WATERS

V.

TAYLOR.

[ *554 ]

[ *555 ]

clients, but between the parties in the causes, and cannot, therefore, be used as evidence against Mr. Mills's representatives; besides which, it does not appear what portion of the costs claimed and *taxed off in Taylor v. Waters, related to the period between the years 1819 and 1821; and Mr. Young states, that of 10,000l. of costs, only 4,5007. related to this suit; and Mr. Elliott states that many of the items struck out upon taxation, were so struck out, only because they did not belong to the suit, the costs of which were then in question, and I do not find that denied in any subsequent affidavit.

Now, if the results of these taxations do not establish the right to have the bills before the year 1819 taxed, I look in vain for any other ground; because, though some other objections are made to the bills, in the petition, I do not find any of them supported by evidence. The petition alleges, that Mr. Mills appeared for Mr. Palmer, a defendant in Waters v. Taylor, and that he has charged attendance for him against Mr. Waters, although Mr. Palmer, by his answer, declined acting as trustee. It is not disputed that Waters was properly charged with Mr. Palmer's costs, but it is intended to be inferred that the costs subsequent to the answer might have been spared. I find nothing in any affidavit to prove this to have been so; and if there had been any such evidence, it would amount only to this, that the cause in this respect might have been more economically conducted,a position which, if established, would not avail for the present purpose. The only other allegation of error in the petition is, that the bills contained various charges for sequestration fees, which appeared, upon taxation, not to have been paid but what those charges were, or in what bills they are to be found, is not stated; and I find no evidence to support the charge. It may, indeed, well be supposed, that after so many years, and with the admitted fact of the loss and destruction of papers, and the unrestricted access to all other papers afforded to the solicitors of Mr. Waters, and the delivery to them of all they required, the evidence of many payments cannot now be produced by the representative of Mr. Mills; which affords the strongest possible reason against a taxation at this time.

The result of all this evidence comes to this: that the business

to which the bills apply commenced twenty-eight years ago, and
was concluded eighteen years ago; that some of the bills were
delivered so early as 1811, twenty-six years ago; that, in 1817,
the amount then claimed to be due was secured upon certain
property that in 1819, for the convenience of the client, the
solicitor gave up this security, and, with the concurrence of
prior incumbrancers, took a new charge upon other property;
that, upon that occasion, the sum being ascertained, the solicitor,
Mr. Mills, with the knowledge of the client, Mr. Waters, and for
his accommodation, bought and paid for his partners' shares
of the debt; that from 1822, now fifteen years ago, Mr. Waters's
affairs have been under the care of another solicitor; but that
no attempt was ever made to open the account so closed in
1819, until last November, and that the attempt then made was
not supported by that which alone could give it any title to
success, namely, allegations and proof of such dealing between
the solicitor and client, or of such errors and improper charges
in the bills, as could amount to evidence of fraud. It is made
to rest entirely upon the alleged reduction of the bills, upon
a taxation to which neither the solicitor nor his representative
was a party, and under the circumstances upon which I have
before observed. The client has not only permitted eighteen
years to elapse since the date of the security, without objection,
but has had the use and possession of all the papers he required ;
and he has had the benefit of the long forbearance of his creditors,
to obtain which, Mr. Mills, with his privity, purchased the
hares of his partners in this debt.

It would require a very strong case indeed, to induce me to open the account, if there had been nothing else in answer to attempt; but not only are there these strong grounds of resistance to the application for a taxation, but there is an absence of all that is required to support it.

this

The case indeed differs from that of Horlock v. Smith (1), in this,-that the security was taken whilst the suits were depending: and whilst the relation of solicitor and client continued, but so it was in Cooke v. Setree (2); and in Plenderleath v. Fraser (3), and (3) 3 V. & B. 174.

1) P. 125, supra. (2) 1 V. & B. 126.

WATERS

ข.

TAYLOR.

[ *556]

WATERS

v.

TAYLOR.

[ *557 ]

Gretton v. Leyburne (1), the relation of attorney and client continued at the time of the settlement. No doubt, the settlement or payment of a solicitor's bills, pending a suit, and whilst the relation continues, affords grounds upon which the account will be much more easily opened, and the bills referred for taxation, than in other cases; but, if these circumstances alone were in all cases to be held sufficient ground for a taxation, no solicitor who continues to act for a client would be secure of any settlement during the life of his client; and the continuance of one of those suits which not unfrequently occur in this Court would prevent the possibility of any settlement between the solicitor and the client. It is, however, unnecessary to consider this point further, because, in this case, I find acquiescence, for from twenty-six to eighteen years, and the enjoyment of the forbearance during that time, and the consequent destruction of vouchers and delivering up of papers, and the important fact of the purchase by *the solicitor, with the privity of the client, and for his benefit, of part of the debt so secured, and the absence of any proof of improper dealing on the part of the solicitor, or of any such errors in the bills settled as the decided cases require for the purpose of opening an account settled and sending a solicitor's bill, so long settled and secured, to a taxation.

Having, in this case and in that of Horlock v. Smith, had the misfortune to differ from the MASTER OF THE ROLLS and the VICE-CHANCELLOR, I have endeavoured, by a careful examination of the cases, to ascertain the limits of the rule as laid down in them. To that rule, as I find it laid down, I am anxious to adhere, being persuaded that, whilst it affords ample protection to the client against any improper dealing and extravagant charges on the part of the solicitor, it does not deny to the solicitor that justice to which all men are entitled, or the means of settling their accounts, and of winding up their affairs, which, if the rule were to be further relaxed, it would be in most cases impossible for them to accomplish.

I am bound to act upon the opinion I have formed, that the settlement and security of 1819 has not been successfully impeached. The subsequent bills must be taxed, and the account.

(1) T. & R. 407.

founded upon the security of 1819 must be taken. All this would have been ordered upon the petition of Dr. Sutherland. The petition of Mr. Winchester was unnecessary, except for the purpose of obtaining a taxation of the bills prior to 1819: and, as it has failed in that object, it ought, I think, to be dismissed with costs.

It was objected, upon the authority of some of the cases cited, that Mr. Winchester, not being the client, *could not have the bills taxed; but this is not a case for taxation simply under the statute; but Dr. Sutherland seeks to enforce payment out of a fund in Court; and, when necessary and proper, in order to ascertain the amount of the charge, the Court will direct a taxation as between the party claiming the charge and the party representing the fund, who in this case is Mr. Winchester.

BEHRENS. SIEVEKING.

(2 My. & Cr. 602—603; S. C. nom. Sieveking v. Behrens, 1 Jur. 329.)
A plea of proceedings in another Court of competent jurisdiction must
show not only that the same issue was joined as in the suit in this Court,
but that the subject-matter was the same, and that the proceedings in
the other Court were taken for the same purpose.

THE LORD CHANCELLOR [giving leave to amend a plea of proceedings in another Court of competent jurisdiction said, that in order to support the plea, it was necessary to show that the proceedings in which the plaintiffs were alleged to have failed, were taken for the same purpose as the present suit; for, the issue might have been the same, while the object was different; and the circumstance that the matter had been tried, as a matter of evidence, could not be conclusive. The defendant had to show that the subject-matter was the same; that the right came in question before a Court of competent jurisdiction; and that the result was conclusive, so as to bind the judgment of every other Court. His Lordship then pointed out that the particular plea before him did not satisfy these conditions.]

1837. May 4.

Lord COTTENHAM, L.C.

[602]

[ 603 ]

1836. April 26.

Rolls Court.

On Appeal.

1836. Nor. 21, 23.

Lord COTTENHAМ, L.C.

[ 606 ]

[ ] Keen,

817 ]

COOKSON v. HANCOCK.

(1 Keen, 817-825; S. C. 3 L. J. (N. S.) Ch. 245; affirmed, 2 My. & Cr. 606-610; 6 L. J. (N. S.) Ch. 36.)

A testator by his will gave 3,000l. to his brother B. for life, with remainder, as to 1,000/., to his wife for life; remainder, as to the whole, to his children; he then gave 6,000l. to his sister S. for life, with emainder to her husband for life, remainder to her children; and, after bequeathing 107. a year to each of his two maid servants for their lives, he gave all his real estate, and the residue of his personal estate to his sister H. absolutely. By a testamentary paper described as a codicil to his will, he left his brother B. an equal share of his effects with his sisters, to have the interest for his life, with remainder to his children, subject to a life interest in 1,000l. to his wife, if living at his death; and his sister S. was to have an equal share with his sister II. By a subsequent testamentary paper, also described as a codicil, he left his two maid servants 101. a year each for their lives, and nominated a person to act as trustees with the executors named in the will:

Held, upon the effect of all the testamentary papers taken together, that the will, though modified, was not wholly revoked by the first codicil; and that, in lieu of the 6,0007. legacy given them by the will, S. and her children were entitled to one third share of the personal estate, in the same manner and subject to the same limitations as had been expressed by the will with respect to that legacy.

THE will and other testamentary papers, upon the construction of which the question in this cause turned, are stated in Mr. Keen's report of the case on the hearing at the Rolls [as follows (1 Keen, 817)].

Thomas Baker, by his will, dated the 26th of January, 1826, gave and bequeathed to his brother, the defendant, George Baker, the interest of 3,000l. for his life, and after the decease of George Baker, he directed that the principal sum of 3,000l. should be on trust for the said George Baker's children, share and share alike, provided George Baker's wife should not be then living; but in case she should be then living, he directed that 2,000l., part of said sum of 3,000l. should only be in trust for the said children at the death of his, the testator's, brother; and that the interest of the remaining 1,000l. should be paid to the wife of his said brother for her life; and that at her decease, the said sum of 1,000l. should be in trust for the said children, share and share alike. And the testator gave and bequeathed the interest of 6,000l. to his sister Catharine Smith for her life; and in case her husband Thomas Smith should survive her, he gave and