Volume IX. 1846. PHILLIPS V. BROADLEY. in consequence of an unexpected event in his family, the trust money he had proposed to advance would be required for other purposes; and he expressed his regret if you should be inconvenienced by it, &c. Attending John Barkworth, Esq., of Hull, and several other parties, who we knew had money to advance, with particulars of the security, and explaining to them &c.; but they declined lending any money under the circumstances. 1838. January 3d. Writing letter to you, and informing you of what had been done, and requesting to be informed of your wishes relative to the transfer of mortgage, &c. 20th. Paid the postage of your answer. 22d. Paid the postage of a double letter from you, desiring us to send an artist to Brantingham to make a sketch of a fountain for you. 25th. Mr. Phillips being at York, his journey from thence to Acomb to see you and confer on the state of your affairs and the arrangement for the payment of Mr. Duesbery's mortgage," &c. Then followed items of subsequent dates in 1838, relating to the business of the mortgage and further endeavours to raise money for paying it off (which was at last accomplished), and to other transactions of an entirely different nature. For the plaintiff it was contended that the business relating to the mortgage was continuous, and that the item of January 20th, 1838, being within six years of the commencement of the action, prevented the statute from attaching to the prior ones. It further appeared that a person named Bower took a transfer of the mortgage from Ducsbery, and afterwards commenced actions of ejectment and other proceedings to enforce payment of the mortgage money. In these, the now plaintiff Phillips and his late partner Campbell acted as attorneys for Bower; and proceedings were stayed on the condition, among others, that the now defendant should pay Campbell & Phillips's bill of costs, which had been delivered to Bower. Defendant, on March 29th, 1841, paid the bill, amounting 1846. to 1667. 16s. 4d., for which Campbell & Phillips gave Queen's Bench. him their receipt and delivered up the title deeds. Defendant afterwards obtained the following order of a Judge for taxation of the bill. "Doe dem. Bower Roe. Eland (a) tenant. Upon hearing the attorneys or agents on both sides, I do order that Messrs. Campbell & Phillips's bill for fees, charges and disbursements in this and other causes and matters, delivered to and paid by Mr. Broadley, be referred to the Master to be taxed; that the said Campbell & Phillips give credit for all sums of money by them received from or on account of the said Mr. Broadley; and that the said Messrs. Campbell & Phillips do refund what, if anything, there may on such taxation appear to have been overpaid. "Dated the 23d day of June, 1841." Campbell & Phillips did not give any actual assent to the taxation; but they attended, and submitted new items of demand, which were considered and allowed; and the master directed, by his allocatur, that they should refund to the now defendant 10l. 4s. 10d. This sum the defendant claimed to set off in the present action. On the plaintiff's part it was contended that the order to tax, being made before stat. 6 & 7 Vict. c. 73., was invalid; and, at all events, that the sum awarded on the taxation was not a debt, and could not be a subject of set off. Wightman J. directed a verdict for the plaintiff, damages 10%. 17s. 2d., the amount proved to be due if the Statute of Limitations did not attach and the set off was not admissible; giving leave to move to enter a verdict for the defendant, or that the damages might be reduced to 13s. Watson, in Easter term, 1845, obtained a rule nisi accordingly. In this term (b), (a) Eland was tenant to Broadley on the Laxton estate. (b) November 4th. Before Lord Denman C. J., Coleridge, Wightman and Erle Js. PHILLIPS V. BROADLEY. Volume IX. 1846. PHILLIPS V. BROADLEY. Knowles and Cowling shewed cause. First: The item of January 20th, 1838, in the bill delivered to the defendant, drew after it the previous items relating to the mortgage, and barred the Statute of Limitations as to all. The plaintiff could not have brought an action in respect of this business till the whole was done. He was employed to procure means of paying off the mortgagee Duesbery; and if he failed in one quarter he was to attempt another. It cannot be contended that, while this was in progress, he could have stopped and commenced an action for each step he took. Rothery v. Munnings (a), which may be cited, was a very different case. There the business had been conducted by the proctor up to sentence; and the item subsequent to that was merely casual. [Erle J. Here it does not appear that the defendant at any time employed Campbell & Phillips in a continuous endeavour to raise money. On January 3rd, when Hutton and others have declined to advance it, they write "requesting to be informed of" his "wishes relative to the transfer."] Next, the order for taxing Campbell & Phillips's bill to Bower was made without jurisdiction. Under stat. 2 G. 2. c. 23. s. 23., the taxation was to be ordered "upon application of the party or parties chargeable by such bill;" the taxation here was applied for while that statute was in force: Bower was primarily chargeable; but the taxation was at the instance of Broadley. He was neither client to Campbell & Phillips, nor a party to the ejectment. It was not till the passing of stat. 6 & 7 Vict. c. 73. that a party liable to pay the bill, though not originally chargeable, was empowered (by sect. 38) "to (a) 1 B. & Ad. 15. 1846. PHILLIPS V. BROADLEY. make such application for a reference for the taxation Queen's Bench. and settlement of such bill as the party chargeable therewith might himself make." That the Courts have no authority independent of statute to order a taxation, appears conclusively from Doe dem. Palmer v. Roe (a), and Langford v. Nott (b) there cited. In the former case notice was taken of some decisions which, apparently, are to an opposite effect; but in one of these, Sadler v. Palfreyman (c), there was a clear consent of all parties before the bill had been paid; and others, as Balme v. Paver (d), may in like manner be explained by their own circumstances. The proper course of proceeding here would have been that taken in Doe dem. Capps v. Capps (e): the mortgagor should have appeared as defending the ejectment, and then applied to have proceedings stayed, and the mortgage discharged, under stat. 7 G. 2. c. 20., on payment of the mortgage money and costs, which would have been taxed as between party and party. Here the defendant permits Campbell & Phillips to receive from their own client, the mortgagee, their costs as between attorney and client, to which they are entitled as against him, and then, after a long interval, applies for a taxation of their bill, and an order upon them to refund money paid, not to them, but to their client. The Court had no power, under the circumstances, to make that order. Lastly, even if the order had been regular, the sum to be refunded was not a debt which could be set off. It was only by a late statute (1 & 2 Vict. c. 110. s. 18.) that a rule of Court directing payment of money ac (a) 4 Dowl. P. C. 95. (c) 1 A. & E. 717. (e) 3 New Ca. 768, (b) 1 Jac. & W. 291 1846. PHILLIPS V. BROADLEY. Volume IX. quired the force of a judgment. Gower v. Popkin (a) shews that the order for taxation does not supersede the general rule that money voluntarily paid cannot be recovered back in an action, or be made a subject of set off; which latter proposition is exemplified by Lawes v. Eastmure (b). And in Field v. Bezant (c), where an attorney set off the amount of his bill, this Court held that the set off could not be reduced by costs of taxation which had been allowed to the plaintiff, because those costs could not have been recovered in an action, the remedy being by attachment. The taxation of this bill made out by Campbell & Phillips to their own client evidently could not create a contract between them and the now defendant. It is true that they attended the taxation: but this no more amounts to a consent that the sum allowed shall be claimable from them as a debt than proving under a commission of bankrupt estops a creditor from disputing the bankruptcy. It may be argued that the payment here was not voluntary, because the party made it in order to recover his title-deeds: but the facts do not amount to a duress; and there was no protest or complaint. Watson and Hugh Hill, contrà. As to the first point; the rule is that, at any moment when the attorney might decline proceeding farther with the client's business until his bill is paid, the Statute of Limitations begins to run: Rothery v. Munnings (d). Here the attorneys might have so declined, six years before the action commenced. Lord Lyndhurst C. B. said, in Harris v. (a) 2 Stark. N. P. C. 85. (b) 8 Car. & P. 205. (d) 1 B. & Ad. 15. |