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AUG. 18, 1855.]
Law of Attorneys and Solicitors.
The following is an abstract of the cases that an agent's bill was not within the Act of in the Courts of Equity :Parliament, and could not be taxed; "and the Master said he never taxed a bill for agency in his life."
In Binsted v. Barefoot, 1 Dick. 112 (17th July, 1746), an application by one Anderson (who was concerned as agent in London for a country solicitor) was granted to discharge an order for taxing his bill of fees and disbursements, Lord Hardwicke, C., holding that agency business did not come within the Act of Par
In Exparte Bearcroft, 1 Doug. 200 n. (Trin. Term, 1766). The Court of Common Pleas ordered an agent's bill to be taxed under their general authority; and Mr. Secondary Barnes said, he remembered that before the 2 Geo. 2, c. 23, applications were made at Judge's Chambers to refer agents' bills to be taxed, and that it was frequently done upon the country attorney's bringing the fees charged into Court.
In Paget v. Nicholson, 1 Dick, 285; Beam. Costs, app. No. 11 (Dec. 22, 1755), Lord Hardwicke, C., directed the taxation of a bill In Dixon v. Plant, 1 Doug. 200 n. (Mich. of fees and disbursements for agency business. Term, 1778), Willes, Ashhurst, and Buller, JJ., In Corner v. Hake, 2 Cox, 173 (June 25, were inclined to think that an agent's bill was 1789), Lord Thurlow, C., granted a motion not taxable by the Master, having regard to the on the part of one of the solicitors in a cause 12 Geo. 2, c. 13, s. 6. But afterwards Buller, to have his own agent's bill taxed, 66 on several J., who sat for Lord Mansfield, C. J., said, that precedents being mentioned for the purpose.' as it had been found to be the practice of the In Ostle v. Christian, 1 Turn. & Russ. 324 Court of Common Pleas (confirmed by a case (Aug. 16, 1823), Lord Eldon, C., concurred in decided in that Court), to make orders for the the opinion, that a solicitor could not obtain taxation of agents' bills, the agent's bill was the taxation of his agent's bill without bring-referred, in order that the practice of all the ing the amount into Court. Courts might be uniform: Willes and Ashhurst, According to the decision of Vice-Chancellor JJ., concurred. Shadwell in In re Barker, 6 Sim. 476 (August In Wildbore v. Bryan, 8 Price, 677 (Dec. 29, 1834), a solicitor's bill of costs is taxable 14, 1820), the Court of Exchequer held, that an in equity, although it contains no charges for agent's bill could not be taxed on the applicabusiness done in a Court of Law or Equity, if tion of the client of the attorney immediately he retains money received by him in his cha- employed. racter of solicitor for the use of his client.
In the case of Lees v. Nuttall, 2 Myl. & K. 284 (Dec. 4, 1834), Pepys, M. R., discharged an order which had been obtained as of course for the taxation of an agent's bill, and held, that the rule could not, except under special circumstances, be dispensed with for bringing the amount of the agent's bill into Court.
In Jones v. Roberts, 8 Sim. 397, 7 Law J., N. S., Ch. 156 (April 28, 1837), the Vice-Chancellor of England said,-" For a series of years it has been the established practice of this Court to direct the taxation of an agent's bill, on the application of the solicitor who employed him. That practice was recognised as established by Lord Thurlow, in the case of Corner v. Hake, in 1789; and it is plain from the mode in which Lord Eldon treats the subject in Ostle v. Christian, that in his opinion it was the undoubted practice of this Court to direct the taxation of an agent's bill. If, then, I find that this practice has prevailed in this Court for a long series of years, it appears to me that I am bound to adopt and follow it, notwithstanding the opinion expressed by the Judges of the Court of Common Pleas, in Weymouth v. Knipe."
In Toghill v. Grant, in re Boord, 2 Beav. 261 (Jan. 13, 1840). Lord Langdale, M. R., held that the Court of Chancery had authority to refer for taxation the bill of costs of a solicitor, who acts as agent for another.
In Weymouth v. Knipe, 3 Bing. N. C. 387; 5 Dowl. 495; 3 Scott, 764 (Nov. 25, 1837), the Court of Common Pleas (per Tindal, C. J., Gaselee, Vaughan, and Bosanquet, JJ.), held, that it possessed no jurisdiction to compel the taxation of an agency bill, either at Common Law or under the Statutes of 2 Geo. 2, c. 23, and 12 Geo. 2, c. 13, even where a suit was pending against the defendant for the recovery of the amount.
It appears from Cardale v. Bull, 4 Q.B. 611 (May 9, 1843), that the Court had no power under Stats. 2 Geo. 2, c. 23, and 12 Geo. 2, c. 13, by direct statutory provision, or in the exercise of any common law authority, to order taxation of an agency bill delivered by one attorney to another. (Per Lord Denman, C. J., and Patteson, Williams, and Wightman, J.J.)
In the case of In re Simons, 2 D. & L. 500; 14 Law J., N. S., Q. B. 41 (Mich. Term, 1844), upon a reference to arbitration of an action in the Court of Exchequer, the defendant's attorney employed an attorney at Carmarthen to attend before the arbitrator and conduct the case for the defence. He afterwards delivered a signed bill, of which one of the items was as follows:
Journey to Lampeter and tavern bill, attending and advocating four days on this reference, as per terms, including fee with the brief 121. 12s." Patteson, J., said, "I have mentioned this case to several of the Judges, and they all agree with me in opinion, that such a
The decisions at Common Law are as bill as this cannot be taxed; as it is for busifollow :
In an Anonymous case, 1 Wils. 266 (Easter Term, 1750), the Court of King's Bench held,
ness done by Mr. Simons rather as an advocate than as an attorney."
In the case of In re Gedye, 14 Law J., N. S., Q. B. 238; 2 D. & L. 915 (May 8, 1845),
Coleridge, J., said, "The recent Act, the 6 & 7 | taxation; and that the fact that the plaintiff Vict. c. 73, does not apply to agents' bills. had debited the defendant with the whole of I entirely agree with what the charges, did not the less render it a bill for agency business.
has been said respecting the necessity of construing that Act with reference to the state of the law at the time when it was passed; and I am satisfied that its provisions were well weighed, and made with great care.
"Now, it is said, that in the Court of Chancery agents' bills were taxable by virtue of the inherent power of the Court, without reference to any legislative enactment. With regard, therefore, to such bills, it was not necessary to introduce any special provision in the recent Act. The Courts of Common Law on the other hand, held that they possessed no power independent of the Statute, to order the taxation of an attorney's bill. And with respect to agency bills, it was equally clear that the express provisions of the 12 Geo. 2, c. 13, prevented the Common Law Courts from having any power over them. It was contended, however, that the Statute 2 Geo. 2, c. 23, included agents' bills; but I do not think it very material in the view I take in the present case, to consider whether it did or not.
"In order then to judge whether any alteration were intended in the law with respect to agents' bills, let us see what was done in other matters where an alteration was effected. Now, in the case of executors and others chargeable on a bill, the Act provides that the bill may be taxed on the application of the party interested in the property. So with respect to the subject-matter of the taxation; the Courts had no power to refer any other business than that done at law or in equity: and the Act expressly extends it to business not transacted in either a Court of Law or Equity.
"If, therefore, we find that where alterations are made in other matters, the Act expressly mentions them, and is silent as to any alteration with respect to agents' bills, I think the irresistible influence to be drawn from this silence is, that agents' bills were not intended to be included in the Act. Am I then to say, that because general words are used in the Act, therefore it was not necessary to introduce the word 'agent?' This view might be entitled to some weight if I were dealing with the case of parties, who might be supposed not to know the existing state of the law. But the whole force of the argument of Mr. Lush has been directed to show that an agent was a party well known at the time of the passing of the Act.
"It must, therefore, I think, be taken, that an agent's bill is not included in the Act, and is consequently left in the same state as before the Act was passed; that is, as it was untaxable before, so also is it untaxable since the passing of the Act."
In In re Simons; Simons v. Peacock, 3 D. & L. 156 (Trin. Vacation, 1845), the defendant, who was solicitor to the Post Office, employed the plaintiff, a country attorney, to conduct at the South Wales Assizes a prosecution for forging a post-office order. Coleridge, J., held that the Court had no power to refer the bill for
In Billing v. Coppock, 1 Exch. R. 14; 5 D. & L. 126; 16 Law J., N. S., Exch. 265 (May 5, 1847), Pollock, C. B., said, "the case of Weymouth v. Knipe decided that an agent's bill was expressly excepted out of the 2 Geo. 2, c. 23, by the 12 Geo. 2, c. 13. Now, as it required a new Statute to take agency bills out of the operation of the 2 Geo. 2, c. 23, and as such bills are not excepted out of the 6 & 7 Vict. c. 73, it is evident that the intention of the Legislature was, that the 6 & 7 Vict. c. 73, should have the same effect as the 2 Geo. 2, c. 23, and include agency bills."
In Smith v. Dimes, 4 Exch. R. 32; 7 D. & L. 78 (June 6, 1849), Pollock, C. B., said :"All the authorities on the subject of the taxation of an agent's bill before and since the Stat. 6 & 7 Vict. c. 73, were brought to our attention. They are not uniform, even since that Statute; but we think, on considering those authorities and the language of the Statute, we have the power to refer such a bill for taxation; and, therefore, the rule must be absolute.
"This question depends entirely on the Statute Law; for, according to the more recent authorities, the Courts of Law have no jurisdiction to tax an agent's bill by their Common Law authority, even though an action had been brought upon it. This was decided in the cases of Weymouth v. Knipe, (3 Bing. N. C. 387; S. C. 5 Dowl. 495; 3 Scott, 764); and Cardule v. Bull, (4 Q. B. 611); though the Courts of Equity have held that they have the power; Jones v. Robert, (8 Sim. 397); and though, prior to the above decision, Courts of Law had commonly exercised it. It is also perfectly clear that the Courts of Law had not this jurisdiction according to the Statute Law as it stood at the time of the passing of the 6 & 7 Vict. c. 73. The 12 Geo. 2, c. 13, s. 6, having expressly taken all bills between attorney and attorney out of the operation of the 2 Geo. 2, c. 23, the Courts could not have the power to tax agency bills by virtue of the Stat. 2 Geo. 2. It was so held in the cases of Weymouth v. Knipe, and Cardale v. Bull, above cited.
"In the case of In re Gedye (2 D. & L. 915), in the year 1845, after the passing of the 6 & 7 Vict. c. 73, it was held by Coleridge, J., that the new Statute did not apply to agency bills; and that learned Judge thought, that as the Act expressly changed the then existing law so as to include the case of executors, and also every description of business, yet was silent as to any change with respect to agency bills, the inference was, that such a change was not intended to take place. That decision was acquiesced in by the counsel on both sides, and acted upon by the same learned Judge in the case of In re Simons (3 D. & L. 156), where an action was brought by one attorney against another for business done on his retainer. In
AUG. 18, 1855.]
Law of Attorneys and Solicitors.-Law of Costs.
another case, In re Simons, (2 D. & L. 500), | liable, as being, as between them, his client; where one attorney sued another for business for there is no privity with the party, plaintiff done as an advocate before an arbitrator, Mr. or defendant, employing the country attorney, Justice Patteson held, that the bill was not and he is certainly the only party to be charged taxable. On the other hand, in the case of by him. Billing v. Coppock (1 Exch. 14; S. C. 5 D. "But even if this be not so, and the 2 Geo. 2, & L. 126), this Court decided that the bill of c. 23, did not apply to attorneys' agents claima London attorney, for going to Cambridge, ing against attorneys, their principals, we are and defending a person on a criminal charge, not to conclude that the 6 & 7 Vict. c. 73, does upon the credit and responsibility of another not; for the former Statute is repealed, and London attorney, was taxable under 6 & 7 the latter Statute is much more extensive in its Vict. c. 73. Two of the learned Judges (Alder-operation than the former was. son, B., and Platt, B.), appear to have thought bill to be delivered, and gives a power of taxIt requires a that it was not an agency bill at all; and I ing a bill, not merely for 'fees, charges, or relied upon the case of Weymouth v. Knipe, disbursements' at law or in equity;-meaning and intimated my opinion that the 12 Geo. 2, fees, charges, and disbursements for business c. 13, alone prevented the power of taxation, done in Courts of Law and Equity;-but for by withdrawing agency bills from the operation fees, charges, or disbursements for any busiof the 2 Geo. 2, c. 23, and that it was the in-ness done by such attorney or solicitor.' This tention of the Legislature that the 6 & 7 Vict. does not mean for every description of busic. 73, should have the same effect as the 2 ness which a person, being an attorney or Geo. 2, c. 23, and include them. solicitor, does for another, but for such professional business as he is employed to do as an attorney or solicitor,-this is by reason of his character as an attorney or solicitor; and we do not see any ground for holding, that as an attorney in London is clearly employed by an attorney in the country solely because he is an attorney, he may not be bound to deliver his bill for such agency, and be liable to have it taxed.
"These authorities are not entirely satisfactory to our minds, and are not decisive of the present question. The case in this Court may have been decided, on the ground that the bill then in question was not an agency bill at all, but a claim of one attorney against another as a client; the case before Mr. Justice Patteson was not for business done in the character of an attorney; and with respect to those before Mr. Justice Coleridge, if it was the operation "Such a bill is for business done by an atof the 12 Geo. 2, c. 13, which alone deprived torney in respect of an employment in his prothe Court of jurisdiction in taxing an agent's fessional character as such. The objection that bill, which we are strongly inclined to think the officer of the Court would not know on was the case, the reason given by that learned what scale of allowance the bill ought to be Judge for the decision in the first case before taxed, as it depends on the agreement of the him is not satisfactory, because the repeal of parties, does not appear to us to be of any that Statute, and no re-enactment of a similar weight; for in the ordinary relation of attorprovision does sufficiently indicate the inten-ney and client, an attorney may bargain with tion of the Legislature to make a change in the his client for less than the established amount jurisdiction of taxing attorneys' bills, as it ex- of fees and disbursements, and the Master isted at the time the 6 & 7 Vict. c. 73, passed, must ascertain what that bargain was, and and it was unnecessary to say more. take it into his consideration, and when the bill is for conveyancing and business not done in Court, the Master, or taxing officer must ascertain the remuneration as well as he can, according to the contract of the parties, express or implied.
"In this state of the authorities, which are by no means conclusive either way, we are called upon to say what is the true construction of the 6 & 7 Vict. c. 73. If under the 2 Geo. 2, c. 23, before the 12 Geo. 2, c. 13, an agent's bill could be taxed, it cannot be doubted that it could be by virtue of the 6 & 7 Vict. c. 73, which, though it repeals the former Statute, gives more extensive powers of taxation to the Court than they had under it. There are no cases, that we are aware of, between the 2 Geo. 2, c. 23, and the 12 Geo. 2, c. 13, that decide that point; and, in the absence of authority to the contrary, we are strongly inclined to think that, under 2 Geo. 2, c. 23, an agent's bill could be taxed, as I held in the case of Billing v. Coppock (1 Exch. 14; S. C. 5 D. & L. 126), above cited.
"Even admitting that the Statute applies only to attorneys claiming osts against those who stand in the relation of clients to them, as
"And therefore we think, that whether the 2 Geo. 2, c. 23, did or did not apply to agency bills, the 6 & 7 Vict. c. 73, does; and therefore the rule for taxing the bill must be made absolute."
LAW OF COSTS.
PAYMENT OF, IN EJECTMENT BY NON-
In an action of ejectment to recover certain plots of building ground, it appeared that the solicitor of the London and County JointStock Banking Company, who were interested the Statute mentions only one party to be as equitable mortgagees of part of the precharged, it does not follow that the town at- mises, endeavoured after judgment signed to torney may not hold the country attorney make terms with the plaintiff. It appeared
from the solicitor's affidavit that the defendant In another case which was brought before was also his client, and that he was never the Master of the Rolls last year, his Honour authorised by the bank to defend the eject-effect, an appeal from the Queen's Bench, and considered that the petition to him was, in ment on their account, but that all they sought was to secure their own interests as such equitable mortgagees: Held, that the plaintiff could not call on the bank to pay the costs, the defendant having a substantial interest in the matter and appearing by his attorney. Anstey v. Edwards, 16 Com. B.
INCORPORATED LAW SOCIETY.
ANNUAL REPORT OF THE COUNCIL.
[Concluded from p. 290, ante.]
VI. MALPRACTICE CASES.
In the course of the past year the Council have investigated the complaints made against eleven attorneys, and they regret to state that their duty to the Profession and the Public compelled them to bring several of the offending parties before the Court.
In one of them a long and expensive inquiry took place, on a reference to the Master; and on his report, and a hearing before the Court, the party was suspended from practising for two years. The offence consisted of swearing to the payment of several witnesses in two causes to a larger amount than had been actually made.
In a second case of the same kind before the Court, last Trinity Term, although the attorney did not himself swear to the alleged payments, he adopted the affidavit of his clerk, and the Court suspended him from practising for twelve months.
On this subject it may be mentioned that the Council had under consideration a suggestion for altering the practice in this respect on affidavits of increase. The rules of practice require the actual payment of witnesses, and the proof of such payment, by affidavit, before allowance by the taxing officer; and the Council communicated with some of the Masters of the different Courts on the subject; but the Council, after mature deliberation, came to the conclusion that, although inconvenience may occasionally result from the existing practice, the proposed alterations would introduce still greater inconvenience, and would open the door to serious frauds.
Renewal of Certificates, after ceasing more than a year to practise, or not taking out a certificate more than a year from admission:-In one of these cases, the applicant, who was an insolvent debtor, had been remanded for a long period on the ground of fraudulent breaches of trust, was opposed by the Society, and his certificate refused. In several other instances, the parties having been entirely out of the Profession for several years, were subjected to the usual examination prior to the grant of the renewed certificate.
decided that he could not entertain the application, and that the new evidence in the case must be submitted to the Common Law Court. Queen's Bench in Easter Term of this year, The case was brought before the Court of founded on alleged new facts, and a rule was granted for the Incorporated Law Society, as Registrars of Attorneys, to show cause why the attorney's certificate should not be issued. The argument came on last Term, and occupied nearly two days. The Court took time to consider, but have not yet pronounced their judgment.
VII. USAGES AND PRACTICE OF THE PROFESSION.
The Council have had many cases submitted to their opinion on the usage of the Profession in conveyancing matters, where disputes had arisen between the respective solicitors; and their determination has been entered in the book of usages kept in the secretary's office.
The New Rules and Orders of Court, which have been made during the last twelve months, have been printed at the expense of the Society, and transmitted to the members: a list thereof will be found in the Appendix.
Proposed Half-holiday on Saturdays.—The Council have received a memorial from 234 solicitors practising in London, comprising most of the principal firms, suggesting that the transaction of legal business should close at two o'clock on Saturdays; and they addressed the Lord Chancellor and the Judges, stating that for some time past in Scotland, and in Manchester and Liverpool, the transaction of legal business had closed at two o'clock on Saturdays, and that some of the mercantile and trading communities of London also ceased from business on Saturdays at or about that time.
The Council concurred in the expediency of the proposed alteration, and suggested that, in case the proposition should be favourably entertained, that it would be necessary to promulgate an order for closing the Courts, and offices of the Court at the proposed hour, and to direct that the service of orders, summonses, notices, and other proceedings, after two o'clock on that day, be deemed as made on the following Monday. The Council also transmitted copies of the memorial to all the leading members of the Bar, and requested the favour of their promoting the object in such a manner as they might deem proper.
They have received an answer from the Lord Chief Justice of the Court of Queen's Bench, stating that the Judges think very serious inconvenience would arise to the suitors from acceding to the proposal, although the Judges highly approve of the kind intentions towards the clerks, and would be very willing to assist in as far as is consistent with the due admini stration of justice. His lordship adds, that he
AUG. 18, 1855.]
Incorporated Law Society-Annual Report of the Council.
believes the Judges would agree to the proposal for Saturdays, substituting five o'clock for two, if this would give satisfaction. The Lord Chancellor has also informed the Council that, having due regard to the interests of the public, he feared all he could do in the matter was to undertake himself to rise at three o'clock on Saturdays.
The Council have recently received a memorial from a very numerous body of the law clerks of London, urging further measures for accomplishing the object.
Encroachments on the Profession. The members of the Society have reason to complain of the encroachments of unqualified persons on the proper province of the regular legal practitioner. Persons calling themselves accountants, house agents, or law stationers, advertise themselves as competent to discharge many of the duties properly belonging to solicitors; such as preparing and passing accounts at the Legacy and Succession Duty Offices, the registry of bills of sale, searches for judgments, and acting in several matters connected with conveyancing transactions. The conduct of these persons is watched; and when sufficient evidence is obtained, the Council will take the proper steps to punish the offenders. In some instances they send abstracts of titles and draft agreements. The Council recommend solicitors not to recognise such persons; and in case they act contrary to the provisions of the Stamp Act, that the facts should be brought to the knowledge of the Council, who in such cases call upon the Solicitor of Inland Revenue to take proceedings against the parties.
VIII. GENERAL AFFAIRS OF THE SOCIETY. The additions to the Library in the past year have been nearly 400 volumes; and the whole collection comprises 12,000 volumes, or thereabouts, exclusive of the Parliamentary works now in progress for the present Session. Several donations to the library have been received during the year from authors, some of whom are members of the Society, and from several other gentlemen, whose names are re corded in the donation book; and from the Ecclesiastical Commissioners, the East India Company, the Library Committee of the City of London, and the Law Library of Manchester. The Council are glad especially to notice, the appropriate gift of Thomas Dunn, Esq., late of Threadneedle Street, who, on retiring from the Profession, presented the Society with the sum of 10 guineas, which has been applied to the purchase of Hertslet's Treaties and Conventions in eight volumes.
The Lectures have been well attended by the members, and an average of 180 students. The lecturers were Mr. Shee, Mr. Baggallay, and Mr. Charles Pollock.
The Members have considerably increased in number: before the reduction of the admission fee in June, 1853, they were 1,301; they are now 1,504, being an increase in two years of 203, after deducting the deaths and retirements.
The State of the Funds of the Society will appear by the Auditor's Account, which as usual has been laid for inspection in the Secretary's Office since the 15th April. It may here be briefly stated that, out of the surplus income of the Society, 1,000l. of the debt has been paid off, and the receipts for the year amount to 7,5481. 8s. 6d., and the payments to 7,862. 17s. 4d., leaving a balance at the bankers' of 2257. 8s. 8d. on the 31st of December last, since which a further sum of 5001. has been paid out of the surplus income, in further reduction of the loan. The sums invested for the Society amount to 79,7297. in freehold land and buildings, and 12,2027. in books, fixtures, and furniture, making together the sum of 91,9317.'
Vacancies in the Council.-The circular convening the present meeting will have informed the members of the vacancies in the Council by the retirement of Mr. Edward Lawford, and the decease of Mr. Thomas Clarke. The great services rendered to the Society by Mr. Clarke, are recorded in the Resolution of the Council, unanimously passed at the close of his year of office as President of the Society. It is as follows:-"That the Council have witnessed, with great respect, Mr. Clarke's judicious and diligent discharge, upon all occasions, of the arduous duties connected with his important office; but they desire especially to record their admiration of the professional knowledge, alike extensive and accurate, which he has brought to bear upon the various subjects that have successively engaged the attention of the Council. The firmness, tempered by courtesy, with which he has presided over their deliberations, and the judgment which has marked his official communications with the Bar and with members of the Legislature, and which has materiaily tended to elevate the character of the Society, and enhance its utility to the Profession and the Public. The Council feel that such qualities in their President, valuable as they must be at any season, have been peculiarly important at a time when great and momentous changes have continually been effected or proposed in the municipal institutions of the country, perplexing from their variety, formidable for their magnitude, and which have been urged forward with a despatch unexampled in any former period of our legal history.
(Signed) JNo. J. SUDLOW, President.
PROCEEDINGS AND RESOLUTIONS AT THE
ANNUAL GENERAL MEETING,
Holden at the Society's Hall, on Tuesday, the 26th June, 1855.
1. Read the circular convening the meeting,
The Society has purchased several houses in Chancery Lane and Bell Yard on the South side of the present buildings, on which it is intended to erect a new wing similar to that on the North side. Part of the loan was raised to complete this purchase.