Exchequer.
O'NEILL

v.

ALLEN.

the patent to Rowley, or that of 18 Car. 2, to Lord Antrim, were H. T. 1859. called for by the defendant with an intimation that he intended to give them in evidence. If the Court could see that these documents would probably influence the minds of the jury, it might perhaps be right, on proper terms, to give the defendant an opportunity of relying upon them. I do not see, however, any such probability. As to the grant of the patent to Rowley, after the lease made by Lord Antrim, it would be explicable on the supposition that Rowley was a trustee for Lord Antrim-a presumption which should be left to the jury, and upon which one can scarcely doubt they would act, by finding that he was.

HOBART v. BUTLER.*

THIS was an action for money had and received, and brought by a barrister, to recover a sum of £25. 4s. Od., alleged to be due to

him for fees in a Chancery cause of Butler v. Bourke. No question arose upon the pleadings; for, by an order of the 30th of June 1857, made upon a motion to change the venue, it was directed that the only issue to be tried should be, "Whether the defendant received any money for the use of the plaintiff?" The facts are fully stated in the LORD CHIEF BARON'S judgment.

Sir Colman O'Loghlen having, in Michaelmas Term, obtained a conditional order, in pursuance of leave reserved, to set aside the verdict, and enter a verdict for the plaintiff, or for a new trial, on the ground that the findings of the jury were against the weight of evidence

W. W. Brereton (with him C. R. Barry) showed cause.
An action for money had and received does not lie to recover the

fees then due.

The subsesequent receipt out of Court by the client, of taxed costs, which include those fees, will

not, without more, make him liable to the barrister for money had and received.

Before PIGOT, C. B.,and GREENE, B.

H. T. 1859. fees claimed in this case. It is well settled that a barrister cannot

Exchequer.

HOBART

V.

maintain an action for fees: Morris v. Hunt (a). It is not necessary for us to contend that he may not recover them if there be a BUTLER. special contract to pay them, Veitch v. Russell (b), as none such exists in this case. The only question is, was the money received out of Court by the defendant impressed with such a claim in favour of the plaintiff, by virtue of the undertaking given by Dwyer, as that money had and received will lie against the defendant? It has been found by the jury that the defendant had no notice, when she received the money, of any such undertaking having been given, and Dwyer had no authority to bind her. In the first place, the undertaking given was an undertaking for himself, and not for the defendant, "that he (Dwyer) would see him paid." Supposing it were an undertaking for the defendant, Dwyer, who was only the town agent of the attorney, had no authority to bind the client, for no privity existed between them: Cobb v. Becke (c); Robbins v. Fennell (d). Even if Carey, the attorney, had given it, it would not have bound the defendant, for it was not an undertaking within the scope of his duty, but in breach of it. His duty was to have paid the fees in advance. They would not have been taxed, except on the supposition that they had been paid. The transaction is plainly one for the accommodation of the attorney, and credit was given to him alone. The rule which prohibits a barrister from recovering his fees by action is one for the advantage of the Bar and suitors, and ought not to be relaxed.

Sir Colman O'Loghlen and D. C. O'Riordan, for the plaintiff,

contra.

We admit Counsel cannot, in an ordinary case, maintain an action for their fees; but here privity of contract exists between the plaintiff and defendant. Those fees could not have been recovered from the opposite party, without the plaintiff's receipt on the briefs. Immediately after the allocation order was made, the plaintiff wrote to Hitchcock, apprising him of his claim against the defendant. That

Exchequer.

HOBART

v.

BUTLER.

was notice to her, and she received the money out of Court with H. T. 1859. notice of this claim. If an attorney receive money by reason of Counsel's receipt, it may be recovered: Walsh v. Fitton (a) ; Meagher v. Hayes (b); Re Hall (c). The action for money had and received is an equitable action, and lies for money which, ex æquo et bono, the defendant ought not to retain: Moses v. Macferlan (d); Smith v. Jones (e). It is inequitable in the defendant to retain those fees, which are justly due, and would not have been recovered but for the plaintiff's receipt: Buller v. Harrison (f). Dwyer had the same authority to bind the defendant as the country attorney. Suits could not be safely conducted if the law were otherwise; and the undertaking, as explained by the plaintiff in his evidence, was given expressly on behalf of the defendant. Cobb v. Becke (g), and Robbins v. Fennell (h), only decided that two persons could not be liable for money had and received, at the same time, and do not affect this case.

C. R. Barry, in reply.

Money had and received will not lie, unless the money received be impressed with a claim in favour of the plaintiff by the source from which it was derived. If A receive money from B, that can never be made the subject of an action for money had and received by C, unless there be some assent by A to hold it for his use. Here there was no assent by Mr. Butler the defendant to hold it for the plaintiff's use. This is a mere device to evade the wholesome rule that a barrister cannot sue for his fees.

Even if the defendant were agent, I would contend that Such a contract would have

bound by the undertaking of the town
money had and received would not lie.
been illegal and void. It was a a breach of the solicitor's duty, for
he had no right to make his client liable to a third person. The
fund ought to go to the client, unburdened with any lien but that of

H. T. 1859. the attorney, unless the client assent to hold any part of it for the Exchequer.

HOBART
V.

use of a third party.

Cur. ad. vult.

BUTLER.

PIGOT, C. B.

This was an action for money had and received. The defendant, in her defence, denied that any money was received by her to the plaintiff's use. She also put in a special defence, which was superseded by a consent order of the 30th of June 1857, directing that the only issue to be tried should be, "Whether the defendant received any money for the use of the plaintiff?"

At the trial it appeared that the plaintiff was a barrister; and that he acted as Counsel for the defendant in a petition matter, which was instituted on her behalf to recover a charge affecting lands, in which there was a decree for a sale, and for payment of the plaintiff's demand. There was a receiver, and a fund in Court; and there was ultimately an allocation order, in pursuance of which, under an order obtained at the Rolls Court, about the 21st or 22nd of April 1857, a sum of money was received out of Court by the defendant, which was admitted to have been more than sufficient to pay her taxed costs in the matter. The defendant's solicitor was a Mr. Richard Carey, who resided in the country, and who died before the trial. His clerk or Dublin agent was a Mr. John Dwyer. In February 1857, the costs between party and party were under taxation. The plaintiff had not then been paid certain fees for professional services rendered by him, as Counsel, in the course of the proceedings. In that month (February) Mr. Dwyer brought the plaintiff several briefs; and at Dwyer's request, and upon a certain verbal understanding which Dwyer then gave, the plaintiff initialed on the briefs, in the usual way, his receipt for the fees, which were not paid. At the time of the obtaining of the order of the 30th of June 1857 (which was an order in this action, made on terms, at the defendant's instance, to change the venue to the county of Limerick, where the action was tried), Dwyer was in ill health; and he died before the trial. By that order the defendant

Exchequer.

undertook to admit at the trial "that the plaintiff receipted the said H. T. 1859. "fees, at the instance of John Dwyer, a clerk of Richard Carey, "then solicitor of said defendant, on the express promise of said

66

Dwyer that, as soon as defendant should receive the money out "of Court, he, the said Dwyer, would see the plaintiff paid his fees." This order was given in evidence by the plaintiff. The plaintiff, who was examined at the trial, stated (in his evidence) as follows, the undertaking of Dwyer:-" Mr. Dwyer told me that Mrs. Butler

66

was coming to town herself, and that if I initialed them (the

documents) he would undertake that she should pay me when she "would draw out of Court the amount of her demand and of the "taxed costs. I then initialed the fees." The costs were ultimately taxed, the fees being included; and, as I have stated, the defendant received the amount out of Court. A day or two before the obtaining the Rolls order for payment of the money, the defendant obtained the usual order, changing her solicitor in the matter; and a Mr. Hitchcock was appointed her solicitor in the room of Mr. Carey. Immediately after Mr. Hitchcock's appointment, the plaintiff stated to him what had passed between the plaintiff and Mr. Dwyer, and that his fees were not paid. The plaintiff also addressed a letter to Mr. Hitchcock, in which, after mentioning the amount of the fees, he stated:-"This Mrs. Butler will receive, and you will 'oblige me if you direct her to pay me. Mr. Carey will, of course, 'discharge and settle any others that are charged, and which were "not allowed between party and party. If I am not paid by Mrs. "Butler, I shall proceed against her for recovery of what is justly "and honestly due to me. I was induced to receipt the fees, on "Mr. Dwyer's assurance that as soon as Mrs. Butler got the money "I should be paid."

The plaintiff, on his cross-examination, stated that "he never "knew Mrs. Butler, or spoke to her; that he was not employed "by her personally, but was employed in the usual way by Mr. Carey; that, except Dwyer's undertaking, he never got any promise, direct or indirect, from the defendant, to pay said fees." The defendant and her son were examined at the trial. They gave evidence of payments made to Mr. Carey, the defendant, VOL. 9.

66

21 L

HOBART v.

BUTLER.