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some very gross overcharge, or of business being charged for, which was not in fact done, or for other fraud or imposition, or mistake, or on the ground of some other specific charge, distinctly pointed out. Wilkinson v. Foster, 7 Moore, 496. Per Bayley, B., in Grover v. Heath, 2 Doul. 285. Ex p. Shipden, 6 D. & R. 399. Pistor v. Dunbar, 1 Anst. 186. Manning v. Brown, 3 Dowl. 31. And where two persons, having a claim to some property, agreed with an attorney to sue for it at his own risk and expense, and he was to have one-third of any sum he should recover, instead of costs; and he accordingly sued, recovered a sum of money, paid it over to the parties, and received one-third according to the agreement: the parties eleven years afterwards, applied to have that sum refunded, or that the attorney should deliver a bill of his charges for the business done, and refund the balance after taxation: but Littledale, J. held that the application could not be, entertained; however the court might deal with such a case, if the application had been made shortly after the transaction, yet after such a lapse of time, it was too late to impeach it. Ex p. Yeatman, 4 Dowl. 304, 1 Hår. & W. 510. So, after verdict, or writ of inquiry executed, in an action upon an attorney's bill, or after the expiration of twelve months from the delivery of the bill, it is not to be referred for taxation, except under special circumstances. 6 & 7 Vict. c. 73, s. 37, ante, p. 84, n. (1). In ordinary cases the application is made to a judge at chambers, upon summons; the court will not entertain it. Basset v. Giblet, 2 Dowl. 650. And the application must be made "in the matter of such attorney or solicitor." 6 & 7 Vict. c. 73, s. 43, post p. 89, n. (p). By R. G. H. 2 W. 4, s. 91, "an order to deliver or tax an attorney's bill, may be made at the return of one summons, the same having been served two days before it is returnable." The client should take care, when necessary, that the order contain the usual clause that the attorney shall refund what shall appear to have been overpaid to him; for the court will not afterwards supply that omission, or order the attorney, in a summary way, to refund the sum overpaid. Peace v. Jones, 8 Dowl. 314. So, if the attorney insist upon interest on any of the items of his bill, he must have it made part of the terms of the order; otherwise the master will not be warranted in allowing it in taxation. Berrington v. Phillips, 1 Mees. & W. 48, 404. See 3 & 4 W. 4, c. 42, s. 28.

We have hitherto been considering an application to tax before action brought. But after action brought on an attorney's bill, a judge at chambers may order it to be taxed; see Watson v. Postan, 2 Tyr. 406, 1 Dowl. 556. Williams v. Griffith, 6 Mees. & W. 32; and this may be done at the instance of one of two defendants, as well as of both. Id. But

in such a case, the usual practice is, to order final judgment to be signed at a particular time for the amount of the allocatur. See 6 & 7 Vict. c. 73, s. 43, post, p. 89. So, where an attorney seeks to set off the amount of a bill due to him for costs, the court may refer it for taxation. Slater v. Brookes, 9 Dowl. 349.

Having obtained the order, get an appointment on it from the master, and serve a copy of it upon the attorney. By R. G. H. 2 W. 4, s. 92, "one appointment only shall be deemed necessary for proceeding in the taxation of costs or of an attorney's bill." Attend the taxation accordingly; and if no person attend upon the part of the attorney, the master will tax the costs ex parte. 6 & 7 Vict. c. 73, s. 37, ante, p. 84, n. (1). See Sadler v. Robins, 1 Camp. 253. In taxing, the officer may tax off such of the costs as he may deem to have been unnecessarily incurred. Per Patteson, J., in Heald v. Hall, 2 Dowl. 163. But he cannot, under the usual order, tax off the charges for business which is alleged to have become useless to the client through the negligence of the attorney. Jones v. Roberts, 2 Dowl. 656. Matchett v. Parkes, 9 Mees. & W. 767; but see Williams v. Nicholas, 1 Dowl. N.C. 840. So, where the attorney charged a sum as paid by him for the client, for the amount of a proctor's bill, and the master refused to tax this latter bill, but allowed the whole of it, the court held that he had done rightly. Franklin v. Fea therstonhaugh 3 Nev. & M. 779. But the master may refe any part of the bill, which is for business done in another court, to the officer of such other court for taxation; in which case the latter officer, and not the master, shall receive the fees for the taxation of that part of the bill so referred to him(o). Where the client entered into an agreement with his attorney, to pay him at a certain specified rate for business to be done, the court held that although such agreement was not binding, yet that charges made according to it, might be allowed on taxation, if the master, on inquiry into them, should think them proper; and where such charges had been allowed and paid, the court refused an application to review the taxation on this ground, made four months afterwards, it not being

(0) In all cases in which such bill shall have been referred to be taxed and settled, the officer to whom such reference is made shall be at liberty to request the proper officer of any other court having such an officer to assist him in taxing and settling any part of such bill, and such officer so requested shall thereupon proceed to tax and settle the same, and shall have the same powers, and may receive the same fees in

respect thereof, as upon a reference to him by the court of which he is such officer, and shall return the same, with his opinion thereon, to the officer who shall have so requested him to tax and settle the same; and the officer to whom such reference is made shall not be paid any fee for that portion of the bill which shall have been so taxed and settled by the officer of such other court at his request. Id. s. 42.

shown that the master had forborne to exercise his judgment. on the charges, in consequence of the agreement. Drax v. Scroope, 2 B. & Ad. 581. See also Re Masters, 1 Har. & W. 348. 4 Dowl. 18. Ex p. Yeatman, 1 Har. & W. 510. On the other hand, where the attorney left blanks in his bill for the charges for certain business, which were discretionary, and the master in taxing made no allowance for them, and did not fill up the blanks with any sums: the court refused to order the master to review his taxation. Eyre v. Shelley, 10 Law J., 295, ex. The master also has no power to allow the attorney interest on the amount of his bill, although the attorney have given notice to his client, under stat. 3 & 4 W. 4, c. 42, s. 34, that he should claim interest; even where the reference for taxation is after action brought, interest cannot be allowed, unless a stipulation to that effect were made in the order. Berrington v. Phillips, 1 Mees. & W. 48. See further as to the taxation, post, in vol. 2, under the title "Costs."

If either party be dissatisfied with the taxation, he may move that the officer shall review it. If an attorney's bill for business done in the courts of Common Pleas and Queen's Bench, be referred to the master of the Common Pleas for taxation, and the master, as is usual, refer that part of it relating to the business in the Queen's Bench to the master of that court: the taxation of the master of the Queen's Bench is in that case deemed the taxation of the master of the Common Pleas, and any objection to it must be made, not to the court of Queen's Bench, but to Common Pleas. Re Jones, 1 Dowl. 424. And the same, as to the other courts. But if the court refuse to refer it back to the master, the taxation is conclusive as to the amount of the bill. See 6 & 7 Vict. c. 73, s. 43, post, p. 89, n. (p).

By stat. 6 & 7 Vict. c. 73, s. 37, the court or judge referring a bill for taxation, shall order that no action shall be com⚫ menced or prosecuted touching the attorney's demand upon the bill so referred, pending the reference and taxation. See ante, p. 84, n. (1). Where the client delayed obtaining an appointment to tax, and the attorney, treating that as a waiver, commenced an action on his bill, and caused his client to be arrested: the court held that he was not warranted in doing so, and the client was accordingly discharged, and the attorney ordered to pay the costs. Sheriff v. Gresley, 5 Nev. & M. 491, overruling Stevenson v. Watson, 1 B. & P. 365. But where the attorney commenced his action, after the taxation was completed, but pending an application as to the costs of taxation (more than a sixth having been taxed off), it was holden regular. Hewitt v. Bellott, 2 B. & A. 745.

After taxation, if the client refuse to pay what appears to be due to the attorney, the latter, in cases where the retainer

is not disputed, may obtain from the court or judge an order for judgment to be entered up for the amount with costs (p). Or instead of proceeding thus, the court upon application will grant a rule calling upon the client to show cause why he should not pay the amount; and upon that being made absolute, it will have the effect of a judgment under stat. 1 & 2 Vict. c. 110, s. 18, and give the attorney all the remedies which by that statute are given to judgment creditors, and among others, a writ of fi. fa. or ca. sa. for the amount. Neale v. Postlethwaite, 10 Law J., 134, qb. 1 Ad. & El. N. C. 243. See Rickards v. Patterson, 8 Mees & W. 313.

Costs of taxation.] By stat. 6 & 7 Vict. c. 73, s. 37, if the bill, when taxed, be less by a sixth part than the bill delivered, &c. the attorney, his executor, &c. shall pay the costs of taxation; but if not less by a sixth part, the client shall pay such costs; and the order of reference shall direct the officer to tax the costs of the reference, and to certify what shall be due to or from the attorney, in respect of the bill and of the costs of taxation (q). See Doe d. Goodland et al. v. Frank

(p) All applications made under this act to refer any such bill as aforesaid to be taxed and settled, and for the delivery of such bill, and for the delivering up of deeds, documents, and papers, shall be made in the matter of such attorney or solicitor; and that upon the taxation and settlement of any such bill, the certificate of the officer by whom such bill shall be taxed shall (unless set aside or altered by order, decree, or rule of court,) be final and conclusive as to the amount thereof, and payment of the amount, certified to be due and directed to be paid, may be enforced according to the course of the court in which such reference shall be made; and in case such reference shall be made in any court of common law, it shall be lawful for such court or any judge thereof to order judgment to be entered up for such amount, with costs, unless the retainer shall be disputed, or to make such other order thereon as such court or judge shall deem proper. Id. s. 43.

(9) In case any such reference as aforesaid shall be made upon the application of the party chargeable with such bill, or upon the application of such attorney or solicitor, or the executor, administrator, or assignee of such attor

ney or solicitor, and the party chargeable with such bill shall attend upon such taxation, the costs of such reference shall, except as herein-after provided for, be paid according to the event of such taxation; that is to say, if such bill when taxed be less by a sixth part than the bill delivered, sent, or left, then such attorney or solicitor, or executor, administrator, or assignee of such attorney or solicitor, shall pay such costs; and if such bill when taxed shall not be less by a sixth part than the bill delivered, sent, or left, then the party chargeable with such bill, making such application or so attending, shall pay such costs; and every order to be made for such reference as aforesaid shall direct the officer to whom such reference shall be made to tax such costs of such reference to be so paid as aforesaid, and to certify what, upon such reference, shall be found to be due to or from such attorney or solicitor, or executor, administrator, or assignee of such attorney or solicitor, in respect of such bill and demand, and of the costs of such reference, if payable: Provided also, that such officer shall in all cases be at liberty to certify specially any circumstances relating to such bill or taxation, and

land, 12 Law J. 249 qb. Peters v. Sheeham, 1 Dowl. N. C. 943. But where the deduction of one-sixth is occasioned, not by the taxation of particular items, but by a whole branch of the demand being disallowed, White v. Milner, 2 H. Bl. 357, recognized in K. B. 3 Nev. & M. 770, but see 1 Gale, 160, 3 Dowl. 747, or by the master refusing to tax one of several bills of costs, on the ground of the client not being liable for it, Mills v. Revett, 3 Nev. & M. 767, these and the like cases, where the deduction is, not on the ground of overcharge, but merely because the attorney by mistake has charged to his client what he ought to have charged to some other person, the court will treat them as if the charge were not made, and grant the costs or not in the same manner as if the other parts of the account alone had been referred, and the other deductions on taxation alone had been made. But if even a whole class of items be struck out, which have been improperly charged to the client, if they be such as cannot be charged to any other person, they are to be reckoned among the items struck off the bill on taxation, in ascertaining whether a sixth have been struck off or not. Morris v. Parkinson, 2 Cr. M. & R. 178. Newton v. Harland, 9 Dowl. 641.

The usual contest in cases of this kind is, whether the attorney is warranted in including certain charges in his bill; and the difficulty usually arises, from charges for what are termed disbursements. The more charges of that kind which are rightly included in the bill, the less likelihood is there that the overcharges in matters of business, which may probably be taxed off by the master, will amount to the sixth of the whole. Where the attorney paid a proctor's bill for his client, it was holden that he might include it in his own bill, as a disbursement. Franklin v. Featherstonhaugh, 3 Nev. & M. 779. So, where the attorney charged as disbursements the payment by him of the debts and costs in two actions for his client, and gave credit for a sum of money received by him at a different time and for a different amount, which had not been specifically appropriated to such payment: Coleridge, J. held that the attorney had a right to introduce them as items in his bill. Harrison v. Ward, 1 Har. & W. 353; and see Hindle v. Shackleton, 1 Taunt. 536. But where the client gave his attorney a sum of money, to hand over to another person, as the debt and costs in a particular action, the court held that the attorney was not warranted in making that an item in his accounts; for all he had to do, was to convey the money from

the court or judge shall be at liberty to make thereupon any such order as such court or judge may think right respecting the payment of the costs of such taxation: Provided also, that where such reference as aforesaid shall be made when the same is not

authorized to be be made except under special circumstances, as herein-before provided, then the said court or judge shall be at liberty, if it shall be thought fit, to give any special directions relative to the costs of such reference. Id. s. 37.

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