1839.-Dawson v. Yates.

pears to me that it ought. I think there is a sufficient statement in the affidavit of Fisher, which is in no way explained, that the interest had in point of fact been paid, at the time when it became payable according to the new contract between the parties, and that on the understanding which existed between the plaintiff and Yates, the latter was not authorized to put an end to the transaction of 1835 altogether.

Order for a receiver granted, and by consent,
Yates to have liberty to propose himself.

The affidavit of Dawson the plaintiff, in support of the motion, stated, that in June, 1837, he called on Yates, and had a long conversation with him generally as to the premises, when Yates stated, that he wished the plaintiff to go and see Mr. Fisher, whom he would also see, and talk the matter over; that the plaintiff saw Mr. Fisher, who refused to let him know the state of the accounts, although deponent said, that in order to protect himself, he was willing to pay any deficiency, if the agent would furnish him with the

accounts.

There was no such allegation as this in the bill, but there was a general statement, that the plaintiff had frequently offered to pay the defendant Yates the principal sum of 39007., with all interest due thereon; such offer was not stated to have been made before Yates took possession. The statement in the affidavit was, however, relied on in support of the motion.

Mr. Kindersley, during his argument, had contended, that the plaintiff could not rely on any statement which had not been expressly charged or

alleged in the bill, and consequently that this part of the evidence [*306] ought to be *rejected; he added, that the defendant had been advised not to answer this part of the affidavit at all.

Mr. Pemberton, contra, contended, that the general charge in the bill, of the plaintiff's offers to pay, was sufficient to entitle the plaintiff to the benefit of the above statement in his affidavit.

THE MASTER OF THE ROLLS, on this point said, I have not adverted to the other circumstances which are not alleged in the bill: I think that those who advised the defendants in this case not to answer the allegations set forth in the affidavits and not in the bill, and on which an equity was attempted to be raised, acted in that respect with great propriety. It is always to be remembered, that the orders of the court are to be pronounced on that which is alleged in the pleadings between the parties; affidavits and depositions are to be considered only as evidence of the allegations made by the respective parties in proper form, and cannot be attended to as laying a foundation for equities not otherwise alleged or claimed: for that reason I have omitted to take any notice of the statements which are contained in the affidavits and are not alleged on the bill.

1839--Jones v. James.

1839 January 30.

*JONES v. JAMES.

[*307]

Under the common order for the taxation of costs, the Master is not authorized to take an account of pecuniary matters between the parties, which are foreign to the bill of costs; but secus where moneys are paid by the client on account of the bill of costs, or where by agreement between the solicitor and client, the moneys which come to the hands of the solicitor are to be applicable to the payment of the bill of costs.

Under the common order, the Master is not authorized to allow interest on the balances of moneys of the client, from time to time in the hands of the solicitor, though such appears to have been the agreement between the parties.

THIS case came before the court upon petition, by way of exception to the Master's report, made on a reference to him in the common form, to tax the bill of costs of the petitioner Thomas.

It appeared that the respondent Harries had employed the petitioner Thomas as his solicitor in various transactions, but principally in the investment of money on securities; and in the course of which transactions, several sums of money had been received by Thomas on account of Harries.

In April, 1837, Harries obtained the common order for the taxation of Thomas' bills of costs, which stated that Harries had employed Thomas, one of the solicitors of this court, to defend this and other suits and matters, as the petitioner's attorney and solicitor, and that Thomas had delivered unto Harries two several bills of his fees and disbursements; and Harries thereby submitting to pay to Thomas, what should be due to him on the taxation of the said bills, it ordered that it should be referred to the Master to tax the same; and that Harries and Thomas should produce before the Master, upon oath, as he should direct, all books, papers and writings in their custody or power relating to the said bills, or to any of the items or charges therein; and that they should be examined upon interrogatories touching the same, as the said Master should direct; and that upon Harries, pursuant to his submission, paying to *Thomas what should appear to be due to [*308] him on such taxation, or in case the said bills should appear to be already paid, then that Thomas should deliver unto Harries, upon oath, all deeds, papers and writings in his custody or power belonging to Harries; and, if he was overpaid, that he should refund and repay to Harries what the said Master should certify to be overpaid; and that all proceedings at law against Harries, on account of the said bills should be stayed, until the said Master should have made his report.(a)

It appeared, that in 1828, Thomas delivered to Harries an account, in which there was no charge for costs, but interest was charged on the balances from time to time, and in the result there appeared a balance of 2561. due from Thomas to Harries.

(a) Thomas attempted unsuccessfully to get this order discharged. See 2 Keen, 184; and see Harries v. Thomas, 2 Mee. & W. 32.

1839-Jones v. James.

In February, 1832, Thomas delivered another account to Harries, in which the bills of costs claimed to be due by Thomas from Harries were charged, and which showed a balance of 451. due from Harries to Thomas.

In the examination of Harries on interrogatories before the Master, he stated, that he had not made any payment expressly on account of the said alleged bill of costs; that the said Thomas was employed by him, from the year 1820, and for many years afterwards, as his attorney and solicitor; and that during such time, Thomas received and paid on his account divers sums of money; and that some parts of the moneys which Thomas so received, he retained in his hands, upon an agreement or understanding that [*309] he was to pay or allow to him, *Harries, interest for the same, until such sums should be paid over to him, or be applied to or for the use or on account of him, Harries; and he said, that although he did not remember that he ever entered into any express agreement with Thomas upon the subject, he always understood, and he believed and was confident, that Thomas also understood, and accordingly that there always was an understanding between him and Thomas, that upon settling accounts between him Harries and Thomas, the latter should retain out of the moneys of Harries happening then to be in his Thomas' hands, so much of such moneys, as might be necessary for the purpose of liquidating any fair bill of costs or claim for law charges, that might be due from Harries to Thomas.

This statement was not met nor rebutted on the part of Thomas.

The several sums of money received by Thomas on account of Harries were not received in payment of his bill of costs, but were received generally in the pecuniary transactions in which he was concerned for Harries.

The bill of costs amounted to the sum of 7851., but which, in consequence of all the costs incurred previous to Thomas' admission as an attorney of the superior courts of Westminster being disallowed, were reduced by taxation to 2421.

The Master, by his report stated, that during the time Harries employed Thomas as his solicitor, Thomas received and paid divers sums of money on account of Harries; and he found from the evidence before him, that there was an agreement between the parties that Thomas should allow interest on

the balances from time to time in his hands, at 5 per cent.; and he [310] found two *sums of 250l. and 501. due from Thomas to Harries, and

on which he had calculated interest, and which together amounted to the sum of 3781.; from which sum he deducted the amount of the bills of costs as taxed, and having calculated subsequent interest on the balances, he found that Thomas had been overpaid his said bill of fees and disbursements by the sum of 1167.

Thomas objected to this finding on two grounds; first, that the Master had no authority under the order of reference to take an account of the money transactions between him and Harries; and secondly, that he was not autho

1839-Jones v James.

rized to allow interest on the balances of moneys belonging to Harries in the hands of Thomas.

Thomas presented this petition, praying a reference back to the Master to review his report, with a declaration, that he should not give credit to Harrie s for the sums of 250l. and 50l., or for any sums, except sums received by th e petitioner expressly on account of his bills of costs, or appropriated with the assent of Harries towards the payment thereof; and that the Master should not allow interest on the balances.

Mr. Kindersley and Mr. James, in support of the petition, contended, that the meaning both of the order for taxation and of the statute on which it was founded, (a) was this, that on the taxation of the bill, credit should be given for the money paid to the solicitor on account of his bill of costs, and not tha t the Master should take an account of the pecuniary dealings between the parties; for otherwise, the fact of 6s. Sd. being due from a client to his solicitor might have the effect of authorizing the Master to take a complicated pecuniary account to *an extent of 10,000l. and involving the most [*311] intricate questions of law, upon a reference to him to tax this item

as a bill of costs; that accounts between a solicitor and client could not be taken on an order for the taxation of a bill; and such was the opinion of Lord Hardwicke.(b)

They relied on the evidence and the conduct of Harries, to show that no such agreement existed as that stated by him; and they contended, that even if true, it amounted to a right of set-off only, and not to payment, and was not sufficient to found the jurisdiction exercised by the Master. They observed that the order at common law was more extensive, as it orders that the attorney "shall give credit for all sums of money, if any, by him received from or on account of the client, and refund what, if any thing, he hath been overpaid."(c) Yet this was in the nature of a special order, obtained upon a rule to show cause.

As to the question of interest, they contended that the Master was in not case authorized to calculate interest, even in the case of a mortgage or legacy, except specially directed: they cited Berrington v. Phillips, (d) as showing that interest could not, under similar circumstances, be allowed to a solicitor on taxation.

Mr. Pemberton and Mr. Coleridge, contra, contended that although every account between a solicitor and his client could not be taken upon a reference for the taxation of costs, as in a case where there were items which had no connection with the relation of solicitor and client, yet that in this case the nature of the transactions and the understanding and agreement between the parties rendered it proper, nay indispensable, that the [312] Master should enter into the consideration of the receipts of the soli

(a) 2 G. 2, c. 23, s. 23. (d) 1 Mec. & W. 48.

(b) Anon 2 Ves. sen. 452.

(c) Chitty's Forms, 4th ed. 12.

1839.-Jones v. James.

citor on account of his client; that there was an order to refund, and that it was necessary to consider the amount received, in order to ascertain the amount to be refunded; that if it were decided, that these sums of 2501. and 501. were not to be set off against the bills of costs, the effect would be this: Thomas would recover from Harries the whole amount of his bills of costs; and when Harries brought his action against Thomas, to recover these two sums, the latter would defeat this demand by pleading the statute of limitations.

On the question of interest, they contended that the Master had proceeded properly in calculating and allowing it, as it had been clearly made out that such was the agreement between the parties.

THE MASTER OF THE ROLLS-With respect to the general merits of the case or the former conduct of the parties I have nothing to do with them on this occasion, and I cannot take them into my consideration, for the single question which I have now to decide, is whether the Master has proceeded. in conformity with the order of reference, and has made a proper report on it By the order, it was referred to the Master to tax the bills of costs, and it was ordered that the parties should produce all books, &c., and that they should be examined on interrogatories, and that upon Harries paying to Thomas what should appear to be due to him on such taxation or in case the said bills should appear to be already paid, then Thomas was to deliver to Harries all deeds; and if he, Thomas, was overpaid, that he should refund

and repay to Harries what the said Master should certify to be over[*313] paid; and that all proceedings *at law, on account of the said bills,

should be stayed until the Master made his report.

Upon this order, it is clear, that the Master had something to do beyond taxing the bills of costs: he had to tax the several items of the bills of costs: and if he found that they had been paid, certain things were to be done; and if he found that Thomas had been overpaid, then something else was to be done; for Thomas was in such case to refund what had been overpaid. It was, therefore, necessary for the Master to do something in addition to the taxation of the costs. I quite agree, that upon such an order, the Master has no authority to take an account of pecuniary matters between the parties which are quite foreign to the bills of costs; but the question here is, whether the transaction amounted to payment or appropriation.

Thomas was employed as the solicitor of Harries, and in the course of that employment he had in his hands moneys belonging to Harries, which he was instructed to lay out on security. It appears that the greater portion of these bills of costs arose in respect of these very transactions; and it also appears. that there was a considerabe sum of money due, on a balance of account, to Harries from Thomas; and the question really is, whether these transactions were so connected, by the mode of dealing between the parties as to make the moneys which were in the hands of Thomas on account of Harries, applicable to the payment of the bills of costs incurred in the transactions on