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New Statutes effecting Alterations in the Law.
the Lord Chancellor, who may allow or disallow or alter the same; and the scale or amended scale so allowed or altered shall, from a day to be named by the Lord Chancellor, be in force in every county
34. With respect to such proceedings as are specified in the last preceding section, all costs and charges between party and party shall be taxed by the registrar of the court in which such costs and charges were incurred, but his taxation may be reviewed by the judge of the court, on the application of either party; and no costs or charges shall be allowed on such taxation which are not sanctioned by the scale then in force.
35. With respect to such proceedings as are last herein-before specified, all costs and charges between attorney and client shall, on the application either of the attorney or client, but not otherwise, be taxed by the registrar of the court in which such costs and charges were incurred, but his taxation may be reviewed by the judge of the court, on the application of either party; and no costs or charges shall be allowed on such taxation which are not sanctioned by the scale then in force, unless the registrar shall be satisfied that the client has agreed in writing to pay them, in which case they may be allowed; and no attorney shall have a right to recover from his client any costs or charges in respect of such proceedings, unless they shall have been allowed, either on such taxation, or on the taxation of a master of a superior court of common law or of the Court of Chancery.
36. Where in any action the debt or damage claimed shall not exceed twenty pounds, an attorney shall not be entitled to recover from his client any further costs or charges in the conduct of such suit than those mentioned in the ninety-first section of the Act of the ninth and tenth years of the reign of her present Majesty, chapter ninety-five, unless upon taxation of costs the registrar be satisfied, by writing under the hand of the client, that he has agreed to pay further costs or charges; and in such case the registrar may allow any costs or charges not exceeding the amount which may have been so agreed to be paid.
37. Until the scale of costs and charges, and the rules, orders, and forms mentioned herein, shall respectively be in force, the scale of costs and charges, and the rules, orders, and forms, respectively in operation in the county courts at the time of passing this act, so far as the same are not inconsistent with this act, shall continue in force
38. Any action commenced in a county court for a claim not exceeding five pounds may be removed by writ of certiorari into a superior court, if such superior court or a judge of a superior court shall deem it desirable that the cause shall be tried in such superior court; and if the party applying for such writ shall give security, to be approved by one of the masters of such superior court, for the amount of the claim, and the costs of the trial, not exceeding in all one huudred pounds, and shall further assent to such terms, if any, as the superior court or judge shall think fit to impose.
39. If in any action of contract the plaintiff shall claim a sum exceeding twenty pounds, or if in any action of tort the plaintiff shall claim a sum exceeding five pounds, and the defendant shall give notice that he objects to the action being tried in the. county court, and shall give security, to be approved of by the registrar, for the amount claimed, and the costs o trial in one of the superior courts of common
law, not exceeding in the whole the sum of one hundred and fifty pounds, all proceedings in the county court in any such action shall be stayed; but if in any such action the defendant do not object to the same being tried by the county court, or shall fail to give the security aforesaid, the county court shall dispose of the cause in the usual way; and the entry of the plaint in such action shall be a sufficient commencement of the suit to prevent the operation of any statute of limitation applicable to such claim: provided that nothing herein contained shall prevent the removal of any cause from a county court by writ of certiorari in the cases and subject to the conditions in and subject to which such cause may now be removed.
40. The granting by any of the superior courts or by any judge thereof of a rule or summons to show cause why a writ of certiorari or prohibition should not issue to a county court, shall, if the superior court or a judge thereof so direct, operate as a stay of proceedings in the cause to which the same shall relate until the determination of such rule or summons, or until such superior court or judge shall otherwise order; and the judge of the county court shall from time to time adjourn the hearing of such cause to such day as he shall think fit until such determination or until such order be made; but if a copy of such rule or summons shall not be served by the party who obtained it on the opposite party and on the registrar of the county court two clear days before the day fixed for the hearing of the cause, the judge of the county court may, in his discretion, order the party who obtained the rule or summons to pay all the costs of the day, or so much thereof as he shall think fit, unless the superior court or a judge thereof shall have made some order respecting
41. Where a writ of certiorari or of prohibition addressed to a judge of a county court shall have been granted by a superior court or a judge thereof, on an exparte application, and the party who obtained it shall not lodge it with the registrar, and give notice to the opposite party that it has issued, two clear days before the day fixed for hearing the cause to which it shall relate, the judge of the county court may, in his discretion, order the party who obtained the writ to pay all the costs of the day, or so much thereof as he shall think fit, unless the superior court or a judge thereof shall have made some order respecting such costs.
42. When an application shall be made to a superior court or a judge thereof for a writ of prohibition to be addressed to a judge of a county court, the matter shall be finally disposed of by the rule or order, and no declaration or further proceedings in prohibition shall be allowed.
43. No writ of mandamus shall henceforth issue to a judge or an officer of the county court for refusing to do any act relating to the duties of his office; but any party requiring such act to be done may apply to any superior court or a judge thereof, upon an affidavit of the facts, for a rule or summons calling upon such judge or officer of a county court, and also the party to be affected by such act, to show cause why such act should not be done; and if after the service of such rule or summons good cause shall not be shown, the superior court or judge thereof may by rule or order direct the act to be done, and the judge or officer of the county court, upon being served with such rule or order, shall obey the same on pain of attachment; and in any event the superior court or the judge thereof may
New Statutes, &c.-Proctors in Ecclesiastical Courts Bill.
make such order with respect to costs as to such court or judge shall seem fit.
44. When any superior court or a judge thereof shall have refused to grant a writ of certiorari or of prohibition to be addressed to a judge, or such rule or order as in the last preceeding section is specified, no other superior court or judge thereof shall grant such writ or rule or order; but nothing herein shall affect the right of appealing from the decision of the judge of the superior court to the court itself, or prevent a second application being made for such writ or rule or order to the same superior court or a judge thereof on grounds different from those on which the first application was founded.
45. Where judgment has been obtained in a county court for a sum not exceeding twenty pounds, exclusive of costs, the judge may order such sum and the costs to be paid at such time or times, and by such instalments, if any, as he shall think fit, and all such monies shall be paid into court; but in all other cases he shall order the full amount for which judgment has been obtained to be paid either forthwith, or within fourteen clear days from the date of the judgment, unless the plaintiff or his counsel, attorney, or agent, will consent that the same shall be paid by instalments, in which case the judge shall order the same to be paid at such time or times, and by such instalments, if any, as shall be consented to, and all such monies, whether payable in one sum or by instalments, shall be paid into court.
46. The precise time when any application shall be made to a registrar to issue a warrant against the goods of a party shall be entered by him in the execution book and on the warrant; and when more than one such warrant shall be delivered to the high bailiff to be executed he shall execute them in the order of the times so entered.
47. When a writ against the goods of a party has issued from a superior court, and a warrant against the goods of the same party has issued from a county court, the right to the goods seized shall be determined by the priority of the time of the delivery of the writ to the sheriff to be executed, or of the application to the registrar for the issue of the warrant to be executed; and the sheriff, on demand, shall, by writing signed by any clerk in the office of the under sheriff, inform the high bailiff of the precise time of such delivery of the writ, and the bailiff, on demand, shall show his warrant to any sheriff's officer, and such writing purporting to be so signed, and the endorsement on the warrant, shall respectively be sufficient justification to any high bailiff or sheriff acting thereon.
48. A judgment summons authorized by the ninety-eighth section of the act of the ninth and tenth years of the reign of her present majesty, chapter ninety-five, may, by leave of the judge, be obtained from the court in which judgment was obtained, although the judgment debtor shall not then dwell or carry on business within the district of such court, if the judge shall think fit, in the exercise of his discretion, to grant such leave.
49. If a judge of a superior court shall be satisfied that a party against whom judgment for an amount exceeding twenty pounds, exclusive of costs, has been obtained in a county court, has no goods or chattels which can be conveniently taken to satisfy such judgment, he may, if he shall think fit, and on such terms as to costs as he may direct, order a writ of certiorari to issue to remove the judgment of the county court into one of the superior courts, and when removed it shall have the same force and effect,
and the same proceedings may be had thereon, as in the case of a judgment of such superior court; but no action shall be brought upon such judgment.
50. When the term and interest of the tenant of any corporeal hereditament, where neither the value of the premises nor the rent payable in respect thereof shall have exceeded fifty pounds by the year, and upon which no fine or premium shall have been paid, shall have expired, or shall have been determined either by the landlord or the tenant by a legal notice to quit, and such tenant, or any person holding or claiming by, through, or under him, shall neglect or refuse to deliver up possession accordingly, the landlord may enter a plaint at his option, either against such tenant or against such person so neglecting or refusing, in the county court of the district in which the premises lie for the recovery of the same, and thereupon a summons shall issue to such tenant or such person so neglecting or refusing; and if the Defendant shall not, at the time named in the summons, show good cause to the contrary, then, on proof of his still neglecting or refusing to deliver up possession of the premises, and of the yearly value and rent of the premises, and of the holding, and of the expiration or other determination of the tenancy, with the time and manner thereof, and of the title of the plaintiff, if such title has accrued since the letting of the premises, and of the service of the summons if the defendant shall not appear thereto, the judge may order that possession of the premises mentioned in the plaint be given by the defendant to the plaintiff, either forthwith or on or before such day as the judge shall think fit to name; and if such order be not obeyed, the registrar, whether such order can be proved to have been served or not, shall at the instance of the plaintiff issue a warrant authorising and requiring the high bailiff of the court to give possession of such premises to the plaintiff. [To be continued.]
PROCTORS IN ECCLESIASTICAL COURTS BILL.
ALLOWANCE OF AGENCY FEES.
By the 53 Geo. 3, c. 127, s. 8, it is enacted" that if any proctor of the arches court of Canterbury, or any other ecclesiastical court or courts in which he shall be entitled to act as proctor, shall act as such, or permit or suffer his name to be in any manner used in any suit the prosecution or defence whereof shall appertain to the office of a proctor, or in obtaining probate of wills, letters of administration, or marriage licences, to or for or on account or for the profit and benefit of any person or persons not entitled to act as a proctor, or shall permit or suffer any such person or persons to demand or participate in such profit and benefit, and complaint thereof shall be made to the court or courts wherein such proctor hath been admitted and enrolled, and proof given to the satisfaction of the said court or courts that such proctor hath offended therein as aforesaid, then and in such case every such proctor so offending shall be struck off the Roll of Proctors, and be for ever after disabled from practising as a proctor, or be suspended from the office, function, and practice of a proctor in all and every the said court or courts for so long a period as the judge or judges of the said court or courts may deem fit; save and except as to any allowance or allowances, sum or sums of money, that are or shall be agreed to be made to the widows or children of any deceased proctor or proctors
Law of Attorneys and Solicitors.
by any surviving partner or partners of suchdeceased proctor or proctors; and also save and except as to any agreement made or understood to be made between proctors aud articled clerks whose articles have been executed prior to the passing of this act."
By a bill, introduced by Mr. Hadfield and Mr. R. J. Phillimore, shortly before the Prorogation of Parliament this 8th section is proposed to be repealed. The repeal would place the proctors and solicitors on the same footing as country attorneys, aud their London agents.
We understand the proctors are opposed to the proposition.
LAW OF ATTORNEYS AND SOLICITORS.
SETTING ASIDE SECURITY FROM CLIENT TO HIS SOLICITOR FOR ESTIMATED AMOUNT OF PAST COSTS IN SUIT.
THIS was a bill to set aside four several securities from the plaintiff to his solicitor. A demurrer was allowed with reference to three of those securities, and the only one now in question was an indenture of mortgage dated in March, 1848, to secure the sum of £2,542 7s. 11d., with interest.
The Vice-Chancellor Wood said—
"I cannot regret that this case has been fully argued, and that I have twice had the advantage of hearing everything which it was possible to urge in support of the plaintiff's claim. Some of the propositions laid down by Lord St. Leonards, as Lord Chancellor of Ireland, in Lawless v. Mansfield, 1 Dru. and W. 557, were so broadly stated, and appeared so much at variance with what I had supposed to be the settled rule of the court, ever since Lord Cottenham's decision in Waters v. Taylor, 2 Myl. and C. 526, decided some three or four years previously, while, at the same time, they proceeded from a judge of the highest eminence, who carefully considered the law he was laying down,-that I was anxious to have the principles of both decisions fully sifted and investigated. The result has been to confirm me in the conclusion that there is a broad difference between the principles of the decisions to which I have referred. Having come to that conclusion, it is not competent to me to say which of the learned judges I prefer to follow as an authority, since I am in fact bound by the authority of the one judge, and I am not bound by that of the other.
His Honour read the averments of the bill, and in so doing took special notice of the circumstance that, notwithstanding it appeared by the bill that long before the bill was filed, at a time when the plaintiff was opposed to the defendant in a suit of the most hostile nature, the plaintiff had caused all the accounts rendered to him by the defendant of his receipts and payments to be investigated, the bill did not aver a single specific instance of a fraudulent or improper charge in the bills of costs secured by the indenture of March, 1848, although it averred several of such instances in reference to the accounts for which the other securities were given.
The Vice-Chancellor thus continued"In reference to attempts of this nature to set
aside securities given by a client to his solicitor, Lord Cottenham has laid down, with great clearness and precision, the ground on which all such attempts must rest: The attempt,' he says, in reference to that in Waters v. Taylor, was not supported by that which alone could give it any title to success, viz., allegation and proof of such dealings between the solicitor and the client, or of such errors and improper charges as could amount to evidence of fraud.' The plaintiff must shew one of two things: either fraudulent dealing on the part of the solicitor in the concoction and obtaining of the security; or else error, amounting to evidence of fraud, in the charges which are made the foundation of the security. One or other of these two things the plaintiff must allege and prove.
"In the present case, the plaintiff has attempted to shew improper dealing employed by the defendant in obtaining the security; but of fraud or error in the charges which were made the foundation of the security, there is not throughout the bill, notwithstanding many general allegations on the subject, any attempt to aver one single specific instance.
"He has attempted, however, to shew improper dealings in obtaining the instrument. He says, 1st, the defendant was his solicitor, acting as such in suits which were still pending when the security was given; 2ndly, that the defendant obtained the security by actual pressure, which, it was argued, is a ground on which Lord Cottenham agreed with Sir John Leach, that a security would be re-opened; 3rdly, he says he had no other legal adviser when the security was obtained, no draft of it was sent for his approval, he saw nothing but the engrossment, and the remainder was for bills of costs which had never been submitted in any way for his consideration.
"As to the first point, it is admitted that when the security was given, the defendant was acting as the plaintiff's solicitor in suits then pending. But that circumstance, taken alone, is not a sufficient ground for re-opening the transaction.
"As to the second point, the pressure, if any there was, was all exerted on the part of the plaintiff. The plaintiff, who of his own accord, and so far as the evidence shows, without any instigation or encouragement on the part of the defendant, was embarked in more than one chancery suit, appears to have been unusually active, and to have derived unusual satisfaction from superintending the litigation he had in hand and for some time previously, and up to the date of the security in question, his principal object appears to have been to have Mr. Westmacott removed from the management of his chancery business, and the whole of that business transferred exclusively to the defendant. While pressing the defendant to effect this purpose, he was told by the latter that Westmacott could not part with the papers until he was paid his bill of costs; and that for this purpose it would be necessary to have a mortgage executed. The letter in which he is told this can bear no higher construction; yet that letter is the only fragment of evidence laid hold of as affording a ground for the charge of pressure exerted on the part of the defendant. The allegation in the bill, that the defendant prevented the plaintiff from obtaining a certain annuity until the plaintiff had secured him his bill of costs, is utterly without proof.
"It was argued, in reference to a considerable advantage given to the plaintiff under this security, that if such advantage is to be regarded by the court, a solicitor may easily escape the consequences of any
Law of Attorneys and Solicitors.
improper transaction by giving some interest to his client. But I am at least at liberty to take such advantage into consideration in reference to the question of undue pressure. Here, so far from exerting any pressure on the plaintiff, the defendant was in fact allowing him a most unusual indulgence. One of the principal grounds for the profits allowed in a solicitor's bill, which appear considerable when viewed in the abstract, is the large amount of money out of pocket expended in carrying on a heavy business for his client. The defendant, nevertheless, by this indenture, consents to forego his right to sue the plaintiff for his bill of costs so long as Colonel Blagrave lives, and during that time contents himself with simple interest.
"As to the third point, there would be a great deal to say in this case, if it appeared in evidence that the defendant, a solicitor, in taking from his client this security, was in fact taking a security for a sum including the alleged amount of untaxed bills, as to which no communication had passed between himself and his client, nor any arrangement been entered into as to the delivery of bills of costs, by which that amount would be shewn to be due. But that was not the case. It is clear from the evidence (the bill is silent upon the whole matter), that before the plaintiff executed the security in question, the defendant submitted to him the estimate of what was then due to Westmacott and to himself, in round sums amounting together to the sum of £2,542 7s. 11d. It is clear that this sum of £2542 7s. 11d. was agreed to by the plaintiff as an estimated charge, the defendant undertaking to furnish him in the long vacation with the bills of costs by which that charge would be made out— bills of costs for which the plaintiff's eagerness to transfer his business from Westmacott to Routh, and with that view to have the security executed at once, prevented him from waiting. It is clear, that it was upon this footing that the plaintiff executed the security; and that in October, 1848, the bills were delivered by the defendant pursuant to his undertaking.
"Such being the footing upon which the security was executed, if the bills so delivered by the defendant had amounted in the whole to a sum less than the estimated sum for which the security was given, then the plaintiff (assuming him to have put the whole case fairly and openly upon his bill, instead of waiting, as he has done, to take the chance of being able at the hearing to produce some evidence which the defendant might not be able to answer) might have had the same relief as in Coleman v. Mellersh, 2 M'N. and G. 309. In that case there had been an estimate made of the bills, and a security taken for the amount of the estimate and the amount of the bills fell short of the amount of the estimate by £60. And the Lord Chancellor said, that as the defendant had represented the bill at £60 more than the actual amount, the very foundation of the mortgage failed, and the whole transaction must be re-opened. But the present case is the very reverse of Coleman v. Mellersh. With the exception of £10, a sum too trifling to notice, the estimate of Mr. Westmacott's bill appears to have been correct; while the defendant's charges, estimated at £735 5s. 5d., are shewn by the bills to have in fact amounted to £854.
"I have now examined all the evidence by which the plaintiff has attempted to shew improper dealing employed by the defendant in obtaining the security, and I have found that such evidence entirely fails.
That disposes of the first ground, upon which, according to Lord Cottenham, attempts of this nature must be supported. And as to the second ground, I have already observed, that throughout the whole of the plaintiff's bill there does not appear to be an attempt to aver one single specific instance of fraud or error in the charges which were made the foundation of the security in question. It remains to consider what is the rule of law as to the right of a client to have a security set aside under such cir
"It is clear that where specific errors amounting to evidence of fraud in the charges which were made the foundation of the security are alleged and proved, the plaintiff is entitled to have the security set aside. But the proposition laid down by Lord St. Leonards in Lawless v. Mansfield goes a great deal further. He begins by stating the question. He says 'The question which has been most discussed in this case is, what should be the frame of a bill like the present cross bill, in which the transactions between a solicitor and his client are impeached as fraudulent, and accounts which were settled and for which securities had been given, are sought to be opened? To what extent charges, shewing specific errors in those accounts, ought to be inserted in order to open the accounts generally, and what is the liability of a solicitor to prove the items of his account irrespective of the bonds or bills or securities of that sort which he has taken ? I shall inquire what the rule of the court is before I enter upon the consideration of the items alleged to be erroneous.' (I should mention that in Lawless v. Mansfield there was one item in one of the accounts alleged and proved to be improper; but the argument was, that, as to the other accounts, there was nothing alleged and proved.) In ordinary cases the rule seems to be that the establishment of one mistake is sufficient to induce the court to give a decree entitling the party to surcharge and falsify an account. That appears to
have been admitted in Davis v. Spurling, which has been so much referred to throughout the argument. The report of that case is not very full; neither does it appear quite distinctly whether there were several accounts or but one. I therefore do not rely on the dicta there as going at all beyond the common rule, which, as I have already stated, is the right to a decree to surcharge and falsify where an error in an account is alleged and proved. Whether, in ordinary cases, where there are several distinct accounts, and errors are alleged and proved only in some of them, all are liable to be surcharged and falsified, does not appear to have been decided. Lord Eldon, in Chambers v. Goldwin, distinctly affirms the principle that in ordinary cases an error must be charged in the pleadings and proved at the hearing to entitle the party to have liberty to surcharge and falsify.' Then, after going through several cases upon that head, Lord St. Leonards says further-No doubt the rule of this court would, in an ordinary case of a settled account, preclude the party from the relief which is here sought; but this is not the ordinary case; it is plainly distinguishable from it, and that on the ground that the accounts here are between parties who stood in the relation of solicitor and client, of agent and principal, of creditor and debtor; for Mr. Lawless stood in the relation of those three characters to the Messrs. Mansfield at the time the accounts were settled. Now, I take it that these two propositions are perfectly clear in law: 1st, that where the relation of attorney and client subsists in questions of accounts between the parties, the com
Law of Attorneys and Solicitors.
a short space of time. But he was involved in litigation, in which nobody could expect the defendant to make a large advance, or pledge himself to make further advances, without any settlement or security whatever. And what the defendant in effect did was this having a client utterly insolvent, except as to this reversionary interest, he consented to postpone his claim for interest when about to make a large advance on his client's behalf.
"Such was the doctrine of Lord Cottenham in Waters v. Taylor-a doctrine extremely different from that laid down by Lord St. Leonards, who says, that the simple averment of erroneous accounts is enough in the case of a solicitor and client to open the whole, and that thereupon the solicitor must prove the amount of the debt.
mon rule does not prevail; though the party alleges | chancery suits, has disposed of them in comparatively generally that the accounts are erroneous, the court will make a decree opening the accounts, if sufficient cause is shewn; and 2nd, that a solicitor, to whom his client has given bonds or bills, cannot produce those securities and say, as a third person might, they prove the existence of his debt; but from the relationship in which the parties stood, and the alarm of this court, lest by means of such relationship any undue influence should have been exerted, the solicitor is bound, irrespective of his securities, to prove the debt for which those securities were given. This latter position has been disputed, but it is now perfectly settled.' Then he proceeds to say that he founds this opinion deliberately, having had occasion to consider all the authorities when he argued the case of Morgan v. Lewes, 1 Cl. and F. 159; 8 Bligh, 777, before the House of Lords, and adds-'That case, as to the pleadings, 'was a simple one; it was heard originally upon bill and answer; there was no proof of the errors specified in the bill, and the defendant did, in his answer, rely upon a settled account. The first decree was the ordinary one directing a general account. The case appears in several reports.' And he then goes through the opinions of all the judges, to shew that they established in his mind the law of the court to be that a general charge, like that in the case before him, was sufficient and that as between a solicitor and his client, his accounts, though he may have securities, must be vouched, and the items in the account proved by accounts and evidence independently of the instruments.
"I was surprised to find that proposition, because it seems so entirely in conflict with the principle laid down by Lord Cottenham in Waters v. Taylor. In Waters v. Taylor the security was a security for costs, amounting altogether to £5,000, given while the suit was going on-taken by the solicitor from the client (although it is true there was a considerable delay in the case in attempting to dispute them), yet Lord Cottenham lays down this proposition most clearly. He says-The case, indeed,' of Waters v. Taylor, differs from that of Horlock v. Smith, 2 Myl. and C. 495, in this--that the security was taken whilst the suits were depending.' (Mr. Rolt, in reply, called my attention to Horlock v. Smith, and distinguished that from the other cases, upon the ground that in that case there was no suit pending, and the securities were at an end. In Waters v. Taylor the security was taken as here whilst the suit was pending), and while the relation of solicitor and client continued. But so it was in Cooke v. Setree, 1 Ves. and B. 126; and in Plenderleath v. Fraser, 3 Ves. and B. 174, and Gretton v. Leyburne, T. and R. 407, the relation of attorney and client continued at the time of the settlement. No doubt, the settlement or payment of a solicitor's bills pending a suit, and whilst the relation continues, affords grounds upon which the accounts will be much more easily opened, and the bills referred for taxation, than in other cases; but if these circumstances alone were, in all cases, to be held sufficient ground for a taxation, no solicitor who continues to act for a client would be secure of any settlement during the life of his client; and the continuance of one of these suits which not unfrequently occur in this court, would prevent the possibility of any settlement between the solicitor and the client.' Fortunately, suits now do not often occur, and are not likely to occur, of such length as Lord Cottenham alludes to. The plaintiff, althongh he has been involved in five
"I have looked carefully to Lord St. Leonards' later view of Morgan v. Lewes in his Treatise on the Law of Property as administered by the House of Lords, page 576. The edition I have before me was published in 1849, two years later than the decision in Lawless v. Mansfield, and Lawless v. Mansfield is referred to in a note on the case of Morgan v. Lewes. Lord St. Leonards there says, In the case of Morgan v. Lewes, which it is impossible to refer to without regretting that the litigation had not been stopped at an earlier period, it was held that Morgan, having taken securities from Lewes, whose adviser, solicitor, and agent he was, for various sums of money, was bound to prove the advances by other evidence than the securities themselves or the accounts, and also that an attorney and agent is bound to keep regular accounts. The first rule (namely, of his being bound to prove the advances without any impeachment of them) was laid down generally, but in other passages it was qualified. Lord Redesdale said, that the settled accounts confuted themselves, so that they could not presume that any sums were advanced except such as appeared to have been so by receipts and evidence independent of the instruments; and Lord Eldon concluded by repeating that the record appeared to him to open and establish this principle, that where an attorney takes it upon him to take securities from his client which do not express the real nature of the transaction' (the italics are not mine, but Lord St. Leonards'), it is incumbent on him, by other evidence than the securities themselves, to prove what was the real nature of the transaction, and what sums were really advanced.'
"I conceive that the words marked with italics were meant to designate, not securities which do not express upon the face of them that they are given for bills of costs, but securities which falsely suggest that which was not the real nature of the transaction. The first proposition would go a great deal too far. The last does not apply to the present case. In this security I find a recital that the amount secured was due; and when the bills of costs are produced I find that they make up that amount, and £100 more; and that being so, I apprehend that the security does express the real nature of the transaction, so far as it is required to do so by any rule of this court. In Waters v. Taylor, the recital was simply that so much money was due, no mention being made of bills or costs. And then Lord Cottenham laid down what I apprehend to be the true rule of this court, viz., that, in the case of a solicitor, if, in seeking to set aside a security given him by his client, the plaintiff relies on pressure, undue influence, or other improper conduct employed by him in obtaining the