« PreviousContinue »
deeds deposited with a solicitor by a tenant for life, cannot be retained against the remainder-man when he becomes entitled to them by the death of such tenant for life. Such lien as before mentioned extends only to those papers or documents of which the solicitor obtained possession in his professional character, but is not limited by the circumstance of their having been originally deposited with him for a particular purpose, if afterwards permitted to remain in his hands." It extends to money recovered in a suit in which he was employed, and also to funds in court, but whether for the particular suit or on the general balance is not quite clear, to money recovered by judgment, or awardedu on a reference; to money ordered to be paid to his client for costs, and any other money received by him for his client," if he were entitled to receive them, but not otherwise. Thus a solicitor who, without the authority of the court, received the rents of an estate, of which a receiver had been appointed, was ordered to pay them over to the receiver, without reference to any lien he might otherwise have had on them. Where, however, in suits in equity, costs or other funds become ultimately due to both parties, the lien of the solicitor will extend only to the balance actually payable to his client.
In close connection with this subject, it may be
parte Nesbitt, 2 Sch. and Lef. 279. ' Ex parte Pemberton, 18 Ves. 282. 'Wilkins v. Carmichael, Dougl. 100 ; Welsh v. Hole, Id. 226.
* 4 Madd. 391; 2 Jac. and W. 214 ; Irving o. Viana, 2 Young and J. 70. u Omerod v. Tate, 1 East, 463.
Ex parte Bryant, 2 Rose, 237. "Skinner v. Sweet, 3 Mad. 244; Ex parte Bowden, 2 Deac. and Chitt. 182. * Wickens v. Townsend, 1 Rus. and Myl. 361.
Taylor v. Popham, 15 Ves. 72; Bawtree v. Watson, 2 Keen, 713.
mentioned, that, where a sum of money is by decree or judgment payable to the client, his solicitor may give notice to the person liable to pay it, not to do so till his costs are paid, and thereby obtain a lien
A solicitor has no lien upon an original will.a
In a recent case it has been decided, that the commissioners for taking the acknowledgments of married women have a lien on the instruments in their possession for the amount of their fees. The right of lien does not cease upon the death of the solicitor, but continues for the benefit of his representatives.
A solicitor has, in several cases, been held to lose his lien by taking security for his costs, though that does not necessarily deprive him of that privilege.d
If a solicitor refuses to proceed with the conduct of a cause, he will be ordered to deliver up all the papers which are necessary for the future conduct of the cause, but such order will be made without prejudice to the solicitor's lien, and the papers will be returned to him after the suit is brought to a close, if his right of lien should be then in existence.
The agent of a solicitor has, as against the solicitor employing him, a general lien upon the papers and costs received by him in that character;' but as against the clients of the solicitor, the agent has no greater lien than for the costs incurred by him in respect of the documents or moneys upon which the lien is claimed.
2 Cowell v. Simpson, 16 Ves. 282; Welsh v. Hole, Dong.
a Georges v. Georges, 18 Ves. 294 ; Balch v. Sykes, T. and R. 87 ; Lord v. Wormleighton, Jac. 580.
b Ex parte Grove, 3 Bing. N. S. 304.
• Magrath v. Lord Muskerry, 1 Ridg. P. C. 477; Vern. 171, S. C. d Stevenson v. Blakelock, 1 M. and S. 535.
Colegrave, 1 T. and R. 400; Heslop v. Metcalfe, 8 Sim. 622, and 3 M. and Cr. 183.
f 6 Price, 210.
Such lien exists in favour of a clerk in court in chancery, even though he should not be the agent of the solicitor, but employed by the solicitor's agent ;h and also in favour of a clerk in the crown office. A clerk in court cannot retain deeds from the client for money lent by him to the solicitor, to enable him to carry on the cause ; Grey v. Cockerill, 2 Atk. 114.
It is scarcely necessary to observe, that the right of lien may, like all other rights, be counteracted or superseded by agreement, and, therefore, where deeds were deposited for the express purpose of securing future advances, they could not be retained for an antecedent debt.k
An attorney having a lien on the nioney recovered As to money by his client, may, if it should come into his hands, retain thereout the amount of his bill; he
may stop it in transitu if he can lay hold of it. By application to the court he may prevent its being paid over until his demand is satisfied. If the attorney give notice to the defendant not to pay till his bill be discharged, a payment by the defendant after such notice would be in his own wrong, and similar to paying a debt which had been assigned, after notice.
The court upon motion will compel an attorney to As to deeds. re-deliver documents, on payment of what may be due to him in the cause for which they were delivered. If they were delivered for a special purpose, he cannot detain them for another demand; (7 East, 50.)
Formerly, if an attorney practised in his own name in a court in which he had not been admitted, he could maintain no action for his fees, nor had he any lien for his costs or money disbursed ; (Latham v. Hide, 1 Dow. P. C.594 ; 1 Crom. and Meeson, 128 ;)
h Farewell v. Cocker, 1 P. Williams, 460; 3 Burr. 1313 ; Potter v. Hyatt, 2 Y. and Col. 112.
Waldrons, case 2, Strange, 1126. * Mountford v. Scott, Turn. and Russ. 274. 'Welch v. Hole, Dougl. 238.
but since the passing of the 1st Vict., cap. 56, an attorney or solicitor admitted in one court may practise in the others, if his name be enrolled accord. ing to the provisions of the 1st and 2d Vict., c. 45.
TAXATION OF ATTORNEYS' BILLS.
There does not appear to be any precise limit to the time within which a solicitor's bill may be taxed. The payment of a bill is not considered as a waiver of the right of taxation;m but the court, after payment, and a subsequent acquiescence of any length of time, will not direct taxation, unless very gross charges are distinctly pointed out ;" nor where the bill has been paid to the solicitor while living, will taxation be directed against his representatives.
An agreement between an attorney and his client, fixing his charges at a particular rate, will not deprive the latter of his right of taxation, and the taxing officer will exercise his discretion in following or disregarding the agreement as he may think fit.
Where in equity the common order for taxation has been obtained without notice to the solicitor, in cases where it is unfit that the order should be made as a matter of course, such order will be discharged without a discussion of the merits of the case.
Where, upon taxation of his bill of costs, more than a sixth is taken off, a solicitor or attorney is, under 2d Geo. JI., cap. 23, sec. 22, liable to pay the costs of the taxation ; but as such costs are considered in the nature of a penalty for the excessive demand, they are payable only by the party making such demand, and not by his personal representatives after
m Howell v. Edmunds, 4 Russ. 67.
* Plenderleath v. Frazer, 3 V. and B. 174; Norfolk v. Smith, 2 M. and Cr. 495.
• Maddeford v. Austwich, 3 M. and Cr. 423. P Drax v. Scroope, 1 Dowl. 69; 2 Barn, and Adol, 580. a Gregg v. Taylor, 1 Beav. 123.
his death, or his assignees, in case of "bankruptcy or insolvency.
If the client is resident abroad, the solicitor may insist upon his giving security for the cost of taxation previous to his bill being taxed.
It appears that though trustees, who have employed and even paid a solicitor, are satisfied with his bill, and do not choose to take any steps to procure its taxation, the cestuique trusts, out of whose funds the bill must be paid, may make use of their trustees' names in order to procure a taxation.
As attorneys and solicitors are sometimes called upon to give evidence in reference to matters which came to their knowledge as professional men, where they have not the benefit and indemnity of a judge's opinion to guide them as to the propriety of the required disclosure, a short reference to the cases upon privileged communications may not be altogether unacceptable to the profession, especially when it is considered that any mistaken view of their duty in this respect may subject professional men to considerable expense, if, on the one hand, they decline answering questions they are bound to answer," or may, on the other hand, endanger the interests of their clients by making known that which it was their client's privilege and their own duty to have refrained from disclosing
Though the correct application of the principles is not always very easy, the principles themselves are very simple.
'Willasey v. Mashiter, 3 M. and K. 293; Alsop v. Lord Oxford, 1 M. and Cr. 26. • In re Passmore, Beav. 94.
Hazar v. Lane, 3 Mer. Cro. 285; Grave v. Sansom, 1 Bea. 297.
Sawyers v. Birchmore, 3 Mylne and K. 572.