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William Tidd.

The practice of the Courts of King's Bench and Common Pleas in personal actions and ejectment : to which are added the law and practice of extents : and the rules of court and modern decisions in the Exchequer of Pleas (Volume 1) online

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Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas in personal actions and ejectment : to which are added the law and practice of extents : and the rules of court and modern decisions in the Exchequer of Pleas (Volume 1) → online text (page 44 of 90)
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This action lies for business done in other courts, as well as in the
court of which the plaintiff is an attorney^ But an attorney cannot
recover a charge for conducting a suit, in which the party charged
has not had the benefit of the attorney's judgment and superinten-
dance'*. It is also said, that an attorney ought not to prosecute an
action, to be paid in gross ; for that will be champerty'^ : And an un^
dertaking by a third person, to pay an attorney the further expenses
of business already commenced, must be in writing, by the statute of
frauds'".

By the statute S Jac. I. c. 7. § 1. " all attornies and solicitors
" shall give a true bill unto their masters or clients, or their assigns,
" of all charges concerning the suits which they have for them, sub-
" scribed with their hands and names, before such time as they, or
" any of them, shall charge their clients with any the same fees or
" charges." Upon this statute it was a good plea, to an action
brought by an attorney for his fees, that no bill had been delivered to
the defendant* ; or the statute might have been given in evidence, on
non assumpsit. But if an attorney had delivered his bill to the de-
fendant, after the arrest and before the bill filed, it was well enough? :
and this statute did not extend to attornies in inferior courts, but only
to those in the courts at Westminster^. It should also seem, that
an attorney's bill could not have been taxed, unless an action was
depending thereon', nor without bringing the amount of it into court**.
To remedy these manifold inconveniences, it was enacted by the
statute 2 Geo. II. c, 23. § 23. (made perpetual by the 30 Geo. II.
c. 19. § 75.) that " no attorney of his majesty's court of King's
" Bench, Common Pleas, or Exchequer, or duchy of Lancaster, or
" of any of his majesty's courts of Great Sessions in Wales, or any
" of the courts of the counties palatine of Chester, Lancaster, and
" Durham, or any other court of record in that part of Great Bri-
" tain called England, wherein attornies have been accustomably
" admitted and sworn ; nor any solicitor in any court of equity,
" either in his majesty's high court of Chancery, court of equity in

a Cro. Car. 159, 60. 48. Comb. 126. S. C.

b I Bing. 13. and see 3 Campb. 4J1. f 1 Show. 338. Bui. Ni. Pri. 145.

c Com. Dig, tit. AUorney, (B. 14.) Hob. 6 1 Lil. P. R. 145. but see 1 Str. 633.

1 17. and see 2 Atk. 293. 4 Bro. Chan. Cas. Cas. Pr. C. P. 27. S. C.

350. 18 Ves. 313. in Chan. 2 Marsh. 273. h Carth. 147. 1 Show. 96. 1 Salk. 86,

d 1 Stark. Ni. Pri. 270. S. C.

e3 Keb. 118. 514. T. Raym. 245. 3 M Salk. 332, but see 2 Chit. Rep. 155.

balk. 19, S. C. but see Carlh. 57. 1 Show, ^ 2 Vcz, 451, 2.



ATTORNEY .S WILL. 327

" the Exchequer chamber, court of the ilutcliy chamber of Lancaster
" at IVestminstet', or courts of the counties palatine of Chester^
" Lancaster, or Durham, or of the (jJreut Sessions in U'alcs, or in
*' any other inferior court of ecjuity, in that part of (jlrvat liritain
" called England, shall commence or maintain any action or suit, for
" the recovery of any fees, eharj^cs or (hshnrsenienls, at law or in
" equity, until the expiration of one month or more, after such attor-
" ney or solicitor respectively shall have delivereil unto the party or
" parties to he cliar^ed therewith, or left for him her or tluin, at his
" her or their dwellinq^ house or last place of abode, a bill of such*
" fees, charges and disbursements", written in a common legible hand,
" and in the English tongue, excej)! law terms and names of writs,
" and in words at length, except times and sums ; which bill shall be
" subscribed with the proper hand of such attorney or solicitor re-
" spectively,

" And, upon ai)j)licalion of the party or parties chargeable by such
*' bill, or of any other person in that behalf authorized, unto the
" Lord High Chancellor or Master of the Rolls, or unto any of the
*' courts aforesaid, or unto a judge or baron of any of the said courts
" respectively, in which the business contained in such bill, or the
" greatest part thereof in amount or value, shall have been trans-
" acted*" ; and upon the submission of the said party or parties, or
*' such other person authorized as aforesaid, to j)ay the whole sum
" that upon taxation of the said bill shall appear to be due to the
" said attorney or solicitor respectively ; it shall and may be lawful
" for the said Lord High Chancellor, JMaster of the Rolls, or anyof
•' the courts aforesaid, or for any judge or baron of any of the said
" courts respectively, and they are thereby required, to refer the said
" bill, and the said attorney's or solicitor's demand thereupon, al-
*' though no action or suit shall be then depending in sucli court,
" touching the same, to be taxed and settled by the projjcr oflicer of
'' such court, without any money being brought into the said court
" for that purpose : and if the said attorney or solicitor, or the party
" or parties charg(;able by such bill respectively, having due notice,
" shall refuse or neglect to attend such taxation, the said ollicer may
" proceed to tax the said bill ex parte : pending which reference and
" taxation, no action shall be commenced or prosecuted, touching the
" said demand.

" And, upon the taxation and settlement of sucli bill and demand,
" the said party or parties shall forthwith pay to the said attorney or

» Barnes, '243. Id. 123. 182. Barnes, 122.

•♦ I Siilk. 89. but sec 2 liariiard. K. U.



{32S OF TAXING AN

" solicitor respectively, or to any person by him authorized to receive
" the same, that shall be present at the said taxation, or otherwise
" unto such other person or persons, or in such manner, as the re-
*' spective courts aforesaid shall direct, the whole sum that shall be
<* found to be or remain due thereon ; which payment shall be a full
" discharge of tlie said bill and demand : and in default thereof,
" the said party or parties shall be liable to an attachment or pro-
" cess of contempt, or to such other proceedings, at the election of
" the said attorney or solicitor, as such party or parties was or were
" before liable unto.

" And if, upon the said taxation and settlement, it shall be found
*' that such attorney or solicitor shall happen to have been over-paid,
" then tlie said attorney or solicitor respectively shall forthwith refund,
" and pay unto the party or parties entitled thereunto, or to any per-
" son by him her or them authorized to receive the same, if present
" at the settling thereof, or otherwise unto such other person or per-
" sons, or in such manner, as the respective courts aforesaid shall
" direct, all such money as the said officer shall certify to have been
" so over-paid ; and in default thereof, the said attorney or solicitor
" respectively shall, in like manner, be liable to an attachment or pro-
" cess of contempt, or to such other proceedings, at the election of
" the said party or parties, as he would have been subject unto, if that
" act had not been made.

" And the said respective courts are thereby authorized to award
" the costs of such taxations to be paid by the parties, according to
*' the event of the taxation of the bill, that is to say, if the bill taxed
*' be less, by a sixth part, than the bill delivered, then the attorney
" or solicitor is to pay the costs of the taxation ; but if it shall not be
" less, the court, in their discretion, shall charge the attorney or
" client, in regard to the reasonableness or unreasonableness of such
" bill."

Independently of the above statutes, which apply only to par-
ticular cases, and to bills of a particular description, the court
it seems still retains, and has always exercised a right, as at common
law, to direct the taxation of other bills of costs^ And it having been
doubted, whether an attorney's bill could be delivered with ahbrevia^
tions^, it was enacted by the statute 12 Geo. II. c. 13. § 5. that " it
" shall and may be lawful to and for every attorney, clerk in court,
" and solicitor, to write his bill of fees, charges and disbursements,
!^' with such abbremations as are now commonly used in the English
" language ; any thing in any former law to the contrary uotwitUf

* 2 Chit. Hep. 1 j5. >• Pr. Rc^j. 37.



attorney's bill. 329

** s<an(Vn»ij/' On tins statute it has been liolden, that an attorney
may deliver a bill of costs, containing such abbreviations of English
uords, as are usual and intellii,Mble'. And, by § 6. " the said act of
" the second year of his j)rescnt majesty, for the better regulation of
" attornies and solicitors, or any clause matter or thing therein con-
" tained, shall not extend to any bill of fees, charges and disbursc-
" ments, due from any attorney or solicitor, to any other attorney or
*' solicitor, or clerk in court ; but every such attorney, solicitor, or
" clerk in court, may use such remedies, for the recovery of his fees,
" charges and disbursements, against such other attorney or solicitor,
^* as he might have done before the making of the said act."

If the whole bill be for conreyancing^, it cannot be taxed. But
if any part of an attorney's bill, which has been delivered, be for
business done in court, the bill must be delivered a month before the
action is brought, otherwise the j)laintiflr cannot recover". And a
tcarrant of attorney^, or dedimus poiestatem* , charged in an at-
torney's bill, is a sufficient item to enable the court to refer the bill for
taxation ; though, with this exception, it be entirely for conveyancing.
So, where one of the charges was for drawing and engrossing an
aflidavit of debt, in order to hold a party to bail, which appeared to
have been sworn, the court of King's Rcnch held this to be a charge
for business done in court, which made the bill taxable^ But a
charge for preparing an affidavit of the petitioning creditor's debt and
bond to the Chancellor, in order to obtain a commission of bankruj)tcy,
was holden not to be a taxable item within the statute, as being a
charge at law or in equity, the affidavit not having been sworn, nor a
commission issued^. It has been made a question, whether an at-
torney may recover for charges or disbursements not taxable, when
part of his demand is for business done in court ; and the distinction
that has been taken is, that he may, where he has delivered no bill at
all*"; but that where he has delivered a bill irregularly, he cannot'.
And accordingly, in a late case"", an attorney not having delivered any
bill to his client before action brought, but having afterwards dc-

• 4 Taunt. 193. '1 New Rep. C. P. 266, 4 Campb. 69.

•» -M. 12 Geo, II. Anon. K. B. Barnes, n.

41, 2. C. P. and sec Bui. M. Pri. 145. ^ 6 Durnf. & East, 645.

<= 6 Durnf. & East, 645. and see Pcake's 8 3 Barn. & Aid. 436.

Cas, Ni. Pri. 102. 3 Esp. Rep. 149. 2 Bos. *> Peake's Cas. Ni. Pri. 102. 2 Bos. &

& Pill. 343. 1 Campb. 437. 3 Bro. Chan. Pui. 345. 11 East, 285. but see 3 Esp.Rcp.

Cas. 233. 149. 1 Campb. 437.

<> 4 Campb. 68. 2 Stark. M. Pri. 538. ac- ' 6 Durnf. & East, 645, 2 Bus. & Pui.

cord, but see 3 Barn, k, Aid. 488, 9. where 343. 1 Campb. 439. n.

the propriety of this decisiou was ipies- ^ 11 East, 285.
tiuna:



3:^0 Ol' TAXING AN

livereil a bill of particulars under a judge's order, was held to be
entitled to recover charges for money paid for his client's use, having
no reference to his business of an attorney, although other items in
the bill of particulars were taxable. Where an attorney had paid
money, in consequence of his undertaking to pay the debt and costs,
this was holdcn not to be a disbursement by him as an attorney,
within the meaning of the slatute^

An attorney having delivered two separate bills, one of which was
for fees and disbursements in causes, and the other for making con-
veyances, a rule was made, in the King's Bench, for taxing both''.
And so, where it was moved that the master might be directed to
tax those articles in an attorney's bill, which related to conveyancing
and parliamentary business, the rest being for management of causes
in the court of King's Bench, Lord Mansfield said, " there was no
doubt but the master might tax the whole ; that he recollected a case,
where the fees paid to a proctor, for business done in the ecclesiasti-
cal court, made part of the bill ; and it was determined, that as the
whole bill had been referred to the master, he might tax that part of
if^." So, where an attorney had delivered three several bills, one for
business done as an attorney, another as agent, and a third for fees
due to him as steward of a manor, for admittances and holding courts,
the court held, that the taxable items in the bill, for business done as
an attorney, would draw after them the fees due to him as steward of
the manor, so as to subject all the bills to taxation*^. The court of
King's Bench will refer an attorney's bill to be taxed, though all the
business was done at the Quarter Sessions* ; and in such case, an ac-
tion cannot be maintained for the amount of the bill, unless it be
signed, and delivered a month before the bringing of the action^. And
a bill was referred to be taxed, for business done in a criminal suit,
in the court of Great Sessions at Carmarthen : and though it was
objected that it would be impossible for the master to tax the costs in
Wales, not knowing the practice there, yet the court held that he
could as well tax these costs, as costs in the spiritual court ; and if
he were at a loss, he might call in assistance^. In the Exchequer, a
crown solicitor's bill of costs, for business done under an extent, is
taxable*". But the court cannot order a solicitor's bill of costs, for

a 6 Taunt. 196. 1 Marsh. 339. S, C. ' 5 Durnf. & East, 694. 1 Esp. Rep. 137.

^ Say. Rep. 233. Say. Costs, 320. S. C. S. C.

«= Doug. 199. in 7iotis. S Lleyd v. Maund, T. 25 Geo. III. K. B.

d 5 Barn. & Aid. 898. 1 Dowl. & Ryl. but see 2 Meriv. 500. i« Chan.
511. S.C. ^^Rex V. Partridge, T. 56 Geo. III. in

e 4 Durnf. & East, 496. but see id. 124. Scac. 3 Price, 280. West on Extents, 230.

Barnes, Vl2,contra> S.C.



attorney's II ill. 331

!)usiiicss wholly done in the House of Lords, in the prosecution of an
aj>|)(ul, to be referred for taxation ; because their officer has no means,
whereby he may be enabled to tax such a bill" : and great difficulty
is said to have frequently occurred, in the House of Lords, in not
knowinjj^ how directly to tax a solicitor's bill. This however has been
done, under the recognizance ; and the House has called in the assist-
ance of a master, to determine what the amount ought to be : but
that has been considered only as putting the recognizance in force, not
as a taxation independent of it, by virtue of any inherent authority
possessed by the House''.

In Chancery, an order for taxing a bill of costs, entitled in the cause,
if obtained by a party to the cause, is regular, under the general juris-
diction ; but a person not a party to the cause must apply ej: parte,
under the statute 2 Geo. H. c. 23. § 23*^. Whether a party, having
obtained such an order in a cause, may pursue it under the statute, is
tjuestionable ; but if the order be acted upon, ihe irregularity is
waived' . An order has been made in bankruptcy, for taxing a solici-
tor's bill, for striking the docket, and previous business relating to the
bankruptcy"' j and also, for business done in bankruptcy and other-
wise'. But it has been decided, that a solicitor's bill of fees, for
business done for a royal foundation, the office of visitor being exer-
cised by the Lord Chancellor, is not within the statute 2 Geo. IL
c. 23. § 23.; it not being for proceedings in law or equity, and it is
not in the court of Chancery that the king's visitatorial power is to bo
exercised, but by the Lord Chancellor^ It has also been decided,
that the jurisdiction of the court of Chancery does not extend to tax-
ing a solicitor's bill of costs, for obtaining an act of parliament^.

By the statute 5 Geo. II. c. 30. § 25. " the creditor or creditors
" who shall petition for and obtain any commission of bankrupty
" shall be, and is and arc thereby obliged, at his her or their own
** costs and expenses, to sue forth and prosecute the same, until an
" assignee or assignees shall be chosen of such bankrupt's estate and
" effects ; and the commissioners to be named in any such commis-
" sion, shall, at tlie same meeting which shall be appointed for the
" choice of assignees, ascertain such costs, and by writing under their
" hands, shall direct and order the assignee or assignees of such
" bankru])t's estate, who is and are thereby required, to pay and
*' reimburse such petitioning creditor or creditors, such his her or
*' their costs and charges as aforesaid, out of the first monies or

» 4 Price, 279. « 13 Ves. 124.

*> 3Ves. & Beam. 21. ' 9 Ves. 547.

« 11 Ves. 328. e 3 Ves. & Beam. 21.

•J j Vts. 706.



532 ^^ TAXING AN

*' cHt'Cts of the said bankrupt, that shall be got in and received under
" the said commission." On this statute it has been holden, that
the petitioning creditor is liable to the solicitor, for the expense of
conducting the commission, up to the choice of assignees'. But, as
between the solicitor and messenger, there is no implied contract on
the part of the former, to pay him his expenses'* : The solicitor is an
a"-ent merely, and is not to be regarded as a principal, as respects
the messcn"-er ; and although he make himself responsible to the
messen""cr, the petitioning creditor will not therefore be exonerated,
without the express consent of the messenger to discharge him*=.
And to the end that commissions of bankrupt may be carried on and
])rosecuted with as little expense as reasonably may be, it is enacted,
by ^ 46. of the same statute, that " all bills of fees or disbursements,
" claimed or demanded by any solicitor, clerk or attorney, employed
" under any commission of bankrupt, shall be settled, adjusted and
<' certified, by one of the masters of the court of Chancery ; and so
" much as the master shall certify to be due to such clerk, solicitor
*' or attorney, and no more, shall be paid by the assignee under
" such commission." On this latter clause it has been determined,
that the bill of costs of a solicitor, under a commission of bankruptcy,
is taxable, though approved by the commissioners, and stated and
allowed in the accounts of the assignees'*. And an attorney's bill,
for obtaining a bankrupt's certificate, must be signed and delivered a
month before he can sue thereon^. But an action may be maintained
by a solicitor against an assignee, for business done under a commission
of bankrupt, one month after he has delivered a copy of his bill, al-
though it has not been taxed by a master in Chancery*".

The statute 2 Geo. II. c. 23. § 23. does not, we have seen^, extend
to any bill of fees, &c. due from any attorney or solicitor, to any
other attorney or solicitor, or clerk in court ; but every such attorney,
solicitor or clerk in court, may use such remedies, for the recovery of
his fees, &c. against such other attorney or solicitor, as he might
have done before the making of the said act. And there is a case in
Wilson's Reports'", where a judge of the King's Bench, having made
an order to refer an cigenVs bill to be taxed, and the master not hav-
ing obeyed it, the court was applied to, and held that the order was

» 1 Rose, 449. and see Holt Ni. Pri. 245. • 2 Taunt. 321. 1 Rose, 1 19. S. C.

376. 5 Moore, 290. 2 Brod. & Bing. 457. f 1 Stark. Ni. Pri. 278. and see 2 Campb.

S,C. 278. 2 Stark. Ni. Pri. 59. 3 Barn. & Aid.

b Holt Ni. Pri. 247. in notis, 486. Ante, 329.

e Id. 376. And for the messenger's remedy e Ante, 329. and see Dick. 1 12. 1 Cox, 49.

against the assignees, see id. 247. innoiii. in Chan.

"1 3 Madd. Rep. 49. •• 1 WiJs. 266.



ATTORNEY S BILL. {>33

irregular ; the master declaring, that he h;ul never taxed a bill for
agency. It is now the uniform pr .c'icc however, of all the courts'*,
to refer an agent's hill to he taxed, on the aj)])lication of his en)jtloyer,
and upon his bringing into court the sum claimed by the plaintiil*. i$ut
the bill of an agent to the attorney employed by the party, in respect
of whose business the agency charges have been incurred, cannot be
taxed, on the apjdicalion of the client''. It is not necessary that an
agent's bill should be signed or delivered, before the commencement
of an action-. And where business has been done by an attorney for
a client who afterwards becon)es himself an attorney, the former need
not deliver a bill signed, in order to recover his costs'^.

It is not necessary for the executor or administrator of an at-
torney to deliver a bill of costs, for business done by his testator or
intestate, before the commencement of an action'' ; the statute 2 Geo.
II. c. 23. § 23. being confined to actions brought by the attorney
himself, and not extending to his personal representatives : But such
a bill may be referred to be taxed, on the defendant's undertakin - to
pay what is due^. An attorney delivered his bill, and after his death
application was made to tax it, and above a sixth part was taken olF;
it was moved that the executrix might pay the costs ; but the court
of King's Bench held that she should not: for the words of the act
2 tieo. II. c. 23, § 23. impose them upon the attorney or solicitor
only, and the executrix is not to blame, if she stand upon his bill or
make out one from his books'-'.

Before an attorney's bill has been settled and paid, it may be taxed
as a matter of course, at any distance of time''. And, where an action
is brought on an attorney's bill, the court will order it to be taxed at
any time before trial, though after plea pleaded, and issue joined'.
But after it has been settled and paid, and the payment has been Ion"-
acquiesced under, the courts will not refer it to be taxed a*- a mutter
of course, nor, as it seems, uidess a gross error or im])osition be
pointed out^ So, where a bond had been given for the debt five years
before, and the vouchers had been delivered up, the court of Common
Pleas would not refer the bill to be taxed j saying, an attorney at this

• Doug. 199, 200. and the cases there *" 1 Salk. 89. 2 Str. 1056. Say. Costs,

cited, in notis. Groome v. Symojuh, E. 35 324, 5. 4 Taunt. 724. but see Cas. Pr. C. P.

Geo. III. K. B. and see Dick. 285. in Chan. 58. Barnes, 119. 122. conlra.

^ 8 Price, 677. 8 2 Str. 1056. Say. Costs, 327.

« Doug. 199. in noiis. Peake's Cas. A'j. »• Per Cur. T. 34 Geo. III. K. B.

Pri. 1, 2. 1 Esp. Rep. 221. ' Per Cur. T. 21 Geo. III. K. B.

"* 2 H.BIac. 589. 1 Esp. Rep. 420. ^ Say. Costs, 323. Doug. 199. and see

« 1 Barnard. K. IJ. 433. Andr. 276. Cas. 14 Ves. 262. 1 Ves. & Beam. 126. 3 Ves. &

Pr. C. P. 53. Beam. 174, 5. in Chan.



334 OF TAXING AN

rate could never be safe^. And it is a general rule, that an attorney's
bill cannot be taxed, at the trial of an action brought upon it*" ; nor
after judgment by default, and a writ of inquiry executed'^ : for if the
business was really done, (which noust be proved at the trial,) the delay
of the defendant for more than a month, in objecting to the quantum^
is an admission that he thinks it to be reasonable. But though an at-
torney's bill has been settled and paid, yet the courts, under special
circumstances, will refer it to be taxed ; for the client may by affidavit
shew that the business charged was never performed, or that the
charges are fraudulent : And where that is the case, neither payment,
nor a release, nor a judgment for the money due, will preclude the
court from having the bill taxed*^. But overcharges alone, without
circumstances shewing fraud, do not seem to be sufficient*. In a
modern case however, an attorney's bill was referred to the master
for taxation, after an action had been brought upon it, and a verdict
recovered, on a suggestion that some of the items in the bill would
not have been allowed by the master, had it been originally referred
to him for taxation ; but upon the terms of the defenilant paying the
costs of the application, and of the taxation, with the costs of the
cause as between attorney and client, the plaintiff being at liberty to
take out the money forthwith, which had been paid into courts An
attorney's bill may also be taxed, though there was a special agree-
ment, between the attorney and his client, that the former should be
paid for his time, at a certain rate by the day, besides his expenses^ ;



Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas in personal actions and ejectment : to which are added the law and practice of extents : and the rules of court and modern decisions in the Exchequer of Pleas (Volume 1) → online text (page 44 of 90)