Jur. N. S. 630, (1857) it was held a solicitor mortgagee 1901. was not entitled to costs against the mortgaged property. Argument. The positions of solicitor trustee and solicitor mortgagee are not identical: In re Wallis, 25 Q. B. D. 176; Stone v. Lickorish, [1891] 2 Ch. 363; Strachan v. Ruttan, 15 P. R. 109. Pince v. Beattie, 9 Jur. N. S. 1119, (1863) held that a trustee was entitled as against plaintiff to costs of actions to set aside a trust deed. Ontario v. Winnaker, 13 Gr. 443, (1867) doubted and distinguished Cradock v. Piper, citing Manson v. Baillie, 2 Macq. 82. Whitney v. Smith, L. R. 4 Ch. 513, (1869) showed only that the solicitor for a trust estate investing trust moneys on mortgage may retain costs recovered from mortgagors. Meighen v. Buell, 25 Gr. 604, (1877) disapproves Cradock v. Piper. In re Corsellis, 34 Ch. D. 675; In re Doody, [1893] 1 Ch. 129. There was no necessity for McDonald & Schiller to defend in order to protect the estate, as the Commercial Bank did so. Under the form of the trust agreement Nugent is entitled only to disbursements. That agreement was drawn by himself and provided for the payments to be made to himself and upon its construction only actual disbursements should be allowed in addition to amount secured to him. J. S. Ewart, K. C., and W. F. Hull for Nugent. The principle upon which in England it has been held that a solicitor cannot tax his costs is that a trustee cannot get remuneration of any kind. But our statute has declared that a trustee shall have remuneration and it does not make any exception in the case of solicitor work done by a solicitor trustee. It would be very absurd to say that a trustee is to be remunerated for his work unless the work is of the character which he usually performs and therefore which he can do best. This principle has been cut in upon even without the aid of our statute: Cradock v. Piper, 1 Mac. & G. 664; Bainbrigge v. Blair, 8 Beav. 588; Re Corsellis, 34 Ch. D. 675. Another principle is some 1901. times advanced as the ground for refusing a solicitor trusArgument. tce his costs, namely, that he must not put himself in a position in which his interest and his duty conflict. But this is clearly not a sufficiently wide principle. It would have no application in the case of an accountant trustee doing accountant work or a solicitor defending an action against the trustee: Lincoln v. Windsor, 9 Ha. 158; or a solicitor suing ordinary debtors of the estate. In fact it is not a principle at all for refusal of remuneration but a ground for examination in each case into the conduct of the trustee. Nugent had a lien for his costs of preserving the property: Leacock v. McLaren, 9 M. R. 599; Scholey v. Peck, [1893] 1 Ch. 709; Greer v. Young, 24 Ch. D. 549; Charlton v. Charlton, 52 L. J. Ch. 971. F. H. Phippen in reply. The statute 23 & 24 Vic., c. 127, ss. 28, 9, (Imp. 1860,) contemplates a lien can only be enforced where it is declared by the Court or Judge hearing the cause. This cause was in an Ontario Court. There is no such law in Ontario: Holmsted and Langton, should be satisfied first that the property has been pre1240. There must be an application to the Court, which served. This depends on the Ontario law, which is against Mr. Ewart's argument: Meighen v. Buell, 24 Gr. 508. Under the Trustee Act there must be an application for remuneration. KILLAM, C. J.-The rule is well established in England that a sole trustee who is a solicitor cannot charge against the trust estate profit costs for acting as solicitor for the estate. But for the enactment in section 40 of The Manitoba Trustee Act, R. S. M., c. 146, that rule would prevail here as a part of the law of England introduced by section 9 of The Queen's Bench Act, R. S. M., c. 36, or the enactments from which section 9 is derived. The section of the Trustee Act does not appear to me of itself to entitle a trustee solicitor to have such costs taxed to him as a solicitor. That section gives him a 1901. legal right to be remunerated for "his care, pains and Judgment. trouble and his time expended in and about the trust KILLAM,C.J. estate." But he is to be given such allowance as the Court, Judge or Master may think fair and proper. This does not entitle him as of right to be remunerated for acts done as a solicitor, counsel, accountant, broker, auctioneer, or estate or collecting agent at the same rates at which those exercising these various offices or employments would have a right to be remunerated. And the taxing officer could not, on the taxation out of which this appeal arises, make his allowances on any other principle than he would if he were taxing the bill of another solicitor einployed by the trustee. And it does not seem that the provision in the Trustee Act for remunerating trustees should be taken as impliedly repealing the equitable rule prevailing in England or as rendering it so inapplicable that it should not still prevail here. Some learned judges have spoken of the rule as derived from the principle that a trustee shall not be able to make a profit out of his trust. But Lord Cranworth, L. C., in Broughton v. Broughton, 5 D. M. & G. 160, pointed out that the rule was based upon a wider principle, which is one that our Legislature has not seen fit to abolish. It may be that, where a trustee who is a solicitor is found to have given the estate the benefit of his professional services, instead of employing another solicitor at the expense of the estate, this should be taken into account in fixing his remuneration. That is a point upon which I do not think that I should express an opinion just now. But I am clearly of the view that in other respects the English rule prevails here, and that he is not entitled to have profit costs taxed to him as a solicitor. This view is supported by the opinion of Spragge, C., in Meighen v. Buell, 24 Gr. 503. 1901. In Cradock v. Piper, 1 Mac. & G. 664, Lord CottenJudgment. ham, L. C., held that where, in certain actions relating KILLAM, C.J. to the administration of a trust estate, costs had been In a adjudged to the trustees, the full ordinary costs should I did not understand Mr. Ewart to argue that the decision in Cradock v. Piper was directly applicable to the present case, although he gave it as an instance of relaxation of the rule and as helping to show that the rule was not absolute and inflexible. It does not appear to me that the decision is directly applicable now. In Cradock v. Piper costs had been awarded to the trustees, and the question was what they together-not the solicitor personally-should be allowed. Lord Cottenham went upon the view that it was no part of the duty of the solicitor as trustee to act as solicitor for his co-trustees, and that he was entitled to be paid for doing so. It was natural, then, that he should allow to them his charges as part of the costs awarded to them. McDonald & Schiller were parties to Delap's suit. They still retained a beneficial interest in the charge assigned by them. They had a personal interest to defend. If it was in defence of their personal interest that the trustee acted as their solicitor, he can have, apart from the suggested statutory lien, no personal right to charge the trust estate for his services. And if the trustee defended in their names as well as his own on behalf of the trust estate as a whole, the costs were his own as trustee, and he could not employ himself for the purpose at the expense of the estate. I am of the opinion that, upon the general principles of equity, the trustee is not entitled to profit costs in this matter. 1901. Judgment. Neither the Imperial Act, 23 & 24 Vic., c. 127, nor the KILLAM,C.J. Ontario Rule 1129 founded upon it, gives a solicitor an absolute right to a lien for his costs upon property recoveied or preserved through litigation. There is only a discretionary power in the Court to charge the property: Greer v. Young, 24 Ch. D. 545; In re Humphrey, [1898] 1 Q. B. 520; Harrison v. Harrison, 13 P. D. 180; Nevills v. Ballard, 18 P. R. 134. The proceedings in respect of which these costs are claimed were carried on by the trustee as a solicitor of the Ontario Court in an action in that Court. This Court has no authority to give him such a lien. If the discretion of the Ontario Court were invoked, the position of the solicitor as trustee would probably have a material effect in the exercise of such a discretion. At any rate, without an order of that Court the trustee has no such lien. The appeal must be allowed, and it must be declared that the trustee has no right to profit costs as against any of the beneficiaries except the defendants McDonald and Schiller. But the order should be without prejudice to any question arising upon a claim of the trustee to such costs as against the excepted beneficiaries, or for remuneration as trustee under The Manitoba Trustee Act or any law of the Province of Ontario. The appellants must be allowed the costs of the appeal. |