 E Dec. 7, 418 Re Rees ; Rees v. Rees. Kay, J. On summons to vary the Taxing Master's certificate : 1887. Held., that (while not deciding that conditions of sale did not come within the word "documents") thiA was an extraordinary case where the Taxing Master had a discretion. This was a summons taken out on behalf of the Bristol, West of England, and South Wales Permanent Building Society, asking that the objections of the applicants, dated the 13th July, 1887, to the taxation of costs in this matter under tlie Order dated the 24th February, 1887, might be allowed, and that it might be referred back to the Taxing Master to vary his certificate accord- ingly, and that the plaintiffs might be ordered to pay to the applicants their costs of the objections and of this application and consequent thereon. By mortgage of the 1st February, 1881, the defendant, Hannah Bees, the administratrix of Thomas Ilees, deceased, mortgaged to the applicants, the Bristol, West of England, and South Wales Permanent Building Society, certain leasehold hereditaments at Swansea to secure repayments, by the usual instalments, of £3,000 and interest. The action (to wliich the Building Society was not €i party) was one to administer the estate of the intestate, for the purpose of which estate the money was borrowed. On the 16th February, 1886, the plaintiffs obtained an order to sell the leasehold estates of the intestate, and that the purchase money should be paid into Court to the credit of the action — " Proceeds of sale of leaseholds." The Building Society knew nothing of this order, and there was no mention of their security in it. In January, 1886, the plaintiffs' solicitors applied to the Building Society to concur in the sale, and release the respective lots at certain prices to be agreed without requiring the rest of the mortgaged property to be redeemed. Some correspondence took place, and ultimately a valuation was made by the Society's surveyors, and on the 22nd February, 1886, the Building Society's solicitors sent to the plaintiffs' solicitors a schedule of reserve prices under which the properties were not to be sold, and an undertaking to concur in the sale. Tiiis under- titking was special in form — namely : ■' We consent to concur in the sale of any of the above properties, Re Bees ; Rees v, Rees. 419 so that the same be not sold below the reserves stated in the column Kan, J. 1887 headed ' Keserves on each lot required by the mortgagees,' and so that the purchase money of each lot sold be paid to us until the whole sum due to us be repaid, and on condition that all costs and expenses already or that may be incurred by us in or about or relating to this consent, or the sale of all or any of the lots, including the sum of £5 bs. paid by us to a surveyor for advising on the reserves, be paid to us out of the proceeds of sale, such costs and expenses to be taxed as between solicitor and client." On the 25th May, 1886, the plaintiffs' solicitors wrote asking the Building Society to allow the purchase moneys to be paid into Court to the credit of the action instead of the Society, and on the 28th May, 1886, the solicitors of the latter replied that the Society might assent, if provision was made in the Order for payment of their principal, interest and costs in priority to any other payments out of the money to be paid into Court. On the 4th June, 1886, the plaintiffs' solicitors wrote to the Building Society's solicitors with draft particulars and conditions of sale as settled by the conveyancing counsel to the Court " for your perusal," and the Building Society's solicitors replied that until the priority of their chents' claim on any money to be paid into Court was provided foi- they could not approve the conditions. >iegotiations took ])lace between the London agents for the parties, and then the agents for the Building Society found the order for sale was already made, and pointed out the necessity of the purchase money being paid into Court to an account which would give notice of the incumbrance. The plaintiffs' agents then obtained an appointment before the Chief Clerk, which the agents for the Building Society attended, and on the facts being explained the Chief Clerk, on the 24th June, 1886, directed the order for sale to be amended by adding a direction that the money to be paid into Court thereunder sliould not be dealt with, except for the purpose of investment, without notice to the Building Society. Then the solicitors for the Society returned the conditions approved on the 26th June, 1886, allowing the provision that the purchase moneys were to be paid to the credit of the action to stand. The various conveyances to the purchasers were sent to the 420 Re Bees ; Bees v. Bees. Kay, J. solicitors of the Building Society to peruse, and in respect of these the Master allowed the charge of Is. a folio for perusal. On the 24th February, 1887, an Order was made referring it to the Taxing Master to tax the Bristol, West of England, and South Wales Permanent Building Society their costs of the application, including their costs of and relating to their security, dated the 1st February, 1884, The Taxing Master disallowed the fees charged at the rate of 1 s. per folio for perusing the conditions of sale, but allowed a fee of £1 Is. for reading them. The Society took objection to this disallowance in their bill of costs for the following reasons : — Reason for allowance. It is contended that conditions of sale come within the word " documents " used in Schedule 2 to the rules made under the Solicitors Remuneration Act, 1881, and that Is. per folio is the propsr charge for perusing the conditions on behalf of the Building Society, who were parties concurring in the sale. The Building Society were bound by such conditions, and it was necessary for their solicitors to peruse and examine every -word of the conditions with the utmost care to see that there was in them no provision injurious to the interests of the Society, and the perusal would necessitate reference to the consideration of the title deeds. In answer to the objections of the Building Society the Taxing Master said : — " I am of opinion that the conditions of sale are not such docu- ments as are intended by the word ' documents ' in the schedules referred to, the perusal of which in any circumstances entitled a solicitor to charge for it at the rate of Is. per folio ; but in this case the Building Society were mortgagees consenting to a sale made, not by the Society but under the direction of the Court in an action for administering the estate of the mortgagor, the parti-- culars and conditions were settled by the Judge in Chambers, and the Society were only concerned to see that the reserve prices were sufficient, and the purchase moneys were so dealt with as to be available for payment of their mortgage money. The Society were not responsible for nor bound by either particulars or condi- tions. In these circumstances I allowed the solicitors of the Society a fee of £1 Is. for reading the particulars and conditions. Re Bees; Bees v. Rees, 421 and I disallowed the fees charsed at the rate of 1«. per folio for Kay, J. 1S87 perusing them. I have considered the objections, and I was still of the same opinion. 1 disallow the objections. " (Signed) "G. H. Deew." The heading of Schedule 2 of the General Order in pursuance of the Solicitors Remuneration Act, 1881, is " instructions for and drawing and perusing deeds, wills, and other documents." Then follows : — " For pei'using Is. per folio." Then " in extraordinary cases the Taxing Master may increase or diminish the above charge, if for any special reasons he shall think fit." Ingle Joyce {Marten, Q.C., with him) for the Building Society: The question is, were the solicitors of the applicants justified in perusing these conditions of sale ? The perusal of these conditions comes within Eule (2 c) of the General Order made in pursuance of the Solicitors Remuneration Act, 1881, "and in respect of all other deeds and documents, and of all other business the remunera- tion for which is not hereinbefore, or in Schedule 1 , hereto pre- scribed, the remuneration is to be regulated according to the present svstem as altered by Schedule 2 hereto." Schedule 2 provides a scale for "perusing deeds, wills, and other documents," and Is. a folio is the charge for perusing. I submit that conditions come under the word " documents." The applicants only approved of the conditions on the express understanding that all their costs, charges, and expenses should be paid. [Kay, J. : The applicants were not bound by the conditions, they could refuse to execute the deeds.] Not after they had authorised the mortgagor to put the property up. The mortgagor asked them to consent and concur in the sale and consent to the conditions. It was the duty of the solicitors of the applicants to peruse them. They perused and approved of them at the request of the mortgagor : Re Parker (1), Ante, p. 273. Re Robertson (2). ^»^^. P- 389. Warrington for the plaintiffs. (1) 52 L. T. Rep. N. S. 686 ; 29 Cli. Div. 199. (2) 19 Q. B. Div. I. 422 Re Rees ; Rees v. Rees. K%y, J. Kay, J. : — ^'"*^' In my opinion the Taxing Master was right. I do not lay clown the rule tliat in no cases are conditions to come under the word " documents," Schedule 2 of the General Order. The facts are these, a mortgagor is selling leaseholds under an order of the Court in an administration action to whicli the mortgagees are not parties. The morto-acfees are asked to concur in the sale, and draft particulars and conditions of sale are sent by the plaintiffs' solicitoi's to the solicitors of the mortgagees to peruse. The mortgagees made out a bill of costs against the mortgagor, the costs of concurring in the sale. In the bill of costs which i^ sent in, a fee is inserted for perusing particulars and conditions of sale at the rate of la. a folio. The Taxing Master taxed off £5 of this charge. Now, in Rule 2 of the General Order it is provided that, " in respect of all other deeds or documents, and of all other business the remuneration for which is not hereinbefore, or in Schedule 1, hereto prescribed, the remuneration is to be regulated according to the present system as altered by Schedule 2." And tiie scale fixed by Schedule 2 is, "for perusing Is. per folio," but in extraordinai'y cases the Taxing Master has a discretion. In this case the mortgagor will have to pay her own solicitors for perusing the conditions at the rate of Is. )ier folio ; but the applicants ask the mortgagor to pay the costs of the mortgagees for perusing— in fact, to pay them again. This is not a question between a mortgagee and his solicitor, but it is contended tliat the mortgagor must pay the mortgagees' costs for perusing the conditions. The Taxing Master considered that the conditions did not come within the word " documents," but I am not going to hold that 1 ». per folio is not a fair charge for perusing conditions in every case ; but this is an extraordinary case of mort- gagees' solicitors charging the mortgagor for perusing conditions. In accordance with Schedule 2, " in extraordinary cases the Taxing Master may increase or diminish the above charge, if for any special reasons he shall think fit.'' I am of opinion that conditions of sale are within the rule, but not so that in any circumstances solicitors can charge 1 s. per folio. The Taxing Master gave his reasons for disallowing \s. per foho, and in my opinion it was a case clearly within the Taxing Master's discretion; it was not an ordinary case of perusing conditions, but an extraordinary one to which the scale Martin v. Nixon, 423 of fees did not apply. The mortgagees' solicitors were in no sense ^<^i/> J- required to peruse the conditions as if they wei'e acting for the vendors ; the Building Society were not responsible ; all the solici- tors had to do was to see that the mortgagees were safe — that enough money was fixed as a reserve price, and no further. Sup- pose the particulars and conditions had contained a misrepresenta- tion, the mortgagees were not bound. It was enough just to read the conditions and see that the mortgagees were safe. The Taxing Master was right, I do not say on the ground that conditions are not " documents " referred to in Schedule 2, but because this is not an ordinary case coming within the rules, but an extraordinary case where the Taxing Master had a discretion. Summons dismissed tvith costs. Solicitors : Let/, Lake, ^ Ley, for Danger ^- Cartwright, Bristol ; Bell, Brodrick, Sf Gray, for Linton ^ Kenshole, Cardiff. MAHTIN 0. NIXON. E^. Dio. 1887. CBy permission, from 22 L. R. Ir. 138 ; s. c. 22 Ir. L. T. R. 0.) ri i n (Before Palles, C.B., and Andrews, J.) (1887— A. No. 352.) Costs — Taxation between party and paHy — Attendance of solicitor at trial in a county where he does not nsually practice — Gen. Ord. 11 (June, 1882), Schedule item $9: The solicitor for the successful party can only be allowed, as between party and party, the fees prescribed in Gen. Ord. 11 (June, 1882), item 29, for attending a trial of the action, though the place of trial be a county of which he is not a practitioner. Summons on behalf of the defendant, to review the taxation of costs. The action was brought for a money demand, and admittedly fell within the lower scale of taxation. It was tried at tiie Lifford Summer Assizes, 1887, and resulted in a verdict for the defendant .- that £30 lodged in Court was sufficient. 424 Martin v. Njxon. Ex. Div. The notice of trial was served for Satunlav, the 16th July, and 1887. . "... the defendant's solicitor, Mr. Walker, who practised in Dublin, and was not a practitioner in the county of Donegal, left Dublin on Friday, 15 th July, to attend to the case. The Record Court was occupied until the afternoon of Monday, 18th July, in hearing appeals and another record ; the present case being tried and disposed of in the afternoon of that day. Mr. Walker returned to Dublin on Tuesday, the 19th July. The costs, as furnished and lodged for taxation, included £10 10s. for the solicitor's attendance at Lifford, and £3 3s. travelling expenses. The Taxing Officer, in lieu of these charges, allowed £3 3s. for the day of hearing and £2 10s. travelling expenses, holding that the allowance for attendance at the Assizes was governed by item 29 in the Schedule to Rule 2, of the Orders of June, 1882. Gerrard, Q.C., and Moore, for the defendant: — Ante, p. 343. In Macnaniara v. Malone, (1), the solicitor M'as allowed two guineas for each day he was necessarily absent from Dublin. That was on taxation between solicitor and client. But the principle of taxation in both cases is the same-: Order 98 of 1854. This case is not affected by the rules under the Judicature Act, and therefore, under Gen. Ord. X., Rule 28, the attendance of the solicitor at the trial should be paid for according to the scale applicable prior Ante, p. 343. to the Judicature Act, i.e., as adopted in Macnamara v. Malone (2). There was no appearance for the plaintiff. The Court held tliat the case was distinguishable from Ante, ^. HZ. Macnamara v. Malone (3), on the ground that the costs under taxation were party and party costs, and that the allowances for attendance at the trial being prescribed by the Order of June, 1882, Rule 2, Schedule item 29, no further or other charges could be allowed by the Taxing Officer, although in the case of Dublin solicitors attending at trials in country venues, such allowances :vere obviously an insufficient remuneration. Solicitor for the defendant : R. C. Walker. (i) 18 L. R. Ir. 260. (2) 18L, R. Ir. 29G. (3) 18 L. R. Ir. 269. Anthony v. Walslie. 425 ANTHONY t.. WALSHE. (By permission, from 22 L. E. Ir. 619.) (In the Exchequer Division, before Andrews, J.) (1886— E. No. 436.) Plaintiff suing in person — Practice — Costs — Travelling expenses. The travelling expenses of a party suing in person, incurred for the purpose of conducting in person interlocutory proceedings, are not taxable items in party and party costs awarded against the opposite party in the action. Application by the defendants to review the taxation of the l)]aintiff's bill of costs. The action was brought by the plaintiff, suing in person, to recover £4,000 damages for defamation of character, and also conspiracy to injure her. The defendants moved, under the 6th sect, of the Common Law Procedure Act, 1870, to remit the action for trial before the County Court Judge of the County of Waterford, at the next ensuing Sessions ; and on the 24th January. 1888, the said motion was refused with costs, to be paid by the defendants to the plaintiff, when taxed and ascertained. The plaintiff, who was described in the endorsement of the writ as residing at Tallow, in the County of Waterford, then furnished her bill of costs for taxation. Amongst others she claimed the following items : — • No. 1. Jan. 7. — Paid travelling fare to Dublin from Tallow, County of Waterford, including fare for special car to station, five miles from Tallow, No. 8. Jan. 14. — Paid for returning home to County of Waterford, - No. 9. .Jan. 19.— Received three additional aflBdavits of defendants ; paid travelling fare to Dublin from County of Waterford, No. 23. Jan. 24. — Paid for travelling fare from Dublin home to Tallow, County of Waterford, £ s. rf. 1 17 6 1 17 6 1 17 6 Ex. Div. 1888. Feb. 9, 11, 22. Appeal 1888. July 7. 1 17 426 Aidhony v. Walshe. Ex. Die. £ s. (3. 1888. Now 36. Feb. 1. — Paid for travelling from country to attend taxation, and for re- turning home after it to the County of Waterford, - - 2 17 9 The defendants objected to these items on the ground tiiat under General Order III., Rule 2, the plaintiff should have a registered address within the municipal boundary of the City of Dublin (1). The Taxing Officer (Mr. Davis) overruled this objection, on the ground that the (Jeneral Order referred merely to the service of documents, and he certified the costs accordingly. The defendants then applied to tlie Court for a review of the taxation of the said items, and by Order of the 9tli February, 1888, tlie said costs were referred back to the Taxing Officer for review, with liberty to the defendants to carry in their objections before the said Officer, and the Order also directed a memorandum, requesting information as to the jDractice, to be furnished to the Taxing Officers. Tlie Taxing Officers replied as follows i — We find no definite rule of law or practice in the taxation of costs when the Court gives costs to a party who sues in person, and Avho resides out of Dublin, by which the travelling expenses of such jiarty to and from Dublin are a taxable item in tlie party and party costs, ordered to be paid by the other party ; and there is no case that we are aware of, in our office, where such a question has been considered or dealt with, save in the following cases stated by plaintiff, namely : — - 1. Anthony v. Miwpliy — Exchequer. We find a bill of costs taxed by the late Master Hearn, under orders of 5tli May, 1881, and certified 5th February, 1885, in which the plaintiff's travelling expenses from Tallow to Dublin, to resist a motion, are allowed at £2 13s. Id. 2. Anthony v. A^ohte and Murphy — Exchequer. We find a bill of costs taxed by the late Master Hearn, under order of 17th May, 1881, in which a sum of £2 13s. Id. is allowed to plaintiff for travelling expenses to Dublin to resist a motion. (1) In the endorsement on the writ it was stated that the writ was issued by "Mary Anne Anthony, of 6, Lower Mountjoy-place, in the City of Dublin," and further on that the plaintiff's address was at Tallow, in the County of Waterford. Anthony v. WuMe. 427 3. Wo also find tlie following bills of taxed costs of action, and ^«' ^^v. 1888 other proceedings in which travelling expenses are allowed to the plaintiff : — (a) Anthony v. Fitzgerald and Redmond. In this case the bill was taxed in July, 1884, under order of 17th March, 1884, by Mr. Fitzgerald, late Taxing Master. There is allowed therein to the plaintiff : — "For travelling fare to Dublin, to attend taxation, and back, including paid car-hire from Tallow to station and back, £3 Is. 9c/." (h) Anthony v. Frendergant. The costs were taxed in 1885, under order of the Court of Appeal, 10th March, 1885, by jNlaster Fitzgerald. We find travelling expenses from Tallow to Dublin are allowed. We are unable to say wliat the forms of the orders in these cases are, as copies are not annexed to the costs. David Coffey. Sydenham Davis Consolidated Taxing Office, l%th February, 1888. His Lordship made the following order : — " The Court being of opinion that the said items, Nos. 1, 8, 9, 23, and 35 (consisting of the plaintiff's travelling expenses) in the said bill of costs are not properly taxable, as between party and party, under the said Order, dated the 24th January, 1888, and should not be included in the costs thereby awarded to the said plaintiff, doth hereby refer back the said bill of costs, in respect of the said items, to the said Taxing Officer for his revision ; and doth order that the plaintiff's objection to the disallowance of the items mentioned in her notice of the 9fch February, inst., be overruled, and that both parties do abide their own costs of this motion." The plaintiff appealed to the Court of Appeal, and appeared in person in support of the nppeal (1). Matheson, for the defendants. Lord Ashbourne, C. :— July 7. This case raises an important and interesting question of practice. It is an appeal from an order of the Exchequer Division, who ruled (1) In the Court of Appeal, before I CEAWFURD. chan. mv. 1888. (^Bi/ permisiion, from 36 W. R. 572.) April 18. (NORTH, J.) Solicitor — Remuneration — Lease' — Rent — Shares — Money payment or premiitm — Solicitors Remxmeration Order, 18S2, Schedule I., Part II., Rule 5. A firm of solicitoi's were employed by a lessor to prepare for him a lease of certain property for twenty-one yeftrs to a Company, the consideration for the lease being a rent of £80 and the issue of 400 shares of the nominal value of £10. None of the Company's shares had been sold, so that no market value had been placed upon them ; and 200 of the 400 shares had not been issued: The solicitors charged the scale fee on the rent of £80, and also the scale fee for deducing title, perusing and completing deed as upon a pre- mium of £4,000, the amount of the nominal value of th^ 400 shares : Held, that they were not entitled to make the latter charge, as the value of the shares could not be estimated, and Ruled, Fart II., Schedule I., of the Remuneration Order, 1882, did not apply to such a case. Adjourned Summons. — Messrs. Hasties and Grawfurd were employed by Lord Wallscourt, the tenant for life of the Ardree Estates, in the County of Galway, to prepare for him a lease of certain property to the Ardree Fishery Co. (Limited). The lease and counterpart were duly prepared, and the lease was executed by Lord Wallscourt, but the counterpart was not executed by the Company. Messrs. Hasties and Crawfurd alleged that Lord 488 In re Hasties and Crawfurd. Chan. Div. Wallscourt had agreed to pay to them the scale fee for the pre- paration oi the lease. It was witnessed in the lease that, in consideration of the " rent and profits" thereinafter reserved and the covenants thereinafter contained, and on the part of the Company to be observed and performed, the lessor thereby demised unto the Company the property therein described, and the consideration was as follows : — " Yielding and paying unto the lessor, his heirs, successors, and assigns, in respect of the premises hereby demised, the clear jearly rent of £80, to be paid by equal half-yearly payments, . . . . and also yielding and paying unto the lessor, his heirs, succes- sors, and assigns, the profits accruing on an issue to him, or to proper parties on his behalf, of 200 shares of the nominal value of £10, such shares to be allotted and issued to the lessor or to such parties as aforesaid as fully paid up at the time of allotment ; and also yielding and paying unto the lessor, his heirs, successors, and assigns, the profits accruing on the further issue as aforesaid of 200 shares of the nominal value of £10, such last-mentioned shares to be allotted to and issued to the lessor or to proper parties on his behalf as ftilly paid only as when the unpaid portion of £5 per share, or any part thereof, shall be called up upon the partially paid-up shares in the proportion of two fully paid shares of £10 each for each Is. per share called up upon the said partially paid shares." The first 200 shares had been allotted to trustees for Lord Wallscourt, but the other 200 shares had not been allotted. No market value had been placed on the shares of the Company, none of which. had been sold. In their bill of costs delivered to Lord Wallscourt Messrs. Hasties and Crawfurd charged, as the scale fee for deducing title, pei'using and completing deed upon a premium of £4,000 in shares, £40— viz., one and a half per cent, o'n'the, first £1,000, £15 ; one per cent, on the second and third £1,000, £20 ; and one-half per cent, on the fourth £1,000, £5. On taxation the Taxing Master held that the scale fee did not , apply to, and could not be charged in, such a case ; and, in the presence of the parties, allowed them a list of fees which appeared to him fair and customary in such circumstances. Ill re Hasties and Crawfurd. 439 Messrs. Hasties and Grawfurd submitted objections that the Ohan. Dh. Taxing Master was bound by the General Order, and should allow ^*^*' the scale charge, and, if not, that he had no authority to say what sum they were entitled to without affording them an opportunity of delivering a detailed bill of costs, but the Taxing Master disal- lowed their objections, giving his reasons as follows: — "Eemunera- tion by scale is not,- as it appears to me, the proper mode of remuneration for the preparation of the lease in question, as the lease does riot afford a basis for assessment of a scale fee — a premium, the value of which cannot be estimated (the shares in the Fishery Company not having, and never having had, a marketable value), having been given for the lease in addition to the rent (£80) reserved by it. The solicitors alleged on the 15th December that they could produce evidence by letters of an agreenient on the part of the petitioner to pay the scale fee deiilanded, but they failed to produce such evidence on either of the occasions (the 1 6th and 20th of December) when the matter was again before the Taxing Master. The list of fees in detail allowed by the Taxing Master for the preparation of the lease and counterpart . . . . wd,s prepared by the Taxing Master on the 20th of December in the presence of the parties, and Mr. Hasties himself sent to his office for docunients to enai)le the Taxing Master to prepare it. The allowances are in the discretion of the Taxing Master ; these allowed in the present case being, in tny opinion, fair, and such as are customdry under sittiilar circumstances. Mr. Hasties did not at the time offer, and has nev^r offered, any objection to the dlowances, beyond putting forward his claim to remuneration by scale on the basis suggested by the IdIII of costs under taxation." Messrs. Hasties and Crawfurd then took out the present summons for a review of taxation. The General Remuneration Order, 1882, Schedule I., Part H., Eule 5, provides: — "Where a conveyance or lease is partly in consideration of a money payment or premium and partly of a rent, then, in addition to the remuneration hereby prescribed in respect of the rent, there shall be paid a further sum equal to the remu- neration on a purchase at a ptice equal to such money payment or premium." 440 Tn re Hasties and Crawfurd. . Chan. Div. Cozens'Hardy, Q. C, ^ Swinfen Eady, for the summons : — The solicitors are entitled to charge the scale fee on the premium of £4,000, the nominal value of the 400 shares which form part of the consideration for the lease. For the purpose of stamp duty on the lease, the shares had to be estimated at their nominal value. (They referred to the General Remuneration Order, 1882, Schedule I., Part 11., Eule 5 ; 33 & 34 Vict., c. 97, s. 97.) The Taxing Master ought to have directed the solicitors to make up another hill of costs to be taxed, and not allowed them a list of fees which he thought reasonable. [NoKTH, J. : — I do not think that the stamp duty on the lease has anything to do with the question.] Bramwell Davis, contra : — The solicitors have no right to charge the scale fee for deducing title, perusing and completing deed as upon a premium of £4,000 in shares. The scale fee does not apply to a case where the value of the premium cannot be etsi- mated. The shares of the Company have no marketable value, and the second 200 shares mentioned in the lease have not yet been issued. Cozens-Hardy, Q.C., replied. North, J. : — The lessee is to receive £80 a year, and that is what is meant by the rent of the lease. The witnessing part says, " In consideration of rent and profits hereinafter reserved," and there is a distinction made between rent and profits. [His Lordship then read the clause of the lease stating the consideration as set out above, and continued : — J The question is, whether this is a case coming within Rule 5, Part IT., Schedule I. of the General Order of 1882. [His Lordship read the rule as set out above, and proceeded: — ] To entitle the solicitors to more than the remuneration in respect of the rent proper, they must make out that there was some further money payment or premium within Rule 5. If they admitted that they were not entitled to more than the remuneration in respect of the £80, they might have that. But they ask for the scale fee in respect of the rent and of shares, some of which have not been allotted, and they are not In re MacTver, deceased. 441 entitled to It. Then they claim to make out another bill. [His d^^^"- ^^^' . 1 . . 1888. Lordship then read the Taxing Master's answer to the objections to the taxation, and continued : — J That must be taken as accurate ; and, under the circumstances, 1 do not think the Taxing Master was wrong in the course he took. I must dismiss the summons, with costs. Solicitors : ffasties Sf Crawfurd ; H. C. Barker. In Re MacIVER, Deceased. m. e. 1888. MacIVER v. HARBISON and OTHERS. "^^riiTt. {By permission^ from 21 L. R. Ir. 241.) Practice — Costs — Three counsel — Inquiry at Chambers adjourned into Court. The costs of three counsel will hot be allowed, as between party and party, on an inquiry in Chamber adjourned into Court. Motion, on behalf of the defendants, to review the Taxing- Officer's certificate of taxation. The action was brought to administer the estate of Michael Maclver, deceased, who died in 1867. The plaintiff, Patrick Maclver, was a legatee under his will, and the defendants were his executors. By order of the 17th June, 1886, an inquiry was directed before the Chief Clerk as to whether the defendants, in addition to the sums debited as received by them, had received a sum of £529, and the costs of said inquiry were reserved. This item the plaintiff sought to surcharge the defendants with. For the purposes of the inquiry skilled accountants inspected the account-books kept by the defendants for a number of years, and gave evidence regarding the investments and sales the defendants had made of testator's assets. The Chief Clerk, by order of the 12th May, 1887, ruled that defendants did not receive the said sum of £529, or any part thereof. On the requisition of the plaintiff, the matter was put in the Judge's list for the purpose of having his decision, and the 2 F 2 442 In re Maclcer, deceased. ^i- R. case was afterwards adjourned into Court. Three counsel appeared ^^*^' for the plaintiff upon the hearing in Court, and-the Master of the lioUs made an order affirming the decision of the Chief Clerk ; but, in consequence of the question having arisen solely by reason of the lax manner in which the executors had kept their accounts, lie directed that the costs of the inquiry before the Chief Clerk and himself should be paid by the defendants. These costs having been taxed, the defendants now applied for an order on the Taxing Officer to review his certificate in respect of items 74-6, being charges for a third counsel, and items 84-6, fees for consultation. The Taxing Officer had allowed the items objected to on the ground of the complexity of the case, and on the ground that it had been argued in Court. Mr. Drummond, for the defendants, in support of the application, referred to' the practice of the Court of Appeal, to hear only two .\iite. p. 135. counsel, and cited Robh v. Connor (1). There was no appearance for the plaintiff. The Master of the Rolls : — Though the evidence in this case was voluminous, and the assistance of skilled experts had to be obtained, there was no question of law involved. It was adjourned into Court, not on account of there being a question of law, but for the convenience of the parties, and because a case of the kind might disarrange the course of business in Chambers. It was a mere question of account. It might be reasonable to engage two counsel, as a piarty liaving only one could not be sure of that one not being elsewhere engaged ; but I cannot allow the costs of three without establishing a dangerous precedent. The application of the defendants must be granted. Solicitor for the plaintiff : Mr. D. M'Louglilm. Solicitors for the defendants : Messrs. Glover Sf M'Guckin, (I) Ir. K. 9Eq. 374 Tn re Gallard ; Ex parte Harris. 443 In re GALLARD ; Ex parte HARRIH. \^^^^- [By permission, from 21 Q. B. D. 38.) April 26. Bankruptcy — Sale of Bankrupt's Property subject to Incumbrances — Solicitors' Eemuneration Act, 1881, Oen. Ord. Sched. I., rr. 2, 9 — Banhmptcy Rides, 1886, Ft. IL, No. 7, Gen. Reg., r. 2. Where the property of a bankrupt is sold subject to incumbrances, the solicitor of the trustee in bankruptcy is under Rule 9 of Schedule I. of the General Order under the Solicitors' Remuneration Act, 1881 — and the Bankruptcy Rules, 1886, General Regulations, Part VIII., r. 2 — entitled to a percentage on the gross amount of the purchase money and not merely on the amount realised from the equity of redemption. Appeal from the decision of the registrar of the Brighton County Court on the taxation of a bill of costs. It appeared that a bankruptcy petition having been presented against the debtor, the first meeting of creditors was held in August, 1887, and was adjourned to October 6. In the mean- time the debtor was by consent adjudicated bankrupt, and the official receiver became the trustee, and contracted to sell a house, part of the bankrupt's property, for £4,750, subject to a mort- gage for £3,000. The sale was advantageous to the bankrupt's estate. The completion of the sale was fixed for October 6, but was subsequently adjourned until October 18. On October 6 the creditors appointed the appellant trustee of the bankrupt's estate, and on October 14 he received his certificate from the Board of Trade. On October 18 the trustee completed the sale made by the official receiver. The transaction was carried out by two deeds, a reconveyance by the mortgagee and then a conveyance to the iiurchaser. The reconveyance was dated the 5th, but was not executed until October 18, when the mortgagee was paid off out of the purchase money, and the balance, £1,750, was paid to Harris. Messrs. Griffiths & Eggar, the solicitors of the official receiver. carried in their bill of costs for taxation by the registrar and claimed commission on the whole of the £4,750, which was 444 In re Galla7'd; Ex parte Han-is. Q. B. D. objected to by the trustee. The registrar held that as Messrs. Griffiths & Eggar had acted for the official receiver in the matter of the sale, and had done all the work contemplated by the General Order under the Solicitors' Remuneration Act, 1881, they were, as solicitors of the vendors within the meaning of that order, entitled to the commission claimed. The trustee appealed. S. Wool/, for the trustee. The rules applicable to this case are Rule 2 in Gen. Reg., No. 7, of Part II. of the Bankruptcy Rules, 1886, and sub-rules (a) 2 c. of Rule 2 in Schedule I. to Part I. of the Gen. Order under the Solicitors' Remuneration Act, 1881. The effect of those rules is to give the trustee's solicitor his percentage on the purchase money only so far as the bankrupt's estate receives. He is to be paid out of the "proceeds Ante, -p. S77. of sale" of the equity of redemption: In re Greys Brewery fl). Here the equity of redemption realised but £1,750. If the con- tention of the respondents is correct, it will heavily tax the estate, as the bulk of it consists of properties in mortgage. Muir Mackenzie, for the respondents. This was a sale subject to incumbrances, and part of the transaction was a reconveyance. The case is covered by the 9th rule in Part I. of Schedule I. to the Solicitors' Remuneration Act, 1881. The mortgagee's soli- citor is not entitled to a percentage on any part of the purchase money, and therefore the case does not fall within the proviso in the Bankruptcy Rules. Sidney Wool/, in reply. Cave, J. : — I think this case revy properly brought before me, as it presents some difficulty in construing the provisions of the Bankruptcy Rules. If the matter came only under the General Order to the Solicitors' Remuneration Act, 1881, it would be tolerably clear. Take the case of a mortgagor selling his property for £5,000 free from incumbrances ; the soHcitor gets his commis- sion on the purchase money, £5,000. Why should not the solicitor get the same commission where the same estate is sold for £500 (1) 56 L. T. N. S, 298. In re Gallard ; Ex parte Harrig. 445 subject to incumbrances ? It cannot make any difference whether Q- ^- 0. the purchase-money goes wholly into the pocket of the owner or whether it is applied in payment of his debts. It is obvious this cannot in any way affect the time and trouble his solicitor will expend on the matter. Accordingly, Rule 9 of Schedule I. of the General Order to the Solidtors' Remuneration Act, 1881, provides that "where a property is sold subject to incumbrances, the amount of the incumbrance is to be deemed a part of the purchase money, except where the mortgagee purchases, in which case the charge of his solicitor shall be calculated upon the price of the equity of redemption." So that, where a property is sold subject to incum- brances, the amount of the incumbrance is to be included in the purchase money in order that the solicitor may get his commission on the total amount. Thus it is clear that the percehtage is to be reckoned on the total purchase money. That being so, turn to the Bankruptcy Rules, 1886, Gen. Reg., Part VIII., Rule 2: "In respect of business connected with sales, purchases, leases, mort- gages . . . the solicitors' remuneration shall ... be regulated by the General Order under the Solicitors' Remuneration Act, 1881, for the tinte being in force." If the rule had stopped there, it is clear that the solicitor would be entitled to cornmission on the gross amount of the purchase money, including therein the amount of the incumbrances where the property was sold subject to incumbrances ; but the rule goes on to say — " provided that, in cases of sales of mortgaged properties, the trustee's solicitor, if his remuneration shall be under Schedule I., of the existing order, shall only be entitled to percentage upon so much of the proceeds of sale as shall not be chargeable by the mortgagee's solicitor with the percentage, and such percentage shall be payable only out of the proceeds of sale." Now, where there is a state of things to which that last portion of the rule is applicable— e.^., where a portion of the purchase money is chargeable by the mortgagee's solicitor with a percentage, it is clear that tlie percentage is not to be paid twice over, once to the mortgagee's solicitor and once to the trustee's solicitor, on any part of the purchase money ; but that if the mortgagee's solicitor is entitled to a percentage then J so far, the trustee's solicitor is not to have it. In other words, the estate is not to be charged with a double commission. That 446 In re Gallard ; Ex parte Harris. Q. B. D. is the meaning of the rule. As I am not thoroughly conversant with conveyancing business, I cannot answer off-hand whether such a case is or is not likely to occur, or whether the rule merely provides for the possible existence of some such case. But in this case it is admitted that the mortgagee's solicitor cannot be entitled to any percentage on any portion of the purchase money because he received notice to be paid off, and has had nothing whatever to do with the sale. That being so, the case does not come within this proviso to the Bankruptcy Rule. Eeference was made to the concluding sentence of the rule, which provides that the trustee's solicitor's percentage shall be payable only out of the proceeds of the sale ; but that clause only specifies the fund out of which the percentage is payable, and not the amount on which it is to be calculated. Thus, if the sale of a bankrupt's equity of redemption realises nothing, although the percentage will be calculated on the amount of the incumbrances, yet the trustee's solicitor will get nothing, foi* there &.te no " proceeds of sale " out of which it can be paid. I am clearly of opinion that the learned registrar was right, and that this appeal must be dismissed with costs. Solicitors for appellant : A shurst, Morris ^- Co. Solicitors for respondents i Griffiths Sf Co. O'Mulley V. The Guardians of Kilmallock Union. 447 O'MALLEY 0. THE GUARDIANS OF THE POOR OF Ex. Div. 1888 THE KILMALLOCK UNION. (1888. B. No. 439.) (By permission, from 22 L. R. Ir. 336.) (Before PalLES, O.B., DoWse, B., and ANdReWs, J.) Practice — Costs — Writ of Summons — Tendef of debt after issiie but before service of writ. A defendant cannot escape paying the costs of a writ of sumraona by tendering the amount sued for without costs before service^ but after issue, of the writ. Motion for final judgment. The action was brought to recoref the suifl of £20 4*. for goods sold and delivered. The writ of summons was issued on the 13th February, 1888, and was specially indorsed; and on the 16th February it was seryed on a person in the defendants' employ-' ment, but who was not the defendants' clerfe of Union. On the 18th February, and before service of the writ was effected, the defendants sent to the plaintiff a cheque for the amount of the debt, but without costs. The plaintiff handed the cheque to his solicitor, who thereupon applied by letter to the defendants for the costs of the writ of summons. The defendants gave no answer to that application, and the cheque was returned to them. The writ of summons was served on the clerk of the defendants' Union on the ISth March. The plaintiff subsequently moved to mark final judgment for the amount claimed, together with the costs of the action and the motion ', and the motion was grounded on an affidavit setting out the facts as stated, also verifying the cause of action and alleging there was no defence thereto. No affidavit was filed by the defendants. D. F. Browne, in support of the motion : — The plaintiff is entitled to judgment, with costs of the action. The issue of the writ is the commencement of the action, and not May 9. 448 Kearse v. Dolierty. Fx. Viv. the service : Leigli's N. P., vol. i., p. 162 ; Wentworth on Plead- 1888 - ing, vol. iii., p. 177 ; Briggs v. Calverly (1). M. J. Bourlce, contra. The CoUKT made an order for final judgment, together with the costs of the motion and of the action. Solicitor for the plaintiff: J. M^Carthj. Solicitor for the defendants : G. Liston. KEARSE V. DOHERTY. Y.C. ■'^8*- {By permission, from 21 L.R. Ir. 381.) June 12. Costa — Abortive Sale — Amendment of conditions-^Solicitoi' having carriage of proceedings — Practice. In an action for dissolution of a partnership, by the decree on further Consideration the plaintiff and defendants were declared entitled to their costs, and all subsequent costs, and the premises where the b usiness was car- ried on, together with the stock-in-trade, were ordered to be sold. By a subse- queht orderthepremisesWere directed to be sold out of Court. The solicitor for the plaintiff proceeded to sell, and the conditions of sale were settled at Chambers. By the second condition of sale it was provided that it it the amount offered should be d&emed insufficient, the vendors collec- tively reserved the right to withdraw the property offered for sale. It came to the knowledge of the solicitor for the plaintiff that M., one of the defendants, alone was in a position to buy the property, and, in otder to prevent the sale being placed in his hands, hB proposed to the other partners and to a mortgagee to alter the conditions of sale, so that any of the vendors might withdraw it. He failed to obtain a consent for this, and the sale having been advertised, the solicitor for the plaintiff altered the conditions of sale, acting under the advice of counselj but with- out leave of the Court. The sale took place, and a price was offered which the Court deemed insufficient, and refused to confirm the sale. The plaintiff was then adjudicated bankrupt, and the further conduct of the proceedings passed over to the assignees. The solicitor for the plaintiff taxed his costs, and the Taxing Officer disallowed the items for preparing and printing the conditions of sale, and for the advertise- ments : Held, on appeal from the Taxing Officer, that the sslicitor for the plaintiff was, under the circumstances, entitled to the costSj notwith- standing the irregularity in altering the conditions without leave of the Court, as the costs were bona fide incurred. (1) 8 T. R. 629. J^mrhe v. Doherty. 449 Summons on belialf of Ricliard Davoren, solicitor for William ^-p- loco. Ivens Kearse, the plaintiff in the action, by way of appeal from the decision of Mr. Mathews, Taxing Officer, upon the taxation of the bill of costs of the plaintiff, disallowing certain items for preparing and printing conditions of sale, and preparing postings and advertisements of the action. The action was brought for the dissolution of the partnership between the plaintiff and the defendants, James Doherty, John M'Birney, and the executors of the late David M'Birney, and to have the necessary accounts taken. The case came on for hearing on further consideration of the Cliief Clerk's certificate on the 20th Kovember, 1885, when the Court, amongst other things, directed the property and premises to be sold as a going concern, and declared the plaintiff and defendants entitled to their costs, and also to their subsequent costs. On the 8th November, 1886, an order was made that the premises should be sold subject to the approbation of the Judge. Mr. Davoren then prepared the abstract of title, when it turned out that there was a flaw in the title, and the case was submitted to the conveyancing counsel of the Court for his advice. The opinion of the counsel was that the sale could not be carried out in Court, and an application was accordingly made to the Court on the 21st March, 1887. By order of that date the Vice- Chancellor directed that the sales be had out of Court, subject to plaintiff's conditions of sale, already settled at Chambers, and declared the plaintiff entitled to his costs, as costs in the action. Mr. Davoren then proceeded to carry out the sale, the condi- tions having been settled at Chambers. The second condition of sale was as follows : — "2. No person is to advance less than £10 at each bidding, and no bidding shall be retractable. The vendors individually reserve the right to bid, and in case the amount offered shall be deemed insufficient, they collectively reserve the right to withdraw the property without sale." The sale was advertised for the 20th July, 1887, when it came to the knowledge of Mr. Davoren that his clieiit was not in a position to become a purchaser, and that practically Mr. John M'Birney, one of the defendants, was the only person who could 450 Kearse v. Doherty. ^- C- buy the property. He at once communicated with the solicitors for the other partners, and for the National Bank, asking them to alter the conditions of sale, and to settle them so that the sale would not be at the mercy of one partner. This proposal was rejected, and as tlie sale could not be postponed, Mr. Davoren, acting under the advice of counsel, altered the latter clause of the second condition of sale in the following way ; — "The vendors individually reserve the right to bid, and in case the amount offered shall be deemed by any of the vendors insufficient, the auctioneer shall withdraw the property without sale." The only bidder at the auction was Mr. John M'Birney, and the amount of his bid was £18,000, which he subsequently in- creased to £20,000. On the 4th August, 1887, Mr. M'Birney applied to the Court to confirm the sale. The Court, being of opinion that the price was inadequate, refused the application. Subsequently to the sale, the plaintiff was adjudicated bankrupt, and the conduct of tlie subsequent proceedings, including the carrying out of the sale, passed to the assignees. Mr. Davoren then taxed his costs, when Mr. Mathews disallowed a number of items, amounting in the aggregate to the sum of £102, which represented exclusively the costs for printing and preparing the conditions of sale and advertising the auction. He allowed the costs for preparing the abstract of title, as it would be ready for use at the subsequent sale ; but the conditions, particulars, and advertisements of the sale, which had proved abortive, were disallowed. On the 26th March, 1888, the plaintiff, pursuant to Ord. X., E. 31, of the Orders of April, 1878, delivered objections to the disallowances made by the Taxing Officer, and applied for a review of the taxation. The Taxing Officer reviewed his taxation, and adhered to his ruling. The plaintiff then appealed. Mr. Kenny, Q.C., in support of the appeal, contended that a solicitor having carriage of a sale, directed by an order of the Court, was entitled to the costs of a sale, which proved abortive, as of course, unless it could be shown that he acted mala fide or that the sale proved abortive owing to his conduct. That it Kearse v. Doherty. 451 could not be contended that the sale had failed owing to Mr. ^■£- 1888. Davoren having altered the condition of sale ; that that alteration was made bona fide to prevent the property going at an under- value, and was a necessity. Serjeant Jellett, Q.C., for Mr. John M'Birney, contended that the alteration of the condition of sale niust have affected the sale. On the face of the transaction the position of the plaintiff was anomalous, because his character as a vendor was inconsistent with his position as a psvrty fixing a reserved price. Mr. Oulton, for the assignees of Kearse, supported the objection of Serjeant Jellett to the costs, so far as regai'ds the posting for sale and the advertisement, but did not object to the plaintiff being allowed the costs of the conditions of sa,\e, as the conditions would have been of use at a subsequent sale. The Vice-Ohanoellor j — The costs, the subject of this appeal, are part of the costs to which the plaintiff claims to be entitled under the order of 21st March, 1887. There would be no doubt, but for the circum- stances which afterwards happened, that these were costs pro- perly and necessarily incurred. It WEiS Mr. Davoren's duty t<} settle the conditions of sale and to advertise the sale, and he did so. By the conditions, as they stood up to the eve of the sale, the property would, under the circumstances of the case, have been placed in the power of Mr. John M'Birney. He was asked to join with the other parties interested in altering the conditions of sale, so as to guard against this risk, but he declined to do so. He would, consequently, be in a position to have the property knocked down to him at his own price. There was one way of guarding against the danger of the property going at an under- value — namely, to fix a reserved price ; but to this, by the letter of the 16th July, 1887, Mr. M'Birney also objected, and thus, at the last moment, he refused his consent to the only safeguard against the property being sold at an under-value. Under these circumstances, Mr. Davoren adopted a course which he was not regular in taking, but which was the only course to prevent the 452 Griffiths V. Patterson. V. O. 1888. property being sacrificed. All the expense wliicli lie had incurred was incurred bona fide, and he would clearly be entitled to charge it in his costs, unless he has disentitled himself to do so by adopt- ing a course which was unwarranted. I am of opinion that he acted l)ona fide for the protection of the assets, and that the course adopted by him was justifiable under the circumstances, and I hold that he is entitled to the costs ; but I think it right to add that the Taxing Master was warranted in refusing to allow them without the order of the Court. Solicitor for the plaintiff : Mr. Davoren. Solicitor for the assignees of Kearse : Mr. Hayes. Solicitor for Mr. John M'Birney : Messrs. Larkin ^ Co. Appeal. 1888. June 5. Augast 1. GRIFFITHS V. PATTERSON. {By permission^ from 22 L. R. Ir. 656.) (Before Lord Ashbourne, C, and FitzGibbon, Barry, and Naish, L.JJ.) (1888— A. No. 300.) Practice — Costs — Original action and counterclaim — Not more than £20 recovered in original action — Rules of April, 1878, Order VIII., Mtde 3. Post, p. 453. In an action for work and labour done, the plaintifiF recovered a verdict for £20 and costs on his claim, and also obtained a verdict with costs on a counterclaim for board and lodging : Held (affirming the judgment of the Queen's Bench Division), that he was entitled to the full costs of the counterclaim, and, in addition thereto, the costs of the original action, taxed pursuant to Order VIII., Rule 3, of the Rules of April, 1878, in so far as the same were not included in the costs of the counterclaim. Buth V. Keefe (20 L. R. Ir. 30) disapproved of. Appeal from an order of the Queen's Bench Division, dated the 14th May, 1888 (1), made on a motion by the defendant for an order that the plaintiff's costs be referred back to the Taxing (1) Infra, p. 657. Griffiths V. Palterfon. 453 Master to be i-etaxed ou the prineiple that the plaintiff should be Appeai 1888 allowed half the general costs of suit and the excess only to which his costs had been increased by reason of the defendant's counter- claim. Certain items in the bill were referred to in the notice of motion, the taxation of which was specifically appealed from, and which appear sufficiently from the judgment of FitzGibbon, L.J. The action was brought to recover £29, balance due for work and labour, and by counterclaim the defendant claimed to recover £36 15s. from the plaintiff for board and lodging and necessaries and goods supplied. It was tried on the 10th June, 1885, and resulted in a verdict for the plaintiff for £20 on his claim, and also for the plaintiff on the counterclaim. The application before the Queen's Bench Division was heard before Harrison, Johnson, Holmes, and Gibson, JJ., when the following order was made : — " Tub Coctrt doth declare that the costs should be taxed, on the prineiple that the plaintiff is entitled to the full costs of the defendant's couuterolaim, and, in addition thereto, the costs of the original action, taxed pursuant to Order VIII., Rule 3, in so far as the same are not included in the costs of the counterclaim ; and the defendant not requiring that the items objected to be referred back to taxation on the said principle, it is ordered that there be no rule made on this motion, and that the defendant do pay to the plaintiff the sum of £4 4«. costs thereof." S. L. Brown, for the appellant, argued that the prineiple laid down by the Queen's Bench Division was wrong, and cited L&ng v. Ante, p. 382, Fitzgibh'On (1) and Rutlt v. Keefe (2). E. Cuming, contra, cited Shrapnel v. Laing (3), and argued in support of the Taxing Master's ruling on the items objected to. Lord Ashbouene, 0. : — Aug. i. This is a case raising an interesting point as to costs in actions where a couHterclaim has been brought. The facts upon which the question turns are short. The action was brought to recover £29 balance of an account for work and labour. Defence was taken, and a counterclaim also made for £36 for board and lodging. The plaintiff obtained a verdict for £20, with costs, which under (1> 20 L. E. Ir. 12. ■ (2) Ibid. 30. (3) 20 Q, B. Div. 334. 2 O 454 Griffiths V. Patterson. Appeal. the Irish Judicature Act and rules would not entitle him to the lhS8 costs of attendances, and to only half the costs of other items. The verdict was for the plaintiff on the counterclaim also with costs. On taxation the items for attendances at the trial, &c., and other items which were necessarily incurred in the action, and •^'ere equally necessary in the counterclaim^but of which the plaintiff would ha.ve-been wholly or in part deprived if regarded as costs in the action — were allowed in full against the defendant as costs of the counterclaim. Under these circumstances, the defendant brought the matter under the notice of the Queen's Bench Division, and moved the Court, challenging the principle on which the taxation proceeded before the Taxing Master. His motion was by way of appeal from the Taxing Master, and for an order that certain items in the bill of costs be referred back to him to be taxed, on the principle that the plaintiff was to have allowed him half the general costs of suit, and the excess only to which his costs have been increased by reason of the counterclaim: in other words, he asked for an order, practically, in the terms of the Chief Baron's order in Euth v. Keefe (1). The Queen's Bench Division, after argument, made an order in the following terms, which are important : — " The Court doth declare that the costs should be taxed, on the principle that the plaintiff is entitled to the full costs of defendant's counterclaim, and in addition thereto the costs of the original action taxed pursuant to Order XIII., Rule S, in so far as the same are not included in the costs of the counterclaim, and the defendant not requiring that the items objected to be referred back to taxation on the said principle, it is ordered that there be no rule made on this motion, and that the def endani do pay to the plaintiff the sum of £4 4s. costs thereof." By that order the Queen's Bench Division declined to send back the items to the Taxing Officer for retaxation, on the princi])ie asked for by the defendant, but laid down instead the principle I have just read. The defendant has appealed to us, not questioning any particular items, but contending that the principle laid down by the Queen's Bench Division is wrong, and that the principle established by Ruth v. Keefe (1) is right. The matter accordingly is presented to us as a matter of importance, involving a difference (1) 20 L. R. Ir. 30. G-rip,ths V. Patterson. 455 of opinion between the Queen's Bench and Exchequer Divisions. ■^'l^j The defendant was so dissatisfied with the order of the Queen's Bench Division that he declined to avail himself of any retaxation under it, and this appears from the words, "and the defendant not requiring that the items objected to be referred back to taxation on the said principle." No question whatever of items or appor- tionment of items was discussed before us. The question submitted to us on the part of the defendant is whether we should affirm the principle laid down by the Queen's Bench Division, or adopt that contained in his notice of motion. We have ascertained, from a communication made by the Taxing Department here to Master Pollock, in answer to an inquiry made at our suggestion, what the practice in similar cases in England is. Master Pollock's reply is in the following words : — " By the rules of our Supreme Court, a plaintiff who recovers £20, and not more than £50, is entitled to no more costs than lie would have been entitled to if he had recovered the same amount in the County Court. This is analogous to the Irish rule which, under these circumstances, I learn, deprives him of the costs of certain attendances. So that, though the penalty is different, the same point arises with us, viz., whether the penalty is to be extended by also depriving the plaintiff of costs which he has incurred in successfully defending himself against a counter- claim of the defendant. We have no Rule or Order so extending it, and when the case occurs here the masters tax in the same way that the master in Dublin appears to have done. Had the defendant, instead of counterclaiming, commenced a separate action, and failed, he would have had to pay a larger amount of costs. " Geokge F. Pollock. "8th June, 1888." So far as that letter goes, it supports the view taken by the Taxing Officer here. After the best consideration I can give to the matter, I have come to the conclusion that the principle laid down by the Queen's Bench Division is correct, and that there- fore this appeal should be dismissed, with costs. 4oR Griffilhs V. Patterson. Appeal. FiTzGlBBON, L.J. : — -1 h 88 I agree that the principle laid down by the Queen's Bench Division is in terms correct, or is at least capable of a correct interpretation ; but I regret that the course of the argument, and the mode in which the bill of costs in question has been actually taxed, appears to me to make it necessary that I should state the grounds of my judgment at some length, lest our decision should be understood to sanction a taxation which I do not believe to be correct, and which is not in accordance with the principle stated by the Queen's Bench, as I understand it. Tlie Queen's Bench did not sanction the actual taxation, for the defendant was, by the order appealed from, offered a retaxation, which he refused. In this he may have been well advised, as the amount which would have been struck off would probably not have been worth the expense and trouble of going back to the Taxing Master, unless the principle of jRulh v. Keefe (1) was to be adopted, and therefore he appealed, although the actual taxation of which he complained was not affirmed. Here we cannot renew the offer of retaxation, and can only dismiss the appeal if we think the principle is correctly stated in the order appealed from. Mr. Cuming, however, referred in detail to the items allowed, and endeavoured to sustain the Taxing Master's rulings, and because he did so, 1 feel it necessary to disclaim his construction of the principle stated by the Queen's Bench, and to say that the taxation in this case conflicts, in my opinion, with the orders and rules, and also with the decision in Shrapnel v. Laing (2). I agree that the rule laid down by the Chief Baron in Ruth v. Keefe (1) cannot be maintained. The complicated process of first taxing the plaintiff's costs of both claim and counterclaim on the assumption that he was entitled to both, then taxing his full costs of the action on the assumption that there was no counter- claim, and then deducting the one sum from the other, and giving judgment for the difference, would proceed on artificial assumptions, and would result, as I think erroneously, in de- priving the plaintiff of the whole amount of every item which could be included in the costs of tlie action, although the same (1) 20 L. E. Ir. 30. (2) 20 Q. B. Div. 334. Griffiths V. Patterson. 457 item, in wTiole or in part, was also necessarily incurred in bring- A.r>peal. ing the counterclaim to an issue. In other words, the plaintiff on that principle would get no credit whatever on account of his successful defence of the counterclaim, for any costs of that defence which would have been incurred in the action if there had "been no counterclaim. It seems to me that wherever there are claim and counter- claim, and the plaintiff succeeds on both, the bill should be taxed once and for all right through, ascertaining the sum to be allowed on each item, whether on foot of the claim or of the counter- claim. Each item must be an item which belongs either (a) wholly to the claim, or {h) wholly to the counterclaim, or (c) to both. In the last case its amount may or may not be increased by the existence of the counterclaim. If of fixed amount, and for something necessary to either proceeding if it stood alone it is whatLord Esher in Shrapnels. Laing (I) calls "a common item," or it may be something, such as counsel's fee, ■which, whether increased or not by the existence of the counterclaim, neverthe- less represents the cost of work done on both claim and counter- claim. Taxing the costs in the ordinary way, once and for all right through, all the items in class (a) should be set down to the original action alone ; all the items in class (6) to the counter- claim alone, and whenever the result, owing to the amount recovered or otherwise, makes a distinction in amount or liabilitj'^ between the costs of the claim and of the counterclaim, each item in class (c) must, in my opinion, be apportioned between the claim and counterclaim. All rules and enactments limiting the costs with regard to the amount recovered, or otherwise, will take effect, not only with regard to all the items in class (a), but also to so much of the items in class (c) as may be apportioned to the claim. But I think the Taxing Master cannot charge the whole of any common item to either claim or counterclaim, nor can a plaintiff deprived of costs on his claim get back anything of which he has been so deprived, merely because the defendant has pleaded a counterclaim. In Saner v. Bilton (2) both claim and counterclaim were dis- missed with costs. There the plaintiff was ordered to pay the (1) 20 Q. B. Div. 334. (2) U Cb. Div. 416. 458 Griffiths v. Patterson. Appeal. full costs of the original action, ■which was " treated as if it stood 1888 by itself," but the reason given was that the plaintiff had first commenced litigation, and that it was impossible to say how far the counterclaim case would have been agitated if he had not begun that litigation, and this reason seems to me equally to prevent the present plaintiff from indirectly compelling the de- fendant to pay as costs of his counterclaim what the Acts and Orders have forbidden the plaintiff to recover on a judgment for so small an amount as £20. In Shrapnel v. Laing (1) each party succeeded, the plaintiff re- covering £50 on the claim and the defendant £80 on the counter- claim ; and Lord Eslier says : — " The only contention was that because the defendant succeeded in recovering more on the counterclain than the plaintiff recovered on the claim they ought to have the whole costs of the action, leaving the plaintiff the costs only of the issues on which he succeeded." . . . He says : — " Tlie claim and counterclaim are to be treated as inde- pendent actions." . . . "The costs of the claim are to be taxed as though the claim were an action by itself." ..." The costs of the counterclaim must be taxed as though it were a wholly independent action." " The Taxing Master will then have two sums to deal — the amount at which the costs of the claim have been taxed, and the amount at which the costs of the counterclaim have been taxed — and his allocatur should be made for the balance." . . . But he says : — " Although the claim and counterclaim are to be treated as independent actions, the means of arriving at a conclusion on each may be common to both. Thus, if the same counsel appears, and his instructions are con- tained in one brief, that brief is treated by the Taxing Master as two — so much of it as relates to the claim will belong to the claim, and so much of it as relates to the counterclaim will belong to the counterclaim. In the same way, if one fee be marked on the brief, it will be treated as two fees." Accordingly it was held that neither plaintiff nor defendant was entitled to tlie full amount of any such items. The Taxing Officer in the present case, on the contrary, not only allowed in full against the de- fendant all the items which Lord Esher calls "common items"—* (1) 20 Q. B. Div. 334. Giifflths V. Patterson. 459 i.e., " items in respect of which both parties get the advantage," -^f^of' but he also omitted to divide items which Lord Esher holds should be " treated as two." He allowed in full against the defendant the solicitor's attendances at the trial, the full ordinary counsel's fee, the full refresher, the charges for the draft reply and brief, the fees on the verdict, and some others. It seems to me that, on the authority of Shrapnel v. Laing (1), all these items should have been divided, and that the aniounts chargeable against the defendant in respect of so mucli of them as was apportioned to the claim, should have been reduced in accordance with the rules limiting the costs on a verdict of £20. What that proportion should have been was for the Taxing Master to determine ; but our decision in Ryan v. Fraser (2) would go far to show that the Ante, p. 256. larger pnrt should have been attributed to the claim. In that case there was a liquidated demand and A. cross liquidated demand sued for by way of counterclaim. The plaintiff on the claim recovered a sum exceeding £20, but the defendant recovered on the counterclaim a sum which, When deducted from that recovered by the plaintiff, reduced the balance below £20. We held that one judgment only should be entered, viz., a judgment for the plaintiff for the balance only, and the parties being resident in the same civil-bill jurisdiction, we held that the plaintiff was entitled to no costs of the claim, nor the defendant to any costs of the counterclaim. There the claim was for work and labour, and the counterclaim was for goods sold and for rent ; here the claim is for work and labour, and the counterclaim is for the board of the plaintiff while doing the work. It is only because a considerable sum had been paid on account before action that the claim for board, unfor- tunately for the defendant, was set down as exceeding the balance claimed for wages, otherwise it would have been a mere set-off. The defence to the counterclaim was tliat the wages were fixed on the terms that the plaintiff was to get his keep for nothing while engaged by the defendant, and therefore the matter of the counterclaim was actually taken into account in reducing the verdict to £20. I cannot imagine that the counterclaim made any substantial difference in the expense of the action, yet the (]) 20 Q. B. Div. 33i. (2) 16 L. R. Ir. 253. 1888. 460 Griffiths v. Patterson. Appeal. result of the taxation is that a substantial sum above " half-costs" has been awarded to the plaintiff as for the costs of the counter- claim, though under Order VIII., R. 3, 1878 (Eiffe, 697), he ought to have got " half costs " only, with whatever extra expense the counterclaim may have entailed on him. While the order made by the Queen's Bench Division was right, and we have no alter- native except to dismiss the appeal, I feel strongly that this bill of costs has not been correctly taxed, and I have felt it necessary to say so, lest that bill should hereafter be relied on to show that we had sanctioned a taxation inconsistent with Shrapnel v. Laing (1), and which I believe the Queen's Bench Division did not intend to sanction. Barry, L.J. : — 1 concur in thinking that this appeal should be dismissed, and I am not in the least alarmed lest this case should be quoted as a precedent for the way in which the items of this bill of costs were dealt with by the Taxing Master. There were two principles of taxation — one laid down by the Exchequer Division, and the other by the Queen's Bench Division. An appeal has been brought contending that the Exchequer Division is right, and the Queen's Bench Division is wrong. All we are doing now is to say that we affirm the principle laid down by the Queen's Bench Division. I decline to volunteer to undertake a duty which belongs to the Taxing Master, and it should be remembered that the appellant declined, on the invitation of the Court below, to take the items objected to back to the Taxing Master for retaxation. I give no opinion on matters of detail, which were not argued in the Court below or in this Court. Naish, L.J. : — In my opinion the order appealed from is correct, and the appeal should be dismissed. The order declares that the costs should be taxed on the prin- ciple that the plaintiff is entitled to the full costs of defendant's counterclaim, and in addition the half costs of action, so far as the latter are not included in the costs of the counterclaim. (1) 20 Q. B. Div. 334. Griffiths V. Patterson. 4ijl This being what the Court below has declared, the defendant Appeal. • 1888 contends that this principle is wrong, and that the costs should be taxed upon the principle that the plaintiff should have only half the general^ costs, and in addition the amount by which the costs have beeh increased by reason of the counterclaim. On this prin- ciple, if the plaintiff, being resident in the same civil-bill jurisdic- tion as the defendant, had recovered under £20, but succeeded oii the counterclaim, the costs to which he would have been entitled would have been those items only which were exclusively applicable to the counterclaim, and he would lose all the items of costs which, were applicable to the counterclaim as well as to the claim, as, for instance, the fee paid counsel on his brief, and the solicitor's fee for attending in Court on the trial. On the best consideration I can give the question, this principle appears to me to be incorrect. In the case of Stoohe v. Taylor (1), the plaintiff recovered £35 on his claim, and the defendant £20 on his counterclaim, leaving the balance recovered by the plaintiff £15, and the Court of Queen's Bench held that under those circumstances the plaintiff's costs were not to be awarded merely as though the plaintiff had recovered £15, but as though he had recovered £35, and that the plaintiff was entitled to the costs on his claim, and the defendant to his costs on the counterclaim; and the Chief Justice Cockbum, in his judgment, at pp. 573-574, describes a counterclaim as a thing which without being in foijn a cross-action is so in substance, and makes this the basis of his judgment. Again, in Winterjield v. Bradnum (2), Brett, L. J., at p. 32(5, says : — " A counterclaim is sometimes a mere set-off ; sometimes it is in the nature of a cross-action ; sometimes it is in respect of a wholly independent transaction. I think the true mode of considering the claim and counterclaim is, that they are wholly independent suits which, for convenience of procedure, are combined in one action. I know that a practice has arisen that if the counterclaim overtops the plaintiff's claim, judgment is entered for the defendant, and costs given accordingly. But I think that the allocatur should only be for the difference of the costs between the respective parties." In those cases, one in the Queen's Bench Division and the other in the Court of Appeal, the Court, for the purposes of awarding (1) 5 Q. B. Div. 569. (2) 3 Q. B. Div. 32J. 402 Griffiths V. PaltergoMk Appeal. costs, treated claim and counterclaim as being action and cross- ^'** ■ action. It appears to me to be inconsistent with this principle to take up a particular item common to both, as for instance tlie fee for the solicitor's attendance in Court, and say, as we are asked to say here, that this item must be wholly attributed to the claim. The principle I have referred to treats the parties, plaintiff and defendant, as being both, so to say, promovents, and likewise defendants, and there is no reason why we should then attribute a common item to one of the proceedings exclusively. Again, where a defendant sets up a counterclaim, the more especially in a case like the present, when he wholly contested the plaintiff's claim, and sought the judgment of the Court against him for a demand of his own, I fail to see why on any principle of fair play or justice he should stand in a more favourable position than his adversary. On these grounds, I think the contention of the defendant in the present case was not well founded. The contention which I have mentioned was the only one put forward by the defendant, both in the Court below and here. We were told we were to decide which of two modes of taxation — one adopted in the Exchequer Division, the other in the Queen's Bench Division — was right. No middle course was suggested ; and though the defendant got the option of going back to the Taxing OfJficer, he deliberately refused to do so. But a suggestion has been made by Lord Justice FitzGibbon tliat, by simply affirming the decision of the Queen's Bench Division, we might be afterwards quoted as affirming the decision of the Taxing Master on every item in the present bilL Now, as regards this, in the first place, I fail to find any prece- dent for the Court of Appeal proceeding to tax the items in a bill of costs which were not before the Court below ; in the second place, such taxation was not sought by the party appealing. Furthermore, I am not satisfied that in a case such as the present) where the plaintiff succeeds both on claim and counterclaim, that common items are to be divided, as Lord Justice FitzGibbon has stated. If there had been no claim, and the defendant had sought to recover the £36 lbs., he would have had to pay the plaintiff the full costs of liis proceeding. Why he is to be now relieved because In the Matter of the Belfast Water Commimoners. 463 tills proceeding is combined with a claim by the plaintiff In which Appeal. he has succeeded, and which claim has not entailed any extra expense In respect of the counterclaim, I fail to see. 1 can quite understand If the question came to be one of dividing costs as between the plaintiff and defendant, when the plaintiff" got Ills costs of the claim, and the defendant his costs of the counter- claim, or vice versa, It would be necessary for the purpose of ailjustlng the rights of the parties to divide the common Items. That was what was done In Haines v. Bromley (I), and Shrapnel w Laing (2) was a case of a similar character. I do not consider the principle applicable to a case where the one party has succeeded both on claim and counterclaim. Decision below affirmed. Solicitor for the plaintiff": James Henry. Solicitor for the defendants : Charles W Connor. June 13. In the Matter of the BELFAST WATER COMMISSIONERS ; M. R. 1888 Ex parte OKR. Same ;£« /)a»- Where one solicitor is employed by several clients for the purposes of such conveyances, he is not entitled to furnish separate bills of costs, charging taxation items in respect of each bill. The Belfast Water Commissioners, in pursuance of the powers conferred upon them by the Belfast Water Acts, 1840-1884, which incorporated the Lands Clauses Act, 1845, and the Rail- ways (Ireland) Acts, 1851-1864, purchased the interest of the (1) C Q. B, Div. 691. (2) 20 Q. B. Div. 334. 4C4 In the Matter of the Belfast Water Commissioners. M. R. tenants on part of the estate of Sir Richard Wallace, in the neighbourhood of the town of Belfast, for the purjiose of their undertaking. In the proceedings before the arbitrator, twenty^ nine of the said tenants were represented by one firm of solicitors, Messrs. D. 0'E,orke & Sons, Belfast, and they were awarded alton gather nearly £5,000 by way of compensation for their interests in the lands so taken. Subsequently proper conveyances were executed by the tenants to the said Commissioners; and, again, Messrs. O'Rorke acted for the twenty-nine tenants in the investi- gation and deduction of title. On the 4th May, 1887, Messrs. O'Rorke delivered twenty-nine bills of costs of and incidental to the said conveyances at the Dublin office of Messrs. M'Lean, Boyle & M'Lean, solicitors for the Commissioners, who refused to recognise or pay any costs except such as had been ascertained on a requisition sealed by the Commissioners, and intimated that tlie Commissioners would only seal one such requisition. Messrs. O'Rorke thereupon lodged their twenty-nine bills of costs in the taxing office, and issued summonses to have them taxed on requi- sitions signed by each of their clients, and naming Messrs. M'Lean, Boyle & M'Lean to attend without obtaining their consent. The Master refused to tax each bill separately. Messrs. O'Rorke then filed three petitions, under section 83 of the Lands Clauses Act, 1845, on behalf of three of their clients, praying for orders that it might be referred to the Taxing Master to tax petitioners' costs of and incidental to their conveyances of their lands to the Belfast Water Commissioners. Mr. W. Long for petitioners : — When the promoters of the undertaking and the persons entitled to these costs do not agree as to the amount thereof, the Lands Clauses Act, 1845, sect. 83, provides that costs shall be taxed by one of the Taxing Masters of the Chancery Division, upon an order of the Court, to be obtained upon petition in a summary way. This firm of solicitors should be treated on the same principles as would be applied if the twentyMiine tenants had employed separate solicitors. In the Matter of the Belfast Water Commissioners. 4G5 Mr. Bewley, Q.C., contra: — - ^^- ^■ 1888. Section 83 of the Lands Clauses Act, 1845, is superseded by sect, 12 of tlie Railways (Ireland) Act, 18(54. This section, read with sect. 21 of the Hallways (Ireland) Act, 1851, shows that the proper procedure was a petition to compel the Commissioners to seal requisitions. They are, and always were, willing to seal one requisition, but they object to paying the twenty-nine separate sets of taxation items. It would be otherwise if different solicitors had been employed. See In re Nicholls's Trust Estates (1) ; Midland Great Western Co., Ex parte Lord Dillon (2) ; In re Gore Langton's Estate (.3). The Master of the Rolls : — These petitions of Messrs. O'Rorke had been misconceived. They do not ask for an order to compel the Belfast Water Com- missioners to give requisitions to tax these bills of costs, but for an order to the Taxing Officer of this Court to tax them under sect. 83 of the Lands Clauses Act, 1845. Now, if this were the proper course to take, when the parties do not agree, it is manifest that Messrs. O'Rorke were wrong in attempting to get these bills taxed on the requisition of their clients. It was a curious pro- ceeding for them to sign requisitions to tax, naming Messrs. M'Lean & Boyle to attend. However, they refused to attend, alleging that the bills of costs had not been properly delivered to them, and that these costs should be taxed on a single requisition under the seal of the Commissioners. Coming to the point of substance, it appears the twenty-nine tenants on Sir Richard Wallace's estate employed Messrs. O'Rorke in this matter. Their proper costs in respect of the conveyances to the Commissioners amounted to £163 1«. 2d., but there is added no less a sum than £93 13s. M. for taxation items, making a total of £256 Us.Ud. These items are made up of twenty-nine charges of between £3 3s. and £3 18s. 6d, for attending on taxation. Mr. Long's argument is that Messrs. O'Rorke are entitled to these charges, because the Commissioners would have had to pay these items if these twenty-nine tenants had employed different solicitors ; and they should not be in a better position because they happened only (1) 35 L. J. Ch. 516. (2) 9 L. R. Ir, 16. (3) L. R. 10 Ch. Ap. 328. 466 la the Matter of the Belfast Water Commissioners. M. R. to employ one. The true principle is that pointed out by V.-C. Woods in In re NichoU's Trust Estates (1), and followed in this country by the Vice- Chancellor in In re Midland Great Western Railioay Co., Ex parte Dillon (2). The policy of the law, where, property is taken from owners against their will, by a public body, is to compel that public body to comi)ensate them for the property so taken, and also to pay their costs in obtaining that compensation ; but that is a very different thing from heaping up costs against such a public body, nominally on behalf of the owners, but really for their solicitors, and in respect of which no services were rendered either to the owners or to the Commis- sioners. This case is governed by the Irish Railways Act of 1864, and not by the Act of 1845. Sect. 12 of the former Act provides that "in all cases where costs of conveyances shall be payable by the Company, such costs shall be taxed by one of the Taxing Masters of the Court of Chancery in Ireland upon the r'equisition of such Company ; and all the pi'ovisions of any Act of Parliament, and all rules and regulations of the Courts of Law and Equity in Ireland relating to the taxation of costs shall be deemed applicable to such costs so payable by the Company in like manner in all respects as if the said Company were directly chargeable therewith." Only upon the requisition of the Com- missioners can these costs be taxed. They refuse to seal twenty- nine such requisitions. The proper course for the petitioners, in any case, was to petition for an order to compel the Commissioners to give the requisition. If that had been done I would have held that one requisition was enough. I shall therefore make no rule on these three petitions; the costs must be paid by the petitioners ; but as there were only one set of affidavits and one hearing, there will be only one set of costs. Solicitors for petitioners : Messrs. O'Rorke Sf Sons. Solicitors for Belfast Water Commissioners : Messrs. M'Lean Boyle 4' M'Lean. (1) 35 L. J. Ch. 516. X2) 9 L. E. Ir. 16. Ex parte Ferguson ^ Co. to Buckley. 467 In the Matter of THE SOLIOITOES' REMUNERATION M. u. ACT, 1881 ; Ex parte FERGUSON & CO., to MICHAEL L^!!_ BUCKLEY, LATE A Solicitor of the Supreme Coukt "^"'^ '^^' OF JUDICATUBIiJ IN IRELAND. (,By pei-missimi, fioin 21 L, R. Ir. 392.) Solicitor and Glient — Taxation of costs — Deducing title — Furnishing searches — Solicitors' Remuneration Act, 1881 {Jf^ S 45 Vict., c. 44), Schedule I., Parts I. and H. To entitle a solicitor to the percentage charges under Schedule I., Parts I. and II. of che General Orders under the Solicitors' Remunera- tion Act, 1881, he must have deduced title to the premises, and of such deduction of litle furnishing searches is an essential part. In re Lacey cfc Sons (25 Ch. Div. 301) followed. Ante, p. 238. Summons to review taxation by Charles Buckley and Daniel Murray, executors of Michael Buckley, deceased. The firm of Dickson and Ferguson, .of Banbridge, being indebted, among others, to the National Bank for over £5,000, for which sum the said bank had the security of an equitable mortgage of the deeds of the firm, Mr. Ferguson, one of the partners of the firm, and at the suggestion of the bank, started a new Limited Liability Company, to take over the factory at Banbridge from the firm, the bank to take debentures of the new Company, as a security for their debt. Mr. Michael Buckley, solicitor, \\as instructed by Mr. Ferguson, to prepare the necessary documents for carrying out this arrangement. Accordingly he prepared an agreement for sale, dated the Ist November, 1883. One clause thereof provided that the vendors should, at their own expense, deduce and show a good title, but that the title of the grantor and lessor, under whom the vendors held should be admitted. Another clause provided the vendors, at their own expense, should satisfy all requisitions and remove all reasonable objections of the pur- chaser, so far as they might be able to satisfy or remove the same. The vendors were Messrs. Dickson and Ferguson, the purchaser the new Company of Ferguson and Co. Mr. Buckley acted for both parties. Mr. Ferguson held ten acres at Banbridge, under a lease for 999 years, and thirty-seven acres under a fee-farm grant 468 E,v parte Fei-giison 9- Co. to Buckle^/. ^- ^- fi-om the same landlord. It was the lease which had been deposited 1888 as security with the National Bank. Out of these holdings, five acres of the leasehold and one acre of the freehold had been set apart as the joint property of Messrs. Dickson and Ferguson, and they agreed to demise these (being the factory) premises to the new Company for a term of 950 years, at a yearly rent of £41 6s. &d., and in consideration of a fine of £5,518. On October 18th, 1883, Mr. Buckley attended at the bank and examined the lease there deposited. On the 6th May, 1884, he sent to the bank for approval a draft lease from the firm to the Company, a draft form of debenture, a draft mortgage for £5,000 from the Company to the bank collaterally securing the debentures, the agreement for sale of the 1st November, 1883, a copy of the memorandum and articles of association of the new Company, and a certificate of its incorporation ; also a copy of the fee-farm grant ; and he pointed out that as mortgagees they had themselves posses-- sion of the original lease. On the 8th May, Messrs. Wallace and Co., as solicitors for the bank, wrote to Mr. Buckley, pointing out that as Mr. Ferguson had mortgaged the freehold to Messrs. Richardson, they would be necessary parties to the new lease ; also indicating that the said lease should give the new Company a power of distress over the premises not thereby demised, in case Mr. Ferguson allowed the head-rents to fall into arrear; that the debentures should be a first charge on the property of the Com- pany ; also other minor details. On the 27th May, Messrs. Wallace acknowledged the receipt from Mr. Buckley of a draft reconveyance of the Eichardson mortgage, and returned the same approved ; and they pointed out that there was another mortgage to the Commissioners of Public Works. A considerable correspondence followed, and on the 16th April, 1885, Mr. Buckley satisfied Messrs. Wallace that this latter mortgage was paid off, and a reconveyance was executed. The form of the debentui'es was also altered, and the other objections of Messrs. Wallace complied with. The transaction was completed on the 21st July, 1885. Mr. Buckley furnished his bill of costs to Ferguson & Co., on the 27th July, 1885, and he died on the 2nd January, 1886. At the instance of Mr. Ferguson, items 147 and 153 were disallowed by the Taxing Master. No. 147 charged £45 for the mortgage of Ex parte Ferguson Sf Co. to Buckley. 469 £5,000 to tlie bank, and for preparing the debentures; No. 153 *^-^- charged £84 2s. ^d. for the lease by the firm to the Company ; of this sum £69 2s. 6d. was in respect of the fine of £5,518, £13 in respect of the rent of £41 6s. 6rf. thereby reserved, and £2 for registration. It was because of the charge of £69 2s. 6d. that the Taxing Master disallowed this item ; his reason being, with regard to both items, that the work prescribed by the General Order- under the Solicitors' Remuneration Act, 1881, to entitle the solicitor to the said fees, had not been done, and, more particularly, that no abstract of title had been prepared or searches furnished. Mr. Bobertson, in support of the summons : — It is conceded that the proper sum was charged, jf the schedule applies. As regards the mortgage to the bank, it is true no formal abstract of title was furnished ; but the schedule does not require it. The correspondence shows that there was an investigation and deduction of title ; there were requisitions by the mortgagee, and these requisitions were complied with. A. search was made in the office of the Registrar of Joint Stock Companies, and a certificate of the registration of the Company furnished. As to the lease, the agreement for sale provided that the vendors should deduce and show a good title. Time, Mr. Buckley acted for both lessor and lessee ; but this agreement threw upon him the responsibility of being satisfied that the Company got a good title, and an action would lie against him if he did not fulfil his duty. Mr. Bewley, Q.C., contra: — We admit Mr. Buckley should receive a remuneration for his service, but we contend that the schedule does not apply. It is for " deducing title, furnishing seaixhes, perusing and completing mortgage." Each and all of these must be done to bring the case within the schedule. There was no deduction of title. If there liad been, the Richardson and Board of Works' mortgages would have appeared from the first. What are called the requisitions regarding these mortgages were matters of conveyance, not of title. It is admitted there were no searches in the registry of deeds or of judgments. The English rule corresponds with tlie 2 H 470, Ex parte Ferguson Sf Co. to Buckley. ^- ^- Irish, except that it does not require searches : In re Lacey ^ Sons Ante, p. 238. (1) 5 ■^" »"« Keeping Sf Gloag (2). Ante, p. 433. Mr. Robertson, in reply : — Ante, p. 238. In In re Lacey Sf Sons (3), the purchaser stated that he woukl Ante, p. 371. not require an abstract of title : Ex parte Lord Mayor of London (4). The Master or the Eolls : — I think the Taxing Master was right, though not exactly perhaps for the reasons he has given. There was a step towards a deduc- tion of title, but there was not a deduction of title within tlie meaning of the schedule rule. It appears that a Limited Company was formed for the purpose of taking over the concern of Messrs. Dickson and Ferguson, Mr. Ferguson being the leading and active member both of the firm and of the Company. The firm being indebted in a large sum to the Northern Bank, it was agreed that the latter should take debentures for £5,000 in the new Company, with a covering mortgage. Ihe property of Dickson and Ferguson was held partly under lease for 999 years, and partly under a fee- farm grant ; and a part of each holding was to be transferred to the Company. It was not to get a mere assignment, but a lease for 950 years. Mr. Buckley was employed to carry out the arrange- ment, acting for both parties. First, with regard to the preparation of the new lease. It is contended that Mr. Buckley is entitled to charge the sum of £84 2s. M. for it, under Rule 5, applicable to Part II. of Schedule I. of the General Orders, under the Solicitors' Remuneration Act, 1881. This Rule provides that where a lease is in consideration partly of a fine and partly of a rent, then, in addition to the remuneration prescribed by Part II., in respect of the rent, the solicitor may charge in respect of the fine, in this case over £5,000, a further sum as if it were a purchase, and tlie fine were the purchase money. This throws us back to Part I. ; and there we find the ■work for which, on a purchase, the remuneration is to be given detailed. It is for " preparation of contract and conditions of sale, (1) 25 Ch. Div. 301. (3) 25 Ch. Div. 301. (2) W. N. 1888, p. 49, 2 F. 2. (4) 84 Ch. Div. 452. Ex parte Ferguson Sf Co. to Buchley. 471 deducing title, and furnishing necessary searches, and perusing and ^- "• completing conveyance." Now, in this case, there was no deduction of title — no ordinary discharge of a solicitor's duty in deducing title. Some services were, no doubt, rendered, which might be considered steps in deducing title, but there was no investigation of it whatever. The crucial test is that there were no searches in the Registry of deeds and of judgments. This is, in Ireland, an essential part of a solicitor's duty when employed to deduce or investigate title. No purchaser, even from the direct grantee under a Landed Estates' Court conveyance, would accept a title without searches. In this case the parties were agreed. The title of Dickson, Ferguson, and Co. was accepted without investigation, and Mr. Buckley discharged the merely ministerial duty of seeing it properly transferred to the Company. He, therefore, is not • entitled under the schedule, and his remuneration must be under the system in force before the passing of this Act. The question is rather more difficult as regards the mortgage to the bank. The bank, being already a mortgagee by deposit of the lease of portion of the premises to be conveyed, was to take deben- ture shares for its debt, and a collateral mortgage both of the leasehold and freehold premises. A doubt existed in my mind whether there was not a deducing of title starting from the admitted position of the Company. The bank had to be satisfied of the power of the Company to mortgage at all. The certificate of the registration of the Company was furnished, and various requisitions of the bank were made and satisfied. I do not think the inquiries as to the Richardson and Board of Works' mortgages were merely matters touching the form of the conveyance ; they were matters both of conveyance and of title. But they are not enough to bring the case within the schedule. It enumerates four necessary duties, and one of these is furnishing searches. The fact that this is not in the corresponding English Rule shows that it is not a mere matter of form. Bearing in mind the difference between English and Irish law on this branch of conveyancing, it shows that if a solicitor is really deducing title he must, in Ireland, furnish searches, and that the framers of the order so thought. In In re Mayor of London (1), the Judge decided that merely^„(g p 3;j (1) 34 Ch. Div. 452. 472 Thompson Brothers v. Bolton. M- li- reading an Act of Parliament constituted in that case an inves- 1888 tigation of title. If tUat case were exactly like this I should be prepared to follow it ; but the case before me is much more like Ante, p. 238. In re Lacey ^ Sons (1), where the Judges of the Court of Appeal went out of their way to deliver their opinions expressly for the guidance of the profession on a point not actually necessary for their decision ; and they were unanimous in stating that the schedule applied only where substantially the whole of the work for which the percentage is chargeable, as particularised in the schedule, had been done. Here, though something was done in the way of deducing title, there was no full deduction of title, and there were no searches. I think the Taxing Master was right, and I n^ust refuse the motion, with costs. Solicitors for executors of Mr. Buckley i Messrs. Buckley and Murray. Solicitors for Ferguson & Co. : Messrs. TJ Estrange ^ Brett. Nov. 6. THOMPSON BROS. v. BOLTON. (.By permission, from 21 1. L. T. R. 96.) Cosis — Three counsel — Ctmsultation between two junior coimsel — Difference between Englisli and Irish Practice. The Court will not interfere with the discretion of the Taxing Officer unless a question of principle is involved or in an extreme case. Circumstances under which fees for consultation between two junior counsel were allowed ; while the Court differed as to whether the case warranted the employment of three counsel. Motion on summons (adjourned into Court) on behalf of the defendant tliat the Taxing Officer's decision allowing certain items in the plaintiff's bill of costs should be reversed. The items were of three kinds — first, being a fee to a third counsel ; second, a fee for consultation between two junior counsel before the senior counsel had been brought in ; third, a fee to counsel on direction of proofs. The objection to the third item was abandoned. The (1) 25 Ch. Div. 301. Thompson Brothers v. Bolton. 473 action was brought to recover £32 6s. lOd. as balance clue for f^'^'^-f'^- 1S8S* goods sold and delivered. A notice in lieu of statement of claim was served, and the defence set out that the £32 was part of a larger sum, which included £57 for miscellaneous goods and £140 the price of a second-hand steam-engine. The defence alleged that the goods for which £57 had been charged were only value for £36, and that no fixed price had been agreed on. The de- fendant brought the £11 6*., which he admitted to be due, into Court, and further pleaded that a warranty had been given with the engine, alleged a breach, and claimed £20 damages, and counter-claimed for breach of warranty and fraudulent misrepre- sentation, and claimed £30 damages. When the case appeared in tiie list for trial, the plaintiff had only two cotinsel, both juniors, and the case was made a remnant for want of time to hear it. Before the next sittings, plaintiff called in si Q.C. At the trial there were six witnesses examined for the plaintiff, and several for the defendant, and a long corre- spondence was put in evidence. There was a verdict for the plaintiff for £10 over the amount lodged in Court, and also find- ings on the counterclaim for the plaintiff. Plaintiff's solicitor did not personally attend on the taxation of costs, and the Taxing Officer disallowed one guinea of three on the case for proofs to senior and junior counsel, and also disallowed the fee for consul- tation between the two junior counsel, and disallowed the brief and fee for the third counsel. The plaintiff objected to the disallowance, and the Taxing Officer reviewed his taxation, and allowed these items upon plain- tiff's solicitor attending and giving an explanation of the special circumstances which had arisen in the case, and producing counsel's certificate for consultation. From the decision of the Taxing Officer, allowing these items, the defendant now appealed. Meredith, for the defendant, referred to schedule 3 of the C. L. P. Act, 1853 ; Galway Election Petition (1), Robb v. Atne, p. los; Connor (2), Smith v. Barry (3) ; Morgan and Davey's Chancery Ante, p. 135. Costs, 2nd ed., 489. (1) 7 Ir. L. T. Eep. 189, Ir. E. .7 C. L. 445. (2) 9 Ir. L. T. Rep. 115, Ir. K. 9 Eq. 373. (3) L. R. 19 Eq. 473. 474 Thompson Brothers v. Bolton. Excli. Div. Bynd, for the plaintilT, argued that there was nothing to prevent a consultation between two junior counsel, and also tliat the case was one which the Taxing Officer in his discretion might hold to be fit for three counsel. The trade character of the plain- tiif was involved, as the engine had been used by him for years before he sold it, and therefore any misrepresentation concerning it must have been deliberate. The proof of value of the goods taken by the defendant was both difficult and complicated. Dowse, B., held that the Taxing Officer had properly exercised his discretion. The Court would not, as a rule, interfere unless a question of principle was involved, the exception being extreme cases, and in these latter if the discretion had been plainly wrongly exercised, as, for example, by allowing fees for a number of counsel, the Court would interfere. The nature of the action, though at first sight simple, appeared to him to be of sufficient importance to justify the emploj^ment of three counsel. The Irish Practice differs from the English. In the Englisli Courts the leader opens the case, examines witnesses, cross examines, and closes ; in Ireland the work is shared. Andrews, J., concurred, except as to allowing three counsel. His Lordship could not see anything in the circumstances of the case rendering three counsel necessary. The Court made no rule on the motion, and as the plaintiff had succeeded on two items, and the Court is divided on the question of allowing third counsel, the defendant should pay the costs of the motion. Order accordingly. Plaintiff's solicitor : S. C. M'Cormich. Defendant's solicitor : Wm. Sterne. In re Greville's Settlement. 475 /n w GREVILLE'S SETTLEMENT. Kay,j. 1888. iBy permiision, from 40 Ch. D. 441 ; ». u. 37 W. R. 160, 58 L. J. Cll. 256, 60 L. T. 43.) Deu.' 11.' Solicitor and Client — Bemmieration — Scale-charge — Sale — Land out of Jurisdic- tion — Irish Land — Lord Ashbourne's Act, Purchase of Land {Ireland) Act, 1885 (48 (t 49 Vict., c. 73)— Solicitors' Bemmieration Act, 1881 {U dk 45 Vict., c. 44), General Order under Rule 2 (a), Schedule I., Part I. The General Order under the Solicifcora' Remuneration Act, 1881, fixing a scale charge does not apjily to a sale of land not situated in England. Thus, where an English solicitor carried out a sale under Lord Ash- bourne's Act, the Purchase of Land (Ireland) Act, 1885, of land in Ireland belonging to a client, and employed an Irish solicitor to do so much of the work as had necessarily to be done in Ireland : Held, that the English solicitor's remuneration was not regulated by Schedule T., Part I. to the General Order under the Solicitors' Remu- neration Act, 1881. Summons to Review Taxation. — In Februarj', 1886, Mr. Greville, wlio was, under liis marriage settlement, dated in 1870, the tenant for life of certain estates in the County of Roscommon in Ireland, consulted an English firm of solicitors in London with reference to a proposed sale of portions of the estates to the tenants under the provisions of Lord Ashbourne's Act, " The Purchase of Land (Ireland) Act, 1885." Preliminary negotiations with the tenants were then made by an Irish land agent on Mr. Greville's behalf, and the sales were eventually carried out and completed under the powers of that Act through the English firm, who pre- pared the abstracts of title, and did all the work which could be done in England ; but, in order to complete the sales and to carry- out the legal work which, under the rules of the Irish Land Com- mission, had necessarily to be done in Dublin, they employed a firm of solicitors in Dublin. In May, 1888, the English firm delivered to Mr. Greville a detailed bill of costs in relation to the sales in accordance with Schedule II. to the General Order under the Solicitors' Remunera- tion Act, 1881. They also delivered a cash account, including the charges of the Dublin firm, of which the English firm had them- selves already paid part and subsequently paid the remainder. No election had been made by the English firm under Rule 6 of- 476 III re Grevilles Settlement, Kay, J. tlie General Order under the Solicitors' Remuneration Act, 1881, 1888 • to accept their remuneration according to the old practice as altered by Schedule II. to the General Order. On the 10th of July, 1888, Mr. Greville and the trustees of his settlement applied for and bbtained the usual order for taxation of the bill, and the bill was duly taxed thereunder. Subsequently the apphcants carried in objections to the Taxing Master's certificate on the ground that the bill, so far as it related to completed sales,' should have been made out according to the scale in Schedule I., Part L, to the General Order under the Solicitors' Remuneration Act, 1881, and that the scale-charge only should be allowed in respect of such sales, together with the other allowances under paragraph 4 of such General Order. The Taxing Master over- ruled these objections, stating in his answers to them that all the sales wliich were completed were carried out under Lord Ash- Ijourne's Act through the Land Commission in Dublin ; that the Dublin firm transacted that part of tiie business which could not have been transacted in England; that Schedule I. of the General Order under the Solicitors' Remuneration Act did not apply to property out of the jurisdiction of the Supreme Court ; that Lord Ashbourne's Act provided that the Irish Lord Chancellor should make a Genei*al Order with respect to the remuneration of solici- tors in Ireland ; and that the Order which was in fact so made regulated tlie charges of the Dublin firm, but that the charges of the English firm were governed by Schedule II. of the General Order under the Solicitors' Remuneration Act. Mr. Greville and his trustees then took out this summons to have the objections to the taxation allowed, and the Taxing Master's certificate referred back to him to be varied accordingly. Section 21 of Lord Ashbourne's Act, Purchase of Land (Ireland) Act, 1885, is as follows : — " Rules for carrying this Act into effect shall be deemed to be rules under the Land Law (Ireland) Act, 1881, and shall be made by the Land Commission accordingly, and forms and tables shall be settled or adapted by the Land Commis- sion for the purposes of this Act." On tlie 5th of December, 1887, rules were issued by the Irish Land Commission under the Irish Land Acts, including Lord Ashbourne's Act, in relation to the acquisition of land by tenants. Til re Greville's Settlement. 477 it being provided by Rule 107 that, in the absence of any special ^<^y^ ^■ agreement between a solicitor and his client, the costs of sales and proceedings nnder the Act should be regulated partly by the schedule of fees in the appendix to the rules, partly by the schedule of fees then in force in relation to proceedings before the Land Judges, and partly by the schedule of fees in force before the General Order in Ireland under the Solicitors' Remuneration Act, 1881, as amended by Schedule II. to such General Order. Millar, Q. C, and R. F. Norton, for the clients '. — We submit that the solicitors are only entitled to the scale- charge allowed by Schedule I., Part I., to the General Order under the Solicitors' Remuneration Act, 1881. That Act applies to Ireland, and is, in fact, independent of locality. Rule 2 (a) of the General Order, in requiring that sales and purchases sliall be regulated by Part I. of Schedule I., contains no limit as to place. Any payments made bj- the English firm to the Dubhn firm should, we admit, properly be allowed to them under Rule 4, as disburse- ments, in addition to the remuneration prescribed by Schedule I. The principles of remuneration laid down by Section 4 of the Act apply equally to Ireland as to England. Marten, Q.C., and Warrington, 'for the English solicitors : — We submit that the scale-charge does not apply to purchases and sales of land in Ireland, being applicable only to the sale of land in England. Here the sales were made under Lord Ash- bourne's Act, and under that Act rules have been issued for the remuneration of solicitors in Ireland in the case of any such sale. So that these rules exclude the operation of any others in cases of sales under that Act. In fact, the scale-charge provided by the General Order under the Solicitors' Remuneration Act, 1881, can only apply, and is intended only to apply, to the ordinary case of a sale in England : it is inapplicable to the peculiar modes of sale under Lord Ashbourne's Act, or any other of the Irish Land Acts ; it is not adapted to any sale of property out of the jurisdiction. The Solicitors' Remuneration Act really contemplates rules being made by two independent authorities in England and Ireland ; and, in point of fact, there is a General Order in force under the Act for 478 In re Grevilles Settlement. Xay, J. Ireland as distinct from England. The English Order has no 1 ftSfl- application to Irish property at all. Even assuming the General Order does apply to a sale of property out of the jurisdiction, Rule 2 (a) directs that the scale^charge is to apply where the solicitor has "the conduct of the business." Here the English solicitors did not have the conduct of the business in Ireland relating to the sale. Again, the scale-charge only applies to business, the whole of which is done by the solicitor : In re Lacey Ante, p. 238. and Son (1). Here the whole of the work relating to the sale was not, and could not have been, done by the English firm, Norton, in reply : — The English firm had "the conduct of the business" within Ivule 2 (a). They did the bulk of the work, employing an agent to do what they could not actually do themselves. Kay, J. :— A vendor of land in Ireland, which was recently sold under Lord Ashbourne's Act, complains of the mode of taxation of iiis solicitors' bill of costs in England, on the ground that the Taxing Master has not allowed the scale^fee. He says the Taxing Master ought to have allowed the scale-fee, although the land is in Ireland ; and he says so because, to use the language of Lord Justice Ante, p. 247. Lindley in In re Lacey Sf Son (1), " substantially the whole of the work mentioned" (in Schedule 1., Part I;, to the General Order under the Solicitors' Remuneration Act of 1881)-^" i.e., deducing the title and perusing and completing the conveyance," has been done by the London solicitors. Now, Schedule I., Part I., gives a scale fee to the vendor's solicitor of so much " for negotiating a sale of property by private contract," so much "for conducting a' sale of property by .public auction," and so much " for deducing title to freehold, copyhold, or leasehold property, and pernsing and completing conveyance (including preparation of contract, or con- ditions of sale, if any)." The argument is that, the work having been done by the English solicitor, he was bound to charge only the scale-fee. If he wanted to protect himself he might, before undertaking the work, have said : " I will not do this work for the (]) 25 Cb. D.301, 310. Ill re Grevilles Settlement. 479 scale-fee." Of course the client raisht have said to the solicitoi-, Km/, J. " Now mind, before I put the work into your hands you are not to charge the scale-fee." Nothing of that kind was done by either of tliem. I am now asked to say that the scale-fee applies. 'llie argument is this : this land is in Ireland, but it does not matter where the land is — it may be in any part of the world — and if the English solicitor deduces the title, peruses the convey- ance, and completes it by obtaining the vendor's signature or execu- tion, then he is entitled to the scale-fee, and he is bound to charge the scale-fee unless there is a different contract. The question is, what does the Solicitors' Remuneration Act, 1881, mean? I look at the Act, and I find this> The 2nd section provides that General Orders may be made " for prescribing and regulating the remune- ration of solicitors in respect of business connected with sales, purchases, leases, mortgages, settlements, and other matters of conveyancing, and in respect of other business not being business in any action, or transacted in any Court," and so on. Sect. 4 is this : " Any General Order under this Act may, as regards the mode of remuneration, prescribe that it shall be according to a scale of rates of commission or percentage, varying or not in different classes of business, or by a gross sum, or by a fixed sum for each document prepared or perused, without regard to length, or in any other mode, or partly in one mode and partly in another or others, and may, as regards the amount of remuneration, regu- late the same with reference to all or any of the following, among other, considerations — namely, the position of the party for whom the solicitor is concerned in any business, that is, whether as vendor or as purchaser, lessor or lessee, morgtagor or mortgagee, and the like ; the place, district, and circumstances at or in which the business or part thereof is transacted; the amount of the capital motley or of the rent to which the business relates ; the skill, labour, and responsibility," and so on. Now, it was under and with reference to that Act that the present General Order was made ; and, in the first place, I observe that there is not a word in the General Order about the place or district in which the business is transacted. The first rule of the Order is as follows : " This Order is to take effect from and after the 31st day of December, 1882, except that Schedule I. 480 In re Greville'is Settlement. Kay, J. hereto shall not apply to transactions respecting real property, I QUO X X •/ the title to which has been registered under the Acts," mention- ing certain English Acts. The second rule is this : " Subject to the exception aforesaid, the remuneration of a solicitor in respect of business connected with sales, purchases, leases^ mortgages, settlements, and other matters of conveyancing, and in respect of other business, not being business in any action, or transacted in any Court, or in the Chambers of any Judge or Master, is to be I'egulated as follows." That follows exactly the words of sect. 2 of the Act of Parliament. Then the rule gives the different classes of business. Sub-rule (a) is : " In respect of sales, pur- chases, and mortgages completed, the remuneration of the soli- citor having the conduct of the business, whether for the vendor, ])urchasei', mortgagor, or mortgagee, is to be that prescribed in Part I. of Schedule I. to this Order, and to be subject to the regulations therein contained." Now, I turn at once to the schedule. It deals separately with sales, purchases, and mortgages ; and it provides fof the remune- i-ation, not only of the vendor's solicitor, but also of the purchaser's solicitor. The argument is that, no matter in what part of the world the sale may be, these rules apply. Take, for example, a remote part of Russia ; suppose the purchaser to be a Russian subject out thei'e, do the rules apply to him? Most clearly tliey do not, unless he employs a solicitor in England. The real ques- tion is, What does the Order mean? The schedule says, with respect to the vendor's solicitor, " for deducing title to freehold, co]iyhold, or leasehold property," and I have read from the first rule of the Order an exception as to real property, the title of which is registered in England. Now, "real property" has no meaning with respect to many foreign countries — there is no such thing in our sense ; and in this schedule I find this :• " Vendor's solicitor for deducing title to freehold, copyhold, or leasehold property." In many countries of the world such a thing as copy- hold property was never heard of. Am I to read this Act as applying to "freehold, copyhold, or leasehold property" in any part of the world, whereas in many parts of the world not one of those three words would have any meaning at all ? For instance, I am not sure that "copyhold" has any meaning at all except in In re Grevilles Settlement. 481 England. In my opinion that was not the intention of tlie Act. A'a.v- ^■ 1888 There are very many reasons, indeed, why one should not construe the Act as including the sale of property in foreign countries unless one is obliged, and those reasons seem to me to be moi'e in favour of the client than of the solicitor ; but, apart from any such considerations, I cannot find in the Act, or in the General Order under it, any intimation that the Order is to apply to pro- perty which is not in this country, or which, according to the argument, is in any part of the world. It is said that there is no harm in putting that interpretation upon the Act and Order, because in any such case the solicitor can only charge — according to the decision in In re Lacey Sf Son (1) — in case he does all the ji„ie^ p. 238. W^rk, that is, deduces the title, prepares the conveyance, and completes it, Even in the case of property in England, he is not entitled to the scale-fee unless he does all that ; and of course he would not be entitled to the scale-fee in respect of property abroad unless he does all that. It would be obvious and apparent to ever3-one that, if the sale is of property abroad, although in some sense he would do the work, a great part of the work must of necessity be done over again by some agent employed in tiie place abroad ; and although he might make out an abstract of his own, and peruse the conveyance that is sent over and get his client to execute it, in my opinion he would not bring himself within the General Order. Take, for example, the case of a sale of land in New Zealand. The sale — or, at any rate, the conveyance — of land in New Zea- land is carried out in a manner entirely different from that in England. There is a registration of the assurance, which is not complete and perfect until it is registered. The business is such that an English solicitor, although he might possibly obtain the execution of the instrument of assurance itself, could never be able to carry out without employing a colonial solicitor ; and in tlie case of land in ajiy other foreign country, although the solicitor in this country might bring himself within the letter of this General Order by deducing the title, by perusing the assurance, and bv completing it by obtaining the signature of his client, yet by reason of the usage, and in most cases the law, of the foreign (1) 25 Ch. D. 301. 482 In re Grevilles Setllemenf. J^an, J- country being different to the usage and law of this country, he must of necessity employ, to do all the essential part of the work, some skilled person in the foreign country. It is said, " That is right ; so he should ; and he would be allowed all proper charges for that." But the case now before me is a perfect illustration of the difficulty that would arise from putting that construction on the General Order. Here the sale has taken place under Lord Ashbourne's Act. The Solicitors' Remuneration Act applies to Ireland, and rules are to be made in Ireland to carry it out. But in Ireland in certain cases Lord Ashbourne's Act excludes the application of this Act, and provides for a peculiar mode of carrying out the sale by application to the Land Commissioners' Court, or some Court constituted in Ireland which has to watcjh the proceedings, and especially to secure the money which is charged Upon the land and not actually paid over. All that has to be done, and in this case has been done, by solicitors in Ireland ; and I have a very strong belief that, if the scale-fees were actually charged and there were allowed, besides, such disburse- ments as were fair and reasonable to the Irish solicitors, the vendor would find it to his disadvantage, for he would have to pay a great deal more than he has to pay under the present taxation. However, I do not find in this Act of Parliament, or in the General Order under it, any indication that the scale- charge is to apply in case of a sale of property out of the juris- diction of the English Courts ; and if that had been the intention, 1 should have expected very much more distinct words to show it, specially when I find that the Act of Parliament does sa.y that any General Order under it may regulate the charge with respect to the " place, district, and circumstances at or in M'liich the business or part thereof is transacted." I find nothing in this Order to contemplate the transaction of the business of a sale and conveyance of land which is out of the jurisdiction of the Courts of England. I wish to put my judgment on the broadest ground possible, because the point is a very important one, and it may be necessary to carry it further now or at seme other time; and I hold that the Order under this Act does not apply, and was not intended to apply, to the sale of land which is not in England. Parker v. Blenkhorn. Newhould v. Bailward. 483 I dismiss the summons with costs, including the costs of tlie Kay,,!. ' ° 1888. reference back to the Taxing Master. Solicitors : Bloxam, Ellison, ^ Co. ; Colly er-Bristow, Withers, Russell Sf Hill. Nov. 29. PARKER AND OTHERS, Appellants; and CATHERINE B. l.(e.) BLENKHORN, Respondent. ^ ^^^^' WILLIAMSON NEWBOULD, Appellant; ajvd BAILWARD AND OTHERS, Respondents. ^By permission, from 14 App. Cas. 1 ; s. o. 37 W. E. 401, 59 L. T. 906.) (House of Lords.) Solicitor and Client — Costs — Taxation — Remuneration for conducting sale hy auction when Auctioneer paid by Client — Scale fees — Solicitors' Remuneration, Act, 1881 (44 Sf 45 Vict. c. U)^Gen. Ord., 1882, ss. 2, 4, 6, Sched. I., Parti., r. 11. Part I. of Sched. I. to the General Order of 1882 made in pursuance of the Solicitors' Remuneration Act, 1881 (44 & 45 Vict. c. 44) pre- scribes an ad valorem scale-fee for conducting the sale of property by- public auction, and rule 11 provides that "the scale for conducting a sale by auction shall apply only in cases where no commission is paid by the client to an auctioneer." Where the auctioneer's commission is paid by the client : — Held, reversing the decision of the Court of Appeal, that rule 1 1 does not deprive the solicitor of all remuneration for work done in respect of the conduct of the sale, but that under the General Order, sect. 2, sub-sept, (c), he is entitled to a quantum meruit for such work, the remuneration to be regulated according to the old system as altered by Sched. II. In re Newhould (20 Q. B. D. 204) reversed. In re Faidkner (36 Ch. D. 566) approved. These two appeals were heard together, both raising the same question under the General Order of 1882, made in pursuance of the Solicitors' Remuneration Act, 1881 (44 & 45 Vict. c. 44). The following extracts from that General Order, and the schedules and rules bear upon the point in question : — " 2. Subject to the exception aforesaid, the remuneration of a solicitor in respect of business connected with sales, purchases, 484 Parker v. Btenhhorn. Newbould v. Bailward. ^- L- leases, mortgages, settlements, and other matters of conveyancing, and in respect of other business, not being business in any action or transacted in any Court, or in the chambers of any judge or master, is to be regulated as follows, namely : — " (a.) In respect of sales, purchases, and mortgages completed, the remuneration of the solicitor having the conduct of the busi- ness, whether for the vendor, purchaser, mortgagor or mortgagee, is to be that prescribed in Part I. of Schedule I. to this Order, and to be subject to the regulations therein contained. " {b.) In respect of leases, and agreements of leases, of tlie kinds mentioned in Part II. of Schedule I. to this Order, or con- veyances reserving rent, or agreements for the same, when the transactions shall have been completed, the remuneration of the solicitor having the conduct of the business is to be that pre- scribed in Part II. of such Schedule I. " (c.) In respect of business not hereinbefore provided for, con- nected with any transaction the remuneration for which, if com- pleted, is hereinbefore, or in Schedule I. hereto, prescribed, but which is not, in fact, completed, and in respect of settlements, mining leases or licences, or agreements therefor, re-conveyances, transfers of mortgage, or further charges, not provided for herein- before or in Schedule I. hereto, assignments of leases not by way of purchase or mortgage, and in respect of all other deeds or documents and of all other business the remuneration for which is not hereinbefore, or in Schedule I. hereto, prescribed, the re- muneration is to be regulated according to the present system as altered by Schedule II, hereto, " 4. Tiie remuneration prescribed by Schedule I. to this Order is not to include stamps, counsel's fees, auctioneer's or valuer's charges ... "6. In all cases to which the scales prescribed in Schedule I. hereto shall apply, a solicitor may, before undertaking any business, by writing under his hand, communicated to the client, elect that his remuneration shall be according to the' present system as altered by Schedule II. hereto ; but if no such election shall be made, his remuneration shall be according to the scale pi'escribed by this Order." Schedule I., Part I., prescribes a scale of charges to be made Parker xi. Blerikhorn. Newhonld v. Bailward. 485 by the vendor's solicitor " for conducting a sale of property by J^V;. public auction, including the conditions of sale," and a further scale " for deducing title to freehold, copyhold, or leasehold pro- perty, and perusing and completing conveyance (including pre^ paration of contract, or conditions of sale, if any)." The material part of Eule 11 of Schedule I., Part I., is as follows : — " 11. The scale for conducting a sale by auction shall apply only ill cases where no commission is paid by the client to au auctioneer ... In case of sales' under the Lands Glauses Consohdation Act, or any other private or public Act under which the vendor's charges are paid by the purchaser, the scale shall not apply." In Parker v. Blenkhorn the facts were as follows : — A firm of soli- citors, Parker, Garrett & Parker, were employed by the first mort- gagee of freehold property in respect of a sale of the property by public auction. The solicitors instructed auctioneers tosell, and themselves attended the sale and did other Work in respect of the conduct of the sale. The solicitors paid the auctioneers' charges, which included a lump sum in lieu of a percentage, and included these charges in their bill of costs. The solicitors did not charge under Schedule I., Part I., the ad valorem scale-fee for conducting a sale by public auction, but they charged various items for the attendance at the sale and other work done in respect of the conduct of the sale. They also charged the scale-fee "forder ducing title," &c. There being a small surplus after paying off the first mortgagee, the question of the solicitors' charges arose between them and the second mortgagee, the present respondent, who took out a summons for taxation. The Taxing Master disallowed the items charged in respect of the conduct of the sale upon the authority of In re Newbould (1) This decision was affirmed by Chitty, J., and the learned judge's decision was affirmed by the Court of Appeal (Cotton, Fry, and Lopes, L.JJ.) upon the same ground. Against this decision the sdicitors and the first mortgage*? appealed. (1) 20 Q. B. D. 201. 2 I 480 Parker v. Blenkhorn. Newhould v. Bailward. JIJ'- Sir Horace Vavey, Q.C. (R. S. Wright with him) :— The case falls withiri Rule 11, a lump sum jn lieu of a per- Nov. 27,29. centage being no doubt " commission " within tlie meaning of that rule. The items are not in dispute, and the only question is whether /?i re Newhould (1) was rightly decided. There it was held that in a case like the present where by Rule 11 of Schedule I., Part I., the solicitor cannot charge the scale-fee, because the auctioneer's commission is paid by the client, the solicitor is en- titled to no remuneration for all the work he does in respect of the conduct of the sale. If this be the true construction of the General Order and Schedules, the result is strange ; the solicitor re- ceives notliing for some of the most important workhehas iof^o—e.g., advising the client as to the reserve price, seeing that the particulars are accurate, attending the sale to receive the purchase-money and answer questions about title, &c. The Court of Appeal in In re Newhould (2) read Rule 11 of Schedule I., Part I., as if it said that where the scale does not apply the solicitor shall receive no remuneration. But the words in the beginning of Rule 11 "shall apply only " are the same as at the end where it is provided that '• in case of sales under the Lands Clauses Consolidation Act tlie scale shall not apply." No one would contend that the solicitor is not to be remunerated in sales under the Lands Clauses Con- solidation Act : then why is he not in sales by public auction? The matter is dealt with by General Order, sect. 2, sub-sect, (c), which says that in respect of all other business not thereinbefore provided for the remuneration is to be regulated according to tiie former system as altered by Schedule II. thereto, in other words, upon a quantum meruit. The appellant's contention is clearly put by North J., in In re Faulkner (3), where the point now in ques- tion was rightly decided. The principle of remuneration on a quantum meruit under the old system was recognised by the Court Anie, p. 238. of Appeal in In re Lacey Sf Son (4) in a question under the head Ante, p. 278. of deducing title. The cases of In re Field (5) and In re Emanuel Ante, p. 332. ^ Simmonds (6), relied on by the Court of Appeal in In re New- hould (J), were cases of leases, and liave no application to sales. (1) 20 Q. B. D. 204. (5) 29 Ch. D. 608. (2) 20 Q. B. D. 204. (6) 33 Ch. D. 40. (3) 36 Ch. D. 566. (7) 20 Q. B. D. 204. (4) 25 Ch. C. 301, Parker v. Blenkhonu Newbould v. Dailuoard. 487 Cozeiis-Hardy QC, and Oswald, for the respondent : — '^- ^• The object of the Solicitors' Remuneration Act, 1881, was to exempt clients from the long-detailed bills of costs and charges, the amount of which they could not ascertain beforehand, and to make them liable to pay only according to a scale which they could calculate. If a solicitor does not wish to be remunerated according to the scale, he has his election ; he may under General Order, sect, 6, by agreement with the client, elect that his re- muneration shall be under the old system as altered by Schedule II. Again, if he thinks it worth his while he may in the case of a sale by public auction pay the auctioneer's commission himself, and charge the client with the ad valorem scale-fee for conducting the sale, and this course he will take if the commission is small and the scale-fee large. If, on the other hand, the auctioneer's commission is large and the scale-fee is small, he can make the client pay the auctioneer's commission, but in that case he can make no charge at all in respect of the conduct of the sale. The object of the order and the rules was to have only one and not two conductors of tiie sale. If the solicitor comes under the scale at all he must remain under it ; he must take the rough witli the smooth, and cannot take advantage of it in part and escape from it where it is disadvantageous. He must elect befoi-e he begins the work, or not at all : In re Allen (1) ; Hester v. Hester (2). ^"^^ P- 3*3. According to the appellants' contention the solicitor can wait till the last moment when he delivers his bill before deciding whether to take the scale-fee and pay the auctioneer's commission himself, or to make the client pay the latter and be remunerated himself under the old system. If Rule 11 had intended that consequence, words would have been inserted similar to those in Rule 10 about mortgages : " As to such transfers and further charges, the re- muneration is to be regulated according to the present sj'stem as altered by Schedule II. hereto." The interpretation put by the appellant on General Order, sect. 2, sub-sect, (c.) will not hold, because the business " thereinbefore provided for," viz , by sub- sect. {«.) Rule 11 controls General Order, sect. 4, which, but for Rule 11 would enable the solicitors to charge the ad valorem scale-fee and make the client pay the auctioneer's commission : (1) 3i Oh. D, 433. (2) 3i Ch. D. 607. 488 Parker v. Blenkhorn. Neiohould v. Bailward.^ if- 1^. In re Wilson (1). The decisions as to leases are strictly applicable to cases of sale, there being no difference in principle. Sir Henry Dauei/, Q.C., in reply; — Jn re Wilson (2) is in the appellants' favour, for there, though the point is not argued, the Court of Appeal allowed a quantum, meruit remuneration. The appeal in NewhouldY. Bailward was then heard. Tliere a similar question arose between the vendor, Bailward; and his solicitor, Newbould, under the circumstances set forth in the report of the decision of the Court of Appeal (3). Bowen Rowlands, Q.C. {Arthur Yates i^- F. C. Philips Vfith him), for the appellant. Lumley Smith, Q.C, §• G. E. S. Fryer, for the respondents. .' The arguments were the same as in Parker v. Blenkhorn. Lord Halsbuky, L.C. :— My Lords, in the case of Parker v. Blenkhorn as in that which follows, it appears to me the question lies within a very narrow compass. I absolutely decline from myself to inquire into the merits of the original taxation, as to whether there was a meritorious claim by the solicitor or the reverse. The sole question which I believe is befoi'e your Lordships now is the true construction of the Act of Parliament and the rules made thereunder, and that question appears tQ be reduced to this, whether the language of the General Order, Section 2, and the sections and rules which follow it are to receive this application : that wherever the business done by a solicitor for a client is the subject of taxation, and it can be affirmed that the particular scale does not apply, your Lordships are by construction to add that if the scale does not apply no other remuneration shall be recoverable. My Lords, I can find nothing justifying such interpretation in either the Statute or the General Order made thereunder, or the rules made under the General Order. The scheme of the Statute (1) 29 Ch. D. 79\ 794-5. ) 29 Ch. D. 790, Z9J-5. (3) 20 Q. B. D. 204. Parlcer v. Blenkhorn. Newhonld v. Bailward. 489 of the General Order appears to me to be intelligible enough, that ^- ''■ in respect of certain specific business which may or may not vary in the amount and degree of care and experience requiring the performance of it, but as to whicli it is possible for the Court beforehand to prescribe wiiat shall be a reasonable amount for such business so done ; that in respect of all such business coming within the scale which is by the Statute and by the General Order applied to such business, that shall be the amount of remuneration which shall be recoverable. The Statute did not mean, and the General Order did not purport to enact that those scales shall be exhaustive ; on the contrary, in sub-section (c) of Section 2 there is the express exception of " business not hereinbefore provided for," which in substance enacts that that business shall be charged foi- as hereto" fore. I say " as heretofore," because although that is qualified by the expression " as altered by Schedule II.," Schedule 11. provides not exhaustively at all, but only in respect of certain matters, a change in the actual amount of the charges to be made therein prescribed, and it leaves untouched a very large class 6i business which is to be paid for according to the existing system. The problem which your Lordships are called upon to solve is whether in the word "regulated" in Section 2, and the words " subject to the regulations therein contained," that is, contained in Part I. of Schedule I. to this Order, or in tlie language of Rule 11, there is or is not comprehended the implied — certainly not expressed — enactment that no other charges shall be re- coverable. By the consent of all the learned persons who liaVe been engaged in the controversy on this subject, this is a case which comes within the first three hnes of Rule 11. Those words are "the scale for conducting a sale by auction shall apply only in cases where no commission is paid by thei client to an auctioneer." It is agreed by all that this is not a case to which within that language the scale applies. As I pointed out in the course of the argument, the latter part of the vei-y same' rule provides that in cases of sales under the Lands Clauses Consolidation Act, and so forth, the scale shall not appl3^ If the same construction is to be given to the last part of Rule 11, whicli it is contended is to be given to the very same words in the earlier part of the clause — namely, the words 490 Parker v. Blenhhorn. Newhould v. Bailward. ^•^- "shall not apply," it reduces the construction of that rule to an 1888. ^^ •' absurdity. The learned counsel for the respondents themselves are compelled to admit that with reference to the latter part of the I'ule you must apply the construction which they repudiate as being applicable to the first part of the rule, and for the very obvious reason that if in the latter part of the rule you are to add the words that no remuneration whatever shall be recoverable (which are the words they seek to introduce by construction into the earlier part of the rule), for some I'eason or other which no one has been able to assign, the Legislature has taken away from pro- fessional men engaged in such transactions all remuneration what- ever for conducting sales under the Lands Clauses Act. My Lords, that is too absurd a construction to be insisted upon. But if that is too absurd, how comes it that in the very same rule as applicable to the very same subject-matter we are to understand the words "shall not apply" in one sense in the one case and give a totally different construction to the same words in the other ? My Lords, it seems to me there is no foundation whatever for saying that this case is in any way governed by the authorities on leases which have been refeiTcd to. The Court may or may not have been right when they held that the business for which remu- neration was sought was included in the scale as applicable to leases. That decision ma}' have been right or wrong, but what relevancv has it to this case? If the business was included in the scale applicable to leases, then the scale would apply and no question would arise. If the scale applied, the solicitor seeking to recover was bound by the scale. The simple proposition appears to me to be, that wherever you have established a scale-work you must i-ecover and can only recover scale-charges. With that exposition of the Statute, it seems to me that it is simple enough in its enact- ments, leaving uncovered anything except that to which by the Statute and by the General Order and Kules made thereunder the scale applies. My Lords, that is simply the whole proposition, and if I were able to follow the premise of the Master of the Rolls in the judg- ment he has delivered in the case of In re Kewlould (1), I should be obliged to follow him in his conclusion, but I differ from liim (1) 20 Q. B. D. 204. Parker v. Blerikhorn. Newhould v. Bailward. 491 because I am wholly unable to adopt his language when he says : If- ^• " If he can bring himself within any part of that scale, he is entitled to fees according to that scale. If he cannot, he is not entitled to be paid anything." My Lords, I am wholly unable to find any trace of such a mean- ing in the Statute or in the General Order and Rules ; and there- fore, as regards the first case under appeal before your Lordships, I move that the appeal be allowed, but without costs, as arranged between the parties. As regards the appeal in Newhould v. Bailward the same observa- tions apply, and I move j'our Lordships that the appeal be allowed with costs. LoKD Watson : — My Lords, upon the main question which has been raised and argued before your Lordships in these two appeals, I am of opinion with the Lord Chancellor that the judgment of the Court of Appeal must be reversed. I agree with all the observations which have been made by the noble and learned Lord ; and for myself I only desire to add that the effect of the General Order when read, together with its Schedules and with the Rules, appears to me to be simply this, that solicitors employed to sell property who do not avail themselves of the provisions of Article 6 of the Order become entitled to remuneration according to the existing sj'stem as altered by Schedule II., except in the case of professional work to which Schedule I. applies, and for which a scale fee is payable in teirms of that Schedule. The constantly recurring expression that the scale " shall not apply " cannot, in my opinion, be reasonably inter- preted as signifying that in cases where it is inapplicable the solicitor is to be deprived of all remuneration for his work. LOED Macnaohten :— My Lords, I quite concur. I cannot agi-ee with the Court of Appeal that there is no distinction to be found in the remuneration order between the treatment of business connected with sales and the treatment of business connected with leases. It appears to me that there is a very marked and a very important distinction. All 492 Parker v. Blenkhorn. Newhould v. Bailwardl Jf- ^' the business connected with a lease from the commencement of the transaction down to its completion is treated as one single operation to be remunerated by one charge. The business con- nected with the sale (whether the sale be by private contract or by siuctioh) is divided into two parts or stages. There is the prelimi- nary stage before the relation of vendor and purchaser is established. There is the final stage, which covers the deduction of title and the perusal and completion of the conveyance, and includes (as more akin to the business belonging to that stage of the transaction) the preparation of the contract or conditions of sale, if any. For each of these two parts a separate charge is prescribed in. the scale scliedule. If a solicitor is witJiin the scale as regards one of these ]iarts, is he not to be remunerated for his services in regard to the other part of the transaction, unless he can bring himself within the scale as regards that part also % That is the whole question. There is some obscurity in the language of the Order. No doubt it would have been clearer if in the scale schedule a note had been appended in the first column to the effect that when the scale did ilot apply, the solicitor's remuneration in respect of business which would be covered by the scale fee, if tiie scale applied, was to be regulated according to the old system as altered by Scliedule II. But this is, I think, the true effect of the Order when the scale schedule is read in connection with Clause 2 of the Order and its sub-sections and with Rule 11. 1 am therefore of opinion that Mr. Justice North was right, and that these appeals ought to be allowed. Parker and Others v. Blenkhorn : Order appealed from and order of the Chancery Division thereby ffffirmed reversed, with a direction that the bills of costs in the pleadings mentioned be referred back to the Taxing Master for further taxation. Cause remitted to tlie Cliancery Division. Newhould v. Bailward : Order appealed from and Order of the Queen's Bench Division thereby affirmed reversed with costs here and below the repayment of costs already paid, with a direction that the bill of costs in the pleadings mentioned be referred back to the Taxing Master Ex parte Strange. 493 for further taxation. Cause remitted to the Queen's Bench H. Z. Division. Lord's Journals, 29th November, 1888. In Parker v. Blenkhorn : Solicitors for appellants : Parker, Garrett Sf Parker, Solicitors for respondent: A. M. Bradley, for Berry Sf Berry, Huddersfield. In Newbould v. Bailward : Solicitor for appellant: W. Newhotdd. Solicitors for respondents : W. Sf F. Flower ^ Nussey. In the Batter of THE SOLICITOKS' REMUNERATION v. c. ACT, 1881 ; JEx parte STRANGE. (By permiision, from 21 L, R, Ir, 529). Costs — Taxaticm — Solicitors' Remwneration Act, 1881 {44 <^ 4^ Vict., c. 44} — General Order, 1884, Schedule II. — Journeys and atteiidanees not con- nected with conveyanciiog. A solicitor, who was employed by a Board of Guardians to prepare a scheme for the erection of cottages under the Labourers (Ireland) Act 1883, furnished his bill of costs, in which he charged fees of five guineas each for attendances and journeys in connection with the business. The Taxing Officer having reduced these charges to the amount that would have been allowed prior to the passing of the Solicitors' Semuneration Act, 1881 . Held, afiirming the decision of the Taxing Oftioer, that, even assuming such business to come within the Act (which semble it does not), the scale of taxation applicable was that which existed at the time of the passing of the Act, and not any higher one prescribed by the General Order of 1884. Summons to review the Taxing Officer'a certificate. Mr. L. C. Strange was solicitor for the Guardians of the Poor Law Union of Kilmacthomas, in the County of Waterford, in connection witli the carrj-ing out of a scheme under the Labourers (Ireland) Act, 1883 (46 & 47 Vict., c. 60), for the purpose of 1888. Dec. 12, 18. 4^4 Ex parte Strange. ^- C'. erecting labourers' cottages. The scheme, which was adopted by the Guardians, was sanctioned by the Privy Council, on the 5th April, 1887, and had been successfully cai'ried through. Mr. Strange furnished the Guardians with his bill of costs, in respect of the said scheme and the proceedings thereunder, on the 1 st July, 1887, and was served by them subsequently with a requisition for taxation. TliB taxation took place before Mr. Davis, Taxing Officer, when Mr. Strange contended that he was entitled to charge,, under the Solicitors' Eemuneration Act, for the work done and charged for. There were no items of conveyancing costs included in the bill, and the Taxing Officer decided that the costs were not chai'geable under the scale of fees alloived by the Solicitors' Eemuneration Act. In consequence of that ruling, two sets of items in the bill of costs were reduced. The first set of items consisted of charges of £5 5s. each for attendances before the Board of Guardians, and the second set consisted of charges of £5 bs. each for attendances before the Privy Council on the hearing of the case there. The Taxing Officer reduced both sets of items from five guineas to three, the latter being, in his opinion, the maximum rate of remuneration chargeable under the ordinary- scale of fees. Mr. Strange then issued a summons to refer back the costs to the Taxing Officer to re-tax, with directions to allow the various sums disallowed by him, according to the scale set out in the schedule to the Solicitors' Eemuneration Act, 1881. Mr. Cherry, in support of the application : — The meaning of Schedule II. is to regulate all kinds of busi- ness, not merely conveyancing. The headings to the different classes of work show this. There is one heading in capital letters for " instructions for drawing and perusing deeds, AViLLS, AND OTHER DOCUMENTS," another for "attendances," another for "abstracts of title," and another for "journeys FROM home." The break is complete, and shows the journeys from home may be applied to business other than conveyancing. It appears clearly from the copy of the schedules and rules issued by the Queen's printer. Ex parte Strange. 495 Mr. C. L. Mailieson, for the Guardians : — ■ ^- ^• 1888. Unless Schedule II., Eule 2 applies, these costs are to be regu- lated by the ordinary system. If Schedule II., Rule 2 applies, they are to bo regulated by the ordinary system, as modified by Schedule II., Kule 2. The rules are part of Schedule I., and apply only to matters in Schedule I. Schedule I. deals with completed transactions, and the present items do not come under Schedule I. The words " other business " n Schedule II., are words ejusdem generis with those preceding, and must be confined to conveyancing, as distinguished from other business : Stanford v. Roberts (1) ; Ex Ante, p. 248. parte O'Hagan (2). The whole Act must be read in connection Ante, p. 386. with the Conveyancing Act, which was passed the same year, of which it was the supplement; In re Bann Navigation Act, Ex parte OlphertS (.3). Ante,p. 319, Mr. Cherry, in reply. ThK ViCE-ChANCELLOR : — Dec. 18, The question before me arises before the operation of the Solici- tors' Remuneration Act, and the General Order made thereunder. The items in dispute are for attendances and journeys from liome, in respect of business not contentious and not conveyancing. The business with which the Act deals is therein expressed to be busi- ness connected with sales, purchases, &c., and other matters of conveyancing, and other business, not being business in any action, or transacted in any Court or Chamber, and not being . otherwise contentious business. The 2nd Rule of the General Order follows the terms of the Act above mentioned, and divides the business into three classes — viz. : (a) Sales, purchases, and mortgages com- pleted ; (i). leases, and agreements for leases or conveyances, reserving rent, or agreements for the same, where the transaction shall have been completed ; and (c) business not thereinbefore provided for, connected with any transaction, the remuneration for which, if completed, is thereinbefore, or in Schedule I. thereto, prescribed, but which is not in fact completed ; and other deeds or documents, including settlements, and "all other business," the (1) 26 Ch. Div. 155. (2) 19 Ij, K Ir. 99. (8) 17 L. K. Ir. 168. 18S8. 496 Ex parte Strange. y- 0. remuneration for wliich is not thereinbefore, or in Schedule I. thereto, prescribed; and prm-ides that the remuneration for such business is to be regulated according to the present' system, as altered by Schedule 1 1. Schedule I. provides scales of charges for business of a convey- ancing nature, and nothing else ; and the rules appended to the Sch'edule are also conversant only with such business. Schedule II. is headed " Instructions for drawing and perusing deeds, wills, and other documents/' It then gives a short table of charges for such business. Then comes a heading of "Attendances," the charge for which it fixes in ordinary cases, with a provision for extraordinary cases ; and then comes a heading for "Abstract of title,'' witli items of charges ; and, lastly, a heading "Journeys from home," with items for charges - in ordinary cases, and a provision for extraordinary cases. The Taxing Master has ruled that the attendances and journeys in the present case do not come within these rules, and that, whether they come at all witliin the Act or not, they are to be taxed according to the general S3stem of taxation, and that this system has not been altered in such cases by Schedule I[. There appears to me to be ground for contending that such business does not come at all within the Act. The words "other business," in Section 2, apart from the context, are, no doubt, large enough to include every kind of non-contentious business, and the result of this construction would be to authorise the taking all non-contentious business of every kind transacted by a solicitor for his client out of the existing system of taxation. This would be a very great change. It does not appear to be within the pro- visions of the Act, and can scarcely be supposed to have been contemplated, unless the words " other business," are not capable of any other reasonable construction restricting tlieir application. Ante, p. 248. The language of Kay, J., in Stanford v. Hoberts (1), is of much importance on this question. The occasion on vchich this Act was passed, as put by him, must be taken into consideration, and it seems reasonable to suppose tliat the object of the Legislature was to compensate solicitors for the loss likely to be sustained by them through the changes made by the contemporaneous (1) 26 Ch. Div., T55. Ex parte Strange. 497, statute, the Conveyancing and Law of Property Act, 1881. >So ^- C iar^ therefore, as this consideration can be applied, it would require the words " other business " in Section. 2. to be restricted to busi- ness ejusdem generis with the business specified in connection with such "rOther business " — namely, conveyancing business. But supposing that this is not allowable, it is necessary to con- sider the opei'ation of the General Order made under the Act. This Order professes to deal with all the business in respect of which rules are authorised to be made under Section 2. If " other business" is to be restricted, as I have said, there is.no doubt that the items now in controversy are not within these rules. But if these words are not to be so restricted, still it is provided that the existing system is to apply to all " other business," unless so far as that system is altered by Schedule II. The heading of Schedule II.. is dealt with by Mr. Justice Jay as applying to the whole Schedule^ including attendances and journeys from home. These sub-headings can be given effect to by applying them to attendances and journeys from home, in respect of " instructions for drawing and perusing deeds, wills, and other documents." Kay, J., suggested a difficulty in coming to this opinion, founded upon this, that while the rules profess to deal with all the business mentioned in the Act, even supposing that the woi'ds "other busi- ness" are used in the widest sense, still, when we come to look at the operative portions of the rules, we do not find on this restricted construction of them provisions for any but conveyancing business. I do not think that this is so in fact, as Eule 2 (c) does provide that this " other business," whatever it may be, is to be regulated according to tlie present system, as altered by Schedule II. If, then, business other than conveyancing business is supposed to be within the rules, it is expressly provided that the remuneration for it is to be regulated by the existing system. Has, then, the existing system been altered in respect of the class of business, now under my consideration, by Schedule II. ? I am not satisfied that it has been ; and though the point is not free from doubt, I concur in the view which I understand Kay, J., to have entertained — an opinion that the whole of Schedule II. should be regarded as con- fined to conveyancing business. 498 //* re Atkinson S,- Sons. y- 0. A question arose in lie O'Hagan (1) upon this Act, and the Ante, p. 386. rules made under it, which, though not directly in point, seems to me to have an important bearing on this question. The question was whether the costs of cases for counsel in business which was neither contentious nor conveyancing, and some other business of like nature, were to be taxed under this Act or under the general system. The Master of the Rolls had inquii-ies made as to the practice of the Taxing Master in England, and ascertained that cases for counsel had never been held by the Judges in England to come under the General Order made under the Act, and he stated that this was entirely in accordance with his own opinion. It does not appear whether the items then in controversy included either attendances or journeys from home ; but the information as to the English practice and the opinion of the Master of the Rolls were general, and tend to support the view I have above expressed. I shall therefore dismiss the application, with costs. Solicitor for the appellant : Mr. Strange. Solicitor for the Guardians: Mr. Dunford. Q. B. Dk: ^» re ATKINSON & SONS, Solicitors, and THE LURGAN 1888. TOWN COMMISSIONERS. Deo. 13, 17. {By permission, from 24 L. R. Ir. 182). (Before O'Brien and Johnson, JJ.) Practice — Taxation of costs — Solicitors'' Remunei-ation Act, 1881 — Gen. Ord., 16th April, 1884, S6h. II. Solicitors to Town Commissioners prepared sanitary regulations, col- lectors' and contractors' bonds, and Warrants of attorney for their clients : Held, by O'Brien, J. (affirming the Taxing Officer ; diss. Johnson, J.), that such items were not within Sch. II., Rule 2, Gen. Ord., 16th April, 1884, made in pursuance of the Solicitors' Remuneration Act, 1 88 1, sect 2, but should be taxed under the scale of fees prior to that Act. Held, by Johnson, J., that such items were properly taxable under the scale settled by Schedule It., above referred to. (1) 18 L. K. Ir. 99. In re Atkinson Sf Sons, 499 Summons to review tlie Taxing Officer's certificate. Messrs. Atkinson & Sons, solicitors to the Lurgau Commis- sioners, furnished them their bill for miscellaneous costs, contain- ing amongst others, the following items : — Q. B- Dili. 1888. (86). Instructions to prepare regulations respecting dairies, and form of advertisement required by statutes and orders, (87). Drawing regulations as to same, 43 folios at 2s., Engrossing same, 43 folios at 8d., Contractors' bond for sewers — Instructions to prepare bond of M'llwain, as contractor for execution of work, Drawing same, 25 folios at 23., Instructions for contract to execute, along with bond, . . - . (110). Drawing same, 36 folios at 23., (119). Attending at Lurgan, reading over contract to contractor and sureties, and witnessing and attesting execution, ... Do. do. bond, - Collectors' bond — Instructions to prepare bond, Drawing same, 24 folios at 23., Drawing warrant of attorney, 30 folios at 2s., £ s. d. 6 8 (90). (106). (107). (109). (120). (143). (144). (147). 4 6 2 7 1 8 8 15 8 6 8 2 10 1 6 8 3 12 1 7 10 6 8 — 6 8 _ 2 8 1 8 3 1 10 Upon taxation the officer (Master Coffey) holding that these items were not business within the Solicitors' Remuneration Act, 1881, s. 2, deducted from items 87, 90, 107, 110, 119, 120, 144, and 147 respectively, the amounts stated in the second column, from which taxation the present appeal was taken. It appeared that the amounts fixed under the schedule to the Act would have been larger than the amounts allowed by the Taxing Officer. J. Stanlei/, for Messrs. Atkinson & Sons: — These items are within the Solicitors' Remuneration Act, 1881, section 2, and the General Order of 16th April, 1884, Rule 2, Schedule II., made thereunder, as they are items of conveyancing business. [Counsel cited the judgment of the Master of the Rolls in Ex Ante, p. 386. parte O'Uagan (1).] (1) 10 L. E. Ir, 99. 500 In re Atkinson ^- Sons. Q. B.Div. J_ Chamherg, contra : — 1888. ., , ., This Act only applies to what is purely conveyancing business ; it was passed in consequence of the alterations made in the length; &c., of deeds by the Conveyancing and Law of Property Act, 1881, actually receiving Royal assent upon the same day. It was not passed to increase solicitors' remuneration, as is sought to be done by its assistance in this case, but merely to keep up the standard of payment to what it was before in purely conveyancing business. Ante, p. 248. [Counsel cited Stanford v. Roberts (1), la re Merchant Taylors Ante, p. 294. ^^_ ^2).] Cur. ado. vult. Dec. 17. O'Brien, J. : — A motion was made in this case to refer back for taxation certain charges of solicitors, on the ground that they came witliin the rules under the Solicitors' Remuneration Act, but were taxed on a different principle. Those charges consist substantially of two classes — first, for preparing regulations under the sanitary Acts, and, secondly, contracts with bonds and warrants of attorney for the performance of works by contractors for the local board. As to the first, it is hardly possible to see how, upon any con- struction of the rules, they can be brought, from the nature of the subject, within the description of "other documents" men- tioned in the 2nd schedule. They are not documents at all, in any sense. They are not instruments between parties. They derive no force from the concurrence of other persons, and, in- deed, but for the fact of having been prepared by solicitors, they could not be said to be properly solicitors' business at all. They are simply rules enforced by public authority, not on persons' ascertained, but on those of the public to whom, in certain events, they may be applicable, and it is clear by no strain of meaning can be made documents within the schedule, even if we were to cease at the rule of ejusdem generis applied by the Master of the Rolls in the case that was cited to that tenor. More difficulty attends the case of the contracts, bonds, and warrants, which are strictly, if standing alone, and without rela- (1) 26 Ch. Div. 155. (2) 30 Ch. Dir. 28. Li re Atkinson 'y Sons. 501 tiou to any preceding enumeration documents in the ordinary <2- B. Div. sense. The point depends not only on the terms of the Statute, but also on the other question, whether the rules here- carried out tiie statute. Section 2 authorizes rules to he made for the charges of solicitors, " in respect to business connected with sales, purchases, leases, mortgages, settlements, and other matters of conveyancing, and in respect of other business, not being business^ ill any action or transacted in any Court, or in the chambers of any judge or master, and not being otherwise contentious busi- ness." Now, the ordinary understanding of that would be tliat the Act first made provision for tlte business connected with con- veyances of several kinds, ending with the general term of "matters of conveyancing," which would exhaust that subject, and had then dropped that subject, and hfid then gone on to another — the general business of solicitors — making an exception of the business in Court. But a different construction was sought to be maintained in Stanford v. Roberts (1) ; and it was contended Ante, p. 248. that the whole clause related to conveyancing simply, and not- withstanding the preceding words which seemed to finish that matter, that " other business " in the clause was business in the nature of conveyancing, and that the exception was of business which, though done in Court, was still capable of being convey- ancing business. That case was one for which that argument was necessary, because the business was a conveyance made in settlement of an action ; and if this exception in section 2 were to be taken as an exception out of conveyancing business of any kind the charges were not within the schedule, whereas if it were an exception out of other business merely as distinct from conveyancing, the case was outside other business and the exception alike, and the Schedule 11. applied. But Mr. Justice Kay held clearly that "other business" meant business other than conveyancing, and that the exception of business in an action was an exception from business other than conveyancing, and therefore the costs were governed by the schedule. And in this view his decision was sustained by the Court of Appeal : In re The Merchant Taylors' Ante, p. 294. Co. (2). But he treated it also as certain that whatever the (1) 26 Ch. Div. 165. ,2) 30 Ch. Div. 28. 2 K 502" Tn re Atkinson S,- Sons. Q. B. Div. statute authorised, the rules that were made under it were adapted' ^***' to conveyancing alone, and this, although section 2 of the rules takes up and repeats the very terms of the statute which would be taken ordinarily as an argument that the power given by the Legislature was intended to be executed in the extent given by it, just as the recital of a power in a deed would be used to construe the extent of the terms by which it was exercised. As Ante, p. 248. the business in Stanford v. Roberts (1) was conveyancing propei-, it was not, perhaps, necessary for the decision to hold that Schedule II. was confined to conveyancing merely. But if the other construction were held, it is clear that there is a large amount of solicitor's business which could not by any means be forced within the categories set out in that schedule. Take, for example, the case of administrator : his accounts, which are a usual species of work. The fact that in section 2 are used terms as large as the statute, while the schedules are more limited in extent, cannot, of course, be used to construe the statute, wliich was passed before they were made ; and, as far as they are a judgment upon the terms of tlie statute, are opposed to the decision of Mr. Justice Anip, p. 248. Kay in Stanford v. Roberts (2). On the other hand, the fact on which he dwells, that the Conveyancing Act was passed in the same session, not containing any reference to the other Act, can- not be used strictly to construe the latter, though it may have the effect of making the Court look more closely for what was the real intention of the statute in question. Now, there are several things in the statute itself and in the rules which seem to render it extremely difficult, if not impossible, to adopt any other conclu- sion but that conveyancing was the subject intended to be dealt with by one or both. In the first place, the Act expressly excludes the statute of 1870, enabling solicitors to make agreements with their clients, which, however, is not repealed, and therefore remains as applying to business generally. The Act of 1881, moreover, provides for orders being made c'oncerning such agreements, and in the meantime that solicitors shall be enabled to make agreements for the business to which that Act relates for payment of a gross sum or percentage, or otherwise, following, as to specific business, the same lines as the (1) 26 Ch. Div. 155., (2) 2G Ch. Div. 155.- In re AlUnson 25 Ch. D. 301. 516 In re Love; Hill v. Spurgeon. Stirling, J. right of election on the 2nd of January, 1883. So far as time is 1889, concerned the right was properly exercised, for the time to exercise a right must be after the rule which gives the right has come into operation, and the day after that happened was surely a reasonable time for giving the notice. Moreover, the notice was sufficient in point of form, for the word "propose" was equivalent to "elect." Again, although the notice covered conveyancing business done under the various orders made in the action, there is no difficulty in treating separately the business done under each separate order, and the election was at any rate valid in the cases where no work was done after the rules came into operation. The business con- nected with the case of Cromer House was finished, except as to taxation, before the 1st of January, 1883, and consequently was not " pending business " at that time. iS. Dickinson, for the defendant : — Under Rule 6 a solicitor can only elect " before undertaking any business." Here all the business was undertaken before the delivery of the letter which is relied upon as constituting the election, and also before the Rule 6 came into operation. The wording of that rule is distinct, and the observations of Lord Justice Cotton in Ante, p. 278. In re field ( 1 ), which do not amount to a dictum, but only put a hypothetical case, cannot be taken as abrogating the rule. Ante, p. 316. [He referred to Humphreys v. Jones (2).] l"<'e' p m ^- -^'"'^' '" '■eply- P'ted Fleming v. Hardcastle (3) ; In re Lacey Ante, p. 348. and Son (4) : In re Allen (5) ; Hester v. Hester (G). Ante, p. 360. ^ ^ ^ ' ^ '' Jan. 22. STIRLING, J. : — This is a summons raising questions not altogether free from difficulty with reference to a solicitor's right to remuneration, having regard to the provisions of tlie Solicitors' Remuneration Act, 1881, and the General Order which has been made in pur- suance thereof. In order that I may explain the view which I take of those questions I must begin by stating some of the facts, (1) 29 Ch. D. 608. (4) 2.5 Ch. D. 301. (2) 31 Ch. D. 30. (5) 34 Ch. D. 433. (3) 33 W. B. 776. <6) Ibid. 607. In re Love; Hill v. Spurgeon, 517 all the more that they do not seem to have been quite accurately Stirlmj, J. laid before the Taxing Master. [His Lordship then stated the facts of the case and continued : — ^] All the matters of business to which the taxation related were undertaken by the plaintiff's solicitor before the 31st of December, 1882, and the first question I have to consider is whether the solicitor had under Rule 6 of the General Order a right to elect to be remunerated under the system which prevailed before the Order came into operation. Now, it was decided in In re Field (1) that ^n'«i P- 278. the Order made under the Solicitors' Remuneration Act applied to business which had been commenced before the Order came into operation. In dealing with that question Lord Justice Cotton, after reading Rule 6 of the General Order, said (2) : "Here it was said that the solicitor could not exercise his option because the business was in full swing before the rules came into operation, and that the scale therefore could not apply. This argument is forcible, but I think it cannot prevail when we look at the 7th Section of the Act : 'As long as any General rOder under this Act is in operation, the taxation of bills of costs of solicitors shall be regulated thereby.' No doubt the application of the Act to pending business alters the contract under which the business was under- taken, but this alteration may in some cases be for the benefit of the solicitor." I stop there for the present. Lord Justice Lindley also said (3) : " Perhaps the most difficult question is whether the rules apply at all to pending business ; but Section 7 of the Act satisfies me that they are applicable." And Lord Justice Fry said (4) : " I am of the same opinion. I think that Section 7 of the Act declares in substance that the Act shall apply to all bills which are taxed while any General Order is in force. If the Act had not been intended to apply to pending business, different language would have been used." Therefore, all the learned Judges constituting the Court of Appeal rely on Section 7 of the Act, " as long as any General Order under this Act is in opera- tion, the taxation of bills of costs of solicitors shall be regulated thereby." That being so, we must look at the General Order. Now, I (1) 29 Ch. D. 608. (3) 29 Cb. D. 616. (2) Ibii. 614. (4) Ibid. 2 L 518 In re Love; Hill v. Spurgeon. Stirling, J. apprehend that the Ordei- might have been framed in express terms, 1889. *■ ^ *" PI* so as to distinguish between the two classes of business — namely, business which was undertaken before the Order came into opera- tion and business which was undertaken afterwards. It might have provided, for example, in express terms : " This Order shall not apply to any business undertaken before this Order came into operation, and shall only apply to business undertaken after it comes into operation," or it might have said iij express terms ; '• This Order shall apply to all business whether undertaken before or after the date fixed for the Order coming into operation." But tKere is no express provision in the Order on the subject, and there- fore it is a matter of construction which way the Order is to be Ante,Tp. 278. read; and the Court of Appeal in In re Field (I) have settled that it is to be read as including business undertaken before the Order came into operation, as well as business which is undertaken after- wards. That being so, I have to deal with Rule 6, and that rule must, I apprehend, be read with reference to the construction put Ante, p. 278. on the Order by the Court of Appeal in /?i re Field. It begins : " In all cases to which the scales prescribed in Schedule I. hereto shall apply," and I am to read that as including cases where the business was undertaken before the Order came into operation, as well as cases in which the business was undertaken subsequently to tlie date fixed by the Order for its coming into operation. Then it proceeds: "A solicitor may, before undertaking any business, by writing under his hand, communicated to the client, elect that his remuneration shall be according to the present system as altered by Schedule II. hereto." Now, if the words, "before undertaking any business," are to be read as limited to the absolute commence- ment of the business before any work is done which the scale charges would cover, it is impossible to give that rule a sensible meaning as applied to business undertaken before the rule came into operation. If the right of election does not apply to business undertaken before the Order came into operation, it would, as is pointed out by Lord Justice Cotton, be a forcible objection to the construction which the Court of Appeal has decided is to be put on that Order. I must therefore, if I can, read Rule 6 in such a way that it shall not involve an impossibility when applied to busi- (1) 29 O. D. 608. In re Love; Hill v. Spurgeon. 519 ness undertaken before the date of the Order, It seems to me that '^'*!'o"?' •^- it is possible to put such a construction upon it. In fact, if the rule is read as if the words, "subsequently to this Act coming into operation," were inserted before the words, "before undertaking any business," so that it would run : " In all cases to which the scales prescribed in Schedule I. hereto shall apply, the solicitor may, subsequently to this Act coming into operation, and before undertaking any business by writing under his hand," elect, and so forth, it seems to me that justice would be met and that a rational intei^pretation could be put on the Order, and one which is not con- trary to the whole scope of it, as interpreted by the Court of Appeal. That agrees with the Suggestion which is made by Lord Justice Cotton in the passage which immediately follows that which I have read, where he says (1) : " It may be that if a solicitor, after the rules came into operation, gave notice that he elected to have remuneration for business then pending according to the old system as modified by Schedule II., we should hold such a notice effectual." That is no more than a dictum, but, so far as it goes, it is in favour of the view of construing the rule in the way in which I have thought proper to construe it. Before passing from that, I ought to notice one remark which is made by the Taxing Master — namely, that the time which ought to be considered is not the date at which the Order is to come into operation, but the date at which it was made, which was several months before the 31st of December, 1882, after which day it was to come into operation. Having regard to the ground which was adopted by the Court of Appeal in In re Field (2) — namely, that Ante, p. 278. Rule 6 must be read with the 7th Section of the Act, I do not think that that is the proper moment at whicli we ought to look. Havhig reo-ard to that section, I think the dividing line is to be drawn, not at the date when the Order was made, but at tiie date when it came into operation. Then it is settled by the decisions in In. re A lien (3) Ante, p. 348. and Hester v. Hester (4) that the words, " before undertaking any ^"'«. P- 360. business " mean before the solicitor does any work which the scale charges would cover. Therefore I think, upon the construction of the rule, that the solicitor was at hberty to give a notice of election (1) 29 Cb. D. 6U. (3) 34 Ch. D. 433. (2) Ibid. 6U8. (4) Ibid. 607. 1889. 520 III re Love; Hill v. Spurgeon. Stirling, J. after the 3 1st of December, but that he was bound to do so before he did anything which was covered by the scale charges. Then the next question which I have to consider is, whether the notice which he gave on the end of January, 1883, was sufficient. [His Lordship read the letter of that date, and continued :— J It is said by the Taxing Master that it is not sufficient, because the solicitor uses the word "propose" instead of the word "elect." I do not think that that argument ought to prevail. It seems to me that you must look at the substance of the letter. It contains a distinct reference to the rule, and is an intimation to the client that he intends to avail himself of the advantage which is given to the solicitor by that rule. That seems to me to be sufficient. Then I have next to consider whether these conveyancing matters form separate matters of business, or whether they are all to be treated as one, and under the circumstances of this case I think they ought to be treated as several. The case is diiferent from that which it was supposed to be by the Taxing Master. The Taxing Master appears to have thought that the work was all done under one direction given for sale of the testator's estate. In point of fact, each matter was the subject of a separate order by the Court, and was begun at a different time, and some of the matters were begun before even judgment in the action. I think, therefore, whatever might have been the case if the work had been all done pursuant to a direction giving the plaintiff the conduct of the sale of the testator's real estate, that in this particular case the separate transactions ought to be treated as separate matters, and that, as the Act applies to matters of conveyancing arising in an action, each matter ought to be dealt with separately, and the business ought not to be deemed to be undertaken until the time arises at which the solicitor has done some work which would be covered by the scales. Now, I have to apply these principles to the six matters of conveyancing which are dealt with by the Taxing Master's certi- ficate. The first is the sale of Oaledon House. He finds that this has been in progress from the 10th of December, 1881, and after stating the various charges in the months of September, October and December, there is also one on the 1st of January, the day on In re Love; Hill v. Spurgeon. 521 which the Order came into operation. We therefore find that on Sliding, J. . . I8ij9. the 1st of January, and before the notice was given, the solicitor did work which was covered by the scale charges. I think, there- fore, that in this respect the Taxing Master was right, and his decision cannot be disturbed. The same applies to the next, the sale of Stanley Villas to the Star Life Assurance Society. It commenced in 1881 ; there are charges in September, October, November, and December, 1882, and, as in the last case, a letter written on the 1st of January. Therefore, as regards that, his decision cannot be disturbed. The third is the lease of Cromer House to Mr. Saltmarsh in 1882, concluded in November, before the Orders came into operation. There nothing has been done to prevent the solicitor from electing. Therefore, as regards that, I think the Taxing Master's decision was not right, and that must go back to him for reconsideration. As regards the items comprised in No. 4, they were commenced in June, 1882, and completed in March, 1883) and there are charges in November and December, 1882, arid a charge for perusing the draft on the 2nd of January, 1883. Then as regards Bonnington House, No. 5, that was commenced in April, 1882, and completed in July, 1884, and there are charges in September, October, November, and December; on the 31st of December, 1882, a letter was written on the subject of the sale, and on the 2nd of January, the day on which the notice of election was given, another letter was Written. It is stated that the solicitor has not proved that the letter of the 2nd of January was subsequent to the letter communicating the election. As regards the 4th and 5th matters, I think they must go back to the Taxing Master, and he must inquire whether the work which is charged for on the 2nd of January was done before or after the notice was communicated to the client. As regards the Cth, there is an attendance in January, 1883, without a date, prior to the 4th of January in that year; that leaves it uncertain whether it Was the 1st, 2nd, or 3rd of January. There, again, I think it must go back to the Taxing Master, and he must find out when that attendance took place, whether it was before or after the notice was communicated to the client. I have now dealt with all the conveyancing mutters ; and I think, 522 In re Marsden's Estate; Witldnglon v. Neumann. Stirlwg, J. having regard to the nature of the case, that the costs of both isflQ no 1 .• parties must be costs in the action. Solicitors : JDarlei/ 4" Cumberland, agents for II. D. M. Page, Southampton ; Janson, Cobb, Pearson Sr Co. 1889. Jan. 18. ciittv, J. J^ ^e MAESDEN'S ESTATE ; 18b9. WITHINGTON v. NEUMANN. (1885 M. 432.) ( By permission, from 40 Ch. D. 475 ; 8. c. 58 L. J. Oh. 2S0.) Interest cm Costs— Solicitors' Remuneration Act, 1881, Qeneral Order, Rule 7 — Administration Action — Gosts payable out of Fimd — 1 Sf 2 Vict., c. 110, ss. 17, 18 {Revised Ed. Statutes, xol. mii., p. S72)—2S & H Vict., c. 1S7, s. 27 {Revised Ed. Statutes, vol. xiii., p. 881)— Rules of Supreme Court,- 1883, Order XLL, Rule 3; Order XLII., Rule 16. Where, in an administration action, costs have been directed to be taxed, and when taxed to be paid by the trustees out of testator's estate, with a direction for division of the balance of the fund after such payment amongst the persons beneficially entitled, interest is not, in the absence of special direction, payable on the costs. Motion to discharge, or vary, a decision in Chambers refusing to make an order for payment of interest at 4 per cent, on two sums certified to be due to the plaintiff for her costs in an administration action. On the 26th of January, 1883, the action was commenced by Ellen Withington, a beneficiary, for administration of the estate of the testator, Richard Marsden, and by the judgment of the 7th of July, 1883, the usual inquiries were directed. The order on further consideration, dated the 29th of July, 1885, directed taxation of the costs of the plaintiff and of the defendants (the trustees and executors) of the action, the costs of the defendants to be taxed as between sohcitor and client, and to include any charges and expenses properly incurred by them as executors and trustees of the will ; the defendants to be allowed one set of costs only, and the Taxing Master to certify to whom and in what proportion such In re Mandeits Estate; Withinglon v. Neumann, 523 last-mentioned costs were payable : and it was ordered that such GUtty.J. "^ ' J. •/ ? 1S8Q ' '' costs when taxed be retained and paid by defendants out of the testator's estate generally, with liberty to apply as to the sale of testator's leasehold estate and as to raising and paying subsequent costs. On the 12th of April, 1886, an order was made in Chambers,, on the apphcation of defendants, for partition of the leasehold estate and appointment of new trustees, and for taxation of the costs of plaintiff and of defendants of that application and relating thereto and consequent thereon, and of the conyeyances and indenture^ appointing new trustees to be made and executed under the order :. " The costs of the defendants to be taxed as between solicitor and client, and to include any costs, cliarges and expenses properly incurred by them in the action, or in or about the execution of the trusts of the testator's will, not being costs in the action ; such costs when taxed to be raised and paid in like manner and out of the same funds as the costs directed to be taxed and i*aised and paid by the order of the 29th of July^ 1885.*' And, subject to the raising and payment of the costs, the order directed the ttansfer of the trust funds to the persons beneficially entitled. Under this order the defendants had transferred some of the shares to the persons beneficially entitled. By the Taxing Master's certificate of the 20th of December, 188(5, the plaintiff's costs under the first order were certified at £174 3«. \hl..j and by the certificate of the 27th of January^ 1888, the plain- tiff's costs undef the second order were certified at £168 Os. 2d. On the 2nd of November, 1888, these costs were paid to plain- tiff's solicitors, and accepted by them without prejudice to their claim for interest from the dates of the certificates. On the 7th of November, 1 888, a summons was issued on behalf of the plaintiff for payment of interest on the costs, but was dismissed by his Lordship in Chambers, with costs, on the 10th of December, 1888. Plaintiff now moved that the decision in Chambers might be discharged or varied, and that the defendants be ordered to pay to plaintiff or her solicitors interest at 4 per cent, from the 20th of December, 1886, on the sum of £174 3«. 9 J. certified to be due to' her for costs by the certificate of that date, and also interest from the 27th of January, 18S8, on the sum of £168 Os. 2d certified to 524 In re Marsdens Estate; Withington v. Neumann. cutty. J. be due to the plaintiff for costs by the certificate dated the 27th of 1889. '^ •' January, 1888. Macashie, in support of the motion, tendered an aiBdavit by one of the plaintiff's solicitors, sworn on the 30th of November, to the effect that he had attended on the second taxation, and complained to the defendants' solicitors of the non-payment of the costs pre- viously taxed, and stated that he should require interest thereon and on the costs then taxed if not promptly paid. The affidavit also called attention to the delay of the trustees in carrying out the orders and in winding up the estate, and set out a correspondence on the subject. It did not appear that this affidavit had been used in Chambers. [Chitty, J., after some discussion, declined to admit the affidavit.] Macaskie : By the General Order under the Solicitors' Remunera- tion Act, 1881, Rule 7, a solicitor is entitled to interest at 4 per cent, on his costs fi'om one month from demand from the client, which has been held to mean from the date of sending in the bill : Ante,p. 409. Blair V. Cordner (1) ; and where, as in this case, the costs are payable out of a fund not presently available, such demand may be made on the trustees who represent the fund and hold it for the benefit of all the beneficiaries. And if the solicitor, who is not a party to the action, has this right against the fund in the hands of the trustee, the client must have the same right, as otherwise the last clause of Rule 7 would be useless ; and, moreover, the beneficiaries are in the meantime receiving 4 per cent, on their shares in the fund. If Rule 7 does not per se give the right, then I rely upon the general right to interest given by 1 & 2 Vict., c. 110, ss. 1 7, 18, under which interest at 4 per cent, is recoverable on costs whicli one party is ordered to pay to another ; and if it be contended that this provision applies only to party and party costs, then, I submit. Rule 7 was intended to supplement the provision so that interest should be payable in all cases not covered by ss. 17 and 18. (1) 19 Q. B. D. 516. Ta re Marsdeiis Estate; Withington v. Neumann. 525 H. Warlters Home, contra : '^ CHtty, J. 1889, Interest is not recoverable on costs payable out of a fund : Attorney-General v.' Nethercote (1), except there has been a special direction under 23 & 24 Vict., c. 127, s. 27, for payment of the amount of costs as taxed with interest at 4 per cent, from the date of the certificate. Rule 7 of the General Order under the Solicitors' Remuneration Act, 1881, has no application to costs in an action, whether payable out of a fund or between party and party, but is limited to non- contentious business ; the power to make General Orders for prescribing and regulating the remuneration of solicitors being expressly limited by Section 2 of the Act to business connected with sales, &c., and other matters of conveyancing, and " other business not being business in any action, or transacted in any Court or in the Chambers of any Judge or Master, and not being otherwise contentious business." Blair V. Cordner (2) only decides that sending in a bill of costs Ante, p. 409. is equivalent to " demand from the client *' under Rule 7. The application is, moreover, too late. Macaskie, in feply :^ Section 2 and Rule 7 includes the right to conveyancing costs which are incurred in an action : Stanford v. Roberts (3) ; and Ante, p. 248. Section 5, which provides that any General Order under the Act may authorise the allowance of interest^ is perfectly general, and does not limit the power to interest in non-contentious business. But if it be held that Rule 7 is limited, as contended by the other side, the plaintiff ought to be allowed now to show that a con- siderable portion of these costs were in respect of conveyancing business in connection with the appointment of new trustees. Chitty, J. : — Since the matter was before me in Chambers the only evidence produced was the orders of the 29th of July, 1885, and the 12th of April, 1886. It was stated on behalf of the trustees tliat they had divided the funds according to the order ; that statement was accepted, and I decided, as my Chief Clerk had considered, that (1) 11 Sim. 529. (2) 19 Q. B. D. 516. (3) 26 Ch. D. 155. 526 In re Marsdens Estate; Withington v. Neumann. Chitty, J. the application was too late. But, as a fact, there was an affidavit 1884 in existence which was not drawn to my attention. Nothing is adjourned to me unless it is ready for decisiouj as I will not have adjournments from time to time for fresh evidence. The affidavit was not tendered, and no leave has been given to alter the case made before my Chief Clerk, and read a new affidavit, and, indeed, it would require a very strong case to induce me to give such leave after the matter has been gone into before me. Consequently that affidavit cannot now be used. Upon the main question I am of opinion that the solicitors have no right to interest. Under 1 & 2 Vict., c. 110, ss. 17, 18, costs carried interest not from the date of the judgment, but from the date of the Taxing Master's certificate^ Then come the Rules under the Judicature Act of 1883, Order XLL, Rule 3, and Order XLII., Rule 16, the effect of which, combined with 1 & 2 Vict., c. 110, ss. 17, 18, in the case of an ordinary action where costs are ordered to be paid adversely, is to give sohcitors the right to interest from the date of the judgment. But it is plain that tlie sections of the Judgment Act and the Orders have no reference to the ])ayment of costs directed to be paid out of a fund. Without relying on Attorney- General v. Nethercote (1), decided in January, 1841, this has been the constant practice; and where the fund is in the hands of the Paymaster-General, he is not at liberty to make any payment of interest unless tliere is a direction to that effect in the order. In that case the order is for taxation and payment of the costs by the trustees out of a particular fund, and there is no ground for saying that anything more than the amount of the taxed costs should be paid. If any interest was to be paid by the trustees the order ought to have directed it. In special circum- stances such a direction might have been given, but the order is silent in that respect. Thus far, therefore, the solicitors are not entitled to interest. But then it is suggested thab they are entitled to interest by reason of the Sohcitors' Remuneration Act, 3 881, General Order, Rule 7. Now, on reading Rule 7, I should say tliat it does not apply to such a case as this. The fund is in the hands of trustees who are directed by the order on further consideration to pay the taxed costs, and then to (1) U Sim. 529. In re Marsdens Estate; Withivyton v. Neumann. 527 divide the fund. Tlie rule shows that there must be demand and Ohitty, j. default, and if there has been a demand and default, -and interest is payable out of the fund, the result would be that the beneficiaries who are entitled to the balance of the fund would be mulcted by the trustees, though if any persons are liable it would be the trustees, who are personally liable. A higher point has been taken, that the power to make orders under the Act of 1881 is limited to non-contentious business, and so that the rule does not apply to the costs in an action. But, then, without any evidence to that effect, it is suggested that some part of these costs are conveyancing costs. They are not costs in respect of conveyancing done within the scope and meaning of the Act ; they have been taxed and paid, and I cannot listen to the ingenious suggestion which has been made, and send the matter back in oi'der to ascer- tain whether some part of these costs were conveyancing costs or not, so as to allow interest upon items which may thus be picked out. Such a course would not be in accordance with the order of the Court directing execution of the trust and division of the fund after payment of the costs ; and if there were any ground for the contention, it should have been put forward at the time of making the order. And, further, to refer the matter back to the Taxing Master now, would be keeping back the distribution of the fund. The result, therefore, is that there is no right to interest in this case. Whether interest on a portion of the costs might or might not be allowed is a matter of doubt, but it is now too late to raise the question and attempt to sever the costs. The trustees have partially divided the fund, and if I order them to pay interest out of funds not divided, injustice would be done, because in that case the trustees would not be paying it out of the whole fund. The application fails therefore on principle. Solicitors : iVi'c/io/son 4 Graham, iovWitJiington, Petty !^- Boutflower, Manchester; Pollock ^- Co. Chitty, J. ]889. Jau. 30. 528 In re Reades Trusts; Salthouse v. Reade. In re KEADE'S TRUSTS; SALTHOUSE v. READE. (By permitHon, from 33 S. J. 219*) Solicitm's' BemUneratimi Act, 1S81— General Order, Sehedide Il.—Bocu- ments— Drawing, (be— Attendances— Special Cmiditim of Sale in respect of unsold Lot — Deducing Title. This was a summons to review taxation. The question was, whetlier the introductory words of Schedule I. of the General Order under the Solicitors' Remuneration Act, 1881, "Instructions for drawing and perusing deeds, wills, and other documents," included particulars of sale. ChItty, J., said that it had already beeii held that "documents" under these rules Was not to be taken in the largest sense df the word, but to be taken in connection with the context : Parker t. Ante, p. 483. BUnkhom and Newbould v. Bailivafd (1). For his part, reading these introductory words with the context, he should hold that documents did include particulars of sale, and that in ordinary cases 2s. a folio was chargeaible for drawing such particulars. He thought that the Taxing Master in such a case had a discretion, and that the words, " in eJttraordinary cases the Taxing Mastei? may increase or diminish the above charge," was not confined to " attendances," but included the drawing of docurtients and othei* items mentioned in Schedule II. A second question was whether comttiission was chargeable under Rule 2 of Schedule I., Part I., in respect of a subsequent private sale of a lot which was unsuccessfully put up for sale at public auction, but which the solicitor claimed to have "negotiated." Chitty, J., said that the question was one of fact whether there was an actual negotiation and arrangement of terms of sale within Rule 2. The facts appeared to be that, ten months after the attempted sale by auction, an intended purchaser walked into the solicitor's office, and all that the solicitor had to do was to submit to his client the purchaser's offer. The vendors were trustees, who 14 App. Caa. 1 In re Reade's Trusts; Saltliouse v. Eeade. 529 could not sell without leave of the Court, and according to the Chitty. J. terms and conditions which had already been settled for the auction. The Taxing Master had rightly refused to allow the commission under Rule 2, for the solicitor had done no new business or arranged the price and conditions. If there, in fact, had been any negotia- tion, whether to a large or to a small extent, he could not have disallowed the commission. A third question then arose whether the scale fee for deducing title included remuneration for the preparation of special conditions of sale in respect of a lot which was not sold. The Taxing Master was of opinion that it did not, and had allowed extra remuneration for work done in respect of this special condition on the old system. This allowance was objected to. Chitty, J., said that the question was whether the solicitor had been already remunerated for the work done in respect of the unsold lot. If the lot had been sold, he would have got his percentage in respect of the price of the lot. , As the lot was not sold, he was not entitled to such percentage. The work to which the scale fees applied was deducing title to the lots which were sold. The solicitor had done no special work which was not within the scale fee, and was entitled to be remunerated for it under the old system. Counsel: Romer, Q.C., 8; Shebbeare; Bardswell. Solicitors : Walker ^ Field. 530 In re Montagu, Scott Sf Balcer. North, J. In re MONTAGU, SCOTT & BAKER. 1889. jigjj "i^g {,By permission, from W. N., 1889, 40.) Solicitor— Costs—Taxation— Agreement vnth Client as to Bemuneratimi— Soli- citors' Bernwneration Act, 1881, s. 8. Summons by solicitors to review a taxation of costs. The business to which the bill of costs related was the transfer of a mortgage to a new mortgagee. The solicitors had charged in their bill the s.cale fee for " negotiating " the mortgage, in accordance with the Solicitors' Eemuneration Order of August, 1882, and also a sum of £40, which they described as an agreed bonus at the rate of 2 per cent, for procuring the loan. Tiie Taxing Master disallowed the £40, on the ground that there was no sufficient evidence of an agreement in writing between the client and the solicitors as required by sect. 8 of the Act, The Master also said that he thought the bonus was an unfair charge. On the hearing of the present summons it was admitted that the solicitors were not entitled to both the bonus and the "negotiating" fee. J. G. Butcher, for the solicitors. Cozens-Hardy, Q. C, and Hatfield Greene, for the client. North, J., affirmed the decision of the Taxing Master. He was of opinion that the alleged agreement was not within the Act at all. The Act contemplated an agreement for the payment of a lump sum or a commission in lieu of the solicitor's remuneration, whereas the agreement alleged here was for a payment in addition to his remuneration ; and, if there was an agreement within the Act, the charge of commission in addition to the solicitors' ordinary charges was unfair. Solicitors: Montagu, Scott ^ Baker; V.J. Chamberlain. Jn re Bray Electric Tramway. 531 In re BRAY ELECTRIC TRAMWAY. ^{- ^f- (By permission, from 23 L. R. Ir. 116.) Feb. 25. Solicitor and Client— Cods — Attendanc(,s, Evidence of — t pending business he must elect before he does anything which it is necessary to do in the course of carrying out the business which lie has already undertaken : Hester v. Hester (1). In re Love (2) 4„jg^ „ ggg the question before Mr, Justice Stirling was as to separate matters Ante, p. 5ii. of conveyancing, in which no work was done until after the notice of election was given, and that decision is only applicable to that extent. The exception in Rule 11 of Sched. I., Part I., to the General Order has no application to the purchasers' costs under the Lands Clauses Act. Sect. 82 of that Act provides only for the costs of the vendor, and not for the costs of the purchasers, w^ho are the promoters of the undertaking, and, of course, have to, pay their own costs. The section deals with the question of costs as between vendor and purchaser, not as between solicitor and client. Tlie words " as well of the seller as of the purchaser " were inserted in the section because, as the law then stood, a purchaser often incurred costs which he had a right to recover over from the vendor. In the earlier part of Rule 11 reference is made to negotiating in case of sales or purchases, while in the later part, containing the exception, sales only are mentioned, so that the distinction between sales and purchases is clearly indicated. The object of the exception was to prevent any implied repeal of the Lands Clauses Act as to vendors' costs, and the words referring to other Acts " in which the vendor's ch-arges are paid bv the jDurchaser " show plainly that the intention was to (1) 34 Ch. D. 60T, 614. (?) 40 Ch. D. 637. 540 i'n 're Stewart. Kay, J., limit the operation of the exception to vendor's costs. There can "^''' be -no injustice to the solicitor in applying the ad valorem scale; because he can protect himself by electing under Rule 6 of the General Order. The grants of easements are clearly conveyances of property within the meaning of Sched. I., Part I. The Solicitors' Remu- neration Act and the Conveyancing Act were passed in the same year, and form one scheme of legislation, and the Taxing Master was justified in referring to the definition clause in the Convey- ancing Act. An easement or right of laying pipes inland is a right or interest in land, and is clearly property. [Kay, J. : — There was merely a licence to do certain acts.J It is property just as much as an exclusive right of fishing in gross or an exclusive right of common. The General Order in Rule 2, Sub-rule (c), specially provides for mining licenses and takes them out of Sub-rule (a), and as there is no exception of other Kcenses they must be included. For the reason already given, there can be no injustice to the solicitor. Swinfen Eady, in reply. Kay, J. :— March 23. The Corporation of Wakefield under a special Act which in- corporated the general Acts and empowered them to take lands compulsorily, have been engaged in establishing waterworks. In this business they have employed the present applicants as their solicitors. Such employment commenced before the passing of the Solicitors' Remuneration Act, 1881, and continued after that Act, and the rules made under it, came into operation. In respect of the work so done voluminous bills of costs have been delivered, and by an order of the 14th of October, 1886, these costs were referred to taxation. The taxation has been completed, and the solicitors have carried in various objections. The first and most important of these relates to i work which was completed before the 1st of January, 1883, when the General Order under the Solicitors' Remuneration Act came into operation. The bills of costs numbered 9, 17, 24, 27, and 29 are, it is said, bills concerning conveyancing business which was altogether com- In re Stewart, 541 pleted before that date, and was not business which was pending l^ay- /• in any sense at the time when the Order came into operation. The 7th section of the Act is in these words : " As long as any General Order under this Act is in operation, the taxation of bills of costs of solicitors shall be regulated thereby." It is argued that, whenever the work was done, if the taxation takes place after the General Order came into operation, such taxation must be regulated by the General Order, and that con-, sequently if the work is such that the scale charge fixed by the Order would apply, if it had been done after that date, it must apply by the terms of the Act, although the work had been com- pleted previously. On the other hand, it is contended that to such work the General Order does not apply at all. If it did, the solicitor would lose the power of electing given to him by the 6th clause of the General Order altogether, and he would thus be in a worse position as to work completed before that date, when there was no such Order in operation at all, than as to work com- menced subsequently, with respect to which he would be able to elect whether the scale fee should apply or not. It is admitted that if it be work to which the General Order applies, the 7th section of the Act is express and imperative as to the regulation of the taxation, but it is urged that the work in question was done under a different law, and the contract between client and solicitor could not be intended to be altered by an Order ex post facto. ■ These are excellent and cogent reasons for saying that sect. 7 of the Act should not have been in its present form or that the General Order should have made an exception in the case of conveyancing work completed before it came into operation and taxed afterwards; or again, if the enactment were ambiguous, they would be reasons for giving the applicants the benefit of any doubt upon its construction. Sect. 7 is express and clear ; it admits of no doubt ; it is not at all ambiguous. Any taxation after the General Order comes into operation is to be regulated thereby. It is impossible to deny that this includes the taxation, after that date, of costs incurred before. , The Act received the royal assent on the 22nd of August, 1881. £42 tn re Stewart. Kay, J- The operation of the General Order was purposely delayed till after the 31st of December, 1882, though it seems the Order was issued in August, and published in September, 1882. This delay must have been intended to give an opportunity to any one who desired it to tax costs under the old rule before the Order began to operate. If the applicants did not choose to avail themselves of this, there is no injustice in now subjecting them to the operation of the General Order, as sect. 7 of the Act says shall be the case. Another view of tiie matter^ which is of some importance, is that all this work was done under one and the same retainer, and tliis delivery of separate bills, and the atterftpt to say that some of such bills dor not Some within the Act and Order, is scarcely a legitimate mode of in'crea)sing costs aigainst the Corporation. ' If all the work done under this retainer were' included in one bill of costs in order of date, it would be hardly possible to argue that a line should be drawn on the 31st of December, 1882, and every- thing before that date should be taxed under the old system, but everything since should be taxed under the Geiaeral Order. Yet that in effect is what the applicants are trying to do. Only they seek to make their case more plausible by delitering separate bills of costs for various branches of the work done, and then attempt- ing to say the General Order does not apply to some of the bills so made out. On the 10th of May, 1883, the solicitors gave to the Coi'poration notice of their desire to elect under the General Order in the following terms. [His Lordship read the letter of that date above set out, and continued] :^^This notice is quite general, and refers to all business, pending as well as futui-e. As to pending business, there was, I am told — (1) business pending on the 31st of December, 1882, in which work had been done since that date and before the date of the notice, which work would be covered by the scale-fee; (2) also some in which work had been done which would not be covered by the scale-fee,- but would be allowed for separately ; and (3) business pending in « hich nothing was done between the 31st of December, 1882, and the date of the notice, but such business was continued after the notice. As to (1), it is admitted that the notice to elect was too late. As to (2), it is argued that there was- no " undertakino- the In re Stewart. 543 business" between the 31st of Decentber, 1882, and the notice; JTay.J. because, although work was done in the pairticular matter for which the solicitor could and did charge, it was not work covered by the scale-fee. I disagree with this argument. The doirig of that work was certainly " undertalking the business," whether it was covered by the scale-fee or not ; and, in my opinion, the soli- citor, if this had been work under a retainer accepted after the order came into operation, would be too late in attempting to elect after he had undertaken the business by doing anything in it for which he could make a charge. The words of clause 6 of the General Oirder are that " a soli-*- citor may, before undertaking any bulrfness," elect. It is not " before undertaking that he will do," or " before undertaking to do," any business. " iTndertaking any business " I understand to mean not merely accepting the retainer, but rather entering upon the work, i.e., doing something ia the matter for which he would be entitled to make a charge ; but if he does anything for which he is entitled to charge, it seems to me impossible to say that he has not undertaken the business, whether that charge is covered by the sca:le-fee or not. With respect to business pending on the 31st of December, 18'82, and convpleted afterwards, I confess' it seems to me that the true view of the Order is that clause 6, giving the solicitor power to elect, does not apply at all, because in no true sense can busi- ness which was comntenced before, be said to be undertaken after that date. The solicitor, of course, could protect himself by declining to go on with the business unless his client would agree to remunerate him in some other way. Such agreement would have to be in writing under sect. 8 of the Act of 1881, However, I have been referred to a case of In re Love, which is not yet Ante, p. 5ii. reported (1), in which Mr. Justice Stirling, following some dicta in In re Field (2), has held that clause 6 is to be read as if the Ante, p. 278. words "subsequently to this Act coming into operation" were Inserted before the words "before undertaking any business.'' Following that decision, I must hold that, whei'e nothing was done in pending business between the 31st of December, 1882, and the 10th of May, 1883, the notice to elect was effectual. (1) Since reported, 40 Ch. D. 637. (2) 29 Ch. D. 608. 544 In re Stewart. Kay, J. Two other questions remain. One is whether the scale 1889 applies at all to work done for a purchaser in case of a purchase under the Lands Clauses Consolidation Act. The doubt arises under the 11th of the rules in Sched. I., Part I., of the General Order, which contains this provision : " In case of sales under the Lands Clauses Consolidation Act or any other private or public Act under which the vendor's charges are paid by the purchaser, the scale shall not apply." Sched. I. is referred to in the 2nd clause of the General Order, in which sales and purchases are separately mentioned, and it is provided that in respect of sales and purchases, the remuneration of the solicitor having the conduct of the business, whether for the vendor or purchaser, is to be that prescribed in Part I. of Sched. I., and to be subject to the regulations therein contained. Sched. I. provides one scale for the vendor's solicitor, and another and different one for the purchaser's solicitor. The early part of Rule 11 refers to negotiating in case of a "sale or purchase," but the words which I have quoted from that rule, which are at the end of it, refer only to the case of " sales " under the Lands Clauses Act. Looking to the 82nd section of that Act, I have no doubt that the reference to sales only is intentional, and I think the reason is apparent. That section provides in effect that, where lands are taken compulsorily, the vendor's costs shall be borne by the purchasing company, and gives a liberal allowance of such costs, which it is the obvious purpose of this Rule 11 not to interfere with. But no such reason exists for excepting the purchaser's costs, in the case of land compulsorily taken, from the operation of this Order for a scale charge, and consequently the latter part of Rule 2 seems to be limited, designedly and with reason, to the vendor's costs in case of a sale under compulsory powers. The last point relates to the costs of the purchase and grant of the right or easement of laying and maintaining the lines of pipes through the lands of other persons, which the Corporation obtained under the powers of their special Act. In these cases no land whatever was conveyed, and the consideration seems to have been in each case a small sum of money, £5 or £10, or the like. The question is whether the scale charge in Schedule I., Part I., of the In re Stewart. 545 General Order applies to such a case. Clause 2 of the General ^^^ ■^• Order simply speaks of sales and purchases without saying of what. But Schedule I., Part I., provides a scale for negotiating for the purchase of "property," and for investigating title to "freehold, copyhold, or leasehold property," and preparing and completing conveyance. Can the grant of an easement like this be considered a conveyance of freehold, copyhold, or leasehold property, within the meaning of that schedule % I confess it seems to me difficult so to hold. Obviously the schedule contemplates prima facie conveyances of land held as freehold, copyhold, or leasehold property, and the scale is fixed upon the purchase monej' which is paid when such property changes hands. When a mere easement is granted there is no change of property in that sense, and the purchase money is comparatively trifling in amount ; but it might well be that a diffi- cult and expensive investigation of the grantor's title might in many cases be necessary for which a scale charge, calculated on the purchase money of the easement, would be a very inadequate compensation. It is true that the solicitor might protect himself by electing under Clause 6, but I have referred to these considera- tions as reasons for showing that, the scale was not intended to be applicable to the mere grant of an easement, to which, according to their true construction, the words of the Order do not apply. The result is, that I agree with the Taxing Master, except only that 1 must hold the notice to elect effectual as to all sepai'ate matters of conveyancing in which nothing was done between the 31st of December, 1882, and the 10th of May, 1883, but which were completed after the latter date ; and that the purchases of licenses to lay pipes are not within the General Order as to a scale charge. The costs must follow the result, and must be set off in the usual, way. The matter was accordingly referred back to the Taxing Master, with an expression of his Lordship's opinion to the above effect. Solicitors : Torr, Janewaya, Gribble ^ Oddie, agents for Stewart, Son Sf Chalker, Wakefield ; Sharpe, Parkers, Fritchard Sf Sharpe, agents for C. J. Hudson, Town Clerk, Wakefield. 546 In re Martin {a Lunatic). fssl" hi re MARTIN (A LUNATIC). April 9, 16. ^By permission, from 41 Ch. D, 381; e. c. 33 S. J. 39S, W. N. 1889, 84.) Solicitor — Costs^ Taxation — Solicitors' Remuneration Act, 1881, s. S—Bnsiness coiMected with Jjease^^ Abortive Negotiations — General Order under Solici- tors' Remumration Act, 1881, Bide 2 (b), (c). Schedule I., Fart II. The remuneration of a lessor's solicitor prescribed in the General Order under the Soligitors' Remuneration Act, 1881, Schedule I , Part II., does not coyer negotiations carried on by the solicitor as to the letting of the property with persons other than the person to whom the lease is ulti- mately granted. The solicitor is entitled to remuneration for such nego- tiations as business ''which is not in fact completed" under Rule 2 (c) cf the same General Order. Ante, p. 278. , -f" re Field (29 Ch, D. 608) and In re Emanuel & Simmonds (33 Ch. D. Ante, p. 332. 40) distinguished. Mr. G. W. Barnakd was employed by the committee of a lunatic to act as his solicitor in I'eference to the letting of a house which formed part of the lunatic's estate. On the 8th of December, 1887, the committee put up in the window of tiie house a notice containing the words " To Let," and dii'ecting application to be made by persons desirous of taking the house to Mr. Barnard for information and particulars. In conse- quence of this notice several persons applied to Mr. Barnard, and he or his clerks showed them over the house and wrote letters to the applicants, and from time to time reported to the committee the apphcations and the replies to the letters. In November, 1887, before the house became vacant, an offer to take the house had been made by Mr. Parkes to the solicitor, and when it became, vacant the solicitor informed Mr. Parkes of the terms and particu- lars, and Mr. Parkes renewed his offer, which was accepted by the committee on the 19th of January, 1889. On the 6th of March an order was made in the lunacy directing that the house should be demised to Mr. Parkes on the terms contained in a draft lease which had been prepared by the solicitor, and that the reasonably and proper costs, charges, and expenses of the committee of, inci- dent to, and consequent upon the proceedings, should be taxed and paid by the committee out of the lunatic's estate, after deducting the taxed costs of the lease and counterpart, which the lessee had In re Martin (a Lunatic). 547 agreed to pay. The lease was accordingly granted to Mr. Parkes, C?- ^- ■who paid the scale fees to the lessor's solicitor as prescribed by the General Order under the Solicitors' Bemuneration Act. The solicitor then carried in his bill of costs against the lunatic's estate for taxation. The bill included items for negotiations with Parkes, and also, items for negotiations with other persons. The Taxing Master disallowed all tlie charges other tlian the sum paid as the scale-charge by Schedule I., Part II. The solicitor acquiesced in the disallowance as to the negotiations with Parkes, having regard to In re Field (1) and In re Emanuel ^ Simmonds (2) ; but carried ^n(e, p. 27S. in objections to disallowance of the charges for negotiations with.^n'«, p- S'^'^- other persons. The Taxing Master overruled the objections^ and gave his reasons for doing so as follows : — " The committee objects that I have disallowed certain items,: which he contends are not covered by the scale-charge because liis solicitor considers that, although the scale-charge covers the nego- tiations with the person who ultimately became tenant, he is entitled to charge for negotiations with, and attendances on, all other per- sons. In the well-known cases of In re Field and In re Emanuel ^ jinte, p. 278 Simmonds, it was decided that negotiations and an agreement pre- ■inte, p. 332. liminary to the lease were covered by the scale-charge, because they were ' business connected with the lease.' In those particular cases the question as to negotiating with other persons than the actual person who became tenant did not arise, but the Taxing Masters have considered that, according to the decisions in those cases, the scale-charge covers all business connected with the par- ticular letting, and that all negotiations which lead to the granting a lease are part of such business. The question does not depend on the meaning of the word ' negotiating,' but on whether or not the work in question is ' connected with the lease.' The question raised more or less affects the construction of the scale fees for negotiations expressly given by the General Order. That is, a vendor's solicitor for negotiating a sale ; a purchaser's solicitor for negotiating a purchase ; a mortgagee's solicitor for negotiating a loan. No separate fee for negotiating is provided for a lessor, lessee, or mortgagor's solicitor, but is included in one general ad (1) 29 Ch. D. 608. .(2) 33 Ch. D. 40. 548 In re Martin (a Lunatic). O- ^- valorem fee for the whole business connected with the lease or mortgage. If the contention of the objectant in this case is valid, it would seem to follow that the negotiating fees expressly provided would not cover negotiations with any persons other than the one who actually sells or buys, or finds the money for a mortgage, and tliat negotiations with any otiier person are not connected with the sale, purchase, or mortgage. It would, it is submitted, be incon- sistent with the principle of a commission that a solicitor should be entitled to charge in detail for negotiations with several persons, and then a commission for, it may be, one attendance on the one accepted. In the case of the estate agent paid by commission on letting a house, the commission, of course, covers the whole of the negotiations. It would be scarcely possible, in many cases, to ascartain which of the charges made lead up to the actual letting, and which do not ; in fact, all must do so more or less. The acceptance or not of the offer of A. depends upon what offers may have been made by other persons." The solicitor then presented a petition in the lunacy for a review of the taxation. iStV Horace Davey, Q.C., and F. A. Archibald, for the petitioner: With respect to the negotiations with Parkes which led to the granting of the lease, we admit that they are covered by In re Ante, p. 278. Field (I) and In re Emanuel Sr Simmonds (2), and we do not insist Ante,^. 332. , . ,. ,, . , on our objection on that point, but those cases only apply to nego- tiations leading up to the lease which is eventually signed. Here Mr. Barnard had been negotiating with other persons, and the negotiations had become abortive and were concluded before the lease was executed. Therefore the case falls within Rule 2 (c), not within Rule 2 {h). The negotiations were, going on for several weeks, and it would be unjust that the solicitor should not be paid for them. Supposing the whole matter had become abortive and no lease at all granted, there is no question that he would have been entitled to remuneration under Rule 2 (c) for all negotiations. So that, if the Taxing Master is right, it would lead to this absurd result, that if the solicitor failed in finding a lessee he would be paid for all his trouble, but if he succeeded in eventually (1) 29 Ch. D. 608. (2) 33 Ch. D. 40. Tn re Martin {a Lunatic). 549 finding a lessee, he would get no remuneration for anything C- ^■ beyond the, preparation and execution of the lease. Newbould v. Bailward (1), recently decided by the House of Lords, is in our Ante, p. 4S3. favour. Cotton, L.J. : — This is a petition presented by Mr. Barnard, a solicitor, to reA'iew the taxation of the Master to whom his bill of costs has been referred. It appears that he was employed by the committee of the estate to see to the letting of a house, No. 7, York Road, Lambeth, which was part of the property of the lunatic, and a portion of the duty whicli he performed was getting possession of this house from the previous tenant, who was not a satisfactory one, and those costs have been taxed. Mr. Parkes, who ultimately obtained a lease of the premises, made an application in the first instance to Mr. Barnard, and between his application and the time when the lease was granted various applications were made by different persons with whom Mr. Barnard, the petitionei', acted more or less in negotiating as to whether or not a lease should be granted to them. Of course, Mr. Barnard was entitled to be paid according to tlie scale of charges. The Taxing Master has taxed his bill under that scale, but he has disallowed all charges made in Mr. Bjarnard's bill for negotiations preceding the granting of the lease, including all negotiations with the other persons who from time to time applied to him as to this house. Objection to that has been taken, and the result is that this petition has been presented against the Taxing Master's certificate. Mr. Barnard, in the first instance, objected to all the disallow- ances of the previous negotiations which had been made by tlie Taxing Master, but when the case came before us, Sir Horace Davey, who appeared for the Petitioner, did not press the objec- tion to the disallowance of the charges for the negotiations witli Mr. Parkes, and that was in accordance with two decisions of tiijs Court, which cannot be called in question here. These cases are In re Field (2) and In re Emanuel S; Simmonds (3). But there ^"'«> P- 278. may have been negotiations with other persons which were not ''"'''' ^' ^'^^■ (1) 29 Ch. D. 608. (2) 33 Ch. D. 40. (3) \i App. Gas. 1. 2 sr' 550 In re Martin (a Lunatic). G- ^- questioned by those cases, and Sir Horace Davey pressed us to review the Master's taxation in that respect. On this matter we must refer to the Orders and the schedules of the Orders which now regulate a solicitor's remuneration, and the scale of charges which applies to sales, conveyances, and leases. The schedule as to leases, as in Part II., stands in a different position from the charges and the Orders as regards sales. As regards leases, the scale of charges is for leasing or for agreements for leases at rack-rents. Then, where the rent does not exceed so much, it gives so much to the lessor's solicitor " for preparing, settling, and completing the lease and counterpart." Now, if there was that alone, we should not have decided as we did in the two cases that I have referred to. But then we have been i-eferred to the 2nd rule of the General Order, which says : " Subject to the exception aforesaid, the remuneration of a soli- citor in respect of business, connected with sales, purchases, leases, mortgages, settlements, and other matters of conveyancing, and in respect of other business, not being business in any action, or transacted in any Court, or in the Chambers of any Judge or Master, is to be regulated as follows." That is, the scale-fee to be his charge in respect of business connected with sales, &c. In the cases to which I have referred the leases had been granted to the persons with whom the negotiations originally took place. There the matters were all connected with the granting of the lease. The schedule to which I have referred only mentions the particular lease which is to be prepared by the solicitor, and which is to be charged for by him, and where, having regard to the 2nd rule, all matters which are really connected with the preparation of the lease or agreement for a lease (that is, where there is only to be an agreement for a lease) are clearly within the words of the 2nd rule. Of course, in some cases it may be hard, and in other cases it will be for the benefit of the solicitor, and will give him more than he would liave been able to get if there had been no scale. But then there is a direction as to the thing done where the business is not completed ; and, in my opinion, where there are negotiations for a lease, which have entirely concluded without having produced any lease at all, the solicitor must get his claim In re Martin (a Lunatic). 551 allowed under the direction of business which is not completed. I C'- ■^• think it would be wrong, if there was a negotiation entirely at an end before the fresh negotiation had begun with the person to whom the lease was granted, that there should be no claim for the business done in respect of the completed negotiation which led to no lease, and therefore which did not come in any way within the schedule to which 1 have referred. It would be wrong to extend the cases of In re Field (1) and In re Emanuel 8{ Simmonds (2) to Ante, p. 278. a case like this, where there were negotiations with persons who "'^'P' " were intending to be but who were not lessees, and who wei-e persons to whom no lease was granted. If we extended these cases to these negotiations the solicitor would get no payment at all for the trouble and business he had undertaken between the parties. Of course it would be a question for the Taxing Master to consider what allowance ouglit to be made to a solicitor for the work involved in these negotiations which led to nothing, but in my opinion, here the Taxing Master was wrong in laying down this rule so fully, that as regards the claim for negotiations with persons other than Mr. Parkes, he is entitled to disregard them, and not to enter into question of whether any sum is properly payable in respect of those negotiations. As regards the negotiations with Mr. Parkes, those would be all business connected with the lease which was actually granted, and in respect of which the solicitor would be paid his charges, which would include all business connected with that matter ; but but as regards the other negotiations, all of which in this case were between the first application of Mr. Parkes and the granting of the lease, I think we ought to send the matter back to. the Taxing Master to review his taxation, and to consider what is properly payable to the solicitor, treating these negotiations as being negotiations with other persons which did not lead to any lease at all. As regards the business actually connected witli the lease which was executed, that is covered by tlie scale-charge. We are of opinion that the matter ought to go back to the Master in order to reconsider what remuneration ought to be allowed to the solicitor. (1) 29 Ch. D. 608. (2) 33 Ch. D. 40. 552 In re Martin (a Lunatic). C. A . LiNDLEY, L.J. : — 1889. This question turns upon the true construction of the rules under the Solicitors' Remuneration Act, 1881, and especially rule 2, sub-sect. (Z>), and Schedule I., Part II., which have all to be read together, and the question which we have to consider is whether the work for which Mr. Barnard now asks that he may receive compensation in addition to tjie scale-charge is or is not covered by the scale-charge when construed by the rules to which I have referred. Now it appears to me that when we understand rule 2, sub-sect. (/;), and Schedule I., Part II., the result is that this particular work for which he seeks to be remunerated is not covered by the scale of charges. If it were, the amount of the scale of charges is all that he could recover. I need add nothing to what the Lord Justice has said, except perhaps this, that it appears to me that this decision is consistent Ante, p. 278. with In re Field (1), and it is more in accordance with the prin- ciple on which the House of Lords acted in Newhould v. Bail- Ante, p. 483. ward (2) than the opposite conclusion would be. It seems to me, therefore, that Mr. Barnard is entitled to these charges, subject of course to taxation. Solicitor: G. W. Barnard. (1) 29 Cli. D. 608. (2) 14 App. Cm. 1, Weston V. Steeds. 653 WESTON V. STEEDS. Q. b. Div. 1889. (Before Haeeison, O'Beien, Muephy, and Holmes, J J.) june 3. (1882, N. No. 232.) CBy permission, from 21 L. R. Ir. 283.) Practice^Taxation of Costs^-Witiiesses' expenses. In an actioti for breach of warranty of a horse sold to the plaintiff, who resided in England, the plaintiff produced, as witnesses at the trial, three English veterinary surgeons, who had examined the horse shortly after the purchase, and deposed to its unsoundness. The plaintiff re- covered a verdict, and the Taxing Master having, on taxation, disallowed the expenses of two of these witnesses, the Judge at the trial consider- ing them necessary witnesses : — Held, that their expenses should be allowed. Application, on summons fof an order that the plaintiff's costs herein to be referred back to the Taxing CiBcer, with directions to him to allow the plaintiff the items Nos. 172, 173, and 174, being the amounts of witnesses' expenses paid to Messrs, Cox, South, and Dring by the plaintiff, or such other amount as may be just and reasonable, having due regard to the amounts paid and the faht that the attendance of said witnesses could not be otherwise secured, and for the costs of the application. The material facts were as follows :— The action was for damages for breach of Warranty of a certain horse sold by the defendant to the plaintiff under the following circunistaitces : — The plaintiff" resided near Weymouth, in England, and the defendant at Clonsilla, in the county of Dublin. The alleged warranty was contained in a letter from defendant to plaintiff, dated the 4th August, 1888, and on the faith of which, it was alleged, the plaintiff bought the horses for the sum of £250. The plaintiff's groom camp from England to Dublin, and saw the horse, which was examined and passed by a veterinary surgeon in Dublin as sound, and was then taken to England, and paid for by plaintiff" by cheque upon the 23rd August, 1888. A few days afterwards the horse showed signs of unsoundness. 554, Weston v. Steeds ■ ^- I>i^- and was, upon the 23rd August, 1888, examined by the witness Dring, who certified to the unsoundness ; and thereupon, after certain correspondence between the parties, the plaintiff had the horse examined by Messrs. Cox and South, two eminent veterinary surgeons of London, who also certified to the unsoundness of the horse, and the horse was then sent back to the defendant on the (!th September, 1888, who acknowledged its ai'rival but declined to accept it as returned on account of unsoundness. On arrival in Dublin the horse was examined by three local veterinary surgeons on behalf of the plaintiff, who were examined at the trial. Certain negotiations for a settlement between the parties ensued, but were unsuccessful, and the case came on for trial before Mr. Justice Holmes. The attendance at the trial of Messrs. Cox, South and Dring was directed by plaintiff's senior counsel, and under his direction an application to this division was made for subpoenas ad test, to secure their attendance, but same were refused until plaintiff failed to secure their attendance by previous payment of their expenses, &c. This course was adopted, and the witnesses attended at the trial, and were examined for the plaintiff, and cross- examined for the defendant. During the trial all the professional witnesses both for plaintiff and defendant examined the horse (either at the suggestion or with the concurrence of the presiding Judge), and all these witnesses afterwards deposed that the horse was undoubtedly unsound then. The jury found for the plaintiff for £60 damages and costs, for which judgment was duly entered. On the ground that Messrs. Cox and South were unnecessary witnesses, and that Mr. Dring's expenses were overcharged, the Taxing Officer made the following deductions from the plaintiff's bill of costs furnished for taxation : — Amount Amount Item. charged. deducted. £ a. d, £ s. d. 172. J. R. Cox, Expenses, . . 47 10 47 10 173. W. A. South, do., . . 47 5 47 5 174. C. J. Dring, do., . . 31 10 13 18 From this taxation the present appeal was taken. Weston V Steeds. 555 J. Gordon, for the plaintiff :^ Q- S. Div. 1889. Tiie plaintiff was unable to secure the attendance of these witnesses otherwise than by paying what was the least they would come to Ireland for, viz., the amounts paid ; and therefore the plaintiff is entitled to charge accordingly: Carson v. M'Cul- lagh (1), Little v. Gore (2). Undoubtedly the witnesses were material and necessary. When they had examined the horse shortly after the sale, and to the knowledge of the defendant, it would have been hopeless to proceed to trial without their evidence. The Taxing Officer had no right to disallow items 172 and 173 ; and as to item 174, there may be doubt about that item. [Counsel also referred to Ord. X., Rule 8, of the Rules of April, 1878 ; Zionergan v. Royal Insurance Company (3), Rohb v. Ante, p. 135. Connor (4).j 'D. B. Sullivan, contra : — The Officer is the judge as to the proper number of witnesses to prove each fact. It is a matter for the discretion of the Tax- ing Officer, and the Court will not let their opinion prevail against that discretion : Thomas v. Mannia; (5). These witnesses, Messrs. South and Dring, were unnecessary, and the Officer con- sidered them so. They could give no evidence as to the sound- ness of the horse at the date of the sale, as they did not see it till the 5th September, nearly three weeks after the sale. As to Mr. Dring's expenses, the Officer has allowed him what was proper, and the Court certainly should not interfere. [Counsel also referred to Blyth v. Fanshawe (6).J Harrison, J. : — We direct that the bill of costs in this case be referred back to taxation, with a direction to the Officer that he should allow the expenses of the two witnesses, Messrs. Cox and South. We express no opinion as to the expenses of the- witness Mr. Dring; he stands in a different position, the Taxing Officer having (1) 12 L. E. Ir. 117. (4) Ir. Eep. 9 Eq. 373. (2) Batty's Eep. 144. (5) Ir, E. 3 C. L. 128. (3) 1 Dowl. Pr. Cas. 223. (6) 10 Q. B. Div. 207. 556 Weston v. Steeds. ■Q. B. Div. allowed portion of his expenses, and with the taxation of that item we shall not interfere. As to the actual amount which the Officer is to allow Messrs. Cox and South, we at present express no opinion. The plaintiff by his present summons asks that " the amounts actually paid to these two witnesses should be allowed, op such other amounts as may be just and reasonable, having regard to the amount paid, and the fact that the attendance of said witnesses could not be otherwise secured." We shall not make our ovder in that form ; but during the argument sufficient intimation was given by the Court to show that we consider the principle in the summons thus stated to be the proper one. In our opinion the Taxing Officer erred in the principle of his taxation. [His Lordship then refers Ante, p. 554. to the facts of the action, as stated supra, p. 283]. The learned Judge, who presided at the trial of the action (Mr. Justice Holmes), states that he considers it would have been almost liopeless for the plaintiff to go to trial without the evidence of these two witnesses (Co-x and South). We direct that the bill be referred for re-taxation, holding that these were necessary witnesses under the circumstances of the action, and that the Taxing Officer allow for their expenses whatever is the proper amount. O'Beien, Muephy, and Holmes, JJ., concurred. Order aceordvmgly . Solicitors for the plaintiff : Casey ^ Clay. Solicitors for the defendant : D. ^. T. Fitzgerald. In the Goods of Mary Hay den. bbl In the Goods of MARY HAYDEN. p^oj. 2)!>. 1889. (Before Wakren, J.) OctTasT" (By permission, from 23 Iv. L. T. 566.J Practice — Cods — " Cods of trial," what condilntes. This suit has been brought to set aside the will of Mary Hayden, who died in the County Kilkenny about 25 years ago, leaving assets estimated at £17,000. Some of this money had been paid away to a blacksmith named John Hayden. The plaintiff is the inmate of a Roman Catholic Convent in Brooklyn, and the question now at issue was whether Ellen Lannon was the lawful niece and nearest of kin to testatrix. Certain issues in the case had been tried, aaid had been decided in the plaintiff's favour. A new trial had been granted on the terms of Martin Lannon paying the costs of the first trial, except the costs attendant on the first of the issues. Master Mathews had taxed the costs on the principle that tlie " costs of trial " included only counsel's fees, witnesses' expenses, solicitor's attendance and fees, and the costs of the notice of trial, which ruling it was now sought to have reviewed. Bewley, Q. C, 8f Hunt, for the plaintiff. Walker,. Q.C., $ Matheson, for the intervenient. Wakren, J,, upheld Master Maithews' ruling, with the addition that in his (Judge Warren's) opinion the plaintiff was also entitled as regards the costs of the trial to two-thirds of the shorthand writer's notes, amounting to about £10, the costs of the motion to be bovn-e by the parties. 558 Myers v. Pkelan and Others. Ex. Div. MYEES V. PHELAN and OTHERS. 1889. Nov. 8. (Before Palles, C.B., Dowse, B., and Andkeavs, J.) Appeal. I'SS"- {By permission, from 26 L. R. Ir. 218; ». c. 24 Ir. L. T. R. CO). Feb. 19, 20, 27. Practice— Costs— IG & 17 Vict. c. US, s. 78—19 & SO Vict e. 102, s. 97. In an action in which there were three counts, each in tort, and the parties resided within the jurisdiction of the Civil Bill Court of the county in which the causes of action had arisen, the jury found a verdict for the plaintiff for £2 damages on two counts, and that £5, which had been lodged in Court by the defendant, on foot of the third count, was sufficient — Held, by the Court of Appeal (Lord Ashbourne, C, O'Brien, C..T., and FitzGibbon, L.J. ; diss. Porter, M.R., and Barry, L.J.), reversing the decision of the Exchequer Division, who felt themselves bound to follow Arkins v. Armstrong (Ir. R. 3 C. L. 373), that the plaintiff was not entitled to any costs of the action. Arkins v. Armstrong (Ir. R. 3 C. L. 373) overruled. Adjourned summons to review taxation. The action was brought to recover damages for trespasses com- mitted by the defendants upon certain premises situate in Clonmel, and also for an injunction. The plaintiff filed his statment of claim whereby he pleaded — 1. That the defendants on divers occasions broke and entered his lands situate near a laneway, known as the laneway to Tom O'Brien's house in Clonmel. 2. That they on divers occasions broke, injured, and utterly destroyed divers carts and barrows of the plaintiff, 3. That they broke and entered upon certain walls, windows, bars, railings, gates, and posts standing on the plaintiff's lands. 4. That they wrongfully obstructed the plaintiff in a certain right of way to which he was entitled. 5. That the defendants wrongfully obstructed a certain high- way, whereby the plaintiff was prevented from using same, and from carrying on bis trade as a farmer. The defendants, by their statement of defence, traversed all Myers v. Phelan and Others. 559 the acts complained of in the claim ; and also, by way of furthei- ^I'^FJ^' defence to the 1st and 3rd paragraphs, pleaded (paragraph 5) that the plaintiff theretofore in the County Court of the County of Tipperary, holden at Clonmel, then being a Court duly constituted and holden under the statutes relating to the County Court, and then having jurisdiction in respect of the causes of action in the said paragraphs mentioned, duly issued a process for the same causes of action respectively as in the said paragraphs mentioned ; and such proceedings were thereupon duly had in the said Court in the matter of the said process ; that afterwards, by the said jiidgment of the said Court duly made, it was ordered and decreed that the plaintiff's said process should be dismissed on the merits with costs, and the said judgment was still in full force : judgment dated the 16th March, 1887 ; and (paragraph 8) by way of alter- native defence to the 2nd paragraph thereof the defendants pleaded as follows : — " Lest contrary to what they believe or contend, they are under any liability to the plaintiff in respect of the said cause of action they bring into Court the sum of £5 and say that the said sum of £5 is sufficient to satisfy the plaintiff's claim in respect of the said causes of action" (1). The plaintiff replied, joining issue. The action was tried before Mr. Justice Johnson and a jury of the South Riding of the County of Tipperary, at the Clonmel Summer Assizes, 1888. The jury found as follows : — 1. That the defendants committed the acts in the 1st and 3rd paragraphs of the statement of claim mentioned ; and also that the process in the 5th paragraph of the defence mentioned was not for the same causes of action as in the 1st and 3rd paragraphs of the statement of claim mentioned. 2. That the defendants committed tlie acts in the 2nd paragraph of the statement of claim mentioned. 3. That the defendants did not commit the acts in the 4th para- graph of the statement of claim mentioned. (1) The defendants also pleaded, by way of counter- claim, to which the plaintiff replied, traversing the allegations, and lodging 5s. in Court. The money was subse- quently accepted by the defendants in full satisfaction, and no order was made by the Jud^e on foot of the counter-claim. — Rep. SCO Myers v. Phelan mid Others. Ex. Div. 4_ By direction — that there was no public highway as in the 5th paragraph of the statement of claim mentioned. The jury assessed the damages in respect of the causes of action mentioned in the said 1st and 3td paragraphs at the sum of £2 ; and found that the sum of £5 lodged in Court by the defendants as in the 8th paragraph of the defence mentioned was sufiScient to satisfy the plaintiff's claim in respect of the causes of action set forth in the 2nd paragraph of the statement of claim. The Post, p. 562. judgment, as amended (1), was entered for the plaintiff for £2 damages, with legal costs (if any) in respect of the causes of action in the said 1st and 3rd paragraphs ; and for the defendants with costs in respect of all the other causes of action in the said statement of claim and the defences thereto. His Lordship refused to certify that the case was a fit one for the superior Courts. The plaintiff then lodged his costs for taxation ; and the Taxing Officer (Master Davis) proceeded to tax the same, and allow several items. The defendants thereupon objected to all the items allowed by Master Davis on (amongst others) "the following grounds : — 1. That, inasmuch as the plaintiff recovered only £2 damages, in respect of the causes of action set forth in the 1st and 3rd paragraphs of the statement of claim, and both parties resided in the same civil bill jurisdiction, he was not entitled to Any Costs. 2. That the causes of action set forth in the 2nd paragraph of the statement of claim were separate and distinct from the causes of action in the 1st and 3rd paragraphs thereof, and that separate judgments had been entered in respect thereof, and that the Tax- ing Master should have treated them as if they were separate and distinct actions. 3. That the jury found that the £5 lodged in Court was suffi- cient to answer the plaintiff's claim in the said 2nd paragraph, and that on such finding judgment had been entered for the defendant in respect of said causes of action, and the said sum of £5 re- mained in Court to answer the defendant's costs, pursuant to Section 76 of the Common Law Procedure Act, 1853. The Tax- ing Master allowed the defendant's said objections. The plaintiff (1) Inf,a, p. 222. Myers v. Phelan and Others. 5fil then objected to the ruling of the Taxing Master on (amongst ^«- »''»• others) the following grounds : — 1. That the plaintiff was entitled to the general costs of the action, having recovered £7. 2. That the plaintiff had recovered £5 lodged in Court under the 8th paragraph of the defence. 3. That the said 76th Section had no application to the case. The Taxing Master overruled the plaintiff's said objections and disallowed the plaintiff's costs of action, and allowed the defendant his general costs of action. The plaintiff then applied to the Judge in Chambers for an order to review the said taxation, and to allow the plaintiff his general costs of action. The summons having duly come on for hearing was adjourned for hearing before the Divisional Court. Matheson (with him Sergeant Hemphill, Q.C.), for the plaintiff: The plaintiff" is entitled to the general costs of the action. By Section 97 of the Common Law Procedure Act, 1856, it is provided that in an action of tort, where the parties reside within the same civil bill division, if the plaintiff shall recover damages not exceeding £5, he shall not be entitled to any costs. But in this case he recovered in all £7. In an action in contract, containing two counts, where the plaintiff recovered £8 on foot of one count, and the jury found that £12 lodged in Court on foot of another count was sufficient, the plaintiff was held entitled to full costs, although both parties resided in the same civil bill division, notwithstanding the 243rd Section of the Common Law Procedure Act, 1853, and the 97th Section of the Act of 1856: Arkins v. Armstrong (1). In an action in contract, where the defendant lodged £16 in Court, which sum the plaintiff drew out, and the plaintiff then proceeded to trial and recovered £6 over and above the £16 lodged in Court, it was held that the two sums of £l6 and £6 should be added together, so as to entitle the plaintiff under the 243rd Section of the Act of 1853 to the full costs of the action: Hughes v. Guinness (2). Palmer v. Garrett (3) is to the same effect. Ante, p. 74. [Counsel also cited Leonard v. Brownrigg (4), and Section 76 oi Ante, p. 82. the Common Law Procedure Act of 1 853.] (1) Ir. E. 3 C. L. 373. (3) Ir. R. 5 C. L. 412. (2) 4 Ir. C. L. R .314 (4) Ir. R. 6 0. L. 161. 1889. 562 Myers v. Phelan and Others. '^f^Fn"' Carson, Q.C. (with him Cherry), for the defendants: — The plaintiff is not entitled to any costs. The two counts deal with distinct causes of action, and the finding of the jury that the £5 lodged in Court was sufficient was a verdict for the defendant on that count: Common Law Procedure Act, 1853, Section 78. The identical question arose in Walsh v. Walsh (]), where the defendant lodged £5 in Court on foot of one count, which sum the plaintiff drew out in full satisfaction, and the jury found for the plaintiff £1 on another count in tort, and the Court held that the plaintiff was not entitled to costs. The £5 was not " recovered " in the action. \Deoine v. I^ondon and North Western Railway Co. (2) and Blackmore v. Higgs (i5) were also referred to.J The Exchequer Division held that they were bound to follovv the authority oi' Arkins v. Armstrong (4). The following is the curial part of their Lordships' order : — " It is ordered by the Court that the said Taxing Master do review his taxation of costs in this action, and that he do allow to the plaintiff in the original action the general costs of the action in respect of the causes of action in the 1st and 3rd paragraphs of the statement of claim, without prejudice to the defendants' right to costs upon the causes of action found for them. " It is further ordered that the defendants do pay to the plaintiff the costs of this motion, when taxed and ascertained, and tliat the j udgment marked in this action be amended by striking out the words following : — ' And the said Justice having ordered that judgment be entered for the plaintiff on foot of the said 1st and 3rd paragraphs with £2 damages, with costs if any, and for the defendants in respect of all the other causes of action, with costs of suit.' And inserting in lieu thereof the words following: — 'And the said Justice, having ordered that judgment be entered for the plaintiff in respect of the causes of action in the said 1st and 3rd paragraphs, with £2 damages, with legal costs if any ; and for the defendant, with costs, in respect of all other causes of action in the statement of claim and defence thereto : ' and by striking out of said judgment all the words after the words 'It is adjudged,' and inserting in lieu thereof the words following : — ' That th« plaintiff do recover against the defendant in respect of the causes of action mentioned in the 1st and 3rd paragraphs of the statement of claim £2, and £ for his costs, and that the defendants recover against the plaintiff £ for his costs, in respect of all other causes of action in the statement of claim and the defences thereto.' " (I) 17 Ir. C. L. R. ig.'i. (3) 15 C. B. N. S. 790. (2} 17 Ir. C. L. a. 174. (4) Ir. R. 3 C. L. 373. Myers v. Phelan and Others. 568 Tlie defendant appealed to the Court of Appeal (Lord Ash- Appeal. BOUKNE, C, O'Brien, O.J., Poktee, M.K., and FitzGibbon and BaERY,L.JJ.) Feb. 19, 20, 27 Carson, Q. C, Sf Cherry, for tlie appellant. Sergeant Hemphill, Q.C., Sj- Matheson, for the respondent. The arguments below were substantially the same as those reported in the Court below, and the following additional authori- ties were referred to : — Farmer v. FottreU{i), Wheeler v. United Telephone Company (2), Coughlan v. Morris (3), Berdan v. Greenwood (4), Fewster v. Boggett (5), O'Rorke v. M'-Donnell (6), Coocli v. Maltby (7), James v. Vane (8), Diwon V. Walker (9), Beard v. Perry (10), Byrne v. M'Eooy (11), Ante, p. 78. Byan v. Fraser (12), Hannan v. Laffan (13), Owens v. Vamhomrigh Jnte, p. 256. (14), Richards v. ^Zmc^ (15), Boulding v. Tj/fer (16), ff Donnell v. ^»te, p. 218. Callanan (17), Crosse v. Seaman (18), Hewitt v. (7or_i/ (19), Shrapnel V. Laing (20), Danhy v. Lamb (21), Myers v. Defries (22). Lord Ashbourne, C. : — This is an appeal from an order of the Exchequer Division, Feb. 27. reversing a decision of the Taxing Officer (Master Davis), who considered that under Section 78 of the Common Law Procedure Act, 1853, the plaintiff was not entitled to the costs of the action. The case involves the consideration of arguments which have led to constant differences of judicial decisions, and as to which there have been many fluctuations of opinion. To use the words of Chief Justice Lefroy, in O'Rorke v. McDonnell (23), "It is one of ;i (1) 8 Ir. C. L. B. 228. (13) 15 Ir. L. T. K. 32. (2) 13 Q. B. Div. 597. (14) 14 Ir. C. L. K. 3C2. (3) 6 L. E. Tr. 405. (15) 6 C. B. 443. (4) 3 Ex. Div. 251. (16) 3 B. & S. 472. (5) 9 M. & W. 20. (17) 20 L. K. Ir. 444. (6) 13 Ir. C. L. R. App. 8. (18) 11 C. B. 621. (7) 23 L. J. Q. B. 305. (19) L. K. 5 Q. B. 418. (8) 29 L. J. Q. B. 169. (20) 20 Q. B. Div. 334. (9) 7 M. & W. 214. (21) 11 C. B. N. S. 423. (10) 31 L. J. Q. B. 80. (22) 5 Ex. Div. 180. (11) Ir. R. 5 C. L. 5d8. (23) 13 Ir. C. L. R. App. 8. (12) 16 L. R. Ir. 253. 1890- 56 i Myers v._ Phelim and Others. Ai^_ea. class of cases upon which, not only the most eminent judges, but also the Courts themselves in England, have been divided in opinion, and in which the Court, now about to give judgment, is. also divided in opinion." The facts of the case may be stated in a few words. There were two counts in tort. As to one, the defendant lodged £5 in Court, which the jury found to be sufficient ; as to the other, the jury returned a verdict for £2. Can the sums of £5 and £2 be added together for the purpose of entitling the plaintiff to his full costs of action under the provisions of the 97th Section of the Common Law Procedure Act, 1856 ? The Exchequer Division, constrained by a former decision of their own Division, when dif- ferently constituted — i e., the case of Arkins v. Armstrong (1), held that the sums conld be so added together to give the plaintiff the costs of the action ; but the Lord Chief Baron, who did not himself concur in the grounds of the decision of Arkins v. Armstrong (1), suggested that this appeal should be taken. Thus the case comes before us, and we have had the benefit of a full and clear argument, in which all the sections and cases have been examined. Has the plaintiff any right to add the £5 which the jury has found to be sufficient to satisfy one count to the £2 which they have awarded on another count in tort, so as to get the costs of the action ? Take each count separately, and see how the case stands. The £5 is governed by Section 78 of the Common Law Procedure Act, 1853, which is in the following terms: — [His Lordship read the section]. The £2 is governed by Section 97 of the Common Law Procedure Act, 1856, and the Judge having refused to certify, the plaintiff is entitled to no costs. Therefore, it is manifest that, taking each count by itself, in one the defendant would be entitled to judgment and costs of suit, and in the other the plaintiff would be entitled to no costs whatever. But then comes the extraordinary contention of the plaintiff, that he is entitled to add the count where he would have to pay all the costs to the count where he would get no costs, aijd that the effect of this is to give him all the costs of the action. I am unable to assent to this contention, which would lead to some (1) I-. R. 3 C. L. 373, Myers v. Pluliin and Others. 565 startling consequences. Supposing that a defendant liad lodged ■dppml. £500 in Court on one count in tort, and that the jury found it was enough, and more than enough, and found one farthing damages on another count in tort, if the plaintiff is right in his contention, then the defendant woiild in vain have lodged his £500, and in vain would the jury have found in his favour. The plaintiff must get the whole costs, being permitted to add the farthing whicli, stand- ing by itself, would give no costs to the £500 which, standing by itself, would compel the plaintiff to pay every farthing of the defendant's costs. Is the defendant to be in no better position than if he had paid in nothing ? If Section 78 of the Common Law Procedure Act, 1853, does not govern the position, then no sane defendant sliould lodge money in Court, where there are other counts. For why should anyone pay money into Court when lie can gain notliing by it I The remarks of Crowder, J., in Smith V. Harnor (1), are in point. There were two counts there in the declaration : the first for assault, on which the plaintiff obtained a verdict for £5, and the second for slander, in which the plaintiff failed. The defendant argued on Section 11 of the County Courts Act (13 & 14 Vict., c. 61) that the plaintiff, having only obtained a verdict for £5, without any certificate, should get no costs. The plaintiff said the section did not apply where there was another count, even where the plaintiff failed. Crowder, J., thus dealt with this curious argument : " See what absurdity that would lead to. If a plaintiff sues for slander, and fails, he pays costs ; if he brings an action for an assault, and obtains no more than £5 damages, he gets no costs ; but, according to your view, if he brought his action for the two, and altogether failed as to the one, and obtained less than £5 damages on the other, he would be entitled to the costs of the cause ! " Very sensible words, which powerfully apply to the arguments addressed to us by the plaintiff in the pre- sent case. All the authorities having been discussed and cited, I shall refer to some of tliem which strike me as the more important. The case of Devine v. London and North Western Railway Company (2) is important, although the Coui-t was equally divided. The elaborate judgment of Mr. Justice Fitzgerald can be read with much (1) 3 C. B. N. S. 829. (2) 17 Ir. Cr^. E. 17+. 2 o 566 Myeva v. Phelan mid Othres. Appeal. advantage. The facts are sufficiently stated in the marginal note and the eminent Judge I have referred to thus speaks of the application of Section 78 of the Common Law/Procedure Act of 1853: "The defendant being thus entitled to judgment in the action of tort, the plaintiff contends that though in this action, so far as it is an action of contract, he has recovered a sum less than £20, he can call in aid the sum paid into Court in the action of tort in the other branch of the plaint ; and that by adding together the two sums, so as to exceed £20, he becomes entitled to recover full costs. It seems to me that he cannot be permitted to do this. There are two actions here, one in contract and one in tort, rfwconnected with contract, and they are not the less to be considered two actions, separate and distinct in their two characters, because they are com- prised in the same writ of summons and plaint. In the action of contract the plaintiff has recovered less than £20. On the other counts there is a verdict and judgment against him, and he is liable to the costs of suit on them ; and it would be singular, indeed, if tlie plaintiff, being liable to the costs of suit in the action — so far as it is an action of tort — should be permitted to add the sum paid into Court on the counts in tort to the sum recovered in the action of contract, so as to entitle him to full costs of suit. I am of opinion that he has no such riglit, and that the ruling of the T9,xing Officer was correct." The case of Walsk v. Walsh (1) is strongly relied on by the defendant. The facts are thus stated in the marginal note. [His Lordship read the marginal note.] Chief Baron Pigot thus spoke of the acceptance of the money lodged by the plaintiff : — " The result of this appears to me to be that, upon the plaintiff's accept- ance of the money, the cause of action in the second count was completely at an end, the demand upon it being satisfied, under the statute, by such acceptance ; and the action was then no longer an action for the disturbance of a right of way, and for assault and battery but became, by the plaintiff's own act, an action solely for assault and battery against the defendant James Walsh ; and as such, and as such only, was by the plaintiff pro- secuted and brought to trial. And if that be so, the case is directly within the express terms of tlie 126tli section of the (1) 17 Ir. C. L. R. 195. Myi'Ts V. Pltelan and Others. ^'ol Common Law Procedure Act; for in this action for assault and Appeal battery the jury have found the damages under the vakie of forty shillings ; and the Judge at the trial has not certified that the assault and battery were sufficiently proved." After referring to Blackmore v. Higgs (I), and the judgment of Chief Justice Erie, he proceeds thus : — " I apply that language to the case now before us to this extent, and to this extent only, that as Lord Chief .Fustice Erie and the rest of the Court treated the action in Blackmore v. Higgs (2), as in substance only an action for an assault upon the female plaintiff, because the event of the trial and the verdict of the jury showed that no other cause of action existed, so, in the present case, we ought to hold that this action was an action for assault and battery only, after the plaintiff had accepted the money lodged in Court in full satis- faction of his other demand for the disturbance of the right of way; because by his own act he had removed all question upon that other demand, and had prosecuted the action for no other purpose than tliat of recovering damages for the assault and battery." The clear and only meaning of that language is this, that where money is lodged in Court and drawn out by the plain- tiff in full satisfaction, the action founded upon that is completely at an end, and the demand satisfied by such acceptance. That is stronger than the present case, for here the plaintiff behaved more unreasonably. He did not accept the money lodged. He contested its sufficiency. It is absolutely impossible for the eminent Judge who pronounced the judgment in Arkins v. Armstrong (3), or any one else, to explain away his elaborate argument in Walsh v. Walsli (4). in the latter case he said that his decision in Walsh v. Walsli (5) rested on sect. 126 of the Common Law Procedure Act, 1853 ; but it must be remembered that Walsh v. Walsh (6) was only narrowed to that section by deciding that the £5 lodged in Court, and taken out in full satis- faction, must be deemed out of the action. The case oi Palmer v. Garrett (7) is interesting for the judg- ^„((,_p. 74 ment of Chief Justice Monahan, which, however, founded itself (1) 15 C. B. (N-. S.) 790. (5) 17 Ir. C. L. E. 195. (■i) 1.^ C. B. (N. S.) 790. (6) 17 Ii-. C. L. B. 195. (3) Ir. R. 3 C. L. 373. (7) Ir. II. 5 C. L. 412. (4) 17 Ir. C. L. R. 195. 5(i8 Myers v. Phelan and Others. Appeal. on Arkins v. Armstrong (1), and the narrow readins of the case of 18Q0 •/ \ ' <= Walsh V. Walsh (2). Ante, p. 82. The facts of the ease of Leonard v. Brownrigg (3) are different. There the plaint contained a count in contract and also a count in tort. The plaintiff cannot for the purpose of entitling himself to full costs add a sum paid into Court on foot of the count in con- tract (which, upon issue joined, the jury haye found to be suffi- cient) to the damages awarded by the verdict on the count in tort. Ante, p. 8^. The judgment of Chief Justice Whiteside (at p. 170) may be j-ead with advantage in this case. The case of ArKns v. A rmstrong (4) has been referred to so often that I may assume its facts are fully present to the minds of all who are interested in this case. I satisfy myself with saying that it is entirely incon- sistent with the judgment of the same Court in Wahh v. Walsh (5), and I do not concur in the reasoning on which the later judgment of the Lord Chief Baron proceeds. I am aware of the differences of opinion which these cases have caused, and I have an unfeigned respect for the opinion of my colleagues on this Bench who differ from me, and but for the mis- giving that may be caused by such knowledge, I must say that I never had less doubt in my life as to any decision I ever gave than that I now give for the defendant. In my opinion the appeal should be allowed, with costs. O'Brien, C.J. :— The plaintiff being disentitled to costs in respect of the causes of action in the 1st and 3rd paragraphs of the statement of claim, by reason of the smallness of the amount (viz., £2) he recovered, the question we have to decide is, whether the plaintiff, in order to get the general costs of the action, can add to the £2, which disentitle him to costs, the £5 paid into Court with reference to the 2nd paragraph of the statement of claim, and which £5 has defeated him and cast him in costs in reference to the matter to which it was pleaded. In other words, whether he can, on this question of costs, convert a defeat as to two causes of action, and (1) Ir K. 3 C. L. 373. (4) Ir. R. 3 C. L. 373. (2) 17 Ir. C. L. R. 195. (5) 17 Ir. C. L. E. 195 (3; Ir. E. 6 C. L. 161. Myers v. Phelan and Others. 569 a complete rout as to costs as to another cause of action into a Appeal . . . 1890. complete victory, so as to get the general costs of the action. This process of producing victory has been hitherto unknown in any species of contention, except that of law ; and in law it has been unknown, except in the solitary case of Arkins v. Armstrong (1), decided in the Court of Exchequer in 1869, and which case I have no compunction in being a party to overruling ; as I think, for reasons which I will assigUj it is manifestly wrong. It is said Arkins v. Armstrong (2) was decided about twenty-one years ago, and that it is as it were hallowed by time 5 but we must remember there was no appeal from the decision in the then state of the law, and that the present Chief Baron (the head of the self-same Court of Exchequer) has plainly suggested this appeal because he thought Arkins v. Armstrong (3) wrongly decided. We have then the circumstance that there was no appeal at the time Arkins v. Armstrong (4) was decided; and we have the clear opinion of the head of the Exchequer Division that the decision of his own Court, now under review on this question of costs, is wrong. Under these circumstances I ask, if we believe it to be wrong, why should we hesitate to overrule it ? In my opinion the error (and error I believe it is) has not been rendered so sacrosanct by time or practice that we should proceed to stereotype it by our judgment. It appears to me it would be a very sorry conclusion, if we believed Arkins v. Armstrong (5) to be wrongly decided, to say to the Exchequer Division, when calling for help : " Time is against you ; persist in your erron" I now come to the ground upon which I rest my judgment, and it is what I early thought governed the case — namely, the effect of the 78th Section of the Common Law Procedure Act of 1853. That section provides that in case the plaintiff declines to accept the sum paid into Court to satisfy the claim of the plaintiff in respect of the matter to which the plea is pleaded, the sufficiency of the payment shall be tried upon the issue raised for that purpose by the said defence ; and, in case of such issue being found for the defendant, the defendant shall be entitled to judgment and Ids costs of suit, (1) If. R. 3 0. L. 373. (4) Ir. K. 3 C. L. 373. (2) Ir. B. 3 C. L. 373. (5) Ir. B. 3 0. I;. 373. (3) Ir. K. 3 C. L. 373. 570 Myers v. Plielan and Others^. Appeal. And to what extent is he entitled to costs? He is entitled, as was 1890. . . . » . decided in Farmer v. Futtrell (1) in case of a single cause of action, to his costs of suit, not merely from the lodgment of the money in Court, but from the very commencement of the suit. And the fact of the money being paid in as an alternative defence, if the plaintiff goes on to trial and is beaten on tlie issue as to its sufficiency, makes no ) ^ though an action of contract, is, for present purposes if binding, a conclusive authority. I think it better, however, to postpone the consideration of that case for the present. The only reported case in this country in which the point has been said to have arisen in an action of tort is Walsh v. Walsh (7), and there the Court of Exchequer, consisting of Pigot, C.B., Fitzgerald, Hughes, and Deasy, BB., held that where in an action of tort, £5 is lodged under one count, and accepted, and £l reco- vered by verdict under another count, these sums could not be added together, so as to bring the amount recovered in the action above £5 — a startling decision till it is understood, and one, if no different rule of law had intervened in it, diametrically opposed to Hughes v. Ante, p, 74. Guinness (8), Palmer v. Garrett (9), and a whole course of decisions Cl) Ir. R. 5 C. L. 412. (6) Ir. R. 3 C. L. 373. (2) 9 M. & W. 20. (7) 17 Ir. C. L. K. 195. (3) 11 C. B. 624. (8) 4 Ir. C. L. R. 314. (4) Ir. R. 6 C. L. 161. (9) Ir. R. 5 C. L. 412. (5) 17 Ir. C. L. R. 174. Myers V. Phelan and Others. 575, upon the same sections. But ou examination it will be found that Appeal. Walsh V. Walsh (I) does not at all conflict with these authorities, but is based exclusively on a section which does not and cannot touch them. I use the word " exclusively " advisedly, as applied to the decision, and I think I might use it (except for one single phrase, which, if correctly reported, is, I tliink, not law), with equal correctness, as applied to the reasons assigned by the Court. I refer, of course, to the expression of the Lord Chief Baron as to the cause of action being "struck out" of the declaration. The decision turned altogether upon Section 126 of the Act of 1853: "In all actions for a trespass on lands or tenements, assault and battery, or for slander, the plaintiff in such action, in case the jury shall find the damages to be under the value of 40s., shall not recover or obtain more costs of suit than the damage so found shall amount unto, unless the Judge at the trial shall certify under his hand on the back of the abstract for wm jpri«« that the assault and battery was sufficiently proved by the plaintiff against the defendant, or that the freehold or title of the land mentioned in the plaint was chiefly in question, or that the trespass was voluntary or malicious." [His Lordship referred at length to the judgment in WaUh v. Walsh \\.).'\ 1 am thus very clearly of opinion that had the money lodged in this case been drawn out in satisfaction of the plaintiff's claim, and had the plaintiff" then gone on and recovered (as he did) on the other count in tort, he would have recovered more than £5 in an actiun of tort, and so would have been entitled to full costs. And is there anything anomalous or contrary to any presumed rule of policy in so holding ? The policy of the law limiting or excluding costs in certain cases is no doubt this : that where a cheap tribunal exists for deciding very small cases (their smallness being legislatively defined) it is an oppressive thing, or, at least, an unmeritorious thing, for the plaintiff to select a costly tribunal for their determination. Prior to the Statute of Gloucester (6 Ed. I., c. 1 ; applied to Ireland by 10 Hen. VII., c. 22, Ir.) the common law gave no costs; but the juries did. Under that statute, or in analogy to it, the successful party obtained his costs. Ever since that time till modern statutes altered the law in particular cases, full costs followed the event, and there was no (1) 17 Ir. C. L. B. 193. 576 Myers v. Flielan and Others. Appeal. inagic in 40^. as compared with 41s., or £5 compared with £5 \s., or any other sum. But at last the Legislature determined that a check should be put upon the oppressive system of bringing actions in the Superior Courts for petty demands, which might have be^n recovered in the lower Courts — 'hence (amongst others) the sections in question. It is obvious, however, that the plaintiff still has a right to full costs, if he recovers anything, unless that right be expressly taken away by statute ; and, under the enactments, we are considering it does not lie on the plaintiff in the present case to show that he is entitled to costs, but upon the defendant to show that he is not. At what moment of time is it to be ascertained whethei* a plaintiff has or has not a cause of action fit to be prosecuted in the Superior Courts? He must, no doubt, decide the question for himself in the first instance. But the law decides it when, either by the confession of his opponent or by the verdict of a jury, or by both, he has estab- lished a claim which, measured in money, reaches the prescribed limit. A plaintiff who has valid claims in contract, amounting in all to upwards of £20 (as the law now stands), is right in suing in tlie Superior Courts. Be it one bill of exchange for £2i, or two for £il each, or four for £5 5s. each, he has a right to resort to the Superior Courts, and if he succeed (that being a question to be decided beforehand at his own peril), to recover full costs, whether his success is achieved by verdict after trial, by Confession of judg- ment, by payment into Court, or by any combination of these. In other words, his right to costs cannot be defeated, save by displacing a sufficient portion of his demand. Nor will his right to costs be defeated by his failure on particular issues. Of those he must pay the costs. But the right to general costs will not be forfeited thereby. Now, is the case altered by the circumstance that, instead of accepting the money lodged on one part of his cause of action ia full discharge of his claim, he denies its sufficiency, and fails on that issue ? I am clearly of opinion that it is not. The money when lodged is the plaintiff's. It may be a large sum, far in excess of the costs of the action. It may be a small sum, as here* In any case, once lodged, it is the plaintiff's, " recovered in the action," and may be Myers v. Plielan and Others. 577 drawn out by liiin in exactly the same way as if he h^d accepted it Appeal. in full. If he do not draw it out promptly, and there be a finding for the defendant on the issue of sufficiency, the defendant gets it back to the extent necessary to meet his costs. But those costs are costs due by the plaintiff, and the receipt of the lodgment by the defendant discharges pro tantQ the plaintiff's debt. Therefore, in either way, the money is the plaintiff's. But here comes in the 78th section, which is the main reliance of the appellant. Now, that section gives to, the defendant the right to "judgment and his costs of suit," if he succeed on the trial of the 'ssue. Does that mean that hp is to have the costs of the action, even if the plaintiff recover on other causes of action ? Most clearly not, though it is in that view of the law that the present appeal was conceived. I think it means that when there is no other question in the action, save this one (sufficiency), the successful defendant is to have judgment and costs; but that, where there are other causes of action, the defendant is entitled to the entire costs of this issue. It cannot mean that the defendant, succeeding on this issue is to have final judgment in the action, even though the plaintiff has proved and established by verdict his right to other causes of action with (say) large damages; that would be too absurd ; and it was given up at the bar in the most precise terms. In the present case, therefore, where the plaintiff has recovered in another cause of action, the 78th section (as is adniltted) does not give the defendant right to final judgment in the action. It does, however, equally clearly give him the costs of the issue on which he has succeeded. But what is that issue? It arises (as the section says) "upon the issue raised for that purpose by the defence" — viz., the defence as always pleaded, "the defendant brings into Court and says same is sufficient," &c. Now, this question, whether the money lodged is " sufficient, &c.," is one which has nothing whatever to do with the plaintiff's right to the money lodged. That money is (as I have shown) his. If the issue be given for him, the money is his, whether he has drawn it out or not. If it be found against him the money remains his. If, for instance, the defendant lodged £50, and the j ury thought that far too much, and by their verdict found that £5 was sufficient, 578 Mijers v. P/ielan and Others. Appeal. ihe plaintiff's risrht to tlie whole £50 would be perfectly unaffected 1890. , , thereby. The true view is that the issue is not one as to the money lodged at all in any shape or form ; but is really whether the plaintiff has a right to some other money over and above that which is lodged, and which is recovered by him in the action before the issue goes to trial at all. There is and can be no issue as to the property in tlie money lodged. A finding on the issue as to sufficiency in favour of the defendant is merely a finding that the plaintiff has failed to establish damages arising from the admitted cause of action, ultra the damages which he has already by the lodgment recovered in the action. It is fitting that if he fail in this he should pay for it ; and so he must. But it is a question -entirely collateral to his right to the money lodged. But it is said, with great force I admit, that this argument lands us in an anomaly, if not an absurdity. The way it is put is this: Take the present case: The plaintiff, in one count, "recovers" (in one sense) £5 by the lodgment ; but he is not satisfied to accept this in discharge of his cause of action, and goes to trial on the issue of sufficiency and is beaten on it. Result " costs of suit " to the defen- dant. On another count the plaintiff proceeds to trial. Verdict for him, £2. Section 243 (1853) and section 97 (185fi) together. No costs. Yet, if he gets his costs of suit by adding the one cause of action to the other, this absurd result follows that, from two causes of action, on one of which he gets no costs, and on the other of which he has to pay the defendant's costs, he recovers the costs of the action against the defendant. This is. no doubt, the strongest way to put the appellant's case. But is it sound? I think not. I think I have shown that it is not in respect of the part of the cause of action as to which the defendant has lodged money that the present plaintiff has to pay costs under the 78th Section at all. It is in respect of his seeking more than he is entitled to. That, however, does rot affect his claim to that to which he is entitled, and which he has recovered by the action, whatever comes of his claim to more. But then, it is said, "No doubt this £5 lodged is recovered in the action." But it is not "recovered in the action" in reference to costs, or so as to affect costs in favour of the plaintiff — for the defen- dant gets the costs under section 78— and therefore the finding against Myers o. Plidan and Others. 579 the plaintiff cannot be called in aid to give him costs. This would be Appeal ... .... . l^^O' unanswerable if the issue on which the plaintiff failed was an issue as to the ownership of the £5. If that went against him, then, no doubt, he would be left to his £2 on the other count, and the legal consequences of that. But 1 have shown this is not so, and failure to prove damages ultra no more affects his right to the damages lodged than failure to prove another and independent trespass would. Nor am I at all appalled by the quasi-mathematical form of the argument. If a plaintiff suing in trespass recovers £3, no costs (section 97) ; if he sue in another action and recovers £3 for a different tort, no costs; yet if he combines both, with similar result, full costs. Each gives zero as to costs ; yet, combine them, and you arrive at a result which is defined by law, not by mathema- tics. I find nothing in sections 78 (1853) and 97 (1856), which gives colour to the suggestion that money may be " recovered in the action," but not " recovered in the action " as to costs. The whole code in questiori is dealing with costs, and that alone. Nor do I feel pressed with the argument that money lodged, though recovered in the action, will not, per se — i.e., apart from any other cause of action— -entitle the plaintiff to any costs, if on an issue as to sufficiency he is defeated. The plaintiff's right to costs only arises when he recovers judgment. If he have no judgment he has no costs, except under special enactments. But if he have a judg- ment for anything, he has full costs, unless, and in so far as, his right is not cut down by statute. The Statute of Gloucester (6 Edw. I., c. 1, 8. 2) is as follows: — "And whereas before time damages were not taxed but to the value of the issues of the land, it is provided that the demandant may recover against the tenant the costs of his writ purchased, together with the damages above said." Section 53 of our Judicature Act enacts: " Subject to the provisions of this Act and of Rules of Court, the costs of and incident to every proceeding in the High Court of Justice and Court of Appeal, respectively, shall be in the discretion of the Court provided that (subject to all existing enactments limiting, regulating, or affecting the costs payable in an action by reference to the amount recovered therein) the costs of every action, question, and issue, . tried by a jury, shall follow the event, unless upon application made the Judge at the trial or the Court shall for special cause 580 Myers V. Phelan and Others. Appeal. shown and mentioned In the order otherwise direct; and any order of a Judge as to such costs may be discharged or varied by a Divi- sional Court. And provided also that in all actions for libel, where the jury shall give damages under forty shillings, the plaintiff shaU not be entitled to more costs than damages." I therefore think that in the case before us the plaintiflf has recovered more than £5 in an action unconnected with contract, that is to say, £5 by lodgment and £2 by verdict and judgment; and that his judgment carries full costs by virtue of section 53 of the Judicature Act; also that these costs are not to be diminished by section 243 (1853), nor annihilated by section 97 (1856), because though his judgment is only for £2, he has recovered more than £5 in the action. This result is in accordance with the decision in ArMnsv. ■ A rmstrong (1), a case decided some twenty-one years ago, and never even cavilled at since. I shall not stop to read it in detail. I concur with the judgment of the Chief Baron, and the reasoning on which it is based. It is criticised on two grounds — 1. That it is irrecon- cilable with Walsh v. Walsh (2) ; and 2, that sect;ion 78 is not stated in the report to have been referred to in the case. The Court which decided Walsh v. Walsh (3) was not only the same Court, but was composed of the same four Judges as that which decided Arkins v. Armstrong (4) a few years after. Did they pur- port to overrule their own decision ? So far from it, they expressly re-affirmed it, and stated that it was decided wholly on section 126. The Chief Baron says (p. 381): " We so decided, not on the 243rd Section, but on the 126th, which prohibits in clear and peremptory terms the recovery of more costs than damages in an action for assault and battery, in which the jury shall find the damages to be under the sum of forty shillings, and in which no such certificate is given by the Judge. We are of opinion that where the plaintiff drew the money out of Court in full satisfaction of the cause of action in the second count complaining of a disturbance in the right of way, and proceeded upon the first count, complaining of the assault and battery, the action became thenceforward within the 126th sec- tion an action for assault and battery alone." Can we say that that is not true % All judicial comity, all fair (1) Ir. E. 3 C. L. 373. (3) 17 Ir. C. L. E. 195. (2) 17 Ir. C. L. R. 195. (4) Ir. E. 3 C. L. 373. Myers v. Phelan and Others. 581 dealing wltli other tribunals forbids it. Sectoin 126 speaks of Appeal. slander and of other particular causes of action with which it deals as a special class, to be dealt with, after the finding of a jury, in a special way. Whether Walsh v. Wahh (1) is rightly decided or wrongly, it is decided on the view that cases where less than forty shillings was recovered were to be dealt with per se, and formed an exception from the general law applicable to actions of tort. That may be right or it may be wrong. But that that is the ground of decision is not alone the positive statement of Pigot, C.B., but also concurrently of FitzGerald, Hughes, and Deasy, BB. Yet all these four Judges, with their own decisions before them, decided Arkin.f V. Armstrong (2) on grounds which they state did not exist in Walsh V. Walsh (3), and on grounds which concededly do exist in this case. So far from weakening the authority of Arhins v.- Armstrong (4), this circumstance, in my mind, immensely strengthens it. Even if I thought that the reasoning in Walsh v. Walsh (5) was not sati.-'factory that would not weaken my adhesion to Arhins v. Armstrong (6); while, if I thought it was satisfactory, I should still hold that it did not touch Arkins v. Armstrong (7). But it is said that the 78th Section was not brought to the notice of the Court. Poor Court of Exchequer ! not to know that under the Common Law Procedure Act the issue as to sufficiency of lodg- ment if found for the defendant entitled him to costs ! Why were they allowed to remain in ignorance of a section they were acting under every day ? Why did not somebody tell them that the effect of that section had been repeatedly argued before themselves, and notably in Walsh v. Walsh (8) itself? Every practising member of the Bar at that time, including every member of this Court, without exception, knows that it was one of the most common, and one of the most delicate duties of counsel for plainiifFor for defendant, to deal with questions of lodgment. On the one side was the danger of lodging too little, and so merely feeding the plaintiff and blooding his attorney; on the other, the obvious objection of giving your adversary more than the measure of his due, while the plaintiff's advisers had to consider and decide whether to accept the money (1) 17 Ir. C. L. R. 195. (5) 17 Ir. C. L. E. 195. (2) Ir. E. 3 C. L. 373. (6^ Ir. R, 3 0. L. 373. (3) 17 Ir. C. L. B. 195. (7) Ir. R. 3 C. L. 373. (4) Ir. B. 3 C. L. 373. (8) 17 Ir. C. L. R. 195. 2p 582 Myers v. Phelan and Others. Appeal. with such costs (if any) as might acci'ue, or go on at their peril, having regard to section 78. To suggest to me that that CourL of Exchequer (some of whose members knew the Common Law Pro- cedure Act well nigh off by heart) did not know of this most working section of it — that somebody, concealed it from them ; that if they had only remembered it they would have decided Arkins v. Armstrong (1) the other way— is to make a diaft on my credulity which I am not prepared to accept. On the whole, I am sure that the result I have arrived at is the Just one. Here the plaintiff, whpn he commenced his action, had, as is how proved, a good and proper case to bring intq the Superior Courts. It was open to the defendant to save all expense further than defence by paying into Court a proper and sufficient sum of money in respect of all the causes of action to which he had no valid defence. Instead of that, he pays in on one only, traversing the others ; and as to that one he also pleads a plea in bar. What is the plaintiff to do? Supposing him endowed with supernatural insight, and to be aware of the exact figures of his claim as it was to be afterwards decided, he would have di-awn out the £5. This per se would have given him no costs. What is he to do with the claim for trespass to lands ? If he goes on and recovers £2 he has shown that he had a valid claim for £7 at the commencement of the action, which is one of tort, and I suppose (though I do not really know) his right to costs would, in that case, be admitted. Mr. Cherry denied it, and Mr. Carson admitted it, and, at any rate, I think the cases prove it. But, suppose, as in this case, he disputes the sufficiency of the sum lodged, what is he to do ? The defendant says in that case he goes on at his peril, the peril — namely, of losing not alone all the costs which section 78 says he must pay, and which it is clear he must pay, but also the wliole costs of the action in which he has recovered more than £5. I cannot adopt that argument. But if it be not admitted that the money lodged can in tort be added to money recovered under another count, the result is worse. Sup- posing the defendant here had recognised the sufficiency of the lodgment, and drawn it out with costs, what is he to do with tiie other complaint ? Go on and recover 40s., without any costs of action ? Or enter a nolle prosequi, or give judgment of discou- (1) Ir. R. 3 C. I,. 37i>, Alyers v. Pi, elan and Others. fids'd. ti nuance, paying all oosts, so as to be able to sue in the County Appeal. Court, although he was perfectly and thoroughly in the right when he brought this action'? I decline to accede to this suggestion. [His Lordship here referred to Richards v. Bluck (1).J I think the. decision appealed from is rii;ht. But beyond this, I am of Opinion that Arkins v. Armstrong (2) should be now regarded as binding, and ought not to be questioned, by us. It was the carefully considered judgment of a Court con- sisting of four members of the very highest eminence, pronounced twenty-one years ago, quoted and referred to at least without disap- proval by the Court of Queen's Bench, and expressly recognised as a binding authority by the Court of Common Pleas — never cavilled at or criticised by any Court till the present day. It is true that before 1877 no appeal lay from the Court of Exchequer on such interlocutory questions. But that rather strengthens than weakens my argument; for, of such questions, the Legislature made the Court the final arbiter; and when once a final, considered, irrever- sible decision was pronounced on such a point, it was for the Legis- lature alone, in my humble judgment, to deal with it. It would have been dpen to the other Courts to disregard it, had they thought it wrong; but they did nothing of the sort. On the contrary, how does the Court of Common Pleas deal with it in Palmer v. Garrett '*"'^> P- ''*• (3)? Monahan, C.J., in delivering the judgment of the Court, says: "In our opinion, Arkins v. Armstrong (4) is decisive on the present application." The case is, however, stronger than that. Arkins v. Armstro7ig (n) was not decided in a corner. It was published in the regular reports. It was cited, in argument and in judgment, in all the other Court?. If ever a practice case was thoroughly well known to the entire profession, it was. What happens ? When the Legislature passed the Irish Judica- ture Act, it introduced into it a section (53rd) containing words not to be found in the corresponding sections of the En', because, treating the action as an action for assault and battery only, the jury had found damages under forty shillings. How can the plaintiff here be better off, through having prosecuted the second cause of action to a verdict arid judgment against him, than he was in Walsh v. Walsh (2) when he accepted the money lodged in satisfaction of his demand ? I am not able, satisfactorily to myself, to reconcile the judgment in Walsh v. Walsh (3) with the cases where money accepted has been treated as " recovered in the action," but with the passages I have read from that judgment, directly applicable as they are to the present case, I cannot explain away Walsh v. Walsh (4) as a mere decision on the terms of the 126th section ; and when I (1) 15 C. B. (N. S.) 793. (3) 17 Ir. C. L R. 195. (2) 17 Ir; C. L. R. 195. (i) 17 Ir. C. L. R. 195. 590 Myers v. Phelan and Others. Appeal. compare the terms of the 126th with the 243rd and 97tli sections, 1890 1 cannot account for the subsequent decision in Arkins v. Armstrong (1) otherwise than by a total omission to consider section 78. The present Chief Baron, in his judgment below, failed to recon- cile Walsh V. Walsh (2) with Arkins v. Armstrong (3), and 1 am in the same position, and the attempts to reconcile the two cases, including the observations of Pigot, O.B., only strengthen the suspiciori that section 78, on which this case really turns, somehow escaped all notice in Arkins v. Armstrong (4). If the second count stood alone, and the defendant had got a verdict and judgment upon it with his costs of suit, on the issue of sufficiency, nothing could, in my opinion, under section 78, have been legally described as "recovered in the action" by the plaintiff. If this be so, it seems doubly unreasonable to hold that the sum lodged upon that second count was "recovered" within the meaning of another section, with the result of entitling the plaintiff to the costs incurred with respect to another cause of action, notwithstanding that the Judge who tried the case declined to certify that it was ht for the High Court. For these reasons, apart from the authorities, I should have had no doubt that the plaintiff can get no costs, and that; he must pay the defendant's costs incurred in relation to the causes of action in the 2nd, 4th, and 5th paragraphs. Though none of th-e authori- ties are binding upon this Court,- they are deserving of respect, but 1 have the less hesitation in dealing with- them because they are conflicting. The Irish cases are now for the first time reviewed on appeal, and I can see no evidence that there is any settled prac- tice on the point. The remark of Lefroy, C.J., in O^Rorke v. McDonnell (5) seems apposite : — " It vfould appear to be a matter of very great difficulty to find some one point upon which there is an entire concurrence of opinion." Tliere are, however, some authorities and some principles deducible from them, in addition to those already referred to by my colleagues, which seem to me to support the conclusion at which 1 have arrived. Wheeler v. The United Telephone Co. (0), one of the only two decisions of the (1) Ir. R. 3 C. L. 373. (4> Ir. R. 3 C. L-. 373". (2) 17 Ir. C. L. E. 19.5. (5) 13 Ir. C. L. R. App. 8. (3) Ir. R. 3 C. L-. lirs-. (fi) 13 Q. B. Div. 597. ■ Myers v. Phelan and Others. 591 English Court of Appeal which have been cited, goes far to show -4;?"to/. that nothing is in the legal sense "recovered" in the action " when an issue of sufficiency is joined and found for the defend- ant." The same case gets rid of the arguments founded on the alternative traverses pleaded with the lodgment, for the judgment of Williams, J., was reversed, and the Court of Appeal unani- mously held that, since the Judicature Act, even when the pay- ment into Court is pleaded in the alternative, it is a " defence to the action," Lord Esher says: — "If it succeeds, the result is the same as if under the old system of pleading the jury had found in favour of one plea which went to the whole of action." If, instead of a lodgment, the plea had been leave and license, or a justification, and had been found for the defendant, the " judg- ment " Would have been the same, and, in my opinion, the answer to the question whether upon that cause of action the plaintiff had " recovered '' anything, must also be the same. If the alternative traverses here had been found for the de- fendant, as they might have been, it would, nevertheless, be con- tended that the £5 was "recovered in the action." The trial would have established that the plaintiff never had any right to the money, yet he would have got it in the same sense as he has now got it. Even now, for all we know, the jury may have thought a farthing enough. ]f the jury bad found on the traverses that the plaintiff was entitled to nothing, I think it would have required a remarkable stretch of judicial courage to hold that the amount had been " recovered in the action," whicli, to borrow an expression of Thesiger, L.,T., in Berdan v. Green- wood (1), was "obtained through the timidity of the defendant," contrary to the verdict of the jury, and contrary to the judgment on the record. The authorities on pleas of tender and set-off also appear to me to have an important bearing. In cases of tender, though the sum tendered necessarily remained unpaid at the date of action brought and was afterwards brought into Court, and was in that sense "recovered in the action,' 'it was held that the plaintiff's right of action was defeated to the extent of the money tendered and that the sum " recovered " was only the surplus : Dixon v. U) 3 Ex. Div. 251, 257. 592 Myers v'. Phelan and Others. Appeal. Walker (1), The same principle, after a conflict of authority, was extended in Beard v. Perry (2) to cases of set-off, notwith- standing that when the action was brought the full debt was due, and that the plaintiff could not anticipate whether the defendant would plead the set-off or not. Cockburn, 0.J-, says: — " The sum "recovered" is the balattce; for although in one sense the plain- tiff recovers his whole debt, because practically he gets that part which strikes off so much of the set-off as is owing to his adver- sary, yet he only actually receives the balance^ It is indeed, hard on the plaintiff that he must run the risk of losing his costs in such cases, for he ma^y not know the amount of the set-off, or whether the defendant will plead it." Is not this reasoning, holding in a case of set-off that the judgment is conclusive as to the amount "recovered," directly applicable to this case, where money lodged is sought to be used in identically the same way, to get rid of costs incurred through the plaintiff's wilful refusal to accept what was due to him. A practice is thus established in England, on both tender and stet-off, inconsistent with the plaintiff's contention, though the amount of the tender or set-off is just as much "thepMntiff's money " as is the money lodged here. Under these circumstances I do not recognize th« sanctity^ or even the existence, of the alleged practice founded on Arkim v. A rmstrong (3). That case has been referred to, no doubt ; but it has not been acted on in a single reported case that I can find. It is an assumption that (borrowirtg an expression from the Master of the Rolls) transcends my " judicial credulity " that; in passing the Judicature Act, the Legislature intended to give tlio force of a statute to a practice uivder A rkins v. A rmstrong (4) which must be a practice under section 78, if it is to bind us in this case — and 1 cannot hold that case to have settled the con- struction of, or settled the practice under, a section which was never once mentioned in the course of it. Again, when the Judicature Act, Section 5-3, was passed, the decision of the English Court of Appeal ia Garnett v. Bradley (5) (1) 7 M. & W. 214. (4) 2 B. & S. 493. (2) 2 B. & S. 493. (.5) 2 Ex. Div.- 349.- (3) Ip. R. 3 C. D. 373. Myers v. Fhelan and Others. 593 was in force, and the effect of the Act would have been to assimilate Appeal. ia9u. the law in the two countries but for the subsequent reversal of that decision by the House of Lords, which has, beyond all doubt, left the Irish Courts under legislative limitations with respect to costs, from which the English tribunals have been held to be free. Under such circumstances, the argument from supposed sanction of re- ported cases by the Judicature Act seems to me to lose almost all weight. I think the order appealed from should be discharged, and that the plaintiff should be declared entitled to no costs ; that the defen- dant should be declared entitled to all his costs incurred in relation to the causes of action mentioned in the 2nd, 4th, and 5th paragraphs of the statement of claim, except the costs of those issues upon which the jury have found for the plaintiff. The defendant ought not to get any costs of the motion in the Court below, nor of the appeal, because he has, down to his notice of appeal, endeavoured to support the certificate of the Taxing Master, which gave the defendant the "general costs of the action," upon a construction of section 78 analogous to that which we hold to be erroneous in the case of section 97. Barry, L.J.: — Concurring, as I do, in the conclusion arrived at by the Master of the Eolls, it would be idle on my part to deliver a lengthened judgment, which could only have the result of repeating in a weak- ened form what the Master of the Bolls has expressed in so clear and able a manner. The right of a successful plaintiff to costs is founded on legisla- tion so old as almost to be regarded as part of the Common Law. 1 believe the first movement to alter it was a Statute of Elizabeth, which was followed by the subsequent statutes, limiting the costs in actions of assault, slander, and trespass, where the plaintiff did not recover more than 40s. After that, the next step was the Rules of 1834 in England. The provisions as to actions of assault, slander, and trespass are to be found in section 126 of our Common Law Procedure Act of 1853, a section of much importance in this case. By the Rules of 1834 it was provided that where the amount reco- vered in actions of assumpsit, debt, or covenant, should not exceed 1890. 594 Myers v. Phelan and Others. Appeal. £20, the plaintiff's costs should be taxed according to a reduced scale. The words are "recovered by the action;" and it was decided in Fewster v. Boggett (1) that " recovered by the action " included money lodged in Court. In 185.2 the Procedure Act was j.assed in England, from which our Act of 1853 was taken. The words in the section of the English Statute are " recovered in the action;" it also contains a 'clause (section 73) the same as our section 78, It is urged, on behalf of the defendant, that there is no English case deciding that under such a state of facts as exists here a plaintiff is entitled to costs, To this argument it may fairly be rt plied that the absence of authority may arise from the fact that no one ever disputed the plaintiff's right to costs under such circum- stances, although it is incredible but that a similar state of facts must have arisen in England in the vast and varied litigation of that country. "What is the meaning of the word " recovered f I take it from Parr v. Lillicrap (2), a decision under section 11 of 13 & 14 Vict., c. 61 (the English County Courts Act), which deprives the plaintiff of costs in actions of contract if he recovers less than a certain amount. The action was for £12 5s. 'od. for goods sold and delivered, and the defendant pleaded to the whole action payment into Court of the entire sum. The plaintiff accepted that sum in full satisfac- tion, and the question then was : Did he recover that sum by the action ? Pollock, C.B., said ; " The case put by my brother Bram- well shows what is the meaning of the word ' recover ' in 13 & 14 Vict., c. 61, s. 11. It does not mean 'recover' by verdict or judg- ment, but 'obtain' by means of the suit." Obtain by means of the suit. How much did the plaintiff " obtain " here ? £7. According to the Lord Chief Justice it is a fantastic interpretation of the sec- tion to call in aid the £5 to enable the plaintiff to recover costs. In my opinion it is quite as absurd that if £5 is paid into Court, and the plaintiff recover l.s. more, he is entitled to full costs, although the Legislature passed these Acts to put a stop to trivial litigation. It is not disputed that if there are two actions for tort, and the plaintiff recovers £3 in one and £3 in the other, he gets no costs ; but that if the plaintiff combines the two actions, by bringing one action with two counts, and recovers £8 upon each count, he is (1) 9 M. & W. 20. (2) 1 H. & C. 615, Myers V. Phelan and Others. 5i).5 entitled to full costs. A maxim quoted by counsel was, Ex nihilo Appeal, nihil Jit. I fail to see the application to tlie result of this action. The plaintiff was a riclier man by £7. It is said that though he might have drawn the money out, he did not do so ; and as he failed to do so before verdict or judgment, the amount lodged is liable to ths defendant's costs under section 76; but that is a collateral liability. I cannot put any other interpretation on the result than that he has recovered £7. Again, I am asked in this case to overrule the express decision of Arkins v. Armstrong (1), decided over twenty-one years ago by the Court of Exchequer, which consisted of four such Judges as Pigot, C.B., and Fitzgerald, Hughes, and Deasy, BB., who, after a full and elaborate argument, reserved their judgment — Pigot, C.B., as competent a lawyer as ever lived; Deasy, B., afterwards, as Lord Justice of Appeal, a member of this Court; Fitzgerald, B., clarum et venerahile nomen ; and Hughes B., an able common law Judge. Arkins v. Armstrong (2) was decided by that Court, and it admittedly rules this case. How is it to be got rid of? It is said that section 78 was unknown to the Judges. I decline to entertain that idea. They must have considei'ed sections 75, 76, and 77, and they must surely have seen section 78. But we are asked to overrule Arkins v. Armstrong (3) as being inconsistent with Walsh v. Walsh (4). It was the same Court, consisting of the same Judges, which decided Walsh v. Walsh (5), and the subsequent case oi Arkins v, Armstrong (6). As soon as Walsh v. Walsh (7) was referred to in the argu- ment here I suggested that the decision might be found to turn on section 126 of our Procedure Act, relative to costs in actions of assault; and I was right. In Walsh v. Walsh (8) the Chief Baron, in stating the facts, says (page 198) : "At the trial before me the jury found in the affirmative of the issue, and assessed the damages at £1. No certificate was given under the 126th section of the Common Law Procedure Act that the assault and battery had been proved; in fact, no battery was proved at the trial." Further on in his judgment he refers to the 243rd section: "If the plaintiff in this action, instead of taking the money out of Court, had disputed (1) Ir. K. 3 C. L. 373. (5) 17 Ir. C. L. R. 195. (2) Ir. E. 3 C. L. 373. (6) Ir. K 3 C. L. 373. (3) Jr. E. 3 C. L. 373. (7) 17 Ir. C. L. R. 193. (4; 17 Jr. C. L. E. 195. (8) 17 Ir. C. L. R. 196. 506 Mijera V. Phelan and Others. Appeal. the sufficiency of the payment, and having proceeded to trial for the ^'^^'^' recovery of more, had obtained upon the first count a verdict for any amount, however small, in excess of that payment, we should have had to consider the application of those authorities. For instance, if the plaintiff had recovered on the first count Is. damages over the £5 paid into Court and 196. on the second count, we should liave had to determine whether, although upon the count for assault and battery there was a finding for less than 40s. damages, and there was no certificate of the Judge, and although upon the count for disturbance of a right of way there was a verdict for Is. damages only over and above the Fum paid into Court ; nevertheless, there wr.s in the action a recovery of £5, of Is., and of I9s. — in all £(5, entitling the plaintiff to his full costs of suit, under the 243rd sec- tion of the Common Law Procedure Act. I am, however, of opinion that the motion before us may be decided upon narrower grounds) and may be determined upon the terms of 126th section." Then the question is asked — What is the meaning of section 78 ? It was intended to apply to a case where the money is lodged in discharge of the whole action, and the question is as to the suffi- ciency of the amount; if the defendant wins on that he wins the action, and gets his costs. I am of opinion that there is nothing calling on us to overrule Arki7is v. Armstrou^ (1). It is a very reasonable decision, easy to work out ; and, as stated by the Chief Baron, it prevents complications on the taxation of costs which would otherwise arise. If, in an altered state of society, it were found inconvenient, I suppose that the Court of Appeal could reverse it ; but it is an old maxim of our law — " stare decisis." Since I have come to this Court I have been coerced by that maxim to concur in decisions which seemed to me repugnant to sense and justice; such, for example, as The Wicklow Heirlooms Case (2) and Sandes v. Cook (3), and I see no reason for not abiding by it with reference to Arkins v. Armstrong (4). Decision below reversed. Solicitor for the defendant (appellant) : D. J. Higgins. Solicitor for the plaintiff (respondent) : R. J. Crean. (1) Ir. R. 3 C. L. 373. (3) 21 L. R. Ir. 442. (2) Unreported. (4) Ir. R. 3 C. L. 373. In re Rackham. Carter v. RacMam. 597 In re KACKHAM. CARTER V. RACKHAM. {Byijermfcston, from W. N. 1889, 214.) . Administratimi — Itisolvent Mstate — Sale of Realty — Employment of SolicUor — Taxation — Solicitors' Remv/neration Act, 1881 — General Order, August, 188S, Rule 6. The conduct of an order for sale out of Court of the testator's real estate in a creditor's administration action had been given, on the application of the plaintiff to the defendant, the devisee. The defendant's solicitor gave notice to his client that he elected to be paid under the old system, as altered by Schedule II. of the General Order under the Solicitors' Remuneration Act, 1881. The estate was an insolvent one. The Taxing Master had only allowed the scale charge, and an application was now made to review the taxation. Swinfen Eady, for the summons. Martelli, contra, was not called on. Chittt, J., after dismissing the summons on the ground that the notice was ineffectual, not having been given before the work was undertaken, said that his present opinoin was that in any case like the one before him, when the estate was insolvent, and where pay- ment after taxation would not as a fact be made by the client, but out of a fund in Court, it was the duty of the devisee's solicitor, whether the sale was in or out of Court, if he desired to elect to be paid not according to the scale charges, to bring the matter to the attention of the Judge in Chambers, or at any rate to give notice of his intention to the plaintiff before undertaking any part of the business. Solicitors : Martelli, for Leailies Prior, Norwich ; Pollock ^ Co. Chitty, J, 1889. liec. 5. 2 Q 598 Iti re Higgins,^ Minors. Lor^. In ve HIGGINS, MINORS, Chamc-'llor, _ . (By permisHon, from 23 L. R. Ir. 59(;). 1890. Jao. 13. Taxation of Costs —Perusal of Receiver's ''Account" by Solicitor attending afterwards, on its passing, for party iiderested — Allowance of fee for — General Order of 1st June, 1883, Schedule, Item 17. Receiver's accounts are "accounts" within Item 17 of the Sqhedule of Costs appended to the General Order of 1st June, 1882, and accordingly the solicitor for a party interested— e.i/,, the guardian of the fortune in a minor matter — who attends on the passing of a receiver's account is entitled to the fees therein provided for its previous perusal. Decision of the Taxing Master reversed. Summons on behalf of the guardian of the fortune of the minors for an order that the Taxing Master should revise the taxation of certian specified items in such guardian's bills of costs taxed in the matter, and that such items might be allowed, and that it might be referred to the Taxing Master to vary his certificate of taxation accordingly, and for the costs of the application. The items (with the exception of No. 1,191, which was a charge of £2 2s. for making a special return of the minors' property as required by the Lord Chancellor from the guardian of the fortune, and as to which the appeal was withdrawn) were all charges by tlie solicitor of the guardian for perusing the receiver's accounts, on the passing of which he subsequently attended. The receiver had been directed by order to keep seven different accounts, and the accounts in question on this occasion amounted in all to 235 folios. The guardian's solicitor having served notice on the Taxing Master to state in writing his reasons for disallowing these charges. The report of Master Coffey was as follows : — " The several items objected to, and referred to in the summons by way of appeal, amount to a sum of £14 19s., omitting item 1,191. " These various items are for perusal of receiver's accounts by the guardian's solicitor, " The claim for these perusals arises under the scale of solicitor's fees attached to the Order of the 1st June, 1882, items 17 and 18. In re Higgins, Minors. 599 riie fees are as follows: — Lord ChineeUor. " 17. Perusal of accounts, statements, charges, discharges, or reports — Lower scale, 6s. 8d^ ; higher scale, 6s. 8d. " 18. Or, under special circumstances, not exceeding — Lower scale, £1 ; higher scale, £1. " I am of opinion that the allowance of fees for the perusal of accounts under the above Schedule refers to accounts under inves- tigation at Chambers in action, minor matters, and such like, being accounts of executors, administrators, trustees, &c., and does not refer to receiver's accounts, which I regard as agency accounts, for the perusal of which no fee was ever chargeable, and which are under quite a different code of rules and pi-inciples of taxation, there being a separate scale of charges applicable thereto. I therefore disallowed the charges, they being inapplicable, in my opinion, and» in the aggregate, so very considerable in amount. " The solicitor is allowed in the costs for a copy of the accounts at each time of perusing. " The amount charged in the costs for these copies is £17 5s., and he is allowed a charge of 6s. Sd., or more, for attending the hearing of each set of accounts; so that he is not unremunerated and may well peruse the accounts, which is not a very onerous duty for accounts made out in such a plain and well-known form. " Item 1,191 is a fee of £2 2s. for filling up the form sent out by the Chief Clerk of the Lord Chancellor, requiring information as to the position of affairs relating to the minor matters. "I am of opinion that this. is not a proceeding in the matter, and does not carry any fee or remuneration under any schedule of fees, or any order of the Court. I therefore disallowed the charge. " (Signed) David Coffey. " We concur: " (Signed) Jehu Mathews. " (Signed) Sydenham Davis. " 14ih December, 1889." Mr. E. T. Bewley, Q-C, in support of the application. 1890. (300 Doran v. Clarke. lor^ Lord Ashboukne, C, said there was nothing in item 17 of the '^'mt'""' schedule of costs referred to to limit the "accounts" there men- tioned to accounts in administration actions or proceedings of a similar nature, and that he thought that, both in reason and on grounds of public policy, the solicitor for the guardian of minors in a case like this should be allowed the costs of perusing the receiver's accounts, on the passing of which he afterwards attended. Solicitor for the applicant; ^r. Richard M'Namara, Jan. 20. PORAIif V. CLAIII?:^;. Ex. Dirt. lg9Q^ (By permitsiojt, from 24 Ir. L. T. R. 34.) (Befoi-e Andrews, J.) Costs — Action referred to County Court — Matters of mere account — Scale of taxation— C. L. P. A. Act, 1856, s. 6. Where a case, being matter of mere account, is referred (under Section 6 of the C. L. P. A. Act, 1856) for trial before the County Court Judge, and the order directs that " the costs of this application and of the said inquiry-be costs in the cause," the plaintiffs costs of the inquiry in the County Court are to be taxed upon the High Court scale. Wlieatcroft v. Foster, 1 11. p. ($; B. 737, considered. Appeal from a decision of Master Mathews with reference to the scale on which certain costs should be taxed. The plaintiff had sued the defendant for a sum of £70, and moved for final judgment. The defendant on this motion admitted that a part of the plaintiff's demand was due, and denied the balance. The defendant was ther'eupon ordered to pay the sum so admitted, and — it being admitted that the plain- tiff's claim and the defence thereto were matters of mere account — the remaining part of the action was sent for trial under section 6 of the Common Law Procedure (Amendment) Act, 1856, to the County Court Judge of Antrim, and the order directed "that the costs of this application and of the said inquiry be costs in the cause." The case was heard in the County Doran v. Clarke. 601 Court — first, by consent, before the Registrar, and subsequently ^- ^'^■ before the County Court Judge, who certified that the defendant was indebted to the plaintiff in the sum of £54. The plaintiff's costs were thereupon furnished for taxation, and the costs of the inquiry before the Eegistrar and County Court Judge were furnished on the Superior Court scale of costs, and they were taxed on that scale by the Taxing Officer. Cuming, for defendant, in support of the appeal : — The case has been sent for trial to the County Court Judge. That trial took place in the County Court, and the costs of that trial should be taxed with reference to the County Court scale of costs. Wheat- croft V. Foster (1), substantially governs this case. There a case was sent for trial to the County Court under section 26 of the 19 & 20 Vic, c. 108 (English County Court Act), a section very similar to the present. The Court of Queen's Bench held that the costs of the trial in the County Court should be taxed on the County Court scale, and not on that of the Superior Court. All the judges in that case go on the fact that the trial in the County Court is a proceeding in the County Court. The English Act specifically gives the power which is impliedly given in the Irish Act. The mere fact that more than £50 was recovered does not prove anything — if the amount recovered bad been £20, the same contention could have been ma-de. If a case is sent to the Master of the High Court costs are retained in the jurisdiction of the Master : so, tooy in case of arbitration ;. bat here the case was sent to the County Court and tried there, and the costs were made costs in the cause. They should be taxed on the Superior Court scale so long as the proceedings were here, and on the County Court scale so long as they were in the County Court : Moody V. Stewart (2). ' Whitaker, contra : — The practice hals always been to taix such costs on the Superior Court scale of costs. In the case of Cdlwell v. Boyd this was done by the Taxing Master. The section enables a judge to send a matter of account to the Master of the Division or to a Count}' Court Judge. Had the account been taken before the Master the plaintiff would be entitled to his costs as on the (1) 1 E. B. cfc E. 737. (2) 5 Ir. L T. 25, 19 W. K. 161, 602 Doran v. Clarke. Ex. Div. Superior Court scale, and the County Court Judge in this case is an officer of this di\-ision for the purposes of taking the account. The case is still in this division. Wheatorofl v. Foster does not apply. No application or order was there made as to the costs. The only referee under the English Act, s. 26, is the judge of the County Court. [Andrews, J. — The English Act does not go so far as our Remitting Act, s. 5, and does not give power to remit a matter of mere account beyond £50]. The only provision under the rules of the County Court is in re- mitted actions : Oarleton, p. 931. There is no scale applicable to a case of this kind. We submit that the costs must be governed by the scale used In this Court. [AndeeWS, J. — I have, of course, jurisdiction; the question is whether the officer is right or wrong in adopting the scale used in the High Court, or whether he ought to have adopted the scale used in the County Court as nearly as he could]. Andrews, J This case of Clarke v. Doran is an apjalica- tion to review the taxation of costs in this action under the following circumstances : — Upon an application being made on the 18th of December, 1888, for final judgment, it appeared that a substantial portion of the plaintiff's claim had been paid, and that the balance had reference only to matters of account, and accordingly with the assent — -and very properly with the assent — of the parties the case was referred, under the 6th section of the Common Law Procedure Act, 1856, to the County Court Judge of the county of Antrim, to take an account between the parties, and the order provided, that when the County Court Judge came to a decision and announced his finding, judgment should be entered accordingly, without the necessity for further application. But that order of the 18th of December, 1888, said, in the terms which are usual in every one of these orders which I have ever been in the habit of seeing, deahng with a mere matter of account, " that the County Court Judge do strike a balance, that the de- fendant do forthwith give particulars of his set-off, and that the costs of the motion be measured at the sum of three guineas," and that the costs of that reference on both sides be costs in the Ddrah «., ClarMi 603 > cause. The plaintiff having succeeded aftd established upwards of E"- ''»"• £50, to be due over and above a sum of £42, which was paid before the case went into^ Court, entered judgment and brought the matter before the Taxing Officer, and the Taxing Officer having taxed these Costs on the analogy of the scale applicable to proceedings in the Superior Courts— which appeai^s to be giving them on a higher scale than if they were taxed on the scale appli- cable to proceedings in the County Court — the application before me was that he should review his taxation and allow them on the analogy of the scale which would be allowed if the proceedings had taken place under the County Court jurisdiction. In support' of that Contention a case was cited, Wheato-r^dft vj Foster (1)> which was decided under the 26th section of the English County Court Acts Amendment Act, 19 & 20 Vict., c. 108 ; the Court in England decided that in a case in which under that 26th section, a matter had been referred to a County Court to try, it being a money demand for goods sold and delivered the Taxing Officer was correct in the view which he took of taxing the costs as nearly as possible on the analogy of the scale applicable to County Court proceedings, and refused a revision of the taxsetion on the analogy of the scale applicable to Superior Court proceedings ; and if that case, which was decided in 18'58, a considerable number of years, ago, and which I am bound to say had not been brought before my attention on a previous occasion, was not distinguishable from, the pfesent case, so much of the judgments of the learned Judges there would be applicable to the present case that I feel it would deserve great consideration, but I have eonte tO the conclttsion that that case ought not to be' followed. I think it might to some extent be laying down a new principle and a novel scale of taxation, which up to the present I have not been aware of as existing, for the guidance of the officers of the Court. The 20th section of the County Courts Acts Amendment Act, 1856, under which the action was remitted (the action itself and the trial of it was remitted in the case of Wheatcroft v. Foster), only authorises the Superior Court where the demand does not exceed £50, or has been reduced by payment or set-off under that sum, not to refer the ■ case to the County Court as an alternative to making certain (1) 1 E. B. & E. 737. ,' 604 Doran v. Clarke. Ejc. Div. other references, as our Act does, to investigate the matter and 1 890 bring it back to the Superior Court, but actually to try the action. But it is quite true that under the 6th section of our own Common Law Procedure Act, 1856, the action is not tried by the Superior Court, because the County Court's determination comes back to the Superior Court under that section, and the final order i» not made by the Cou»ty Court, but by the Superior Court. But under the English Act there is no alternative. There the reference must be to the County Court Judge to try the action — not to inquire as an officer or assistant of the Superior Court, but to try the action — and the reference must be made to him alone. Now, our Common Law Procedure Act of 1856, section 6, authorises the reference to be made not only to the County Court Judge in country cases, but to the Master of the Court or to an arbitrator appointed by the parties. And in addition to that, the order in Wheatcvoft v. Foster was absolutely silent altogether in reference to costs, whereas in this case the order has directed the costs of the reference on both sides to be costs in the action. . Now, the order that was sent down to the County Court Judge was simply to gain his assistance in making a finding. His finding, came back and became a judgment of this Court, and under these circumstances the Taxing Officer has reported that the proper scale of taxation was that which is applic- able in the Superior Court, in which he found, according to his view, the proceedings had, in fact, taken place. It appears to me that if the referenee had been sent to the Master of the Court, and the costs of the reference came to be taxed, the Taxing Officer would have nothing to justify him in departing from the scale of the Superior Court, and of his own motion adopting the scale of some other Inferior Court. Now, on the following grounds I think, except in respect of a matter to which I shall refer further on, the Taxing Officer's taxation ought not to be reviewed, and that this application, ought not to be granted. In the first place, the true interpretation of the Order appears to me to be that, when a Judge of a Superior Court is dealing with a case in the Superior Courts, directing an inquiry for the assistance of a Superior Court, the result of which is to be brought back and entered as a judgment of that Court, and then dealing with the costs, the costs he seems to be dealing M'ith are costs in the Superior Court. If, upon Boran v. Clarke. 605 making tie Order, it had been directed that the costs of the refer- -S"*- Thv. ence should be taied on the Oouhty Court sc^le, I would have regarded that as a special Order in relation to the matter, and I think I would have been bound to hear what both sides llad to say in reference to it. But, I think the order is not one which would warrant me in directing a revision of the taxation, and in addition I think that the casse of Wheatct'oft v. Foster does not apply, because there the order of reference was different, and in that case the order was absolutely silent as to costs. But I find that through an oversight, which must have arisen from something very like carelessness on one side or the other, the Taxing Officer was given the trouble of taxing a very considerable number of items in relation to the costs of the motion, the order which has been produced before me not having in it the amendment that was made pursuant to an order of this Court measuring the costs at the sum of Three Guineas, and inasmuch as that has been brought under my notice I do not feel myself warranted in doing an injustice to the party, which would be entailed in disre^rding the order in which the costs were measured, and therefore I shall direct a revision so far as that part of the order is concerned. The rule must be " no rule " on the defend- ant's application contained in the summons of the 24th of December last^ but it appearing, to the Cotirt that the amending, order which was made on the 18th of December, 1888, measuring the cost of the motion for final judgment at Three Guineas, was not brought to the knowledge of the Taxing Master, that the order be referred back to the Taxing. Master for revision, having regard to the said amendment, and under the circum- stances the defendant must pay the plaintiff a fairly measured sum as the costs of this appli-cation. Order acc&rdirtgly.- Solicitor for the plaintiff : F. Kerr, Solieitor for the defendant; Messrs. O'Eovke., 606 ; Haig -4- Sons v. Cooke. Andrews; J. HAIG & SONS V. COOKE. 1890. Feb. 28. (Before Andrews, J.) (By permission, from 24 Ir. L. T. R. 6ft) Mqnity civil bill appeal— Appellate tribunals in appeals from Recorder of Dublin VMcLef Goumty Court Appeals Act, 1889— Poller of County Court Judge to measure costs of suit. When a County Court Judge declares a party to an eq,uity suit entitled to his costs of suit, he has no jurisdiction to measure a sum for such costs, in the absence of any application by the solicitor of one of the parties that a. percentage or a commission should be allo^vred to him in lieu of such costs. The costs must be taxed by the; proper ofiBicer in the ordinary ♦fay. A judge sitting at Nisi Prias has jurisdiction to hear an equity civil bill appeal under Sections 3 and 11 of the County Court Appeals Act, 1889, 52 & 53 Vict.,, c. 48; but qucere if such appeal should not be brought before a judge of the Chancery Division. APPEAL from so much of a final decree of the Eecor Jer of Dublhi made on the 13th of I^ebruary^ 1890, as measured the plaintiff's costs of suit at a sum of £35. The suit was brought by a puisne incumbrancer to raise the amount of his charge, and by the primary decree a sate vfras directed, which was finally carried out, and the proceeds of the sale were lodged in Court. When the proceeds of the sale came to be allocated amongst the persons entitled, it was found that they would not satisfy all the incumbrancers on the pro- perty that had been sold. By his final decree the Recorder declared the plaintiff entitled to bis costs of suit, which, however, the decree directed to be measured at a sum of £35, and the decree went on to direct payment of the different incumbrances in their respective priorities. The plaintiff appealed from so much of the decree as measured his costs at £35. When the case was called, Mr. Justice Andrews said that he was of opinion that Under the provisions of Sections 3 and 11 of the County Court Appeals (Ireland) Act, he, sitting at Nisi Prias, had jurisdiction to heaf the appeal, but that it might be that the meaning of the 11th Section of the County Court Appeals (Ireland) Act, 1890, was that appeals under the Act from the Recorder of Dublin should be lieard by a Judge of the Charvcery Division.- Ilaig S^ Sons v. Cooke. 607 LeegJif for the appellant, referred to Order XXVIIL, Rule 209, An'^rews, /. of the County Court Rules, 187 7, which directs that all costs in equity suits are to be taxed by the Clerk of the Peace or Registrar, and Rule 10 of the same Order, and Order XXIX., Rule 231. In the scale of fees under Part II- of the County, Officers and Courts (Ireland) Act, 1877, made in February, 1878 (1) a County Court Judge may allow a percentage or commission in lieu of costs, but this can, according to the words of the Order, be allowed on the application of the solicitor having carriage, or of the solicitor for any party interested in the suit. Rule 6 (2) of the same Order allows the County Court Judge to measure a party's costs of suit, if at any 'period of the suit the suit is terminated by compromise, and the fact that such a limited power is expressly given points to the fact that a County Court Judge has not power to measure costs. Section 34 of the County Officers and Courts (Ireland) Act, 1877, gives a County Court Judge all the powers of a Judge of the High Court of Chancery, but a Judge of the High Court of Chancery had not the power claimed by the County Court Judge here. See Bewley and Richey's Chancery Act, p. 249. Order XV. of the Orders of the Court of Chancery of 18&8 gives a Judge of the Court of Chancery power to measure costs of inter- locutory applications only. Section 79 of the Judicature Act (Ireland), 1877, provides that the Rules of Practice, &c., to be made by the Orders under the Judicature Act are not to apply to Connty Courts unless County Courts are mentioned in the Oi'der. Therefore Order X.., Rule 26, of the Judicature Rules of 1878 does not apply to County Courts. Section 53 of the Judicature Act (Ireland), 1877, only confers a discretion whether or not to allow costs, and when the Judge has decided tliat the plaintiff was entitled to costs, be bad no further discretion. Andrews, J.; There seems no one on behalf of the respondents to give me any assistance ; but Mr. Leech, who has argued the case for the appellant, has given me great help, and has referred me to all the sections of the Acts of Parliament and the various County Court rules bearing on the question. If I had any reasonable doubt to justify me in putting the parlies (1) Carleton, 9'i3. (2) Carleton, 943. 608 Haig ^ Sons v. Cooke. Andrews, J. t,o further expense, I would reserve a question fot the Court of Appeal. I have no reasonable doubt, however, on the limited question before me, and I shall dispose of it. I do not decide one way oi* the other the question whether a County Court Judge has jurisdiction in equity to refuse costs to a sdecessful plaintiff, or to impose terms upon him in the event of costs being given. I deal with this case as one in which the Recorder has adjudicated that the plaintiff is entitled to his costs of the suit. There is nothing to show that he is not entitled to the costs of a proceeding by which he has obtained relief, and there is no indica- tion on the face of the documents that the plaintiff has done any- thing to disentitle him on any equitable principle to his costs, and I shall treat this as a case in which it has been pi-operly adjudicated that he is so entitled, and the limited question I have to decide is whether, utider these circumstances, the County Court Judge can measure the plaintiff's costs, or whether the costs should be referred for taxation in the ordinary way. On examination of the rules and Acts of Parliament that have been referred to,- and in the absence of any provision enabling a County Court Judge to measure the costs of a suit, I am of opinion that the plaintiff was entitled to have his costs referred for taxation, and, therefore, I shall direct that the final decree of the 13th of February^ 1890, shall be varied by omitting the wofds, " beino- measured at £35," wherever they occur in the decree, and that in lieu of the words so omitted there be inserted the words,- "to be taxed according to the course of the Court," and that the final decree be referred to the learned Recorder for revision of the schedule thereof having regard to this decision, and that the plaintiff be allowed the costs of his appeal on the lovrer scale as part of his general costs of suity and that the £5 lodged by the l)laintiff by way of security with the Clerk of the Peace be returned to him. . W. T. Flood, solicitor, for the appellants Thompson v. Moore. 609 THOMPSON V. MOORE. m. r. 1890. {By permission^ from 25 L. R. Ir. 98.) -Kir \, in Taxation of costs — Party and party — Fees to scientific witnesses for qualifying to give evidence — Rules S.G., April, 1878 — Order X., Rule 8 — Cost of briefing proceedings in action in which a question similar to that in issue was irtA}olved. Fees to scientific witnesses for qualifying themselves to give evidence may in proper cases be allowed as between party and party, when suffi- cient information as to how the amount of such fees has been made up is laid before and considered by the Taxing Master. The rule as to special fees paid to counsel is applicable to the case of scientific witnesses, and special fees paid to experts of peculiar eminence, even when taxable between solicitor and client, will not be allowed as between party and party. The costs of briefing the proceedings in an action in which a question similar to that in issue was involved disallowed as between party and party. Appeal, from the decision of the Taxing Master, allowing the costs of briefing proceedings and judgment in a case of Thompson V. Batty, in which the questions at issue were similar to those in the present case ; and ^s to the amount allowed by the Taxing Master to Sir Frederick Bramwell as fees for preparing himself to give evidence. The decision, so far as it allowed fees to Sir Frederick Bramwell's assistants, was also appealed from (1). Mr. Robertson, Q.C., for the defendant : — For what are we pay this money ? The only thing that can be allowed is a reasonable sum to the witness for, qualifying himself to make the affidavits and for investigating and making up the case ; anything else does not come within the rule. What fee is to be paid for that? The Taxing Master had nothing whatever to guide his judgment, and he has not exercised his judgment. All Mr. Imray asks for is a fee of making up the case. Sir Frederick Bramwell cannot get more. The very fact that Mr. Imray only gets £8 8s. will determine Sir Frederick Bramwell's fee. Any- thing more is a special fee. (1) See the report of the motion for attachment in this Court and of the appeal, 23 L. K. Ir. 626.— Eep.) 610 Thompson v. Muore. ^- B- Mr. Bewley, Q.C., for the plaintifF:— Is this a matter for the Taxing Master, and has he exercised his discretion. If so, the Court will not interfere ; Machey v. Chilling- worth (1), Turnbull v. Janson (2). In that case the Court were unanimously of opinion that the Court has no jurisdiction if the Master has exercised any discretion. Lopes, J. (p. 271), says: "The plaintiffs seek to have the taxation reviewed in respect of five matters ; as to the first three, I agree with my brother Lindley, that they are matters purely' of discretion, and that there is no ground for the interference of the Court " : Smith v. Buller (3), Batley v. Kynock (4). The Master of the Kolls: — I am of opinion that the briefing of the proceedings in Thompson V. Baity cannot be properly charged as between party and party in this action. As between solicitor and client it may have been quite proper to brief for the information of counsel the proceedings in another case ; but the cost cannot be charged against the opposite side. As to the expense of witnesses' afRdavit?. I do not see any suffi- cient reason to interfere with the amount allowed in respect of Mr. Imray ; but as regards the taxation of the expenses of Sir Frederick Bramwell's affidavits, I think the amount allowed must be reduced. No doubt, a successful party should, so far as is reasonable, be indemnified from the expense he is put to in an action. In this particular case the fees which were charged (£79 15s. M.) were, in first instance, allowed in globo by the Taxing Master, who had nothing before him to show how that very large sum was arrived at, and without any information or inquiry as to how it was made up ; how many hours' work is charged for, or at what rate ; not liow much was charged for Sir Frederick Bramwell's time, and how much for his assistants. It is, no doubt, proper in some cases to allow a scientific witness remuneration, for time occupied in preparing himself to give evidence, but the Taxing Master in this case appeared to me to have exercised no discretion whatever in the matter. He did not know at what rate or for what length of time (1) 2 C. P. Div. 273. (3) L. E. 19 Eq. 473. (2) 3 C. P. Div. 264. (4) L. R. 20 Eq. 632. Thompson v. Moore. 611 this sUm of £79 15s. 9c?. was charged, and he had no materials ^- ^■ " . 189Q. before him except, I presume, the receipts from the witnesses^ proving that the money had been in part paid. I accordingly sent the case back to him, and asked him to reconsider it, and report to me. The Taxing Master has now sent in his report, in which he says: — "I annex the account of Sir Frederick Bramwell . Having examined these charges very carefully, and perused the two affi' davits made by Sir Frederick Bramwell, filed, respectively, the 19th January 1889, and 4th March 1889, and considering the nature of the questions upon which he had to give expert evidence, I cannot see my way to make any reduction in his account as annexed." In other words, " I certify now for the whole seventy- five guineas." He refers to Rule 8 of Order X., of the Rules of April, 1878, which gives the Taxing Masters power to allow what- ever fees they consider reasonable for the procuring of the evidence of witnesses; and the report goes on: — " It has been held in many cases that expert witnesses are to be allowed proper fees for quali- fying themselves to give evidence, and it is not unusual to allow engineers and other scientific witnesses £10 10«. a day for giving evidence in cases taxed as between party and party ; and for quali- fying themselves to give evidence they are fairly entitled, in my judgment, to larger fees. Sir Frederick Bramwell has charged £15 15s. per day (of six hours) for his own time qualifying and giving evidence." It will be observed that the Taxing Master has omitted to notice, though he still allows, the charge of £18 18s. for Sir Frederick Bramwell's assistants, which makes up part of the £79 15s. 9rf., as appears from the account annexed to the report. No explanation of this charge was before him, or is shown to me, and it must be disallowed. The Taxing Master has allowed a fee of £8 8s. per day to Mr. Imray, a gentleman of admittedly high professional standing; and that aiFords a measure of what he con- sidered an adequate fee to allow to another scientific witness. In Smith V. Buller (1 ) £7 76'. a day for two days was allowed for this class of work. On this point there is an analogy in the practice of the Courts, in respect of counsel's fees. It is a rule that a special fee to eminent Queen's counsel may properly be allowed on taxation of costs as between solicitor and (1) L. K. 19 Eq. 473. 612 Thompson v. Moore, W- *■ client, but as between party and party the rule is different. In that case the smallest fee paid to any one Queen's counsel is the measure of what is chargeable, and anything over and above such sum is a special fee which cannot be allowed. This point was decided by the Court of Common Pleas on a taxation appeal in the Ante, p 181. matter of the Armagh Election Petition. I think that the same principle may very fairly, as a general rule, be applied to scientific witnesses, and the allowance of such very special fee must be regarded as not a necessity, but a luxury, of litigation. No instance has ever come under my notice in which £15 lbs. a day has been allowed for a witness's expenses as between party and partj'-, and I do not agree with the Taxing Master that a higher rate should be allowed for the witness's time in his study than for his evidence in Court. In this very case it appears that Sir F. Bramwell at an earlier stage made another afHdavit, the cost of which the defendant had to bear, and though the preliminary investigation requisite for that affidavit must have been nearly if not quite as troublesome, the Taxing Master reduced the charge very considerably, and allowed a sum very much less in proportion than that which he has sanc- tioned now. I shall, accordingly, send the bill back to the Taxing Master, with an intimation that £15 15s. per day is too large a fee to allow, and that in fixing a proper rate he should have regard to the rates of payment allowed to Mr. Imray, and also to his own former rulings in reference to Sir F. Bramwell's first affidavit. The unexplained charge of £18 18s. for Sir Frederick Bramwell's assis- tants must be doisallwed. Solicitor for the plaintiff: Mr. Littledale. Solicitors for the defendant : Messrs. Hardman Sf Son. In re Smith, Pirisent 4' Co. 613 In re SMITH, PINSENT & 00. (By permission, from 44 Ch. D. 303 ; s. c. 38 W. E. 685, 59 L. J. Ch. 590.) Practice— Costs— Taxation— Attempted ineffectual Sale of Real Estate— General Order wider Solicitors' Bemuneration Act, 1881 (44 d; 45 Vict, c. 44), Bule 2 (c). Schedule I., Part I., Rule 2, Schedule II. The costs of an attempted ineffectual sale of property, when there is no probability of the sale being effected for some years to come, should be taxed under Rule 2 (c) of the General Order made in pursuance of the Solicitors' Remuneration Act, 1881. Adjourned Summons. — This was a summons taken out by a firm of solicitors to review a taxation. The solicitors were employed in April, 1886, by the trustees and executors of Oaroline Brindiey, deceased, and were directed by tliem to take the necessary steps to sell the estates devised by the will of the testatrix, and accordingly the estates were, on the 6tli of August, 1886, put up for sale by public auction in fourteen lots ; but at that sale only one small lot was sold, the others being with- drawn or no bidding made. The solicifors having sent in their bill of costs, made out under Schedule II. of the Solicitors' Remuneration Act, 1881, in relation to proving tlie will of the testatrix and other matters connected with the estate and the realization thereof, and the trusts of the will, including the fees and disbursements in connection with the above- mentioned abortive sale by auction, the trustees at the suggestion of the solicitors on the 7th of February, 1889, obtained the common, order to lax. The Taxing Master only allowed the scale charge for the lot actually sold, and disallowed the costs and disbursements connected with the attempted sale of the remaining lots. The solicitors carried in their objections to the taxation, from which it appeared that on the 14th of June, 1889, the solicitors, acting on the instructions of the trustees, caused the unsold part of the estates to be again put up for sale in eleven lots, and at that sale only one lot was sold, all the others being either withdrawn or no bidding made, and that it was felt to be most desirable for the 2 li Chilly, J. 1890. March 26. 614 In re Smith, Pinsent ^ Co. Chiny.J. interests of the estate that no further attempt to sell the same should be made for, at any rate, some considerable time, so as to afford a chance of an improvement in the value of property, and that there was no intention or prospect of any further sale being attempted for some time to come. The Taxing Master refused to allow the objections giving the following reasons : — " I have considered the above objections and disallow the same. I have allowed in the bill of costs taxed by me the scale charge for the lot sold at the auction. " There is provision in the Solicitors' Remuneration Act, 1881, for the allowance of scale charges when property is not sold at the auction, but sold subsequently. To allow the items objected to according to Schedule II. might give the solicitor twice or thrice the amount he would be entitled to under the scale if the property had been sold. It could not have been intended to give more for doing half the work than the amount would have been if the busi- ness had been completed. The solicitor will receive at a subsequent period the scale charge when the property is disposed of, and in addition the charges provided for under Rule 2 " (meaning the Rule 2 of Schedule I., Part I.) It appeared that under an order made by Mr. Justice North the trustees had liberty to raise, and had raised by mortgage, the sum required for the present purposes of the estate. Z?. F. Norton, for the applicants : — The solicitors in this case have not completed the whole of the work, and they are entitled to have their bill taxed under Rule 2 (c) of the General Order under which the remuneration is to be regulated according to the present system as altered by Schedule II. Ante, p. 329. The decision of Mr. Justice Kay in In re Dean (1) is in our favour, as there he decided that the costs of solicitors who had acted in an abortive sale, the subsequent sale having been carried out by other solicitors, must be dealt with under Rule 2 (c), as it was clear they would not act on a future sale. In this case, although there is no such certainty, yet it is clear that under any circumstances they will not act probably for m.any years to come, and it is an obvious injus- tice that tliey should be paid nothing till they do act. (1) 3a Oh. D. 203. In re Smith, Pinsent ($• Co. 615 If years lience tlie siime solicitors do act in a successful sale, they Ohitty, J. 1890 ■will be allowed costs on the principle laid down in In re Dean (1), Ante, p. 329. and what they are allowed now will have to be deducted from the scale charge. Chitty, J. : — As the money required has been raised by mortgage, it is unlikely that the property will again be put up for sale for some jears to come. The solicitors are not bound to wait to be paid for their services in respect of the abortive sale which has already occurred, and the matter must be remitted to the Taxing Master to tax the items disallowed in accordance with Rule 2 (c) of the General Order. If the same solicitors are employed at a future time to conduct the sale which is successful, they will not be paid twice over, but on a quantum meruit basis, and not on the scale charge ; if, however, they ask to be paid on the scale charge, they will have to bring into account what they have already received. The costs of this application will be costs in the taxation. Solicitors : Field, Roscoe 4' Co., for Smith, Pinsent ^ Co., Bir- mingham. (1) 32 Ch. D. 209. 616 In the Matter of the Estate of Margaret RoacJie. Monroe, J. In the Matter of the ESTATE of MARGAEET ROACHE, ^*"'- Owner ; Ex parte JOHN M'GR ATH and OTHERS, Peti- March 31. tioners. {By permission, from 26 L. R. Ir. 256.) Advertisements — Scale of charges — Printing. The scale of charges for printing newspaper advertisements is at the uniform rate of 6d. per line, and the scale given in Madden's Land Judge's Practice (3rd edition), p. 470, is repealed. Motion to review taxation of costs. The Schedule of fees in the Land Judge's Court (1) allows 6d. Eb line for the first insertion, 5d. a line for the second, and id. a Hne for the third. This schedule was fixed in about 1875. On the 27th June, 1889, seven principal Dublin papers (daily and weekly) resolved to charge at the rate of 6d. a line for single column, and in consequence of this resolution the Free- man's Journal declined to receive a payment in this case made in pursuance of the schedule, and the matter being brought before the Taxing Master, he overruled the objections, " the amounts being charged in excess of the allowance for adver- tising ascertained by the schedule of fees sanctioned by the Court, the items allowed being the proper amounts calculated according to the authorized scale." From this ruling the appeal was taken. Mr. C. H. Meldon, Q.C., on behalf of the appellant :— The question raised is one of principle, as to what scale pay- ment for advertisements is to be made on in this Court. There is in this Court no General Order specifying any fixed scale, but a scale is given in Madden, which has been followed for some A-ears. In 1851 Baron Richards and Judge Longfield allowed the General Advertiser special latitude in their charges, which were always larger than those of the daily papers. In 1873 the Judges and the proprietors of newspapers agreed upon the (1) Madden's Land Judge's Practice, p. 470, In the Matter of the Estate of Margaret Roache. 617 charges of M., 5d., and M. respectively for three insertions. In Monroe, J. 1877 this Court became part of the Chancery Division ; but though the charges for printing are fixed at Gd. by the other Judges of the Division, they remain at the old scale here. In June, 1889, the proprietors of the newspapers held a meeting, and agl'eed to r'eftise advertisements at less than 6d. a line, on the grounds that the circulation of the papers had vastly in- creased since 1873, that the value had therefore increased, that the type allowed of a better display, and that the scale of advertisement charges to the public had doubled, while the pubUc pay cashj whereas in this Court the papers get nothing until sale. T*his is the first case that has arisen since that decision was arrived at, hence this appeal. MoJfKOEj J; : — I have no hesitation in allowing the application. In 1873 the Scale fixed was very possibly a reasonable one ; but since then wages have risen, the circulations have incr'eased^ types have improved, and other circumstances warrant an increased scale of charges. The papers have to wait for payment until the estate is sold, and in the other Courts of the Chancery Division there is a fixed charge of 6rf. a lincj This Court has been a branch of that Division since 1877, and if 6d. is not refused in the other branches there is no reason why there should be a different scale here. I therefore authorize the Taxing Master to tax advertisements for the future at 6d. a line in all eases. SoHcitors for the appellant : Messrs. Meldon 4r Son, 618 In re Palmer. C.A. In re PALMER. 1890. North, J. May 8. (By permission, from 45 Ch. D. 291 ; s. o. 38 W. E. 673, 02 L. T. 778, 69 L. J. Ch. 575.) Solicitor and Client— Mortgage— Agreement as to Gods— Solicitors Bemmiera- C. A. Hon Act, 1881 (U <& ¥ Vict., c. U) s- 1, siii-s. 3; s. 8, sub-ss. 1, 4— June 18. i, Q^^^^^ "—Employment of Solicitor. S., being desirous of borrowing money on mortgage, wrote to P., a solicitor, a letter instructing him to raise £300 upon a specified security, and undertaking " to pay your costs (which I agree at £20, exclusive of money out of pocket) to be incurred in aud about doing what is necessary for the purpose of these instructions.'' P. found a mortgagee and carried out the mortgage, acting on behalf of both the mortgagor and mortgagee, and retained out of the £300 £20 for costs of both parties, other than out of pocket costs. S. then applied for an order directing P. to deliver a bill of all such fees, charges, and disbursements as he claimed or had deducted, and referring such bill when delivered to taxation : Held, first, that S,, the mortgagor, was a "client,'' and had employed P. as his solicitor, within the meaning of Section 1 of the Solicitors' Remuneration Act, 1881 ; secondly, that although the £20 was partly in respect of business in which the solicitor was acting on behalf of the mortgagee, the letter was an agreement for remuneration between client and solicitor within the 8th Section of the Act ; and thirdly, that in the absence of evidence that the charge of £20 was either unfair or unreason- able it ought not to be referred for taxation. Appeal from Mr. Justice North. On the 21st of January, 1884, Robert Slater, a journeyman l)utclier, being desirous of raising £300 on mortjjage, wrote to Mr. W. B. Palmer, a solicitor, as follows:' — "1 hereby request and instruct you (o raise for me the sum of £300 at 10 per cent, per annum on the security of all my estate and interest under the will and in the property of the late Thomas Symonds, deceased, and 1 hereby undertake to pay your costs (which I agree at £20, exclusive of money out of pocket) incurred, and to be incurred in and about • doing what is necessary in your opinion for the purpose of carrying out these instructions. — R. Slater, junior." Mr. Palmer found a mortgagee, and carried out the mortgage. In so doing he acted both for the mortgagor, Slater, and for the In re Palmer. 619 mortgagee, and on completion he retained out of the £300 £20 for ^"''''^ '^' his costs on behalf of both parties, and £3 lis. for money out of pocket, and handed over the balance to Slater. There were other transactions between Slater and Mr. Palmer, which do not call for a report; and in January, 1889, Slater took out a summons asking {inter alia), that Mr. Palmer might be ordered to deliver to him " a bill of all sucli fees, charges, and dis- bursements as he claimed to be due or paid, or as have been deducted by him from the said applicant, or out of his moneys," and asking also for a reference to the Taxing Master to tax the said bill when so delivered. The Solicitors' Remuneration Act, 1881, in Section 1, sub- section 3, as to the word "client' enacts as follows: — "Client" includes any person who, as a principal, or on behalf of another, or as trustee or executor, or in any other capacity, has power, express or implied, to retain or employ, and retains or employs, or is about to retain or employ, a sollciLor, and any person for the time being liable to pay to a solicitor, for his services, any ' costs, remuneration, charges, expenses, or disbursements. The same Act in Section 8 provides as follows ; — " Sub-section 1 : With respect to any business to which the fore- going provisions of this Act relate" (previoiisly defined to include "business connected with mortgages") . . . . " it shall be competent for a solicitor to make an agreement with his client, and for a client to make an agreement with his solicitor before or after or in the course of the transaction of any such business, for the remuneration of the solicitor, to such amount and in such manner as the solicitor and the client think fit, either by a gross sum . . . . . or otherwise; and it shall be competent for the solicitor to accept from the client, and for the client to give to the solicitor, remuneration accordingly." " Sub-section 4 : The agreement may be sued and recovered on or impeached and set aside in the like manner and on the like grounds as an agreement not relating to the remuneration of a solicitor; and if, under any order for taxation of costs, such agree- ment being relied upon by the solicitor shail be objected to by the client as unfair or unreasonable, the Taxing Muster or Officer of the Court may inquire into the facts, and certify the same to the Court; 1890. g20 I'"' ''^ Palmer. North, J. and if, upon such certificate, it shall appear to the Court or JuJge that just cause has been shown either for cancelling the agreement, or for reducing the amount payable under the same, the Court or Judge shall have power to order such cancellation or reduction, and to give all such directions necessary or proper for the purpose of carrying such order into effect, or otherwise consequential thereon, as to the Court or Judge may seem fit." The summons taken out by Slater was adjourned into Court, and was argued before Mr. Justice North on the 8th of May, 1890. Cozens-Hardy, Q. C, and Farwell, for Slater :^ An agreement can be no bar to the right of a person to have a solicitor's bill of costs taxed, unless the agreement is one authorised by the Act. The only agreements made lawful by the Act of 1881, section 8, sub-section 1, are agreements made betweep the solicitor and his client. The mortgagor, though he be liable to pay the mortgagee liis costs, is not the client of the mortgagee's solicitors or a person for the time being liable to pay to the solicitors their costs^that is to say, the applicants did not act as the clients of the respondent only in signing the agreements, according to the definition of " client " given by section 1, sub-sectioa 3, of the Act : Hester \, Hester (1) following In re Allen (2), where it was held that a lessee bound to pay costs of a lessor's solicitor was not the client of the lessor's solicitor. These are agreements that ought to be set aside on the ground of undue pressure and unreasonableness. By section 8, sub- section 4, if under any order for taxation of costs such agreement is relied upon, and it is objected to as UTyfair or unreasonable, the agreement may be impeached. The Court will make an order for taxation in order to give the Taxing Master jurisdiction ; unless tlie Court will make an order for taxation for the purpose, the latter part of the section is nugatory. Hunliamr for Palmer : — The agreements were made between '' solicitor and client "^ within the meaning of the 8th section of the Act. The definition clause is (1) 34 Ch. D. 607. (2) 34 Ch. D. 433. In re Palmer. 021 not exhaustive ; but, supposing it were exhaustive, there is nothing Nortli, J. to prevent a client including in an agreement costs for which he is not primal ily liable; but when these agreements are looked at, they are not only agreements between the mortgagor and his client, but they amount to a retainer and agreement on behalf of the pro- posed mortgagee, in case he chooses to adopt them. The mort- gagees did adopt these agreements, for they could not otherwise have been carried out. If an agreement between solicitor and client coming within the Act is to be iuipeacbed, it can be only impeached on the same grounds and in the same way as any other agreement, unless for some reason there is an existing order to tax, and it is relied on in taxation. There is no order to tax, and the Court has no jurisdic- tion to make one simply for the purpose of giving the Master jurisdiction. If the Court wei'e to assume such jurisdiction, it would amount to holding that there was a summary jurisdiction to impeach the agreement in all cases,^ and the first part of section 8 would be nugatory. Cozens-Uardy, in reply.. North, J. r — The first point raised upon the agreement is thalt such an agree- ment is valid only so far as it is authorised by Act of Parliament ; that it must be made between solicitor and client to come within the Act at all. Section 8, sub-section 1, of the Solicitors' Remunera- tion Act, 1881,^ enables- a client to make an agreement with his solicitor for the remuneration of the solicitor either by a gross sum, or by commission, or by salary, or otherwise.' The point raised is that the person who signed the agreement for remuneration by a gross sum was the mortgagor, and the remuneration which was being provided for comprised both mortgagor's and= mortgagee's costs, and m respect of tiie mortgagee's costs tJie person making the agreement was not the client of the solicitor withln=the meaning of the Act. The intei'pretation ckuse says " client " includes any l)erson who, as a principal, or on behalf of another, or as a trustee or executor, or in any other capacity, has power, express or implied, to retain' or employ, and retains or employs, or is about to retain or 622 In re Palmer. Norih, J. employ, a solicitor, and any person Tor the time being liable to pay a solicitor, for his services, any costs, remuneration, charges, expenses, or disbursements. It is said that here the mortgagor did not employ the solicitor so far as he acted as mortgagee's solicitor, and that in tjie next place he was not a person liable to pay the solicitor, because his liability was to refund to the mortgagee what costs the latter had to pay to his solicitor. I do not take that view. In my opinion the documents amount to an instruction to or retainer of the solicitors to act not only for the mortgagor but for the mortgagee. No doubt what the docu- ments provide for is payment of the costs of both parties, and it is said that the mortgagor had no authority to give instructions for the solicitor to act for the mortgagee. It is quite true the whole thing might have become abortive if the mortgagee had thought fit not to adopt it; but the authority was evidently given on the assumption that the mortgagee would accede to it. And if that state of things did take place, the mortgagee's costs would be included, and I cannot look on that document as anything but an agreement between a solicitor and his client within the meaning of the Act. In the next place, it is said that the applicant has a right to have the costs taxed, notwithstanding the agreement ; and for that reliance is placed on sect. 8, sub-sect. 4 of the Act. The first part of that sub-section provides: — "The agreement may be sued and recovered on or impeached and set aside in the like manner and on the like grounds as an agreement not relating to the remuneration of a solicitor." If it stopped there it would simply show that such agreement might be specifically enforced if the subject of specific pei-formance, or, if for a lump sum, might be the subject of an action for a liquidated demand; the Act says that the fact that it is made between solicitor and client is not to make any difference. Then the section goes on not to modify what has gone before, but to add something additional. It says, "If, under any order for taxation of costs, such agreement being relied upon by the solicitor shall he objected to by the client as unfair or unreason- able, the Taxing Master or Officer of the Court may inquire into the facts, and certify the same to the Court." That does not seem to me to relate to any case except where there is an order for In re Palmer. 623 taxation ia existence. In the present case there is not any order North, J. for taxation, and the matter cannot go before the Taxing Master unless I made an order for that purpose. I do not tliink the Section empowers me to make such an order. It provides for the case where there is a taxation; then if such agreement were set up except for this provision the Taxing Master would have no authority. The matter would be concluded unless power were given to him by this sub-section. Slater appealed. The appeal was heard on the i8th of June, 1890. Farwell {Cozens-Hardy, Q.C., with him) for the appellant; — The letter which the appellant wrote to the solicitor is not an agreement within tiie meaning of the Solicitors' Remuneration Act, 1881. The 8th section of that Act empowers a solicitor to do what was previously unlawful, i.e., " to make an agreement witli his client " as to the amount and form of his remuneration. But although it is the practice for a mortgagor to pay the costs of his mortgagee, he is not the agent of the mortgagee for the puipose of retaining a solicitor on his behalf, and could not do so ; and as he cannot be said to have " power express or implied to retain or employ " a solicitor for the mortgagor, he is not the "client" of the mortgagor's solicitor, within the definition contained in sect. 1., sub-sect. 3, of the Act. Consequently there could be no valid . agreement between Slater and Mr. Palmer as to a sum wiiich included the mortgagor's costs as well as his own. [Fry, L.J. : — Sub-sect. 3 of sect. 1, is not a definition clause; it merely says that a " client " in that Act " includes," and so on. In other respects it leaves the expression " client " where it was. Cotton, L.J. : — " Client " means everybody who employs a solicitor.] Secondly, assuming the agreement to have been valid, then, under the 4th sub-sect, of sect. 8, if under any taxation of costs the agreement " relied upon by tlie solicitor shall be objected to by tlic client as unfair or unreasonable the Taxing Master iriay inquire into the facts." So that the existence of such an agreement does not prevent taxation, and if it is unfair or unreasonable, ii may be 624 In re Palmer. G.A. referred to the Taxing Master, and the agreement may be "irti- peached and set aside," or the amount agreed upon may be reduced : In re Gray (1), In re Inderwick (2). The agreement here is clearly unreasonable, for according to the scale the charges should have been less than half the amount agreed; and there should be a reference to the Taxing Master to tax these costs, accompanied by directions that in taxing them he should have regard to the agreement: In re Park (3). The Court has jurisdiction over its own officer, and agreements entered into by solicitors with clients in humble life, who are practically at their mercy, will be jealously looked at by the Court. Dunliam, for Mr. Palmer, was not called upon. Cotton, L.J. : — Two points have been raised, and very Ingeniously argued, but,. ih my opinion, neither of them can succeed. First, it has been said that this was not an agreement within the Solicitors' Remuneration Act, 1881, on the ground that Mr. Palmer and Mr. Slater did not stand in the relation of solicitor and client. I think the construction of the third sub-division of the 1st section of the Act is against that contention. According to the definition contained in that sub-section, " client " includes any person who has power express or implied to retain or employ, and ■ retains or employs, a solicitor. To my mind, Mr. Slater had the power to retain or employ Mr. Palmer, and has clearly done so.' It is very true the remuneration which Mr. Palmer has retained was partly in respect of matters in which, strictly speaking, he was not engaged as solicitor for Mr. Slater, but he was engaged to do business for him as solicitor ; and, in my opinion, the relation of solicitor and client was created between him and Mr. Slater within the meaning of this clause. Then it Is said that, having regard to the 4th sub-section of the 8th section, this agreement ought to be referred to the Taxing Master. But the appellant has not brought forward any evidence shewing that this charge is unfair or unreasonable ; and althougi* (1) 30 Sol. J. 551. (2) 25 Ch. D. 2-79, 282. (3) i\ Ch/ 1>. 328. In re Robson. 625 the 4th sub-aectlon does, in my opinion, give the Court power, C^- ^• where an agreement is so inupeached, to refer it to the Taxing Master to consider whether the charge is fair and reasonable, no foundation for such an order has been made. Mr. Farwell has argued that this is a very unreasonable charge ; but I do not think that he says it is unfair. 1 consider, however, that the Court ought not, merely upon such on argument by counsel, unsupported by affidavit or facts which will lead to that conclusion, to refer such an agreement to the Taxing Master to exercise the power given by the 4th sub-division of the 8th section, In my opinion the appeal fails. BowEN, L.J. : — I am of the same opinion, and I agree entirely with what the Lord Justice has said. Fry, L.J. :— I am of the same opinion. So licitors : G. B. Crook; W. B. Palmer. In re ROBSON. A.„,,;i, .^. 1890. (by permission, from 45 Ch. D. 71 ; s. o. 38 W. R. 556, 63 L. T. 872, 59 L. J. Ch. 62V.) ~ ,„ , , May 10, 14. Solicitor — Costs — Taxation — Scale Pee — Lease in consideration of Bent and Premium — -General Order under Solicitors' Remuneration Act, 1881, Schedvie t.. Part II., rr. 1, 5- When a lease is granted in consideration partly of a premium and partly of a rent, the lessor's solicitor is under Rule 5 in Part II. of Schedule I. to the Solicitors' Bemuneration Order, 1882, entitled to the scale fee mentioned in that rule in respect of the premium, even though no abstract of the lessor's title to the property has been furnished to the lessee. Summons by a solicitor to review a taxation of costs. Mr. J. E. Robson acted as solicitor for the lessor in respect of a lease of some property to the respondents to the summons. There 626 III re Rohsoii. North, J. being no agreement to the contrary, the costs of the lease were 1»90. So ^ J' payable by the lessees. The lease was for a term of ninety years from the 29th of September, 1883, at an annual rent of £50, and the further consideration of a premium of £4,400 to be paid by the lessees to the lessor. The lessees were not entitled to call for the lessor's title to the property. The solicitor delivered to the lessees a bill of costs amounting to £59 10«. This account was made up of £14, the scale fee under the Solicitors' Remuneration Order of August, 1882, corresponding to the rent; £42, the scale fee under the same Order, corresponding to the amount of the premium, and £3 10«. for disbursements. The bill was referred for taxation, and the Taxing Master disallowed the £42, but he gave the solicitor an opportunity of bringing in an additional bill of costs under the old system, as altered by Schedule II. to the Remuneration Order. The Taxing Master was of opinion that, there having been no deduction of title to the property, Rule 5 of the Rules applicable to Part II. of Schedule I. to the Remuneration Order did not authorise the charge of a scale fee in respect of the premium for the lease. Vernon R. Smith, for the solicitor: — Rule 5 clearly contemplates that, whenever a lease is granted in consideration partly of a premium and partly of a rent, the lessor's solicitor shall be remunerated in proportion to the amount of the premium as well as in proportion to the amount of the rent. If the Taxing Master's construction of the rules is right, the result will be that, if a lease is granted in consideration of a rent of £1 and a premium of £10,000, the solicitor will practically have no remunera- tion at all. This cannot have been intended. [He was stopped by the Court.] Swinfen Eady, for the lessees : — The question is, whether the solicitor is entitled to be paid for -work which he has not done. There has been no deduction of title or preparation of abstract. If there had been a purchase at a price equal to the premium, the vendor's solicitor would not have been entitled to the scale fee mentioned in Part I. of Schedule I., unless he had done all the work for which the fee is prescribed — that is. In re Robson. 627 unless lie had deduced the title to the property and perused and North, /. completed the conveyance. That is the effect of the decision of the Court of Appeal in In re Lacey S( Son (1). The principle of that Ante, p. 238. decision applies to the provisions relating to the remuneration for leases. In both scales the solicitor's remuneration is based on iiie annual rent, and in both the fee includes only "preparing, settling, and completing lease and counterpart." If the solicitor is not otherwise paid for furnishing an abstract of title, then Rule 1 applies, and he is to be remunerated under Schedule II. If the lease is granted partly in consideration of a premium, then Rule 5 applies, and, if an abstract of title is furnished, the solicitor is to be remunerated by a scale fee in respect of the premium, as in the case of a purchase at a price equal to the premium ; but the scale fee is not payable if an abstract is not furnished. Under both scales the solicitor is not entitled to anything beyond the scale fee in respect of the rent, unless he does the work of preparing and furnishing an abstract. On any other construction the solicitor would be either paid twice over for work which ho had done, or paid for work which he had not done at all. Vernon li. Smith, in reply : — May 14. Lord Justice Lindley, in In re Field (2) said (referring to Rule 5), Ante, p. 278, 286 " we find that if a lease is granted for a premium the purchase scale applies to the premium." The Taxing Master, in allov/ing the solicitor to send in an additional bill under Schedule II., is really allowing him to charge over again for work for which he has been already in part paid by the scale fee in respect of the rent — that i?, for "preparing, settling, and completing lease and counterpart." North, J. (after stating the facts as above, continued) : — The Taxing Master has arrived at his conclusion as the result of the provisions in the 2nd part of Schedule I. to the General Order under the Solicitors' Remuneration Act, 1881, which fixes two scales of charges, the first being that of charges payable to a "lessor's solicitor for preparing, settling, and completing lease and counter- part" in cases of lease or agreement for lease at rackrent (not including mining or building leases) ; and the second that of charges (1) 25 Ch. D. 301. (2) 29 Ch. D. 608, 616. 628 In re Bohson. North, J. payable to a " vendor's or lessor's solicitor for preparing, settling, and completing conveyance and duplicate, or lease and counterpart, in cases of conveyances in fee or for any other fi-eehold estate reserving rent; or building leases reserving rent; or other long lea^ses not at rackrcnt (except mining leases) ; and it is the latter scale, if either, which applies in the present case. Then the fifth of the rules applicable to Part II. provides, " where a conveyance or lease is partly in consideration of a money payment or premium, and partly of a rent, then, in addition to the remuneration hereby prescribed in respect of the rent, there shall be paid a further sum equal to the remuneration on a purchase at a price equal to such money payment or premium." The Taxing Master has allowed the sum of £14 as the fee according to the scale on the rent, but has not allowed the £42 the scale fee claimed upon the premium. His view is, that any such scale fee must be a sum equal to the remuneration on a purchase at a price equal to the premium — viz., in the present case, £4,400; but that, as the solicitor would not, if this were a purchase at that sum, be entitled to any scale fee, because he has not negotiated or conducted the sale, nor deduced any title to the property, he, therefore, does not come within the provisions of Part I. of the first schedule, and there is no scale fee applicable to the case. He has held, however, that, although the solicitor is not entitled to any scale fee on the premium, he is entitled, in addition to a scale fee on the rent, to the remuneration prescribed by the Act in respect of business, the remuneration for which is not prescribed in Schedule I. — viz.* remuneration according to the old system as altered by the second schedule — and he gave the solicitor an opportunity of bringing in a bill of costs to be taxed upon that footing. The solicitor, however, has not adopted that course, but insists that he is entitled to be allowed the £42, the scale fee on the premiuna. In giving to the solicitor this option of bringing in a bill the Taxing Master was, in my opinion, clearly wrong. Supposing the solicitor had, as he was invited to do, brought in a proper bill under the old system, it would have contained full charges for all work done, and the Master must have allowed the whole of it, for he would have had no power, under the new or old or any system, to have allowed such sum only in respect of that bill as bore to the total amount of the bill the same proportion that £4,400 bore to In re liobson. 629 the value of the whole consideration of the lease — i.e., the premium NoHh, J. 1890. plus the rent. In this case, therefore, the solicitor would have got his full bill of cosis under the old .-ysteiii as altered by Schedule II., "''' ' and would have received in addition a scale fee calculated on the rent. This view of the case seems to me clearly inadmissible. A solicitor must, in my opinion, be paid either according to the scale, or, independently of the scale, according to the old system as altered by Schedule II., and cannot in respect of one and the same piece of business be entitled to receive a compound remuneration made up in part of a scale charge and in part of a bill of costs in addition for professional work as distinguished from disbursements. This is not authorised by the Act or order or rules, except expressly in one particular case hereinafter referred to, and it would be to some extent giving double remuneration for the same work. This was also, I think, the view of Mr. Justice Ohitty in hi re Hickley Sf Steward (1). Ahte, p. 270. The question then is, whether the solicitor is to be paid (a) by a scale charge on the rent and on the premium, or (6) by a bill of costs according to the old system as altered by Schedule 11. The case falls exactly within Rule 5 of Part II. of the schedule — viz., the lease is partly in consideration of a rent and partly of a money payment or premium. That rule provides that, " in addition to the remuneration hereby prescribed in respect of rent there shall be paid," not a bill of costs, but "a further sum equal to the remuneration on a purchase at a price equal to such money payment or premium." It does not say that the vendor's or lessor's solicitor is to be remu- nerated as if, to this extent, the transaction was a purchase, but that he is to be remunerated in the case of a lease or conveyance reserving rent by a sum equal to the remuneration on a purchase — a sum to be ascertained by reference to something else in the rules, to which reference eifect must be given if possible. As we are dealing with the case of vendor's or lessor's solicitor, the rule would have been more happily expressed and more accurate if it had referred to remuneration on a sale instead of on a purchase, but the meaning is obvious. Now, to what is reference here made ? Remuneration on sales is given by Part I. of Sched. I. to vendors' solicitors for three things — (1) negotiating a sale by private contract; (2) conducting (1) 33 W. E. 320. 2 S 630 In re Rohson. North, J. a sale by public auction ; and (3) deducing title to property and perusing and completing conveyance. The first of these cannot be Ante, p. 278. intended ; for it is well settled by In re Field (1), and later cases, that no charge can be allowed for negotiations in business coming within Part II. of Sched. I. ; nor can the second be meant, for there is very little connection between sales by auction and the matters dealt with in Part II. The reference must, therefore, be to the remuneration payable to a vendor's solicitor for deducing title and perusing and completing conveyance. And it is said that, as the scale fee on a purchase (or sale) is not payable unless the title is deduced as well as the conveyance comjjleted (see In re Ante, p. 238. Lacey Sf Son (2), Newbould v. Bailward (3), so it cannot be allowed Ante, p. 483. qjj ^ lease when the business is completed without deducing title. But it is clear that the two cases are not assimilated for all pur- purposes. For instance, on a sale under Part I. a solicitor who negotiates a sale and deduces title and prepares conveyance re- ceives separate fees for each, while a solicitor who negotiates a conveyance or lease coming under Part II. receives no fee for negotiating. Again, the law is established, that a lessee is not, in the absence of express contract to that effect, entitled to call for his lessor's title, and such title notoriously is scarcely ever required, and it would be rather absurd, I think, to hold that the reference in Rule 5 to remuneration in respect of the premium has relation only to the very rare cases of leases in which the lessor has by special contract to deduce his title; and that far the larger number of cases in which leases are granted in consideration in part of a premium, without any title being deduced, are unprovided for by the rule. In fact, it is clear that the framers of the rules applicable to Part II, of Sched. I. had in mind that title is not oi'dinarily deduced on grants of leases, and that those rules are not confined to leases on the grant of which title is deduced ; for the first rule applicable to Part II. expressly provides that, if a vendor or lessor furnishes an abstract of title, it is to be charged for according to the existing system as altered by Sched. II., and this is the one case in which the Order allows remuneration by a bill of costs in addition to scale fees. It is obvious that this charge is in addition to and not in lieu of a scale fee; for the rule merely allows a (1) 29 Ch. D. 6«8. (2) 25 Ch. D. 301. (3) 14 App. Cas. 1. In re Robson. 631 separate charge for what is but a small part of ihe deducing of ^'"■'*; ^• title; and it could not be intended that in cases where title is deduced the solicitor should not receive any remuneration for deducing title except the charge for the abstract. The provisions of rules 5 and 1, that the solicitor is to have a scale fee on the premium, and, if an abstract is furnished (which is part of the deduction of title), is to have something more, is, in my opinion, quite inconsistent with the contention that, if title is not deduced. {i.e., if an abstract is not furnished), he is not to have even any scale fee on the premium or other remuneration in respect thereof. If that were so, in the not uncommon case of a lease at a nominal or small rent and a large premium, no title being deduced, a soli- citor would receive only a very moderate and possibly inadequate remuneration for his work — a state of things scarcely contemplated by the framers of the Act, Order, and Euies. In my opinion, the language of Rule 5, referring to a further sum equal to the remu- neration on a purchase at a price equal to the premium, was intended to avoid the repetition of the table showing the rate or scale of remuneration, as though there had been a reference to it mutatis mutandis, and was not meant to narrow its application to cases precisely identical, or to exclude almost all leases at a premium from its operation. Under these circumstances, I have come to the conclusion that the solicitor is entitled to the £56 which he claims for remuneration ; and the matter must go back to the Taxing Master to review his taxation. The solicitor must have his costs of this application; Solicitors : Mr. J. E, Robson ; Hasties. June, 1890. 632 Kennedy v, Beaumont. County Court. KENNEDY t'. BEAUMONT. (Bt/ permistion, from 24 I, L. T. E. 95.) (Before the Recokder of Belfast). Practice — Costs — Sale in Court— Solicitors' Eemuneration Act, 1881, «. 2^ General Order, April 16th, 1884 — Discretion of Judge— Oeiieral Order (1877) 10. The General Order of April 16th, 1884, made in pursuance of the Solicitors' Remuneration Act, 1881, is applicable to proceedings in the County Court. Method of the taxation of costs on a sale of lands in the County Court defined. This was a suit to raise the arrears of two annuities, which were charged on the inheritance. Under a decree for sale the lands were sold for f 120. The Registrar taxed the plaintiff's costs upon the scale prescribed by the General Order of the 16th April, 1884, made in pursuance of the Solicitors' Remuneration Act, 1881. From this taxation the plaintiflF appealed to the Judge, on the ground that the costs should have been taxed according to the scale in use previously to the passing of the Act, Whittaker, for the plaintiff, moved to vary the taxation. Mr. A. Caruth, solicitor for the defendant. The Judge : — By the 2nd section of the Solicitors' Remuneration Act, 1881, the persons therein named were empowered to make such General Order as to them seemed fit, for regulating the remuneration of the Solicitors in respect of sales, &c. Tlie 2nd section provides that, in flaming the Order, regard may be had, among other considera- tions, to the amount of the capital money to which the business relates. By the General Order of the 16th of April, 1884, made in pursuance of the Act, it is provided by Clause 2a that the re- muneration in respect of sales shall be as prescribed in Part I. of Schedule I., which gives the vendor's solicitor 40s. per £100 for Kennedy v. Beaumont. 633 the first £lOOOj and rule 8 provides that where the remuneration Couvty Court. 1890. amounts to less than £5 the remuneration shall be £5, except on transactions under £100, in which case the remuneration is to be £3. It was decided in Stanford v. Roberts (1), that the Ante, p. 248. Act applies to sales in Court, but it has been contended on behalf of the plaintiff that the General Order does not apply to a proceeding in the Court, and that I ought to exercise the discretion vested in me by the 4th of the Greneral Orders mide under Part II. of the County Officers and Courts Act, 1877, by directing the costs to be taxed according to the scale in use previously to the passing of the Remuneration Act, on the ground that the purchase money upon sales in this Court is usually small; I cannot accede to this contention. The 10th of the General Orders of 1877 directs, in case of discretionary fees, the Taxing Officer shall take into consideration the amount or value of the subject of litigation and the general nature and circumstances of the particular case, wliich is quite in accordance with the principle of the Remuneration Act and the General Order made under it. If this had been a sale in the Superior Courts the Solicitors' re- muneration would have been £5 in addition to his costs of suit and outlay^ I cannot see any reason for confining the General Order to sales in the Superior Courts, but it is not necessary to consider this question, as I would not be justified in sanctioning under Order 4 any higher scale in this Court. No rule I (1) 26 Ch. Di*. 155. 634 Jessop v. Cusach. ^■^- JESSOP V. CUSACK. 1890. June 5. (By permitsion, from 25 L. R. Ir. 244.) Practice— Costs— Taxation of, between party and party — Settlement of interroga- tories and affidavits by senior counsel — Subpoenas duces tecum — Instructions for brief— Documents— Refreshers — Third counsel in Court of Appeal — Report of judgment Order VII. (Costs), Schedule 75a — Order X. (Costs), Rules 1, 12. 1. In an exceptional case a fee to senior counsel for settling interro- gatories and affidavits may be allowed. 3. When subpoenas duces tecum have been directed by counsel, and are necessary, to enforce the production of documents, they should be allowed. 3. Item 75a applies to a brief in the Court below as well as in the Court of Appeal ; but what should be allowed for such brief, and for briefing documents, is a matter for the Taxing Master. 4. Refreshers of £8 8s. to senior, and £5 5s. to junior counsel allowed in an exceptional case. 5. In the Court of Appeal, as a general rule, the costs (o) of briefing the report of the judgment of the Court below should be allowed, and (i) the costs of a third counsel when three counsel have been allowed in the Court below. Summons by the defendant to review taxation. Tiiis was an application on behalf of the defendant for an order that the Taxing Master might be directed to review his taxation of certain items of the costs of the plaintiffsi, under the judgment dated the 3 1st July, 1889, and also under the order of the Court of Appeal, dr.ted the 3rd February, 1890. The action was brought against the defendant, who was a solicitor, for an account, and for a declaration that he was liable for invest- ments of the moneys of the plaintiffs, and resulted in a judgment for the plaintiffs, with costs, which was afHrmed by the Court of Appeal, with costs. The items referred to in the defendant's objections to the costs of the plaintiffs under the said judgment were as follows: — (a) Items 109-111. Fee to senior counsel for settling amended claim and interrogatories, with attendance, &c. Jessop V. Cusach. 635 ih) 172, added after. Fee to senior counsel for settling draft -^^ ^■ affidavits, with attendance. (c) 275-279. Fee on subpoena duces tecum for service on Mr. Maunsell ; service of, and tnaticum. (d) 280-283. Fee on subpwna duces tecum for service on defen- dant; service of, and viaticum. (e) 312. Instructions for brief on trial, £15 15s. charged and allowed. Defendant objects to portion of such allowance to the extent of £10 10s. (/) 315-336. Manuscript brief of documents, comprising 1,077 folios, the charge for same being £17 17s., in respect of whicli there has been allowed £12 7s. Defendant objects to so much of such allowance as has been made in respect of items 319-323 and 336, for 321 folios, amounting to £5 7s. {g) 385, and following. Portion of £8 8s. refresher fees to senior counsel; £3 3s. of this objected to. Portion of £5 5s. refresher fee to junior counsel; £2 2s. of this objected to. The items in the costs allowed under the order of the Court of Appeal objected to were as follows :-^ (i.) Brief for counsel of report of judgment, (ii.) Brief to third counsel. (iii.) Amount of refreshers to counsel, the same fees being allowed as in the Court below. The Taxing Master in his report stated as to— (a) That he did not take into consideration the settlement of the amended claim, and that he considered that interrogatories were " proceedings " within the meaning of Order X.j Kule 12, and that he allowed the items, in the exercise of his discretion, as reasonable and just costs to be allowed. He referred to the certificate of counsel with respect thereto. As to— {h) He permitted these items to be added to the costs in accord- ance with the practice to allow items which have been omitted through oversight or inadvertence to be added to a party and party bill of costs. He allowed the items in the exercise of his discretion, under Order X., Kules 1 and 12, in case the 636 Jessop v. Cusach M. R. Court thought that he was warranted in permitting the addition thereof. He ruled against the contention that the fee to senior counsel was a " separate fee " within the meaning of Order X., Eule 12. (c), {d). He allowed the costs as to the subpoenas, having regard Ante, p. 254. to the counsel's directions and Heffernan v. Vaughan (1). («) He reduced the item to £8 %a. It was objected that only £5 5«. should be allowed, and that the words in item 75a in the Schedule of Fees (Ledwich on Costs, p. 70) : " When witnesses are to be examined or cross-examined," applied to the allowance "for such brief" in the same item; but he ruled that these words had reference only to the " brief on the hearing of an appeal,'' and not to brief on hearing or trial of action. (/) The Taxing Master, under the circumstances of the case, allowed these items, as he thought it was necessary that the deeds and documents should be briefed, being set forth in the schedule of evidence annexed to the judgment, and the plaintiffs having been put upon proof of them by the def^endant. {g) He allowed the refreshers of eight and five guineas, having regard to the oifHculty and complication of the questions involved in the case, and the importance of the result of it. As to the costs in the Court of Appeal, he allowed — (i.) The charge for briefing the judgment, on the ground that it was necessary and proper that briefs of the report should be furnished to counsel. It was admitted that the report was called for, used, and referred to by the Court of Appeal on the hearing, and the plaintiffs and the defendant paid the charges for it moietively. (ii.) Three counsel having been allowed in the Court below without objection, he thought, having regard to the difficulty and importance of the case, three counsel should be allowed in the Court of Appeal. (iii.) That the solicitor for the plaintiflF was right in marking the same fees for refreshers as in the Court below. (1) 18 Ir. L. T. R. 38. Jeasop V. CusacJt. 637 Mr, Pfice, Q.C., for the defendant:— ^- R- 1890. These coats should not be allowed between party and party ; Dyott V. Reade (I); (a) and (b), the interrogatories and affidavits Ante,^. 167. had already been settled by junior counsel ; (c) and (d), the sub- poenas duces tecum were unnecessary. Ileffeman v. Vaughan (2) Anu, p. 254. was a common law case, and related to evidence in chief. Here the defendant was bound to attend to be cross-examined on his affidavit. The subpoena to Mr. Maunsell was unnecessary caution on the part of senior counsel : he had made an affidavit, {e) Item 75a applies to both brief on hearing and on appeal. If the Taxing Master's vie:w were correct he could only have allowed £1 lis. 6 L. No., 2.64.) {By pfrmiisim, from 26 L. R, Ir. 385, 24 Ir, L. T. E 89,) Taxation of costs — Party aiid party — Attachment — Adrice of counsel. - -The costs of procuring the advice of counsel to institute a motion to attach a person for contempt of Court are not taxable against such person as party and party costs. Adjourned Summons to review taxation of costs. On the 19th February, 1890, whilst the action was still pending, an article appeared in the newspaper, T/ie Medical Press and Circular, entitled "A Dublin Medical Cause Celebre," in which reference was distinctly made to the facts of the case, and there were also certain comments thereon. The same article was reprinted and published in the newspaper, The Dublin Evening Mail, of the same evening, with the introductory words, " The Medical Press to-day says." On the 26th February, 1890, counsel on behalf of the plaintiff applied ex parte for a conditional order to attach Dr, A. H. Jacob, the Dublin Correspondent of The Medical Press and Circular, and Mr. Tickell, the proprietor and publisher of The Dublin Evening Mail, for contempt of Court in publishing the said articles, as calculated to prejudice the fair trial of the action. The Lord Chief Baron said that it was not the practice in Ireland to make such an order ex parte. The application should be moved on notice, and he gave liberty to serve notice of motion for the 1st of March (1). Notice of motion having been served, the application was heard on the 1st March, and the Court made an order adjudging Mr. Tickell and Dr. Jacob guilty of contempt of Court, and ordered them to pay the plaintiff's costs of the motion, when taxed. The plaintiff subsequently lodged his bill of costs for taxation. The Taxing Master (Mr. S. Davis) proceeded to tax same, and disallowed or reduced (amongst others) the following items : — ■ (1) See General Order XL VIII., Rule 11. Lynch V. Mlican. 649 1. Attendance on plaintiff, when he called on his solicitor with copies of the newspapers con- taining the said articles, and called attention to same, and gave instructions to take the advice of co^unsel' thereon, £1 Is., reduced to 2. Instructions to counsel to advise accordingly - 3. Attending counsel - - - - 4. Paid fee _ -^ - - - 19. Instructions to counsel to settle affidavit and , notice of motion 20. Attending counsel ^^ - - - 21. Paid fee - - - - - 36. Attending Mr. Healy, to move ex parte for an attachment, 10«., reduced to ■ 37. Attending him . _ _ j 38. Paid his fee ------ 55. Docket of consultation for Mr. O'Shaughnessy, Q.C. - - . - - 56. Attending him _ _ .j - 57. Paid fee - 58. Docket of consultation for Mr. Healy 59. Attending him - - -■ - 60. Paid fee _ _ _ _ 61. Attending consultation _ _ ^ 62. Paid for room ^ _ _ _ The plaintiff having lodged objections to the above taxation, the Taxing Master reported as follows : — I disallow these olyections for the following reasons :'■ — Item No. 1. I consider that 6s. Sd. is sufficient for instructions as against the party, and therefore I disallowed 14s. 4d. Items 2, 3, and 4. I consider that charges for obtaining the advice of counsel preparatory to an application to the Court in an action are not taxable items against a party, and therefore I disal- lowed same. Items 19, 20, and 21. I don't consider that the expense of counsel settling the affidavit here charged should be allowed as against a party. (^ Mx. Div, 1890, 6 8 6 8 6 8 2 2 6 8 3 4 2 2 6 8 6 8 2 2 0' 3 4 6 8 2 2 1 8- 6 8' 2 2 13 4 5 650 Lyneli v. Macan. Ex. Div. Items 36, 37, and 38, I disallowed these items, inasmuch as no 1890 order was made, and no costs of the application awarded. Items 55 to 62, inclusive. I disallowed the consultation, being of opinion that the ease was not of sufficient importance to warrant such expense, as against a party in the action, and I considered that liberal fees were allowed to counsel on their briefs, particularly senior counsel. Bushe, for the plaintiff, in support of the application : — The costs of an attachment are in the discretion of the Court: Abud V, Riches (1.) Even if the proceedings for the attachment are in the nature of originating proceedings, like a new action i counsel's fee for advice should be allowed as party and party costs, Ante, p. S95. and the Taxing Master has power to allow same :■ Tisdall v. Sichard- son (2). It is clear that the Taxing Master has a certain discre- tionary power ; but in the present case he did not exercise that discretion. He seems to have erred in point of principle. Hunt, for Mr. TickeU :— The application against Mr. TickeU was altogether in the nature of an originating proceeding, just as if it were a new action. The costs of obtaining the advice of counsel as to bringing an action are not taxable costs, and, as the attachment proceedings are in their essence criminal, it is quite clear that such costs could in no view of the case be allowed. There is no preeedent in the Taxing Office for allowing such, items. Snu, p. 343> [Counsel referred to Boswell'v. Coaka- (3) ; M'Namara v. Malone{i).] PAiiLES, C.B. :• — I am of opinion that as regards Mr. TickeU the application for an attachment was an originating proceeding, although the jurisdiction was exercised in a cause, and that the charges incident to procurino- the advice of counsel to institute that proceeding can no more be allowed than if the advice given had been to bring an action. Andrews and Mwrpht, JJ., concurred. Solicitor for the plaintiff: P. A. Chance. Solicitor for Mr. TickeU : B. Eaton. (1) 2 Ch. Div. 628. (3) 36 Ch. Div. 444. (2) 20 L. E. Ir. 199. (4) 18 h. K. Ir. 269. Gregg v. Johns ton. 651 GHEiGG V. JOHNSTON, County Court. (SyyermisMon, from 26 Ir. L. T. R. 20). Q^^ jjoy (Before the Recorder of Belfast.) CivU Bill process —View Jury-^M tfc 35' Vict., c. Cw, s. 38 — Cos 19 L. R. Ir. 99. (2), 14 App. Cas. 7. (5) 24 L. B. Ir. 182. (3) 21 L. K. Ir. 5:!9. 656 Ex parte Carutlu M- R- with a wafer. During the argument I asked counsel if he could' 1890,' specify anything which could satisfy the words " other documents " in the schedule, if the contract before me would not, and he was unable to suggest any. Having put the same question to myself, I arri unable to giv? any other rational construction to the words of the schedule, if a contract such as that before me, by which impor- tartt legal rights are determined and bound, be not such a document. Ante, p. 386. In the case of Ex parte O'Hagan (1) I held that cases prepared for counsel, and statements for the information of clients, were not ejusdem generis w'ith deeds or wills. I do not decide any general question beyond the particular contract before me. But books of conveyancing precedents contain forms of contracts like that in question here-^a circumstance, of course, not conclusive of its being properly called conveyancing business, hut a matter to be taken into account. Mr. Christie, in his ingenious argument, suggested that the documents included in the schedule were documents dealing with land ; but there is not a word about land in the schedule, and wills and settlements, and other deeds themselves, often do not deal with land at all. The difficulty, as 1 have said, is as to the Lurgan Ante, p. 498. Commissioners' Case (2). 1 have not seen the documents that were before the Court in that case, but they were probably not dissimilar to that now before me. If that case were binding on me as a deci- sion I would act upon it; but it was in so far peculiar as' that the Court consisted of only two Judges, one of whom held that the documents were within the schedule, and the other that they were not. I do not presume to criticise that mode of decision, though it might have probably been more satisfactory, at least for my guidance, if another Judge had been called in. 1 had, as I have intimated,- some little doubt as to what I ought to do, having regard to my Anu, p. 386. own expression of opinion in Ex parte O'Hagan (3), and that of the Ante,p. 493. Vice-Chancellor in Ex parte Strange (4), and of Kay, J., in /Sian- ^«(c, p. 248. ford V. Roberts (5), that the "documents" must be documents ejusdem generis with deeds and wills. At first I thought I was bound to follow the result of the case in the Queen's Bench Division, but having consulted on the point with high judicial authority, I am (1) 19 L. R. Ir. 99. (4) 21 L. E. Ir. 529. (2) 24 L. R, Ir. 182. (5) 26 Ch. T>iv. 155, (3) 19 L. R. Ir. 99. 1890. Earl of Aylesford v. Earl Poulett. 657 of opinion that under the circumstances I should act upon my own M- ^ view, whatever it may be. There is nothing in the order of the Queen's Bench' Division so arrived at that would prevent its being reviewed by that branch of the Court in another case, and I feel bound to act upon my own opinion. I accordingly do so, and declare that the documents in this case should be taxed under the schedule, and therefore at 2s. a folio. ' Solicitor for the applicant : Mr. Caruth. Solicitor for the Ballymena Commissioners : Mr. Robert Christie. EAEL OF AYLESFOED v. EAEL POULETT. c. a. 1890. (1886. A. 1480). ^.j_ {By permission, from [1891] 1 Ch. 248; s.c. 39 W. R. 106, 241, 63 h. T. 619, 64 L. T. 336, . ■'^°^- ^■ 60 L. J. Oh. 204.) C. A. Solicitor — Costs — Taxation — Scale Fee — Mortgage — Further charge — Preoiom in- Dec. 19, 20. vestigation of title — General Order under Solicitors' Remuneration Act, 1881, Sched. /., Part /., r. 10. The tenant for life of settled estates had created charges on his life estate for sums amounting in the whole to £192,000, and the charges had all become vested in an insurance company. A private Act was passed which empowered the trustees of the settlement to raise, by mortgaging the settled estates in fee, any sum not exceeding £350,000, for the purpose of paying the debts of the tenant for life. The trustees executed a mortgage of the estates in fee to the company to secure £232,000. Of this sum £192,000 was retained by the company in satis- faction of the charges on the life estate (which were released by a sepa^- rate deed), and £40,000 was paid to the trustees : — Held, by North, J., affirming the decision of the Taxing Master, that the transaction amounted to a further charge within the meaning of Rule 10 in Part I., of Sched. I., to the Solicitors' Remuneration Order, 1882 ; that the title to the property had been in substance already in- vestigated within the meaning of that rule ; and that the mortgagees' solicitor was not entitled to any scale fee in respect of the mortgage, but must be remunerated under Sched. II. to the Order ; Held, on appeal, that the transaction was a new mortgage, and not a further charge, and therefore did not fall within Rule 10, and that the mortgagees' solicitor was entitled to the scale-fee on a mortgage for £232,000. 658 Earl of Aylesfrrd v. Earl PouleU. C- ■^- Summons to review taxation of coste. 1890. The action was brought by Charles, eighth Earl of Aylesford, who was tenant for life in possession of certain settled estates, against Earl Poulett and F. R. KnoUys, who were trustees of a settlement of the estates, dated the 3rd of January, 1871, and also trustees for the purposes of a private Act of Parliament (45 & 46 "Vict. c. 3), called the Earl of Aylesford's Estate Act, 1882. The Act was passed in the lifetime of the seventh Earl of Aylesford, the then tenant for life of the estates, to enable {inter alia) the trustees of the settled estates to raise money for payment of his defcts. At the date of the passing of the Act there was existing a number of charges for sums amounting in the whole to £192,000 upon the life estate of the seventh Earl, all of which had then become vested in the trustees of the Eagle Insurance Company. The Act (by sect. 23) empowered the trustees at any time, or from time to time, after the passing thereof, to raise by mortgage of the settled estates, or any part thereof, any sum or sums not exceeding altogether £350,000, and provided that the trustees might convey the settled estates, or any part thereof^ to any person or persons for an estate in fee simple, or any less estate, by way of mortgage for securing payment of the money raised and the interest thereon. And sect. 24 provided that every .conveyance by way of mortgage made under the Act should take effect, subject to certain para- mount charges, and also to the life estate charges, or such of them as should not be released, but in priority to all estates for life and estates in tail male, and to the remainder in fee limited by the settlement of 1871. The trustees were authorised out of the money so raised to pay oiF the mortgages on the life estate, and other debts of the tenant for life. Under the power thus conferred on them the trustees on the 7th of August, 1883, executed a mortgage in fee of part of the settled estates to the trustees of the Eagle Company for £232,000, out of which sum the charges for £192,000 on the seventh Earl's life estate were retained by the Company, the sum of £40,000 only being in fact advanced by the Company to the trustees of the settlement. The mortgage deed contained a recital that all the charges on the Earl's life estate had been satisfied and released, and Earl of Ayle!>ford v. Earl Poulett. 659 the deed purported to be made in consideration of the sum of C. A. 18fi0 £232,000 to the trustees of the settlement "now paid" by the mortgagees. The charge* on the life estate were released by a separate deed. The seventh Earl died on the 13th of January, 1885, without issue male. By the statement of claim in the present case, the plaintiff, the eighth Earl, who, on the death of the seventh Earl, became tenant for life in possession of the settled estates, cliiimed (inter alia) an account of all moneys come to the hands of the defendants as trustees for the purposes of the Act, or as trustees of the settlement of 1871, and payment to the plaintiff of what (if anything) might be found due to him, as tenant for life under the settlement, from the defendants. On the 26th of January, 1887, an order was made by Mb. Justice North that an account should be taken of all moneys come to the hands of the defendants as trustees for the purposes of the Act, or as trustees of the settlement of 1871, and of the application of all such moneys. Under this order the defendants brought in {inter alia) seven- teen bills of costs which they claimed to charge against the moneys come to their hands as trustees, one of their bills being that of the solicitors of the Eagle Company in respect of the mortgage for £232,000. The chief clerk requested the Taxing Master to tax and settle these bills, to assist him in making proper allowances in respect thereof in taking the accounts of the trustees. Among other items in the bill of the Eagle Company's solicitors, which had been paid by the trustees, was a sum of £1,255 for commission in relation to the loan of £232,000 being the amount chargeable under the scale of the Incorporated Law Society. The Taxing Master disallowed this item to the extent of £1,110, thus reducing it to £145, that being the "scale fee" prescribed by the Solicitors' Remuneration Order of 1882 for investigating title and preparing and completing mortgage for £40,000. The defendants carried in an objection to this disallowance, in which they said, " the item of £1,255 should have been allowed at £455, being the amount according to the scale authorised by the Solicitors' Remuneration Act, 1881, upon a mortgage for £232,000. The mortgage for tiie £232,000 was a new and independent transaction, and entirely 660 Earl of Aylesford v. Earl Poulett. P- ^- distinct from the mortgage fqr £192,000 which previously existed upon the life estate." . The plaintiff made the following answer to the objection: — "The £192,000 representing the mortgage on the late Earl's life estate was repaid out of the advance of £232,000, the sum lent on th« fee of the settled estates. The nature of the security was changed, and £40,000 further was advanced ; that is all. It is contended that the title was thoroughly investigated by the soli- citors of the Eagle Company when the £192,000 was advanced, and that it would only be necessary for them to inspect a iew further- documents subsequently executed." The Taxing Master gave the following answer; — "The facts are correctly stated in the plaintiff's answer to the defendants' objection. The solicitors have already been once paid for investigating the title, at least, on £192,000, part of £232,000, that is on the life estate. On the present occasion an additional £40,000 was advanced, no doubt this time on the fee. But the transaction was between the same parties, and, as before observed, the proper fee had been already paid for investigiiting the titlfe. , On the present occasion the de- fendants are really entitled to nothing more than the proper charges under Schedule II., and I invited them to bring in such items. This they declined to do, contending that they were entitled to be allowed the full scale item on £232,000. In these circumstances I have, with the assent of the plaintiff's solicitors, allowed them £145, being the scale-fee on £40,000, which is, in my judgment, much more than the defendants would be allowed if items were brought in under Schedule II." . By the present summons the defendants asked that the above stated objection (and certain other objections) to the taxation of costs under the Chief Clerk's request might be allowed, and that it might be referred back to the Taxing Master to vary his certificate accordingly. The summons was heard before Mr. Justice North on the 6th of November, 1890. Napier Higgins, Q.C., and Dauney, for the defendants : — The scale fee in respect of £232,000 ought to have been allowed. The mortgage of the 7th of August^ 1883, to the trustees of the Earl of Aylesford v. Earl Poulett, 661 Eagle Company was not a transfer or a further chiU-gc. It was Nonh.J. a new and independent transaction; the securily being different from that of the former mortgages, and the parties different. Rule 10 (1) in Part I. of Schedule I. to the Remuneration Order does prevent the solicitor from claiming the scale fee in respect of £232,000. There was really a fresh investigation of title. The title to the fee had to be investigated, not merely the title to the life estate, and the authority of the trustees to mortgage the fge depended upon the Act. Cozens-Hardy Q.C, and W. C. Druce, for the plaintiff: — The Court must look at the substance of the transaction, which was afurther advance of £40,000 by the Eagle. The title to th^e fee- was in substance the same as that to the life estate, and it had been quite recently invelstigated by the Company. The only nevy thing to be investigated was the private Act. Napier Higgins, in reply : — If the argument for the plaintiff is right, a solicitor can nevev claim the scale-fee in respect of a mortgage if there has ever been a previous partial investigation of the title to the property. Ii^ Ex parte Mayor of London (1) the title was a statutory one and ^n«c, p. 371. the solicitor of the purchaser had only to look at an Act of ParliaT ment, and a letter written by the Lord Chancellor authorising the sale ; and Mr. Justice Kay held that the title had been investi? gated, and that the purchaser's solicitor was entitled to the scale-fee, Here the advance was made on the security of the new title created by the Act. The title was not the same, or in substance thq same, as in the case of the prior mortgages. North, J. : — I think the words in which Rule 10 is expressed are not very clear; but, after the best consideration I have been able to give to the case, I have come to the conclusion that the Taxing Master's decision was right. [His Lordship read Rule 10.] Let me put the simplest possible case. Suppose the owner in fee of an estate mortgages it and then dies, the mortgage being (1) 34 Ch. D. 452. 2 U 662 Earl of Aylesford v. Earl Poulett. North, J. still in existence, and his son, claiming to be his heir-at-law, desires 1890. ' = , •,. r to obtain a further advance from the mortgagee on the security ot the estate. Does Kule 10 exclude the right of the mortgagee's eolicitor to the scale fee or not? It must be remembered that, if the scale does not apply, the solicitor will still be remunerated for his work, for an alternative mode of remuneration is provided by the rule. The only question is, whether the solicitor is to be paid in the one way or the other. In the simple case which I have put, could it or could It not be said that the title had been already investigated ? Could it be said that the title had not been previously investigated, merely because it would be necessary to look at the will of the mortgagor or to inquire into the heirship of his son in order to see whether he had power to mortgage the property? The argument on one side is, that it can never be said that the title to property has been previously investigated, unless not the slightest change has taken place in the position of the mortgagor; and that if anything further, however trifling, has to be done, there will be a fresh investigation of title. On the other side, it is asked could it be said that the title to mortgaged property had not been previously investigated merely because ten closes were comprised in the further charge, instead of only one in the original mortgage ? In my opinion, the Court must deal with each case as it arises, and you must not test the rule by putting extreme cases. Suppose a mortgagor is tenant for life, his son being entitled to the remainder in fee. If the mortgagor obtains a further advance by means of a mortgage of the estate in fee by himself and his son, can it be said that there is a fresh investigation of the title? I think not, though the further charge will be on the estate in fee, and not on the life estate. What are the facts in the present case ? The mortgages which had become vested in the trustees of the Eagle Company were charges upon the life estate of the tenant for life. The Act of Parliament enabled the trustees of the settlement to create a greater charge upon the fee of the estates. The trustees did create a greater charge upon the fee, taking in exchange for it a release of the existing charges upon the life interest, and a further advance of £40,000. In my opinion, there was not any fresh investigation of title, for the title had been already in substance investigated by the Company when they made the advance of £192,000. In my opinion, Earl of Aylesford o. Earl Foulett. 663 the case is within the words of Rule 10, and the mere fact that it ^- ■*• 1890. was necessary when the further advance was made to look at the provisions of the Act, does not prevent its being said that the title had been previously investigated within the meaning of the rule. On the best consideration I can give to the rule, I think that the £40,000 was a further charge, but that the solicitor was not entitled to the scale fee, because the title had been already investigated by him. In strictness, therefore, the solicitor was only entitled to be remunerated under Schedule II. to the Remuneration Order. But the plaintiff has submitted to the allowance of the scale fee in respect of £40,000, and I have not been asked to vary the order in this respect. The summons will be dismissed. The defendants appealed. The appeal was heard on the 19th of. 0.4. December, 1890. Napier Higgins, Q. C, and Dawiey, for the appeal : — The scale fees ought to be allowed on this as a new mortgage. It is to all intents and purposes such: it is on a different estate, and made by different parties from the old mortgages. It comes within Schedule I., Part I., of the Solicitors' Remuneration Order, 1882, and cannot be brought within Rule 10, for it is neither a transfer nor a further charge. Cozens'Eardy, Q.C., and W. C. Drme, for the plaintiff: — The substance and not the form of the transaction is to be looked at. The substance was a further advance of £40,000 and an additional security for the £192,000. Now the Schedule does not provide a scale fee for a deed giving further security. The title had' been investigated when the Eagle Company advanced the £192,000 and there was nothing more to peruse except the Aylesford Estate Act. The work for which the scale is given was therefore not performed. N&pier IJiggins, in reply : — The transaction was a new transaction. The £232,000 was borrowetl at a lower rate of interest than the £192,000 carried. The scale fee cannot cease to be applicable merely because a part of the title had been previously investigated. Here was a new '664 Earl of Aylesford v. Earl Ponlett. '{^■'A. statutory title which required to be carefully examined. The scale AnU p. 371. ^s® ^^^^ allowed in ex-parte Mayor of London (1) where nothing had to be perused but an Act of Parliament. Dec. 20. IjINDLET, L. J. : — This is a question of some importance to solicitors. The late tenant for life of the Aylesford estates was indebted to the Eagle Company in a considerable sum, the Company having mortgages on-hisi life estate for sums amounting to £1 92,000. In 1882 the Aylesford Estate Act was passed, which, after reciting the in- cumbrances on the life estate, empowered the trustees of the settle- ment to raise by mortgage of the settled estates any sum or sums .not exceeding in the whole £350,000, and to apply the money so raised in paying off the charges on the life interest and other debts of the tenant for life. Under that power the trustees mortgaged in fee a part of the settled estates to the Eagle Company for £232,000, out of which £192,000 was applied in paying off the mortgages on the life interest, and so was retained by the Eagle Company. To the extent of the mortgages so paid off nothing passed in the shape of cash, the sum actually advanced to the trustees by the Eagle Company being only £40,000. The question before us is whether the trustees are to be allowed to charge in their account a scale fee of £455, being the fee for negotiating loan arid investigating title on a mortgage for £232,000. The question turns on the rules under the Solicitors' Remuneration Act, 1881, Schedule I., Part I., and Rule 10 in that Schedule. By the first part of the Schedule a mortgagee's solicitor is entitled to a scale fee " for negotiating loan," and to another scale fee "for investi- gating title to freehold, copyhold, or leasehold property, and pre- paring and completing mortgage." Then Rule 10 provides that "the above scale as to mortgages is to apply to transfers of mortgages where the title is investigated, but not to transfers where the title was investigated by the same solicitor on the original mortgage or in any previeus transfer; and it is not to ; *Pply to further charges where the title has been so previausly investigated. As to such transfers and further charges the remuneration is to be regulated according to the present system as ..(1) 34 Ch. D. 452. Earl of AyTesfurd V. Earl Poulett.',. 6^5 altered "by Schedule IT. hereto. But the scale for negotiating tlie G.A.- •' & o , 1890. loan shall be chargeable on such transfers and further charges where it is applicable." The Taxing Master having allowed only the scale fee on £40,000, the defendants carried in this objection : — "The item of £1,255 should have been allowed at £455, being the amount according to the scale authorised by the Solicitors' Kemu- neration Act, 1881, upon a mortgage for £232,000. The mortgage for the £232,000 was a new and independent transaction, and entirely distinct from the mortgage for £192,000 which previously existed on the life estate." Tlie Taxing Master answered : — "The solicitors have already been onde paid for investigating the title, at least on £192,000, part of £232,000— that is on' the life estate. On the present occasion an additional £40,000 was advanced, no doubt this time on the. fee. But the transaction was between the same parties, and, as before observed, the proper fee had been already paid for. investigating the title. On the present occasion . the defendants are really entitled to nothing more than the proper charges under Schedule II., and I invited them to bring in such items. This they declined to do, contending that they were entitled to be allowed the full scale item on £232,000. In these circum- stances I have, with the assent of the plaintiff's- solicitors, allowed them £145, being the scale fee on £40,000, which is in my judg- ment much more than the defendants would be allowed if items were brought in under Schedule II." This appears to proceed on the theory that this mortgage is a further charge within Rule 10. It cannot be contended that it is a transfer ; but the Taxing Master treated it as a further charge on property the title to which had . been previously investigated by the same solicitor. Now, no doubt . tl>e title had been investigated on behalf of the Eagle Company when they advanced the £192,000; but the question is whether the transaction can be considered a further charge. I think that ;. it.cannot. I will not sacrifice substance to form; but it appears to. me that the deed of the 7th August, 1883, was really and in substance a new mortgage under the statutory power given to the trustees/ and cannot be treated as a deed of further charge. It, is not on the same property, being a mortgage in fee of part of the property, whereas the former mortgages were on the ititerest of the tenant for Hfe in the whole of the property; and it was not made C.A. iseo. 1 666 Earl of Aylesford v. Earl Poulett. bv the same parties, being made by the trustees and not by the tenant for life. It is then, in my opinion, nothing but a new mortgage for £232,000. It is true that only £40,000 was advanced in cash ; but that does not make the transaction a further charge for £40,000. It is a new mortgage in fee for £232,000, and falls within Schedule I., and tlie scale fees for negotiating a loan of tiiat amount and for investigating title, and preparing and completing mortgage, must be allowed. EowEN, L.J. : — Rule 10 of Schedule I. is both affirmative and negative; and if the present case is within the rule it must fall within the second part of it — viz., that the scale is not to apply to further charges where the title has been previously investigated. But to bring the present case within those words it must be made out that this is a deed of further charge, which in my opinion it is not. Fkt, L. J. : — If we had a discretion as to the taxation of costs, I am not sure that I should not agree with the Taxing Master and Mr. Justice North. But the Solicitors' Kemuneration Act, 1881 <44 & 45 Vict., c. 44, s. 7) enacts that so long as any General Order under the Act is in operation the taxation of Solicitors' bills of costs shall be regulated thereby. We have therefore no discretion to depart from the terms of the Order. The present instrument cannot fall within Rule 10 unless it is a transfer or a further charge. It can- not be contended that it is a transfer, and I am of opinion that it is not a further charge. The trustees were bound to raise money by mortgage of the estate, and apply the money in paying off the sub- sisting charges on the life interest. The instrument by whichi they raise ihe^money is a new mortgage, and cannot be held a further charge, because only a part of the sum raised was actually advanced in cash. I am of opinicn, therefore, that the appeal succeeds^ Solicitors : Kaye ^ Guedella ; Bennett, Dawson §• Bennett. In re MacGowan; MacGowan v. Murray. 667 In re MacGOWAN. C. A. 1890. MacGOWAN v. MURRAY. Kay, J. Dec. 17, 18. (1883. M. 451). Nov. 8. (fijr perffl 26 Ob. D. 155. (3) 29 Ch. D. 790. , ^ (2) U App. CaB. 1, 10. (4) 30 Ch, D. 28. , j, 1880. G74 In re MacGowan; MacGowan v. Murray. CM till the confirmation of tlie sale the claim would have been intelli- gible ; but he claims the scale fees in addition to payment for his work in obtaining the sanction of the Court. We also contend that the solicitor is excluded from the rule by having employed at his clients' expense two land agents. This was done before the contract was agreed to by the parlies, and 'during the progress of the negotiations. It is therefore clearly within the exception in the rule. LiNDLEY, L.J. : — This case raises a very important pmnt upon the taxation of solicitors' bills of costs where sales are conducted under the order or direction of the Court; everybody knows that in every case of that kind there can be no binding contract, and there never is any binding contract until the Court has approved of it. Every sale under the direction of the Court takes this turn ; there are proposals laid before the Court for its approval ; if the Court does not approve, the proposals go off, or have to be modified, and if it does approve, of course there is a binding con- tract. The rule relating to this matter which we have to consider is to be found in Sched. I,, Part 1., of the General Order made- under the Solictors' Remuneration Act. The Schedule says this in Part L, " Scale of charges on sales, purchases, and mortgages, and rules applicable thereto," Then, " vendor's solicitor, for nego- tiating a sale of property by private contract, 20«. per £100." Then, after a reference to a sale of property by public auction, there is an item for deducing title, which I only refer to for tliis purpose, namely, that it includes "the preparation of contract or conditions of sale," so much. Then in connection with that we have Rule 11. "The scale for negotiating shall apply in cases where the solicitor of a vendor or purchaser arranges the sale or purchase and the price and terms and conditions thereof, and no commission is paid by the client to an auctioneer, or estate, or other agent." Now the facts in this case were shortly as follows: — A lady whose estate was being administered in Chancery was entitled to £6,000 upon the mortgage of some property, and tliere was a fore- closure order made. Steps were then taken to have it sold. The In re MacGowan ; MacGowan v. Murray. 67 5 solicitor to the trust had an offer from some bankers. They said C. A. 1890 they would buy it out and out for £5,000. He thought that a fair price ; he knew perfectly well that, even if it were a fair price, he could not effect a sale on behalf of his clients at that or any other price without obtaining the sanction of the Court; he knew he could not obtain that sanction without laying before the Court proper evidence that the price was a fair one. So what he does is this. He goes to certain gentlemen, who, he knew, had valued the property some years before, and asks them whether £5,000 is a fair price. They said " Yes," and he got them afterwards to make an affidavit to that effect, for which he paid three guineas and a half and one guinea. He carries the case into Court, and the sale at £5,000 is approved. Then he says, "Now pay me for nego- tiating that sale the scale charges, and pay me in addition what I have paid these two gentlemen for satisfying the Court that the proposals I have laid before the Court are fit and proper, and ought to be allowed." The Taxing Mster has disallowed that, and Mr. Justice Kay has upheld the Taxing Master's decision. The Taxing Master disallowed the claim for two reasons : " First of all," he says, " you have not negotiated the sale within the meaning of this rule; and, secondly, your clients have paid commission to an agent." Now let us see what the first proposition involves. I think I do not misunderstand the Taxing Master, who is an extremely experienced officer, when I construe his observations as amounting to an intimation of opinion upon his part that this scale fee never applies to sales under the direction of the Court. His 9th obser- vation is this: " It is not at all clear to my mind that where the sale or purchase has to be approved by the Court that * negotiation fee ' can ever be supported, as in every such case a considerable sum, in addition to the negotiation fee, must be paid by the client, and this the solicitor knows before starting on the business." Now it appears to me there is a little confusion of thought there as to what "negotiation" means. What is a solicitor who has the conduct of the sale in Court to do? What is his business as a negotiator ? I cannot understand that it is anything more than this, to obtain all the terms and all the conditions, including the cost price, which are to be laid before the Court. It is his business 676 hi re AfaeGowan; MacGou-an v. Murratf-. ^- ■*• to negotiate that; it is hot his business a« negotiator to see id their performance. Tliat is quite another matter. But when he draws up the proposals, and finally settles the proposals, which are laid before the Court for its appi'oval, it appears to me to finish that part of the business which can properly be called "negotia- tion." If in the course of doi-ng that, he charges his client, or his 'client pays- or has to pay — I do not attach any importance to actual payments — according to the language of the rule, any com- mission to an auctioneer, estate or other agent, then the scale fee Is not applicable. ''■ Now, supposing that I am right to that extent, it appears to me that this solicitor did, in the language of this rule, as the solicitor of the vendors, arrange t1ie sale and the price, and the terms and the conditions thereof— that is to say, he brought the parties to a point, and said, " There are the terms, there is the price, and there are the conditions." That is the negotiation. Therefore, so far it appears to me, he is within the rule. Then it is said he is excluded from the second clause of this rule, " and no commission is paid by the client to an auctioneer, or an estate or other agent." That appears to me to mean necessarily this, that no commission is paid by the client, or payable — ^I put that word in — " to an auctioneer, estate or other agent," as part of the negotiation. It cannot 'be that no fee is to be paid, or. no com- mission is to be paid by the client in the course of performing the conditions of the contract; that is not within the rule. Now, what the solicitor has done is this. I take the facts in substance from Mr. Tatham's affidavit which is obviously a truth- ful affidavit, and from what is stated in the objection, which is to the same effect. What Mr. Tatham says, in substance, is this : I negotiated the sale, but I knew perfectly well, in order that the approval of the Court should be obtained, that I must obtain evidence to satisfy the Court that the price was proper; and there- fore I paid these fees, but not as part of the negotiation ; and he says, I am entitled to the scale fees, plus these. I think he is right on that. Mr. Levett says, that in this particular case the facts are not quite in accordance with the statement. I have jnade^ — he says, in fact, " You, the solicitor, went and negotiated with this surveyor, and even if you did not pay him, you became liable to pay him as In re MacGowan; MaoGowan v, Murray. 677 part of the negotiations." Well, the solicitor explains that. He CX A- says, I might have gone after I had got this proposal ; but I did not go after that, because I knew perfectly well it would be absurd for me to go to the Court unless I had got it, and therefore I got it before instead of after. Still, the question arises, did he get the affidavits as part of the negotiations, or did he get them for the purpose of performing the condition ? It appears to me that he got them for the latter purpose, and that the view taken by the solicitor is right. The appeal must be allowed, BowEN, L.J. : — I am of the same opinion, and I must add my views, as we are differing from the learned Judge who decided the case. I begin by stating that we are not now discussing the construc- tion of the rule with regard to a case in which the sale has gone off, and what I am going to say applies to cases in which the sale has not gone off, but in which the negotiations with the agent have terminated in a successful sale. Now, what does the rule say ? The rule lays down two condi- tions upon which alone the scale for negotiating is to apply. The first is an affirmative or positive condition. The solicitor must have arranged the sale or purchase, and the price and the terms and conditions thereof. The second is a negative condition. He must have done that ; but the client must have not have paid any commission to an auctioneer, or estate or other agent. The first is affirmative. The second, which also must exist before the scale can be applied, is a negative one. Not only must the first con- dition have been fulfilled, but the prohibition of the second con- dition must not have been infringed. When the second condition says that no commission must be paid by the client, it means, I think, it must neither be paid, nor must the client be made liable in law to pay, because I think the one is really the same as the other in the eyes of the law. Where those two conditions are fulfilled the scale applies. Now, the first observation which it seems to me to be necessary to make is, that this rule must be intended to apply to cases where the agent has only power to negotiate; it cannot be that it is only meant to.be applicable in cases where the agent has power to com- 2 X 678 In re MacGowan; MacGowan v. Murray, ^■■A- plete the whole contract as well as to complete the negotiation. If that is so, what does the first condition mean when it says that the solicitor, before the scale applies, must arrange the sale or purchase, and the price and terms and conditions tliereof ? In cases where the sale is ultimately effected, the solicitor arranges the salie if he brings the negotiation to a close, which leaves his principal free to accept or not, and if, as a fact, his principal afterwards does accept. Negotiation, I should have thought, in the ordinary meaning of the English language, is that which passes between parties or their agents in the course of or incident to the making of the contract ; and if the negotiation is brought to such a close as leaves the prin- cipal at liberty to say, " I accept the offer,'' then the agent has done all that a negotiating agent can do, and within the meaning of the rule he has^arranged the sale, the sale afterwards being effected. Mr. Levetl says that the arrangement is not complete if the prin- cipal has had to consult somebody else ; or, if the principal chooses to consult somebody else before he consents. Eeally, with great respect to a most ingenious argument, it is an absurdity. The argument went to this, that a solicitor does not arrange a sale if the principal goes down to Brighton to consult his wife before he accepts. Now, is that possible 1 But if the solicitor has nevertheless arranged completely, although the principal may take time to consult a third person, why has he not arranged because the principal has to get the sanction of the Court before he can effectuate the salfe, provided that the Court in the result does consent? It seems to me that it is clear that the solicitor has arranged, if he has done all that a man can do who is appointed an agent to negotiate, and if his effort* are crowned in the end with success. If that is so, then the first branch of the definition is fulfilled. The solicitor here has arranged the sale. Is the negative condition complied with ? Has any commission been paid by the client to an auctioneer or estate or other agent? The answer seems to me to be clear, that no commission has been paid at all to anybody. A commission means a payment on a par- ticular scale paid to an agent for agency work; but this fee has^not been paid by the solicitor on behalf of the client to anybody as agent-^ it was paid to obtain the expert evidence of a 'witness. Tiiat is really what it was intended for. However you characterise.it, the In re'MacGowan ; MacGowan v. Murray. 679 last words, it seems to tne, in which you can properly charactqrise (^■4- it, are as commission paid to ai^ auctioneer or estate or other agent. The learned Judge put a construction upon this rule which would exclude, it seems to me, from the operation of it, a vast amount of business which the rule must have been intended to cover. It cei'- tainly covers, to my mind, cases in which the agejit is appointed as agent to negotiate only, and I think it certainly ought to cover cases in whlph sales are effected under the sanction of the Court. The learned Judge says: "'Arrange,'! think, in this Rule 11, which only applies to negotiations, means that the negotiations must be quite complete and resulting in a binding contract." If he means by that that the solicitor cannot get the fee when he is only an agent to negotiate, whether his negotiation is or is not adopted by his principal, it seems to me that it makes the rule inapplicable to a vast mass of business ; and if he means that the negotiation must i-esult in a binding contract by the principal without any necessity for the sanction of the Court, I do not myself see any V3.1id reason for the distinction. Fey, L.J. :— I will endeavour with what brevity I can to express my concur- rence in the opinion of my learned brethren. We are concerned Avith interpreting a rule which decides under what circumstances the vendor's solicitor is to be entitled to a fee for negotiatinji a sale of property by private contract. Now, it appears to me that there is no better ascertained distinction than tJiat which exists between negotiations for a contract and the contract itself, and that the negotiations continue up to the point when the consent of the con- senting party is given. They cease there. Now the cases to which the rule is to be applied are defined in these words: " The scale fee for negotiating shall apply in cases where the solicitor of a vendor or- purchaser arranges the sale or purchase, and the price and terms and conditions thereof." According to my view of the facts of this case, the solicitor did in fact arrange the sale, the price, the terms, and the conditions. He had an interview with the bank manager, who, he found, was willing to give a sum of £5,000. He then settled the terms with the bank manager or their solicitor. He arranged with them the terms and conditions of the contract, and then pro- 680 Jn re MacGowan ; MacGowan v. Murray. p-A.. sented it in that form to the Court. I think, therefore, in point of 1890, . . . fact he did arrange all the things that were there mentioned. Now, it was said by the learned Judge that in such a case as this the solicitor does not arrange, but that the Court arranges. We are not dealing with a case in which the Court has refused to accede to or approve of the terms which had been settled by the solicitor. It may be that there are cases in which it might be truly said that the Judge in Chambers has arranged the terms or the conditions of sale. About those cases I say nothing. Nothing of the kind occurs in the present instance. So far as we have heard, the contract, as settled by Mr. Tatham, in conjunction with the solicitors of the bank, was adopted and approved by the Court. Therefore, I think, the affirmative words are amply satisfied in this case. The second inquiry is this : Has any commission been paid or, I may say, is any commission payable by the client to an auctioneer or to an estate or other agent? The auctioneer is out of the ques- tion. The only thing that can be said is that two fees, one of three and a half guineas and the other of one guinea, were paid to two gentlemen, who, 1 suppose, may be described as estate agents. They are called valuers, and, no doubt, carry on business as estate agents. They were not employed in this case as agents, and, therefore, they could earn no commission ; and, therefore, no commission was either paid or payable to them. What was paid to them, or is payable to them, are fees in the one case for inspecting and making an affidavit as to the value of the property, and in the other for making an affidavit with regard to the value of the property without inspecting. They are not com- missions. 1 think the solicitor, therefore, has brought his case within the very terms and within the meaning and spirit of this rule, and, therefore, this appeal must be allowed. Solicitors : Cunliffes Sf Davenport, for Darbishire, Tatham, and Worthington, Manchester : Bower, Cotton, ^ Bower, Belfast Mineral Water Company v. Dempsey. 681 Belfast mineral water company v, dempsey. cm^oi Taxing Office, 1891i (Before, Master Matthews.) • • ' Feb. 18, 20. (By permiMon, from 25 Ir. L. T. 687.) Costs— Taxaiion — Claim and counterclaim — Taxation where plaintiff succeeds on claim, and no rule is made on counterclaim, each party being directed' ' to bear their oum coits of the counterclaim. The action was brought by the plaintiffs for an injunction to prevent the defendant placing manure and other deposits and obstructions on a certain roadway in the neighbourhood of Belfast to which the plaintiffs claimed to be entitled. The defendant, by his defence, traversed the cause of action, and put in a counter- claim by which he claimed damages against the plaintiffs for build- ing sheds on a roadway, and sought specific performance of certain clauses in leases under which the plaintiffs held, by which the plain- tiffs contracted to join with the defendant in paving aiid sewering a new street. The Vice-Chancellor, by his judgment, granted the injunction asked by the plaintiffs with costs, and dismissed the counterclaim. The defendant appealed, and the Court of Appeal confirmed the Vice-Chancellor's order as to the relief claimed in the original action, but discharged his order on the counterclaim, made no rule on the counterclaim, and directed each party to bear their own costs of the counterclaim. The costs came on for talxati'on before Master Matthews. It appeared that there was only one brief made up for counsel for the plaintiffs in the action and counterclaim, and one fee was paid to senior and to junior counsel. The Taxing Master being of opinion that certain sums, amongst others these payments, were " common items," as defined by Lord Justice FitzGibbon in Griffiths v. Patterson (1), considered that he Ante, p. 452. should tax off the amount claimed for counsel's fees, for briefs and for solicitor's attendances, a proportion as being paid in respect of the counterclaim, although he was of opinion that the entire amount of the fees would have been properly taxable as costs of the original action had there been no counterclaim ; but before making any decision he had the matter put in his list a week later for argu- ment by counsel on either side. (.1) 22 L. E. Ir. 656, at page 661. 682 Belfast- Mineral Water Company v. Dempsey. ^onsdlTaxing Q^ ^. Hume, for the plaintiffs, submitted that the entire of these 1891* costs paid should be allowed on the ground that they would have "been properly incurred in the original action had there been no counterclaim, and contended that in taxing the costs even where the costs of the claim were given to the plaintiff and of the counter- claim to the defendant, the Taxing Master should tax the costs of the claim as of a separate action, irrespective of the counterclaim altogether. He relied on Baines v. Bromley (1), Lowe v. Holme (2), In re Brown, Ward v. Morse (3), Hewitt v. Blumer (4), Shrapnel ^»i«e,p. 452, v. Laing (5), Griffiths v. Patterson (6), especially on the judgment' of Lord Esher, M.R., in Shrapnd v. Laing at page 338. " The ground upon which the rule is founded is that the claim is a cause of action by itself, and the counterclaim is another and indepen- dent cause of action to be treated as if the claim did not exist. Here the claim and counterclaim are to be treated as independent actions founded upon different circumstances, and in respect of independent transactions. That being so, it follows that the taxa- tion of costs must be conducted on the same footing. If so, the costs of the claim are to be taxed as though the claim were an action by itself." Counsel submitted that in this action where no costs of the counterclaim were allowed and the Taxing Master was merely obliged to tai the costs of the claim, he should have no regard to the counterclaim, but should allow such fees and charges as he should consider would have been properly payable in the original action had there been no counterclaim. The Taxing Mastek said that he was satisfied that the entire sums so paid, being properly payable in the original action, should be allowed to the plaintiffs as part of their costs without reference to the counterclaim, and intimated that he would tax costs on Uiat principle. Solicitors for the plaintiffs: Clarke ^ M'Cartan. (1) 6 Q. B. D. 691. (4) 3 Times Law Reports, 221. (2) 10 Q. B. D. 286. (6) 20 Q. B. D. 334. (3) 23 Ch. D. 377. (6) 22 L. R. Jr. 656. In re Withall. 683 In re WITHALL. (1889— W. 2,164.) {By permiiBim, from [1891] 3 Ch. 8 ; b. o. 39 W. R. 529, G4 L. T. 704, 61 L. J. Ch 14.) Solicitor — Scale Fee — Negotiation Fee — Commission — General Order under Soli-' citors' Remuneration Act, 1881, Schedule I., Part I., Rule 11. S. employed H. as general agent with a view to developing an ests^te as a building property, on the terms of his having a commission of 2^ per cent, on the purchase money of all lands sold during his agency, and on the capitalised value of the rents of all leases granted during the same period. An offer was made for purchase at a time when H. was too ill to attend at his office, and the negotiation was conducted by W., the solicitor of S., but H. was consulted repeatedly, and gave advice as to the sale, which was ultimately completed. On completion, H. was paid 2 J per cent, on the purchase money. W., in his bill of costs, claimed the scale fee for negotiating the sale, which claim was resisted on the ground that the vendor had paid a commission to an estate agent. The Taxing Master allowed the scale fee, being of opinion that as the com- mission paid to H. was not a payment in respect of this particular transac- tion, but for general services, and would have been paid all the same if he had not intervened at all in the sjale, it was not a commission within the meaning of the Solicitors' Remuneration Order, Schedule I., Part I., RuleU: add, by North, J., that if H. had not been called in at all in this transaction, the payment of the commission, which would in that case have been a payment entirely in respect of other work, would not have been a payment of commission within the rule, but that as H. had assisted in the negotiation he was paid for his assistance by the commission, although the commission also covered other work ; that a commission, therefore, had been paid within the meaning of the rule, and that the scale fee for negotiation ought not to be allowed : Held, by the Court of Appeal, that North, J., had put a correct con- struction on the rule. a A. 1891. North, J. April 29. O.A. June 3. In 1874 Sir Percy Shelley engaged Mr. Hanklnson, a Ipcal surveyor, to act in the general management of his estate at Bournemouth, with a view to its development as a building property. His remuneration was to be 2\ per cent, on the capitalised value at twenty-five years' purchase of the rents received on all leases granted during his agency, ^-nd 2^ per cent, on the purchase money of all lands sold during the same period. On the 23rd of May, 1884, Sir Percy telegraphed to his solicitor, 6,84 In re Withall North, J. j^jj._ Withall : " Most important proposal for purchase here— parties all at Bournemouth, and are compelled to require answer by Monday. Can you come here to-morrow, or Sunday, or Monday ? Hankinson very ill and not allowed to receive letters." - Mr. Withall on the 24th went to Bournemouth, and conferred with Sir Percy and Lady Shelley as to negotiating the sale of a plot of twelve acres to the Conservative Land Society. On the sime day he attended Mr. Bazalgette, the solicitor of the Society, and asked £1,600 per acre. On the 26th Mr. Bazalgette offered £1,200 per acre, which was not accepted. Mr. Withall then con- ferred with Sir Percy and Mr. Hankinson, and on the 27th attended a meeting of the Society, and agreed to accept £1,200 per acre, subject to restrictive covenants, the nature of which was to be defined by Mr. Hankinson'. The terms were finally agreed on between him and the Society on the 1st of June. Mr. Pankinson by affidavit stated as follows:^ — "The original offer was, 1 am informed and believe, made direct to the said Sir P. Shelley, and the negotiations were in the first instance conducted fey his solicitor, Mr. Charles Withall. I was at the time recovering fiom an illness and unable to go to my oflSce, but Mr. Withall attended me on one or two occasions in company with the said Sir P.. Shelley and Mr. Bazalgette, the solicitor to the said Society, at my private house, and I assisted in the negotiations- by preparation of plans and advising." On cross-examination he said: "I remember the sale in 1884 to the Conservative Land Society. 1 prepared plans for it in relation to- the negotiations, pending the negotiation before the signing of the contract, and gave advice to Sir Percy and his solicitor in relation to the negotiations on ahnost every point that arose; for instance, as to what price should be asked, which would require local knowledge, which I possessed, I also advised that certain restrictions should be imposed as to building. I saw, and had letters from, Mr. Bazalgette, solicitor to the purchasers, pending the negotiations dealing with the points which arose. I also saw and corresponded with Mr. Withall thereoui Mr. Withall brought Mr. Bazalgette with him to my house on one occasion." On further examination he said: " I did nothing at all until Mr. Withall brought Mr. Bazalgette to me; that was the first I heard of it. After that, there was something about_ the price between me In re Withall. 685 and Mr. BaJfalgette. I did not ftk the prhse with Mr. Bazalgette -^'■'"•<^. ^■ of my own knowledge. I did not know who did." On the completion of the sale Sir Percy paid Mr. Hankinson, according to the terms of his engagemen-t, £360; being 2^^ per cent, on the purchase money. The bill of Mr. Withall (who was dead) was now being taxed, and the question was whether h'e was entitled to be allowed the scale fee of £76 for negotiating the purchase. An objection having been taken to its allowance, the Taxing Master in his answer, after shortly stating the facts as to the negotiation, and the payment of the £360, said: " It appeared to- me that this was not a payment in respect of this particular sale, which the surveyor neither effected nor negotiated, but for general services rendered as a retained estate agent and manager, who, instead of receiving an annual salary, was paid by a percentage, an- arrangement calculated to give him a special interest in promoting the development of the estate, and that it was not such a payment as would disentitle' the solicitor to his fee for a negotiation which he was^ specially retained to conduct, and did, in fact, successfully carry into effect, fixing the price and completing the contract. The position of the surveyor in regard to the sale was, in fact, that of a salaried agent, though, instead of an annual salary, he was paid hy a commission ; and I considered- that the circumstances were not such' as made the payment to him a payment to an ' estate agent or valuer ' within the meaning of the Kemuneration Order, E.ule 11. " The magnitude of the fee paid to Mr. Hanfcinson, which is so greatly in excess of the ordinary surveyor's fee, is of itself sufficient to show that it was not made in respect of this particular sale, but for general services ; and the agreement under which he made and was paid his commission would have equally entitlied him to it, even if he had never been consulted about the sale or interfered in it." The representative of Sir Percy Shelley applied to vary the certificate. The summons was heard before Mr-. Justice North on the 29th of April, 1891. . Cozens-Hardy, Q.G., and 2>. L. Alexander, for the summons: — The conditions under which a scale fee is payable to the solicitor 686 In. re Withall. North, J. for negotiating the sale are not applicable, because the conditions under which it is payable were not performed. The solicitor did not perform the positive conditions necessary to entitle him to scale fee of arranging the sale and the price and terms and conditions thereof. Nor was the negative condition performed, that no com- mission should be " paid by the client to an auctioneer or estate or Jn Index. ACTION TO BECOVDB POSSESSION OF LAND -conizBuerf. Page tiff claimed to recover possession and mesne rates. A consent for judgment for possession and a sum for mesne rates was given by the defendant : — Held, that the action for possession and mesne rates might have been Isxnight in the County Court ; and that the plaintiff was, therefore, by Sec. 51 of the Land Law (Ireland) Act, 1881, disentitled to costs. GreviUe v. KirJt, 10 L. K. Ir. 41 227 2. Writ of Sestitntion — Sent under £100 per annum — Zand Zaw (Ire- land) Act, 1881 — Landlord and Tenant Act, 186n.] When a holding at arent under f 100 per annum has been evicted for non-payment of rent the tenant or other party having a specific interest in the holding is entitled to a writ of restitution under 23 & 24 Vic, c. 154, without paying the costs of the action. Scully V. MandevUle, 10 L. R. Ir. 327 .... - 231 ADDITION TO BILL OF COSTS —Taxation of GoBte^Partjf and part}/— Addi- tion to bill after lodgment for taxation — Accidental omission — Orders and Regulations, 12(A December, 1868.] Bnle 8 of the Orders and Regulations of the 12th December, 1868, lor the conduct of business in tfae offices of the Taxing Masters of the Court of Chancery in Ireland, ap>plies to costs as between party and party as well as to those between solicitor and client. O'Mearav. iyEsterreandCox,'i\'U.'R.lr.\i5 . . . .415 ADMIBALTT — 1. Marshal'B Travelling and Hotel Expenses — Auctimi Fee — Appraisement subsequent to Sale.'] A vessel was sold by order of the Coitrt at Youghal. After the sale she was appraised. The marshal travelled to Youghal to attend the sale, but did not arrive till it was over : — Held, that the marshal, though it was irregular and a nullity to have the appr.iisement after the sale, was justified in making the vessel over to the purchaser ; that the marshal's travelling and hotel .expenses should be allowed ; that the charges of a person employed by him to make an inventory should be disallowed, as the marshal should do his duty in person ; that the travelling expenses of the auctioneer should be allowed and the appraisement fee dis- allowed. "TAe QucfH," 3 Ir. L. T. 101 . . . . .16 2. Costs of Consent to admit Documents — Expenses ofiringinffup andpre- parmg Evidence of Witnesses not examined — Discretion of Taxing Officer — Costs and Expenses of Witness detained in the country — Affidavit asto Witnesses.'} A consent to admit documents having been tendered by the defendant and declined, the documents were proved by a witness : — Held, that the defen- dant having got the costs of the witness was not entitled to the costs of the consent. Costs of certain witnesses, preparing their evidence for counsel, and bringing them up for the hearing, when they were not examined, the opposite party having oflFered to examine them de bene esse or by affidavit, disallowed. In a salvage suit parties are not bound to give their evidence by affidavit. The number of the witnesses and the mateiiality of the evi- dence in the taxation of posts in the Admiralty Court are questions in tlie discretion of the officer. The costs of the detention, waaes, and travelling expenses of a witness detained in the country for the puiposes of the suit, will be allowed on taxation within proper limits and in a proper case, but not when his evidence is immaterial or might have been taken by affidavit. The practice of the Admiralty Court is, that in taxing witnesses' expenses an affidavit is not made respecting them, unless the party objecting to them requires it. Costs of such an affidavit disallowed. " The Rivoli," i Ir. L. T. 454 •••....... 29 ADVEETISEMENTS— J. Sertioe of Summons and Plaint on Public Com- pany — (SM6s««i««ion of Service.] A plaintiff having obtained an prder to subbtitute service against a corporation aggregate is not entitled to the costs Imhx. 697; ADVERTISEMENTS -coH/Z/twei/ P^g^ of advertlspment^ inserted in Irish papers under the provisions of the 33rd section of the Irish Common Law Procedure Act, unless the order for sub- stitution of service direct such advertisements. Mape v. Tlie London and North- Weitern Railway Oompa7iy, I. B,.! G. L. 56S . . .14 2. Scale of Charges — Priniing.l The scale of charges for printing news- paper advertisements is at the uniform rate of 6d. per line, and the scale in IWadden's Land Judges' Practice, third edition, p. 470, is repealed. In re Roadie's Estate: Exparte M'Giutk, 25 L. E. Ir. 256. . . ,616 On sale in Court ..,.,.,, 448 See Abortive Sale. Sale by mortgagee . . . , . . . ,183 See Salb by Mortqaoees under Pow er of Sale. AFFIDAVITS— Settling 634 -See Counsel. 8. AGREEMENT AS TO REMUNERATION. See Solicitors'. Remuneration Act. 1 and 2. AGREEMENT FOR A LEASE — Followed by preparation and completion of lease. See Solicitors' Remuneration Act. lU and 21. ALTERATION — None allowable in bill of costs after lodgment . . _ . 415 See Addition to Bill op Costs. In conditions of sale settled at Chamber . . . , , US See Abortive Sale. AMOUNT RECOVERED. See Common Law Procedure Act, 1856, s. 97, and Payment into Court. AMOUUT SUED FOR 234 See Civil Bill Costs. AFFEAL — Number of counsel allowed in Court of Appeal. See Counsel. 1 and 2. APPRAISEMENT FEE 16 See Admiraltt. 1. APPROVAL FEE— Solicitor not entitled to, where he has been investigating the title, and gets the general costs relating to the matter which is the subject of the deed . . . . . . . . ,23 See Beviewing Taxation. ARBITRATION— Terms of submission may exclude operation of 97 Section of Common Law Procedure Act, 1865 . . . . . ,10 See Common Law Phoobdure Act, 1856. 4." ARRANGING DEBTOR— Arrangement turned into Bankruptcy — Accountant and Solieitur employed in Arrangement by resolution of Creditors — Costs — Taxation — Schedule to General Ordersof W72— Practice.] A trader presented a petition for aiTangement, and obtained the usual protection order. At the first private sitting of creditors, it was resolved that a certain iirm of accoun- tants should investigate the petitioner's affairs. The accountants accordingly received certain sums out of the estate, and paid thereout certain sums to the petitioner's solicitor, on account of costs, and retained certain sums for their own charges. The arrangement was subsequently turned into bankruptcy, and the accountants paid to the assignees the balance remaining, after deduct- ing the sums paid and retained by them as above mentioned. Upon tlie ap- plication of the assignees, Miller, J., ordered the accountants to bring in the balance of the moneys received by them without any deductions, giving them libertj-, within a month, to submit their bills of charges to the Registrar, to 698 Index. AUEANGING TmB'iOK— continued. Page inquire whether any charges or costs had been properly incurred, either by them as aecountantB, or by the solicitor, in relation to and for the benefit of the estate of the bankrupt, ami that the assignees should out of the funds in Court pay the accountants and solicitor the sums so ascertained to be properly and justly payable to them. On appeal, the majority of the Court of Appeal (Lord AsHBonBNE, C, and FitzGibbon, L.J. ; Barbt, L.J., dissentiente) varied the order below by directing the Registrar of the Bankruptcy Court to inquire whether any charges or costs had been properly incurred, either by them, as accountants, or by the solicitor, in relation to the estate of the bank- rupt, or the arrangement with his creditors proposed by him, and to tax said bills of costs and charges as if the arrangement had been carried out, but according to the scale of costs and charges under the General Orders of 20th December, 1872, and that the accountants should have credit for the amounts so ascertained to he properly payable in respect of the costs and charges afore- said, and should lodge the balance in Court. Per Bakbt, L. J., the accountants were entitled to be paid as on a quantum meruit, and the scale in the schedule to the General Orders did not apply : In re O'Oallaghan, 19 L. R. Ir. 32 ". 324 ASHBOUENE'S (LORD) AOX— Costs of tale under . . . .475 See Solicitors* Remuneration Act. 5,2. ATTEMPrED INEFFECTaAL SALE. iSee SoLiciTOBs' Remuneration Act, 3, 4, ."i, and 35. ATTENDANCE. — 1. At Trie,!— Trial m Couvly where Solicitor does rtot u-iifaUy practise — Taxation of Costs — Between party and party — General Order II. {June, 1882), Schedule, item. 29.] The solicitor for the successful party can only be allowed, as between party and party, the fees prescribed ia General Order II. (June, 1882), item 29, for attending a trial of the action, though the place of trial be a county of which he is not a practitioner : Maiiin T. Nixon, 22 L. R. Ir. 138 423 2. At Trial — Solicitor and Client — Solicitor attending trial in County in which he does not practise — General Orders, 1854, Schedule, itims 100, 101 — Gen. Orders, 1882, Schedule, item 29 — Ejectment — Case sent to Counsel for ai/fice on Settlement of Writ.'\ A solicitor attending on a record for trial at Assizes in a county where he does not usually practise, is entitled, upon taxa- tion between solicitor and client, to £2 2s. for each day oecessarily occupied, irrespectively of the number of days the case may be actually at hearing, or of its being settled without a trial. The allowances Nos. 100 and 101 in the Schedule to the General Rules of 1854, as between solicitor and client, are not altered by the orders as to costs under the Judicature Act. A fee to counsel for advising as to whether an ejectment wiU lie, and who are the necessary parties to be made plaintiffs, may, in a proper case, be allowed, as between solicitor and client : MNamara v. Malone, 18 L. R. Ir. 269 . 343 3. Evidence of— 1 & 2 Geo. IV., c. 53, s. 49-4 Geo. IV., c. 61, s. 19.] On taxation, as between solicitor and client, it is not necessary that the solicitor should prove attendances on his client by contemporaneous entries in his books, provided that he give other satisfactory evidence thereof. In re Bray Electric Tramway Co., 23 h. H. 1. \IS .... . ."iSl On client in the country . . . . . . .23 See Reviewing Taxation. , • At sale by mortgagees ....... 193 See Sale bt Mobt&aqees. —— Not connected with conveyancing— Preparing scheme for labourers' cottages 493 See SoLlciTOEs' Remunebation Act. 17. fndex. 699 ATTENDANCE— continued Pags At Assizes — Allowance for . . . , , , . 323 See WiTNKsa Medical. AUCTIONEER— TravelUng expenses of 16 See Admiralty. 1. ....... 483 See SoLiciTOKs' Ebmdneration Act. 37. B BONDS — Collectors' and contractors' prepared for Town Commissioners ■ . 498 See SoLioiTOBs' Remuneeatiok Act. 7. BRIEF AT HEARING— Counsel's fees ..... . 181 See Election Petitioit. 2. BRIEFINCr— At Trial — In Court of Appeal — Documents — Report of JiidgmenW^ Item 75a applies to a brief in the Court below as well as in the Court of Appeal ; but what should be allowed for such brief, and for briefing doca- ments is a matter for the Taxing Master. In the Coiirt of Appeal, as a general rule, the cost of briefing the report of the judgment of the Court below should be allowed. Jessop v. Casack, 25 L. E. Ir. 244 . . 634 Copies of deeds . . . . . . . .72 See Copies of Deeds. Documents . . . • . . . . .99 See Counsel. 11. BRIEFS — Preparing in long vacation — Matter settled .... 131 See New Trial Motion. c CARRIER — -Action of tort against, not "disconnected with contract " . .11 See Common Law Pbooedubb Act, 1853, o. 243. 5. Entire cause of action against, arising in civil bill jurisdiction. See Common Law Procedure Act, 1856, s. 97. 1, 2. CASE TO ADVISE PROOFS— 1. Undefended Salt.] In undefended suits by cause petition, the costs of a cas9 to counsel to advise proofs will not be allowed on taxation between party and party, except under very special circumstances. Chappie v. Burke, I. R. 3 Eq. 270 . . . .18 2; Undefended Suit.] UndertheChanoery Act, 1867, a oa?e to direct proofs in a cause in which no answer has been filed will tax bt tweeu party and party. Fry v. James, I. R. 4 Eq. 255 . . . . .21 3. Further case to advise proofs — A further case to advise proofs may under special circumstances be allowed. Leclerc v. Qreen, X. R. 4 C. L. 388 44 And see Counsel's Fees. CASE TO ADVISE ON SETTLEMENT OF WRIT. See Attendance 2 and Counsel 4. CASE TO ADVISE TRUdTEES— Not incloded in Gen. Ord. 18th April, 1884 SS-i See Solicitors' Behuneration Act. 8. CERTIFICATES— To entitle plaintiff to fuU coats. See Common Law Procedure Act, 1853, s. 243. 1, 2, 3. CHANGE OF I NTVEST MENT— Statements for information of client— directions to trustees ......... 386 Sec Solicitors' Remuneration Act. 8. 700 Index. Page CHANGE OF SOLICITOR— After attempted ineffectual sale —Subsequent effectual sale ...... . . . . 329 See SoLioiTOBs' Kemuhebation Act. i. CIVIL BILL COSTS — Amount sued for tjreatei: than recovered/] PlaintifF's attorney entitled as between solicitor and client to costs on amount sued for. ,Simpsony. Wilson, \7 It. h.t.oiQ . , . . . . .231 Costs payable between party and party — ^Tender of debt after service . 151 See Tender of Debt. 1. Fee for instructions ........ 226 Sue Tender of Debt. 2. CIVIL BILL EJECTMENT— i'os^ra^.] The plaintiff is entitled to the costs of posting a civil bill ejectment for non-payment o-f rent when they have been necessarily incurred. T'aZmec v. Xocie, 21 Ir. L. T. B. 32 . . .411 CIVIL BILL JURISDICTION- Amount recovered in action in Superior Court. See Common Law Pbooedore Acr, 1856, s. 97, and Codntebclaim. In ejectment — Land Law (Ireland) Atft, 1881. See Action to Reooveb Possession op Land. 1, 2. "CLIENT" — Solicitor acting for mortgagor and mortgagee , , , 618 See Solicitors' Kemdneeation Aet. 2. Lessee liable to pay lessor's solicitor ....,, 348 See Solicitors' Remdnebation Act. 9' Notice of election to "client." See Solicitors' REM-nNERATioN Act. 9, 10, 11, 13, 14. COLLECTORS' BONDS— Prepared for Town Commissioners . . .498 See Solicitors' Rem-Uneration Act. 7. COMMON LAW PEOCEDURE ACT, 18E3, ss. 33 and 34 . . .14 See Advertisements. COMMON LAW PROCEDURE ACT, 1853, b. 243 — 1. Certificate — Bona fide action— Judgment hy default— Common Law Procedure Act, 1866, b. 97.] Action for the conversion of the alluvial soil of the bank of a river alleged to be the plaintiff's ; judgment by default, and damages assessed by a jury at £i: — Held, that the action having been brought bona fide for the purpose of trying a right, the circumstance of the defendant not defending it, and thus waiving the question, did not disentitle the plaintiff to full costs. Huskey v. O'Connor, L R. 8 C. L. 509 . . . . . . .133 2. Certi&c&te- Judgment by. default — Common Law Procedure Act, 1856, s. 97.] (1) Although judgment has passed by default the Court has juris- diction to grant the plaintiff a certificate under s. 97-of the Common Law Pro- cedure Act, 1856. (2) Where there has been no trial, the Court has no juris- diction to grant the plaintiff' a certificate either under s. 126 or s. 2.43 of the Common Law Procedure Act, 1853 ; whether the plaintiff is entitled to full costs under s. 243 is a matter to be determined by the Taxing Master as incident to the taxation. Hickey v. O'Connor (I. R. 8 C. L. 509) dissented from. O'Halloran v. Garvey, I. R. 9 C. L. 551 .... 167 3. Certificate— /JeiiMwe—iVomTOa? damaget.] The plaint contained the money counts and a count in detinue ; and the plaintiff obtained a verdict for £40 on the former, and for Is. damages on the latter, but did not get a certificate for costs : the plaintiff's verdict on the money counts having been afterwards changed by the Court into a verdict for the defendant : Held (1) that the plaintiff was entitled to no more than half costs on the count in detinue ; and (2) that the costs in respect of the money counts ought not to be taxed against the defendant, who ultimately succeeded on those counts. £irmiiighan v. Billing, I. R. 9 C. L. 287 • • . . . 147 Index. 701 COMMON LAW PROCBDUEE ACT, 1853, s. 2'^— continued. Page 4 Judgment for £20— (Jen. Ord. VIII., r. Z— Practice.} A judgment for £20, exclusive of costs, entered, by leave of the Court, under Gen. Ord. XIII., r. 1, after appearance, carries only suoli costs as are allowed by Gen. Ord, VIII., r. 3. Long v. Fitzgibbon, 20 L. R. Ir. 12 : app. 15 . . . 382 5 Cause of actiou disconnected with colitraot — Action a^inst carriers.] lu an action against carriers for non-delivery, though the plaintiff frame bis plaint in tort, the action will not be considered to be grounded on a wrong' disconnected with contract, so an to entitle him to full costs, under the 2i3rd section of the Common Law Procedure Act (Ireland), 1853. OfSuMivan r. Dublin and Wicklow Railway Company^ I. E. 2 C. L. 124 . . .11 Joinder of counts in contract and tort — Payment into court. See Payment into Court. COMMON LAW PEOOEDnEB ACT, 1856, s. 97-1. Eailway Co. — CUuse of action within Civil Bill jurisdiction — Costs.'] The 97th section of the Common Law Procedure Act, 1856, depriving a plnintiflf of costs, appliei only when the parties reside within the same civil bill jurisdiction where the entire cause of action has arisen. The plaintiff, being away from the county in which he resided, contracted with a certain railway company, which plied between the county in which he then was and his home, and had places of business in both counties, to carry certain goods home for him. The goods were Ipst in the transit: — Held, in an action of assumpsit against the railway company for the nou-deUvery of the goods, that this was not a case in which the parties resided within the same civil bill jurisdiction in which the cause of action had arisen ; and that the plaintiff was not, there- fore, deprived of his right to costs^ by the fact that he had recovered but £10 in the action. Crowder v. Irish North- Western Railway Company, I. K. 4 C. L. 371 19 2. Railway Co. — Entire cause of action — Costs.] A railway company " resides " (for the purposes of the C. L, P. Act, Ir., 1856, s 97) within the jurisdiction of the Civil Bill Court of a county in which it has a 8t.ation. To disentitle a plaintiff to costs under that section, the entire cause of action must arise within the civil bill jurisdiction where the parties reside ; and if a contract be entered into outside the jurisdiction to carry to a place within it, the plaintiff will not be disentitled to costs, though the breach of the con- tract occurred within the jurisdiction. Cases as to substitution of service distinguished. M'Mahon v. North- Western Railway Company, I. B. 5 C. L. 200 ... .67 3. Undefended action — Judgmentby default — Amount recovered not exceed- ing £20— Judicature Act, 1877, <,. 53— Order VIII. (April, 1878), rale 2— G. 0. XII., r. 3.] The 97th section of the Common Law Procedure Act, 1856, has not been repealed by the 53rd section of the Judicature. Act, and remains in force with respect to the costs as well of undefended actions as of those tried before a jury. The effect of Order VIII., rule 2, of April, 1878, is merely to ascertain the amount of costs in actions where judgment is marked by default, in those cases in which a plaintiff is entitled to costs. In an action upon a bill of exchange for a sum nnder £20, both parties resided within the civil bill jurisdiction in which the cause of action arose, and there was admittedly no grounds for holding that the case was one fit to be tried in the superior courts. Judgment having been allowed to go by default: — Held, by the Exchequer Division and by the Court of Appeal, that the 97th section of the Common Law Procedure Act, 1856, disentitled the plaintiff to costs. Lapsley v. Blee, 6 L. E. Ir. 155, 161 . . . . . 200 702 Luh'x.. COMMON LAW PBOCEDURE ACT, 1856, ri. ^—continued. Page 4. Arbitration— 4 ward of £15 — Oosta to folloio event of award —Parties cotv- trading themselves outside the Act,"] An action was brought for breach of covenant in an indenture of apprenticeship, both parties residing in the same civil bill jurisdiction. The matter was by consent (which was made a rule of Court) referred to arbitration, j udgment to be marked for such sum as the arbi- trators should award, and the plaintiff to be entitled to the costs if the award should be in his favour for any sum of money. The arbitrators awarded the plaintiff £15 : — Held, that the agreement excluded the operation of the 97th section of the C. L. P. Act, 1856. Lang v. IJakin, 1 Ir. L. T. 631 . . 10 COMPROMISE AFFECTING COSTS— Ejectment 191 See HlOHEB AND LOWBB SCALE. COMPULSORY PURCHASE. See Lands CtAnsss Consolidation Act, 1845. CONDITIONS or SALE. See Aboetive Sale and Solicitobs' Remdneeation Act. 6, 32, 35, and 19. CONSULTATIONS — ^Principles on which costs of are allowed. Smart v. Verdon, 9 Ir. L. T. 598 . . . . . . . . . 163 .4 ne Burgh v. Chiches- ter, I. R. 4 Eq. 623 , . . . . . . .60 And see Several Defendants, SERVICE ON CORPORATION AGGREGATE . . , . .14 See Advertisements, 1. SET-OFF — Distinguished from counterclaim ..... 256 See Counterclaim. ■ 2, Index. 717 Page SETTLED LAND ACT— Sale by tenant for life 235 See Solicitors' EEMnNERATioN Act. 35. SEVERAL DEFENDANTS — Use of the word '"respectively" in decree awarding costs.l It is not the practice, except under special circumstances, to insert the word respectively in decrees giving costs to several defendants ; and, as an ordinary rule, the propriety of several defendants appearing separately should be left open for inquiry upon taxE^tion ; — Semble, the insertion of ■■ respectively " in a decree, after the names of several defendants to whom costs are awarded, renders it obligatory on the taxing officer to tax their costs separately. Sealy v. Stawdl, I. B.. 10 Ec^. 20S . . . .179 See Separate Defbnoes . . . . . . .60 SHEBIFF'S FEE— Jury panel — Taxation between party and party. Jameson & Co. V. Royal Insurance Co., 8 Ir. L. T. 375 ..... 131 SHORTHAND REPORT— Of former trial allowed under special circumstances. Leclerc v. Greene, I. R. 4 C. L. 388 . . . . . . 44 Of judgment for use of Court of Appeal. Jessop v. Cusaclc, 25 L. K. Ir. 244 . . . 634 SHORTHAND WRITERS' ^OT:'E&— Evidence at trial.^ Not allowed on taxa- tion between party and party. Jameson ply only in cases where no commission is paid Lukw. 729 SOLICITORS' REMUNERATION ACT, liil- continued. rngo by a client to an auctioneer." Where the auctioneer's commission is paid by the client: — Held, reversing the decision of the Court of Appeal, that rule 11 does not deprive the solicitor of all remuneration for work done in respect of the conduct of the sale, but that under the General Order, sect. 2, sub-sect, (c), he is entitled to Su^quantum meruit for 8u,ch work, the remuneration to be regulated according to the old system as altered liy Schedule II. In re New- boulcl, 20 Q. B. D. 201, reversed. In re Faulkner, 36 Ch. D. 566, approved. Parker v. Blenkhorn, U App. Cas. 1 . . . . . . 483 38. Sale — §i:ale Charge—Instate sold subject to Incumbrances.'] The pro- perty of a company in liquidation was sold by the solicitors of the ofBoial liquidator for £24,000 (subject to a mortgage of i£gOO), and after the satis- faction of the claims of former successive owners, a sum of £1,750 remained for the ofiBcial liquidator. The sale was confirmed by an order made in the liquidation, and the parties to the conveyance were the company, the official liquidator, the original owners, and cert!\in intermediate purchasers who had claims for unpaid purchase money. The solicitors on taxation included in their bill of costs scale charges as upon a sale for £'24,900 as follows :— Nego- tiating, £102 6s.; deducing title and completing, including contract, £107 5s. The taxing master disallowed the negotiating fee, and only allowed the scale charge upon the £1,750. On summons to review taxation: — Meld, that the Court could look not only at the contract but at the substance of the transaction, and that, having regard to the whole of the matters with reference to the provisional contract coupled with the order, the liquidators name was only used for the purpose of convenience, and that the taxing master's decision was right. lie Grey's Brewery, 56 L. T. 298 . . 377 39. Sale — Bankruptcy — Sale of bankrupt's property subject to incum- brances.'] Where the property of a bankrupt is sold subject to incumbrances, the solicitor of the trustee In bankruptcy is under Rule 9 of Schedule I. of the General Order under the Solicitors' Remuneration Act, 1881 — and the Bankruptcy Rule«, 1886, General Regulations, Part VIII., r. 2 — entitled to a percentage on the gross amount of the purchasemoney and not merely on the amount realised from the equity of redemption. In 7-e Gallard ; Ex parte Harris, 21 q.'B.'D.ZS . 443 40, Sale — Mortgage to secure balance of Furchase Money — Investigation of Mortgagor's Title — Taxation after payment — Special circumstances— Mutual mistake of law— Solicitors Act, 1843 (6 & 7 Vict., c. 73), s. 41.] When part of the purchase money is allowed to remain on mortgage of the property sold, the solicit )r of the vendjr-mortgagee cannot charge the scale fee under Schedule I., Part I., of the General Order under the Solicitors' Remuneration Act, 1881, for investigating the mortgagor's title. But where a fee of £95 was charged for such investigation, under a common mistake of the parties that the scale applied, the Court refused to accede to an application, made after p.nyment, for taxation. Re Glascodyne v. Carlyle, 52 L. T. 781 . 308 41. Sale — Suit for administration— Taxation of costs — General Orders, August, 1882, r. 2 — Costs for conveyancing business in an action.] Soli- citors who transact conveyancing business in an action will, under the Solicitors' Remuneration Act, 1881 (44 & 45 Vict., o, 44), and the General Order of August, 1882 (W. N., 1882, Pt. II., p. 358), be allowed taxed costs and charges for such business, according to the scales set forth in the schedules to the General Order. The proper construction of the language of sect. 2 of the Solicitors'. Remuneration Act, 1881, is. that it refers to conveyancing matters which take place in an action as well as to those out of Court,.and that the exception is only from " other business " not beirg conveyancipg 730 Index. SOLICITORS' EEMUNEEATION ACT, 1881— confi'nued Page business ; and aooordirgly where the Taxing Master had disallosred certain charges made for conveyancing business in an action, and under the scales of charges contained in the schedules to the General Order of August, 1882, he was directed to review his taxation. Stanford v. Roberts (26 Ch. J). 155) 248 42. Sale— Countj/ Court.'] The General Order of April 16th, 1881, mads in pursuance of the Solicitors' Remuneration Act, 1881, is applicable to the County Court-method of taxation of costs on a sale of lands in the County Court defined. Kennedy v. Beaumont, 24 Ir. L. T. E. 95 . . . 632 43. Sale — Conveyancing i)usiness in an action — Preparation by pur- chasers' solicitor of contract of sale — Election — Pending business."] A decree for administration of an estate was obtained. The trustees afterwards sold certain pieces of land, part of the estate, to a railway company, and re- purchased from the company part of the lands sold, as having become super- fluous land. The conveyancing work was commenced before but finished after the 31st of December, 1882, when the General Order under the Soli- citors' Kemuneration Act, 1881, came into operation. In the case of the re- purchase from the railway company, it was agreed that the purchase by the company which had not been completed should not be carried out, and that the trustees should accept such an assurance as would revest the land in them. There was no investigation of title, and the solicitor for the trustees prepared the contract : — Hdd, that the Act and General Order applied to the costs of the trustees in relation to the conveyancing work ; but that they were entitled to charge for the preparation of the contract in addition to the scale fee fixed by Part I., of Schedule I., of the General Order. In re Field and Stanford v. Roberts, 32 W. K. 404, 26 Cb. D. 155, followed. Fleming v. Hardcastle, 33 W. R. 776 . . . . . . 290 44. Sale — Partition Action — Costs of Defendants' Solicitors — Conveyan- cing.] In a partition action an order was made for the sale of the estate and payment of the costs of all parties out of the proceeds. The plaintiff, who was the owner of one-fourth of the estate, had the conduct of the sale, and his solicitor was paid his costs in accordance with rule 2, sub-sec. (a), of the General Order under the Solicitors' Remuneration Act, 1881 -.—Held (rever- sing the decision of Bacon, V.C), that the solicitors of the defendants, who were the owners of the other three-fourths of the estate, were entitled to be paid the costs of perusing the conveyance and obtaining its execution by their clients under rule 2, sub-sec. (c). Humphreys v. ■7'ones,'31 Ch. D. 30 . 316 45. Sale — Scale Fee— Negotiation of sale by private contract — Contract conditional on sanction of Court — Payment of fee to estate agent.] The solicitor to the trustees of property which was the subject of an action in the Chancery Division negotiated a sale thereof, and prepared and procured the due signature of a contract of sale and purchase conditional upon the sanction of the Court being given to it. In the course of the negotiation, and for the purpose of ob- taining evidence to induce the Court to sanction the sale, he procured the opinions of two valuers, to whom fees were paid for reporting as to the value of the property, but who took no further part in the negotiation. The contract was sanctioned by the Court without alteration: — Held (reversing the deci- sion of Kat, J.), that the solicitor had negotiated the sale within the meaning of rule 11 in Schedule I., Part I. to the General Order, and was entitled to the scale fee for negotiating a sale by'private contract. In re MacGowan; MacGowan V. Murray [1891], 1 Ch. 105 . . . , , . .667 46. Scale fee — Negotiation fee.] S. employed H. as general agent with a view to developing an estate as a building property, on the terms of his liide.v. 731 SOLICITORS' EEMUNERATION ACT, 18S1- continued. Page having a commission of 2J per cent, on the purchaBe-money of all lands sold during his agency, and on the capitalised value of the rents of all leases granted during the same period. An offer was made at a time when H. was too ill to attend at his office, and the negotiation was conducted by W., the solicitor for S., but H. was consulted repeatedly, and gave advice as to the sale which was ultimately completed. On completion, H. was paid 2J per cent, on the purchase-money. W. in hia bill of costs claimed the scale fee for negotiating the sale, which claim was resisted on the ground th.it the vendor had paid a, commission to an estate agent. The Taxing Master allowed the scale fee, being of opinion that as the commission paid to H. was not a payment in respect of this particular transaction, but for general services, and would have been paid all the same if he had not intervened at all in the sale, it was not a commission within the meaning of the Sulicitors' Bemuneration Order, Schedule I., Part I., rule 11 : — Held, by Nobth, J., that if H. had not been called in at all in this transaction, the payment of the commission which would in that case have been a payment in respect of other work, would not have been a payment of commission within the rule, but that as H. had assisted in the negotiation he was paid for his assistance by the commission, although the commission covered other work ; that a commission, therefore, had been paid within the meaning of the ru'e, and that the scale fee for negotiation ouglit not to be allowed : — Held, by the Court of Appeal that Nokth, J.; had pUt a cori'eot coiistruction on the rule. In re Withall [1891], 3 Ch. 8 633 47. Sale — Negotiation — Sale subject to leave of Court.'] What circum- stances amount to negotiation by solicitor. In re Heade's Trusts ; Salthouse V. Eeade, 33 S. J. 219 . . ' 628 48. ■ Sale — Ferusing Abstracts — Taxation.'] tTpou the construction of Sche- dule II. of the General Order (containing scales of charges) made in pur- suance of the Solicitors' Remuneration Act, 1881, abstracts of title are not included in the words "deeds, wills, and other documents," the charge for perusing which is therein fixed at Is. per folio ; but the old scale of 6s. 8d. for perusal of every three brief sheets of eight folios each remains unaltered. In re ParJcer, 29 Ch. D. 199 273 49. Sale — Administration action— Leaseholds — Mortgage — Perusing con- ditions of sale.] In an administration action, to which mortgagees of lease- holds were not parties, the plaintiffs obtained an orJer to sell the leaseholds, and that the money should be paid into Court. The order was made without the knowledge of the mortgagees. The plaintiSs wrote to the mortgagees, sending di aft particulars and conditions of sale as settled by the conveyancing counsel to the Court "for your perusal." The mortgagees undertook to con- cur in the sale on condition that their mortgage debt and costs and expenses were provided for out of the proceeds of sale in Court, and they returned the conditions approved. The Taxing Master disallowed the fees charged at the rate of Is. a folio for perusing the conditions of sale, but allowed a fee of one guinea for reading them. One of the grounds of disallowance was that conditions of sale were not such documents as were intended by the word " documents " in Schedule II. of the General Order made in pursuance of the Solicitors' Kemuneration Act 1881. On summons to vary the Taxing Mas- ter's certificate : — Held, that (while not deciding that conditions of sale did not come within the word " documents ") this was an extraordinary case where the Taxing Master had a discretion. Re Bees ; Recs v. Rees, 58 11. T. 69 . . • . .417 732 Index. SOLICITOES' EEMUNEKATION ACT, ISil— continued. .Page 60. Sale — Lands Clauses Oonsolidation Act— Perusal of Deeds in Abstract of Title.'] Under an order to tax the costs awarded to the owner of lands cora- pulsorily taken by a company, his solicitor is not entitled to Is. per folio for pei-nsing deeds referred to in the abstract of title furnished. The General Order made in pursuance of the Solicitors' Kemuueratiou Act, 1881, Scbedule II., does not apply to such taxation. In re River Bann Navigation Act, 1879 ; exparte Olpherts, 17 L. R. Jr. 168 ... . 319 51. &al6— Particulars of Sale — Documents.'] ' Particulars of sale are in- cluded in the word documents in Schedule 11. In re Reade's Trusts ; Salthouse v. Heade, 33 S; J. 219 . . . . . . 528 52. ^aXe—Soale- Charge — SaU — Land out of Jurisdiction — Irish land — Lord Ashbourne's Act— Purchase of Land {Ireland') Act, 1885, 48 di 49 Vict., c. 73.] The General Order under the Solicitors' Eemuueration Act, 1881, fixing a scale charge does not apply to a sale of land not situated in England. Thus, where an English solicitor carried out a sale umler Lord Ashbourne's Act, the Purchase of Land (Ireland) Act, 1885, of land in Ireland belonging to a client, and employed an Irish solicitor to do so much of the work as had necessarily to be done in Ireland : — Held, that the English solicitors' remu- neration was not regulated by Schedule I., Part I., to the General Order under the Solicitors' Kemuneration Act, 1381. In re Greville's Settlement, 40 Ch. U. 471 475 SUBPOENA DUCES TECUM— \Vhen subpcenas duces tecum hare been directed by counsel, and are necessary to enforce the production of documents, they should be allowed. Jessop v. Cusach, 25 L. B. Ir. 244 . . . 634 SUBSTITUTION OF SEBVIOE— 1. Costs when B,llo\iei—Settlement of action within six days of service of summons and plain!.] Where the plaintiff had obtained an order to substitute servics, and within six days of the substituted service the defendant tendered the sum due and £2 10s. for costs, under first General Order, 22nd January, 1856, it was held that the plaintiff could not recover the costs of the order for substitution of service. Atkinson v. Gregory, 1 Ir. L. T. 157 5 2. Costs when allowed — Practice— Costs of taxation — First General Order of 22nd January, 1856.] Costs of proceedings to substitute service of summons and plaint allowed on taxation between party and party. Costs of taxation allowed. Johnson v. Eauon, 5 Ir. L. T. R. 6 . , . .41 3. Costs when allowed — fVrit of summons — Judgment by default— Costs.] Where a defendant upon whom service was substituted allowed judgment to go. by default -.—Held, that the plaintiff in marking judgment was entitled to add to the sum allowed by Order VIII., rule 2 (April, 1878), the taxed costs of the motion to substitute service. Eager v. Bucidey, 8 L. 11. Ir. 99 . 225 TENDER-1. After Issue, but before Service, ol Writ -A de'^endant cannot escape paying the costs of a writ of summons by tendering the amount sued for- without costs before service, but after issue, of the writ. O'Malleu v Guardians, Kilmallock Union, 22 L. R. Ir. 326 2. After Service of Civil BUl-Coits.] What costs should be tendered along- with debt after service of the civil bill. Ncwry Steam Airated Co 447 Ir- L. T. 191 151 Index. 73;) TENDER -continued. Vw 3. After service of Civil Bill — Instructions.'] Where the amount sued for by an ordinary civil bill is tendered before entering the civil bill, the plaintiff's solicitor is entitled to the prescribed fee for instructions. Bell v. M'Nally, 16 Ir. L. T. E,. 14 . . . . . . . . 226 before action brought — lodgment of sum tendered — drawn out in full satis- faction .......... 212 See Payment into Codrt. 3. THREE COUNSEL-Costs of. See Counsel. 1, 2, 11, 12, 13. TRAVELLING EXPENSES— P?amfif suinj in person— Interlocutory proceed- ings—Travelling expenses.} The travelling expenses of a person suing in person,- incurred for the purpose of conducting in person interlocutory pro ceedings' are not taxable items in party and party costs awarded against the opposite party in the action. Anthony v. Walshe, 22 L, B. Ir. 619, App. 622 . 425 Marshal's ...... . . 16 Sec Admiealty. 1. Auctioneer's ....... See Admiralty. 1. not connected with conveyancing . . See Solicitors' Remuneration Act. 17. TRIAL— What constitute costs of trial. In the Goods of Hayden, 23 Ir. L. T, 066 ........ . 16 493 557 TRUSTEE RELIEF ACT— Costs of lodging money.'] The sum allowed to trustees for the costs of lodging money under the Trustee Relief Act in ordinary cases will be £8. In re Boyd's trusts, I. R. 1 Eq. 489 . . .15 IT "UNDERTAKING ANY BUSINESS." See SoLiciTOEs' Remuneration Act. 9, 10, 11, 12, 28, 29, 30. UNNECESSARY MOTION FOR LEAVE TO REPLY— Where there are two replications filed to a plea, one of which merely takes issue on the truth of the defence, and the issue on the other is decided adversely to the plaintiff, the costs of the replication and motion for leave to reply will not be allowed to the plaintiff, though successful in the action. Guinea v. Allen, I. R. 1 C. L., 831 . V VENUE, MOTION TO CHANGE -After payment into Ciurt. See Eayment into Court. .4 & 5. VIEW JURY.] Costs incidental to a view jury in county court obtained by the plaintiff are not taxable against the defendant. Gi'egg v. Johnson, 25 Ir. L. T. R. 20 . -' . . . . • . . . 1)31 3 B 734 Index. Page WITNESSES' EXPENSES—!. Discretion of Taxing Master.] The taxing master, in allowing the expenses of witnesses on the taxation of costs, should be guided by the direction of proofs by counsel rather than by what took place at the trial. Beffernau v. Vaughan, 18 Ir. L. T. B. 38 . . . 254 2. Discretion of Taxing Master.] In an action for breach of warranty of ahorse sold to the plainiiff, who resided in Eagland, the plaintiff produced, as witnesses at the trial, three English veterinary surgeons, who had examined the horse sliortly after the purchase, and deposed to its unsoundness. The plaintiff recovered a verdict, and the taxing master having, on- taxation, dis- allowed the expenses of two of these witnesses, the judge at the trial con- sidering them necessary witnesses: — Meld, that their expenses should be allowed. Wegton v. Steeds, 24 L. E. Ir. 283 .... 553 3. Scientific witnesses— i^ees for qualifying to give evidence — Briefing proceedings in action in which a question similar to that in issue was involved.^ Fees to scientific witnesses for qualifying themselves to give evidence may in proper cases be allowed as between party and party, wlien sufficient informa- tion as to how the amount of such fees has been made iip is laid before and considered by the taxing master. The rule as to special fees paid to counsel is applicable to the case of scientific witnesses, and special fees paid to experts of peculiar eminence, even when taxable between solicitor and client, will not be allowed as between party and party. The costs of briefing the proceed- ings in an action in which a question similar to that in issue was involved was disallowed as between party and party. Thompson v. Moore, 25 L. R. Ir. 98 . . . . . . . . . .609 4. Valuers' fees — Affidavits.^ Upon taxation of costs between party and party, the sums paid to witnesses for inspecting, measuring, and valuing improvements upon lands, will not be allowed in aildition to the charges for the affidavits made by those witnesses. Murphy v. Nolan, I. R. 7 Eq. 49S ........ . 126 called by notice party. See Notice Party. 5. Medical yiitnees— Allowance for Attendance at Assizes.'] Fee of £3 3s. a day and expenses, notwithstanding Treasury Scale only sanctioning £2 2s. per day allowed to medical witness when not residing in assize town. Clucen V. ISesUtt, 20 Ir. L. T. E. 56 . . . . . . . 323 6. Professional witness— i)a27y fee.] The daily fee allowed to a profes- sional witness on taxation between party and party is not necessarily limited to £Z 3s. In this case a fee of £5 5s. a day was allowed to an engineer and architect of eminence employed under the direction of the Court. Rohb v. Connor, I. E. 9 Eq. 373 . . . . . . . 13.1 number and materiality of witnesses— questions for Taxing Master . 29 See Admiralty. 2. material witness not examined . , . . , .44 See General Costs of Action. preparing evidence— bringing up for hearing— offer to examine de bene esse or by affidavit— witness not examined . . . . .29 See Admiralty. 2. ■ Detention — Wages — Travelling expenses . . . .^"^ , 29 See Admiralty. 2. Index. 735 WITNESSES' EXPENSES-con(i»M«?. P,,^,. Amount of »raiiCT(m , . , . _ _ _ jgj See Election Petition. 2. Kemimeration for loss of time— Medical witnesses . . . .104 -S'ee Solicitor and Client Costs. 2. WRIT OP EESTITITXION-Costs payable-Rent under £100 per ammm . 231 See Action to Recover Posse.ssion of Land. 2. WRIT OF SUMMONS-Ejectment-Fee to counsel for settling . . . 313 See Attendance. 2. Fee to counsel for settling— Disoretiou to allow . . , .395 See Counsel. 3. Tender of debt after i^siie , 447 See Tender. 1. ^/cf7 Printed by John Falconek, 53 Upper S-iclcville-strcef, Dublin.