FLOWER v. MARTEN. [ *473 ] [ 474 ] * the safest course might be to direct a preliminary inquiry into the facts. On looking into the papers, however, I think it is clear that the question must depend solely upon the evidence of these two gentlemen, Messrs. Marten and Muspratt, from whose testimony the intention of the father is necessarily to be collected, and that nothing would be gained by sending the cause into the Master's office. Of the jurisdiction of the Court I entertain no doubt whatever. In this case a large sum of money was advanced by the plaintiff's father, for the purpose of paying off the debts of his son. That advance may either have been made by way of gift, or as a loan to the son. The taking a security for the amount is, primâ facie, evidence that the father meant originally to treat the sum as a debt: but that presumption is capable of being explained away and rebutted; and even if the sum constituted a debt in the first instance, the debtor, according to the authorities, is at liberty to show that the creditor subsequently altered his intention and treated it as a gift. In the present case both circumstances concur. Upon the evidence of the gentlemen with whom the bond was deposited, I cannot suppose that the father intended to treat the money, which he advanced on his son's behalf, as being, at all events, a debt. He plainly meant to keep alive the security for a time, as a means of controlling and influencing the conduct of his son; and that was the main object of the instrument, to which the securing of the sum advanced was only collateral and subsidiary; but it does not appear from the testimony of the referees, that the father ever actually dealt with the bond as creating a debt, or as forming a part of his assets. With respect to the six years during which the referees had the power of entirely discharging the obligation by executing a memorandum to that effect, the father had delegated that discretion to them as two of his confidential friends; and the discretion was wholly inconsistent with the notion that the bond was given merely, or principally, to secure the repayment of a sum of money. Within that period, events had taken place which, as the referees themselves state, induced them to think that the claim was no longer available: the father and son were completely reconciled and united; and the conduct of the son throughout had been highly satisfactory to the father. Now, if the events took place which would render it the duty of the referees to exercise the trust reposed in them by indorsing upon the bond the proposed memorandum, of which the effect would be to avoid the security and discharge the debt at law, the situation of the plaintiff cannot, in a court of equity, be affected by their omission to do that which they ought, under the circumstances, to have done. That of itself would be a sufficient ground on which to rest the plaintiff's title to relief. But there is also another ground, to be deduced from the principles which were distinctly laid down in the cases of Wekett v. Raby (1) and Eden v. Smyth (2), namely, that whether this obligation constituted a debt or not, either originally or during the continuance of the prescribed period, the father subsequently did not intend that it should be treated as a debt due from his son to his own *estate, and be put in force accordingly. Nearly six years elapsed after these two gentlemen ceased, according to the letter of the condition, to have any authority or control; nevertheless, throughout the whole of that period, the father left the bond in their hands, and treated his son in a manner expressive of his entire reconciliation and satisfaction with him, and showing that the object of the transaction having been attained, he understood and considered the instrument as no longer subsisting and in force. Both points seem to me to concur in the present case. Upon the evidence, I think that the bond was not in the first instance intended to operate as a debt at all events: at any rate, the father, by his subsequent conduct and his mode of dealing, showed that he did not mean it should now so operate; but that in fact he abandoned any claim in respect of it. Under such circumstances the authority of the cases referred to sufficiently establishes the jurisdiction of the Court to deal with the instrument in question. There must, therefore, be a decree that the bond be delivered up to be cancelled. (1) 2 Br. P. C. 386, Toml. ed. (2) 5. R. R. 60 (5 Ves. 341). 1837. June 16, 17, 24. Lord COTTENHAM, L.C. [ 478 ] June 24. [485] [ *486 ] HOWELL v. HOWELL. (2 My. & Cr. 478–486; S. C. 1 Jur. 492.) The account of rents given against a purchaser for value, who, after being in possession, is evicted by a party having a better title, ought not to extend to such rents as, without his default or neglect, might have been received, if no special case of fraud is made against him. The decree for such an account ought to contain a direction for just allowances. [UPON the point stated in the above head-note,] THE LORD CHANCELLOR said: This was a case of adverse possession, the defendant who is sought to be charged, having an apparent title, which, however, was defeated by an equitable settlement, under which the plaintiff took an estate tail in the property in question. The result has been, that though the defendant purchased and paid for the estate, a jury has found that he took it with notice of the settlement; and he has consequently lost the benefit of his purchase. There are no special circumstances in the case, beyond the fact of the defendant having purchased with notice. The question then is, whether it is consistent with the practice, that the decree should charge the defendant with the rents and profits which might have been received without his default or neglect. The introduction of these words at once struck me as unusual; *and I have ascertained on inquiry that no precedent for it can be found, this being neither the case of a mortgagee in possession, nor of a trustee against whom a special breach of trust is charged. With this view, I was desirous of ascertaining the terms of the decree in Pultney v. Warren (1), and I directed a search to be made in the Registrar's book; but, on inquiry, it appears that the decree in that case was never drawn up. Under these circumstances, no case being cited in support of such a decree, and all the precedents and the practice being against it, I cannot permit the decree to stand. I am further of opinion that a clause should be inserted empowering the Master to make just allowances in short the decree must be such a decree, and in such a form, as is usual in a case where there are no special circumstances. (1) 5 R. R. 226 (6 Ves. 73). It is clear that, in point of form, I can make no order upon the exception, the decree on which the report was founded having been so materially varied that it can no longer be considered as the same decree upon which the Master has proceeded; but it may save future discussion and exception that the matter has been now brought before me, and that I have expressed an opinion. upon it. HOWELL V. HOWELL. HORLOCK v. SMITH (1). (2 My. & Cr. 495—526; S. C. 6 L. J. (N. S.) Ch. 236; 1 Jur. 302.) An allegation that a solicitor has received monies on account of his client, for which credit has not been given in the settlement of a bill of costs, is not sufficient, although supported by evidence, to warrant an order for the taxation of the bill. Principles of the Court with respect to the taxation of a solicitor's bill after payment. [THIS was an appeal from an order made by the MASTER OF THE ROLLS for taxation of a bill of costs more than twelve months after payment. The facts of the case are sufficiently stated for the purposes of this report in the following judgment of the LORD CHANCELLOR, who said:] The Court will always be anxious, in every possible way, to protect the client against any improper dealing on the part of the solicitor; but it is absolutely necessary that some rule should be laid down, by which professional gentlemen shall know when they may consider their bills of costs as finally settled, and whether the money which they have received in respect of those bills is their own, or whether those bills are subject *to investigation or review upon the application of the client. It requires, therefore, and all the cases show that it requires, a strong case to be made against the solicitor, when the client applies for a taxation of the bill after payment; and when, after (1) Watson v. Rodwell (1878--9) affirmed 11 Ch. Div. 150, 48 L. J. Ch. 7 Ch. D. 625, 631, 47 L. J. Ch. 418, 209, 39 L. T. 614. 1837. April 20, 21. May 4. Lord COTTENHAM, L.C. [ 495 ] May 4. [ 509 ] [ *510] HORLOCK v. SMITH. [ *511 ] proper time and opportunity for investigating the items which the bill contained, he has thought proper to pay it. The Court will, no doubt, give relief after any length of time, if a case of fraud or improper conduct is made out against the solicitor; but it is quite necessary that it should be understood that the client is not, after payment, to have a taxation merely for asking for it. The facts of this case appear to be these: Messrs. Goode were employed by the late Mr. William Yems, from the year 1818, in certain suits in which he was a defendant, and they so continued to be employed until September, 1833, when he died. The representatives of Mr. Yems did not think fit to employ Messrs. Goode; but Messrs. Harris and Rye were employed by them; and from that period, of course, Messrs. Goode ceased to be employed as the solicitors in those affairs. These gentlemen, Messrs. Harris and Rye, applied to Messrs. Goode for their bill against the late Mr. Yems' estate; and on the 4th of April, 1835, a bill was delivered to the amount of 7901. On the 23rd of May following another bill to the amount of 231. was delivered; and accompanying this bill there was a statement of account, giving credit for certain sums as received; the balance of the account being 510l. due to the solicitors. On the 25th of May, being about six weeks after the principal bill was delivered, but only two days after the second bill for 231. together with the cash account was delivered, the petitioners, that is to say the representatives of the client, applied to have a meeting with Messrs. Goode, for the purpose of settling their account. It was investigated by them, as they thought proper to investigate it, and the balance of 510l. was paid, and Messrs. Goode were required to deliver up the papers belonging to the estate of Mr. Yems. Of course, some little time was required before they could be looked out and ascertained; and in October, 1835, some of the papers were delivered to the representatives of Mr. Yems; but it appears that others were not then delivered. The petition states, that the petitioners were unable to examine the items in the bill, until the papers were delivered out, that is, until October, 1835. If it had been intended to support the case upon that allegation, it should have been distinctly proved; but no evidence was |