Mr. Daniell says-"Strictly speaking, upon a demurrer to the whole "bill being allowed, the bill is out of Court, and no subsequent pro"ceeding can be taken in the cause (a),” and he cites as an authority for this position the cases of Smith v. Barnes (b), and Watkins v. Bush (c). In the report of the former case it is merely said, that " a demurrer to "the bill was allowed;" and in the latter it appears that the allowance of the demurrer was upon argument: therefore, although Mr. Daniell's statement, as a general proposition, may be true, the cases cited do not carry it to the extent to which it is here sought to be applied; and I think it would have been more correct if it had been directed more particularly to the case of a demurrer allowed upon argument. Where, as in the present case, there is a formal allowance of the demurrer, in consequence of its not being set down for argument within the time limited by the general orders, and it appears that it was prevented from being set down within the regular time by an accident, the Court will relieve the party from the effect of the accident, and relax the rule so as to meet the justice of the case. In Baker v. Mellish (d), Lord Eldon observed, "It is frequently said in the books, that where "a demurrer to the whole bill is allowed, the bill is out of Court, and "the plaintiff must begin again. Strictly speaking that is the principle. "But I know many instances, where, after a bill dismissed by order, it "has been considered in the discretion of the Court to set the cause on "foot again." So, in the Attorney-General v. Fellows (e), the defendant obtained an order that the bill should be dismissed for want of prosecution, and it appeared that two days before the notice of the motion to dismiss was served, the plaintiff's solicitor had given instructions to his clerk in Court to file a replication, which he omitted to do. Upon an affidavit stating those facts, the Vice-Chancellor restored the cause, considering that it was by a slip that the replication had not been filed. In like manner, in the present case, it was by a slip that the demurrer was not set down in proper time; and applying the principle of the decisions I have just mentioned, I think I am bound to grant the present application (f). (a) 2 Dan. Ch. P. 87.- The rule is similarly stated in Barry & Keogh's Ch. P. 204. (See the cases of Stewart v. Service, 1 Lloyd & G. 303; In re Lyons, 1 Dru. & W. 327, 333; O'Grady v. Barry, 1 Ir. Eq. R. 13. But although under special circumstances the Court may dispense with the strict observance of any of its general orders, the Masters cannot: Smith v. Webster, 3 My. & Cr. 244. 1840 Rolls. JEFFERYES v. GOODWIN. 1840. Rolls. Nov. 11. citor retains deeds, &c., In the matter of LAWLERS, Minors. Where a soli- ON the petition of Mrs. Lawler, who was mother of the minors and guardian of their persons, and one of the executors of James Lawler deceased, the minors' father, it was ordered on the 8th of December 1838, that it should be referred to the Master to inquire and report whether the late solicitor for the minors, who had also been the solicitor of the said James Lawler deceased, had any lien, and to any and what extent, upon the deeds, documents, or securities relating to the real and personal estate of the said James Lawler deceased, in his possession or power; and if so, out of what fund such lien should be discharged. claiming a lien for costs, this Court upon the client's petition, may by its inherent authority over its officers, refer the bill for taxation, and in case of more than one-sixth being taxed off, disallow the solicitor's costs of taxation, and order that the client's costs upon the taxation shall be deducted from the taxed costs, and that the solicitor shall deliver up the deeds, &c., upon payment of the balancethe Court de clining to follow the decision in Rogers v. Peterson, 4 Mee. & Welsb. 588. Mrs. Lawler lately presented a further petition, stating that on the 14th of October 1840, the Master made his report under the foregoing order, and thereby found, that the said solicitor had in his possession or power the several deeds, documents, and securities mentioned in the first schedule to the report, and claimed a lien on them amounting to the sum of £551. 6s. 6d, being the amount of several bills of costs furnished by him in the month of November 1839, for the purpose of the reference, from which the sum of £313. 0s. 41d. had been taxed off and disallowed, leaving the sum of £238. 6s. 14d. certified, including therein £22. Os. 10d. the costs of taxation ;—that the particulars of said lien were set forth in the second schedule to the said report, and that the said solicitor had received, as admitted by him in his discharge filed on the said reference, of cash collected out of the outstanding debts due to the said testator James Lawler, several sums amounting altogether to the sum of £109. 1s. 34d., which being deducted from the said sum of £238. 6s. 14d. left the sum of £128. 16s. 94d. due to the said solicitor, together with the sum of £8. Os. 6d. paid by him on behalf of the plaintiff to the defendant in a certain cause of Lawler v. Eggleton therein mentioned, the said two sums making together £136. 17s. 4d.; and the Master reported that the said solicitor had a lien upon the said deeds and documents in his possession to the extent of the said sum of £136. 17s. 4d., which should be paid out of the assets of the said James Lawler deceased. It appeared that there were several classes of costs, some of which were disallowed altogether, and the others reduced on the taxation considerably more than one-sixth. The prayer of the petition was now moved. It was,-that the Master's report might be confirmed, and the petitioner be at liberty to bring in and lodge to the separate credit of this matter and of the said solicitor the sum of £114. 16s. 4d., being the amount of the said lien after deducting thereout the said sum of £22. Os. 10d. costs of taxation ; and thereupon, that the said solicitor should within one week lodge in the Master's office to the credit of this matter the several deeds, documents, and securities in his possession or procurement relating to the real and personal estate of the testator James Lawler, and all pleadings, copies of deeds, writings, &c., set forth or charged for in the said several bills of costs, to be verified on the oath of the said solicitor; and that he might be ordered to pay to the minors in this matter their costs of the taxation of the said several bills of costs, and that the amount thereof when so taxed and ascertained might be deducted from the said sum of £114. 16s. 4d., and the balance paid over to the said solicitor. Mr. Smith, Q. C., and Mr. H. G. Hughes, for the petitioner, cited Blythe v. Davies (a); Silvertop v. Ramsay (b); In the matter of Rice (c). Mr. Blake, Q. C., and Mr. H. O'Hara on the other side, submitted that the Court had not jurisdiction to grant the present application, as this case was plainly not within the statute. Here, the solicitor was not the promovent: he had not commenced any action, but furnished his costs in compliance with the order of this Court, made upon the application of the petitioner, who obtained the reference for taxation without giving any undertaking to pay the sum which might be found due. Although a very large proportion of the costs claimed was disallowed, it did not appear that there was any thing improper or exorbitant in the charges; but the bills happened to include some classes of costs which, in the opinion of the Master, were not properly chargeable as against the minors; Rogers v. Peterson (d). The MASTER OF THE ROLLS, after stating the contents of the petition in this case, now pronounced his judgment upon it as follows: The present application is resisted upon the ground that the Court has no jurisdiction, except by statute, to charge the solicitor with the costs of taxation, however exorbitant may have been his bill, and that this case is not within the statute. If the law were so, it could not be altered too soon: for it would just amount to this, that a solicitor having in his possession the title deeds of his client and claiming a lien upon them for costs, may always secure to himself the costs of taxation by rendering those costs unavoidable by the extravagance of his demands. Such is not the doctrine of a Court of Equity. In Ex parte Bellott, in re Lingard (e), the solicitor was ordered to pay the costs of taxation, more than one-sixth having been taken off; and there, the bill was re 1840. Rolls. In re LAWLERS, Minors. (e) 4 Madd. 379. 7 G. 2, c. 14, s. 9. 1840. Rolls. In re LAWLERS, Minors. ferred without any lodgment of money or undertaking to pay, and the Court does not appear to have had any other authority in the case than its ordinary jurisdiction in bankruptcy. In Barr v. Wiggins (a), there was a similar exercise of the authority of the Court. The case In the matter of Rice (b) was plainly not under the statute, and perhaps comes nearest to the present. The solicitor in that case, having in his possession certain title deeds of his client, and claiming a lien upon them for costs of conveyancing and other general business not at all contemplated by the statute, refused to give up the deeds until paid those costs. There Lord Langdale, M. R., upon the client's petition, referred the costs for taxation, reserving the question as to the costs of the petition until the return of the report; and one-third of the bill having been disallowed upon taxation, the solicitor was not merely disallowed his costs of taxation, but was ordered to pay the client's costs of taxation and of the original application and subsequent petition to confirm the report. I cannot adopt the reasoning nor follow the decision in the case of Rogers v. Peterson (c). Whether I regard the solicitor as an Officer of the Court bound to observe its regulations and practice, and not to exact from the suitors under his direction any other or greater charges than are warranted by such regulations and practice; or whether I regard him upon the taxation as a party litigating or insisting upon certain demands in this Court,-I can discover no reason, nor colour of reason, for doubting the jurisdiction of the Court to charge him with the costs occasioned by his inequitable proceeding (d). In the present case, the solicitor, holding the title deeds of his client, claimed a lien for costs amounting altogether to a sum of £551. 6s. 6d., being the total of several bills of costs, some of which have been disallowed altogether, and from every one of which much more than one-sixth has been taxed off; so that the amount certified is considerably less than one-half of the original demand. I have, therefore, no doubt as to the propriety of the order I am about to pronounce. ORDER:-That the report made by William Curry, Esq., the Master in this matter, bearing date the 14th October 1840, do stand confirmed; and that the sum of £22. Os. 101d., in said report mentioned as the said solicitor's costs of taxation, be deducted from the sum of £136. 17s. 4d. reported due to him; and the Court doth declare that the said solicitor ought, under the circumstances in the said report and petition mentioned, to pay the costs incurred by the petitioner Eliza Lawler, the (a) 4 Sim. 125. et seq. guardian of the said minors, in having the several bills of costs The form of the petitioner's proceeding in the foregoing case passed without observation, although it is conceived, it was not in strictness free from objection. It may be observed that the Master having discretion to allow or disallow the solicitor's costs of taxation (see the 10th General Order, February 1839), included them in the sum certified; and therefore it would seem that the report should have been objected to, and that, in strictness, the application should have been, not that the report might stand confirmed, but that it should be varied according to the objections. See the following case. 1840. Rolls. In re LAWLERS, Minors. POWER v. NAGLE. AFTER this cause had been far advanced, the solicitor of one of the parties on whose behalf very heavy costs had been incurred, furnished his bill to his client, and required him to pay or give security for the amount, and declined otherwise to be further concerned for him. Some fruitless but irritating negociation ensued, in consequence of which the solicitor wrote to the client, discharging himself as solicitor; and more than a month having elapsed after the delivery of the bill, commenced Nov. 17. A solicitor fur nished his bill to his client, and, after the the month alexpiration of lowed by the menced an acamount statute, com tion for the amount, the client having taken no step in the mean time. Afterwards, upon the client's petition the action was stayed, and the costs were referred for taxation, the client undertaking to pay whatever should be the sum certified as due. Upon the taxation, more than one-sixth having been taken off, the Court ordered that the solicitor's costs of the taxation should be disallowed, and also that the client's costs of the taxation, and of the application upon the return of the report, should be deducted from the amount of the taxed costs. |