nor any executor, administrator, or assignee of any attorney or solicitor, shall commence or maintain any action or suit for the recovery of any fees, charges, or disbursements, for any business done by such attorney or solicitor, until the expiration of one month after such attorney or solicitor, or executor, administrator, or assignee of such attorney or solicitor, shall have delivered unto the party to be charged therewith, or sent by the post to, or left for him at his counting-house, office of business, dwellinghouse, or last known place of abode, a bill of such fees, charges, and disbursements, and which bill shall either be subscribed with the proper hand of such attorney or solicitor, (or in case of a partnership, by any of the partners, either with his own name or with the name or style of such partnership,) or of the executor, administrator, or assignee of such attorney or solicitor, or be inclosed in or accompanied by a letter, subscribed in like manner, referring to such bill; and upon the application of the party chargeable by such bill, within such month, it shall be lawful, in case the business contained in such bill, or any part thereof, shall have been transacted in the High Court of Chancery, or in any other Court of equity, or in any matter of bankruptcy or lunacy; or in case no part of such business shall have been transacted in any Court of law or equity, for the Lord High Chancellor or the Master of the Rolls; and in case any part of such business shall have been transacted in any other Court, for the Courts of Queen's Bench, Common Pleas, Exchequer, Court of Common Pleas at Lancaster, or Court of Pleas at Durham, or any judge of either of them, and they are hereby respectively required, to refer such bill, and the demand of such attorney or solicitor, executor, administrator, or assignee, thereupon to be taxed and settled by the proper officer of the Court in which such reference shall be made, without any money being brought into Court," &c. It is submitted, that nothing is to be found in this statute which VOL. IV. D EXCH. 1849. SMITH v. DIMES. 1849. SMITH ซ. DIMES. enables an agency bill to be taxed by a Court at common law. Before the recent statute there was no such power. Weymouth v. Knipe (a) is a distinct authority upon the point. It was there held, that the Court possesses no jurisdiction to compel the taxation of an agency bill, either at common law or under the statutes 2 Geo. 2, c. 23, and 12 Geo. 2, c. 13, even where a suit is pending against the defendant for the recovery of the amount. Such a rule is a very just one, for there is a wide difference between an agency bill and an attorney's bill in the ordinary course. In the latter case it is generally for only a single transaction; in the former it may be for matters extending over a great space of time. Besides, when the client is himself an attorney, he does not need that protection which a layman requires. As between attorney and client there are ordinary charges, regulated by a certain scale, and well known to them, but with which the officer of the Court is not acquainted. As a matter of convenience, therefore, the better course is to allow these parties to arrange their own scale of charges. By the 12 Geo. 2, c. 13, s. 6, bills of fees between one attorney and another were taken out of the operation of 2 Geo. 2, c. 3, s. 23, and in the present Act no corresponding clause is to be found. It may be contended on the other side, that, as there is no such provision in the present statute, this case falls within it; but the first of the above-mentioned Acts did not apply to the case of agency, and merely dispensed with the delivery of a bill when the client was an attorney. In the case of In re Gedye (b), before Coleridge, J., he expressly gives it as his opinion that the 6 & 7 Vict. c. 73, does not apply to agents' bills. The learned Judge there says, "Now it is said, that, in the Court of Chancery, agents' bills were taxable by virtue of the inherent power of the Court, without reference to any legislative enactment. (a) 3 Bing. N. C. 387. (b) 2 D. & L. 915. With regard, therefore, to such bills, it was not necessary to introduce any special provision in the recent Act. The Courts of common law, on the other hand, held that they possessed no power, independent of the statute, to order the taxation of an attorney's bill." In Re Simons (a) the same rule was pursued. The case of Billing v. Coppock (b) may be referred to by the other side; but that was not an agency bill at all, but a bill for business done as between attorney and client. [Parke, B.-In Sandys v. Hornby (c), Lord Tenterden held, at Nisi Prius, that an agency bill was not within the old Attornies Act, 3 Jac. 1, c. 7.] The old cases of Dixon v. Plant, and Ex parte Bearcroft (d), have been overruled by the more modern cases to which reference has been made. Lastly, it may be observed, with respect to the present statute, that the case of agents is mentioned expressly in the 3rd and 6th sections, but no mention whatever is made of them in the 37th section. Smythies, in support of the rule.-The plaintiff's bill is taxable. Before the recent statute, agency bills were taxable by the general jurisdiction which the superior Courts have over their officers, and the case of Weymouth v. Knipe, which the defendant has chiefly relied upon, and which is at variance with the older authorities, has been overruled; and if that be not so, the language of the 37th section of the 6 & 7 Vict. c. 73, is sufficiently large to comprehend agency bills. It may be admitted, that where the parties have come to a specific agreement, they are bound by it, and the bill for business performed in pursuance of such agreement may not be subject to taxation. It has been expressly decided that the Court of Chancery has jurisdiction to order an agent's bill to be taxed: Jones (a) 2 D. & L. 500. (d) 1 Dougl. 199, n. 1849. SMITH v. DIMES. (c) 1 Man. & R. 33. 1849. SMITH V. DIMES. v. Roberts (a); and there Sir L. Shadwell said, "For a series of years it has been the established practice of this Court to direct the taxation of an agent's bill on the application of the solicitor who employed him;" and after referring to several cases in support of his opinion, his Honour afterwards proceeds to say, "If then I find that this practice has prevailed in this Court for a long series. of years, it appears to me that I am bound to adopt and follow it, notwithstanding the opinion expressed by the Judges of the Court of Common Pleas, in Weymouth v. Knipe." In Re Smith (b) the same rule is recognised. Such being the rule in the Courts of equity, it is difficult to see why a different rule should exist in the Courts of common law. In the case of Curling v. Sedger (c), which was subsequent to that of Weymouth v. Knipe, the Court of Common Pleas held, that, pending an action, the superior Court had power, at common law, to order the bill to be taxed. And on reference to the judgment of the Court in that case, it will be seen that the Court were of opinion that such power existed independently of the stat. 2 Geo. 2, c. 23, s. 23. So again, in Clarkson v. Parker(d), this Court held that it possessed a general jurisdiction to compel an attorney to deliver his bill; and in Williams v. Griffith (e), that the same power existed as to taxation after action brought. In these several cases the common law jurisdiction was exercised. [Martin referred to Cardale v. Bull (ƒ), where it was held, that, under the stats. 2 Geo. 2, c. 23, and 12 Geo. 2, c. 13, the Courts had no power by direct statutory provision, or in the exercise of any common law authority, to order taxation of an agency bill delivered by one attorney to another.] At all events, the language of the recent statute is large enough to embrace the present case. The well-known rule as to the proper construction (a) 8 Sim. 397. (d) 4 M. & W. 532. of statutes is to be found in Garland v. Carlisle (a), as laid down by Parke, B., and which has constantly been acted upon since. Now, the words in the 37th section of the 6 & 7 Vict. c. 73, "any fees, charges, or disbursements,” are just as applicable to an agency bill as to an ordinary bill, unless some good reason can be shewn to the contrary. With respect to the case of Sandys v. Hornby, the statute of 3 Jac. 1, c. 7, only says, that a signed bill shall be delivered by attornies to their "masters or clients;" whereas, by the present Act, taxation is to be made by application of the person chargeable therewith. Cur. adv. vult. The judgment of the Court was now delivered by POLLOCK, C. B.-This case, which was an application to tax an agency bill on which an action had been brought, was argued in Hilary Term last by Mr. Smythies, in support of the application, and by Mr. Martin and Mr. Willes, against it. All the authorities on the subject of taxation of an agent's bill, before and since the stat. 6 & 7 Vict. c. 73, were brought to our attention. They are not uniform, even since that statute; but we think, on considering those authorities and the language of the statute, we have the power to refer such a bill to taxation; and therefore the rule must be absolute. The question depends entirely on the statute law; for, according to the more recent authorities, the Courts of law have no jurisdiction to tax an agent's bill by the common law authority, even though an action had been brought upon it. This was decided in the cases of Weymouth v. Knipe, and Cardale v. Bull, although the Courts of equity have held that they have the power: Jones v. Roberts; and although, prior to the above decisions, Courts of law had commonly exercised it. It is also perfectly (a) 2 C. & M. 74. 1849. SMITH v. DIMES. |