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![handle is hein.slavery/ssactsengr0853 and id is 1 raw text is: Upon the bearing of a petition presented by the Plaintiffs, and praying that the
Master might be directed to review his taxation, the question was whether the Master
ought or ought not to have taken the account.
Mr. Bethell and Mr. Roundell Palmer, in support of the petition, said that the
account was not a general account of dealings and transactions between Brooks &
Cooper and the Petitioners, but consisted of sums which Brooks & Cooper had received
and paid in their professional character, on account of -the Pptitioners, and the items
of it were connected with the bills of costs; and, therefore, the Master ought to have
included it in his taxation, and if be had done so be would have -found that Brooks
& Cooper had been overpaid to the amount of £2301 : In the Matter of Aitken (4 Barn.
& Ald. 47), In the Matter of Barker (ante, vol. vi. p. 476), Jones v. James (1 Beav. 307).
Mr. Cooper and Mr. Chandless, for the Respondents, said that some at least of
the sums contained in the account were not connected in any manner with the [566]
bills of costs, nor had they been received by Brooks & Cooper in their professional
character; and that, under the common order for taxing a solicitor's bills, the Master
could not take a general account of pecuniary transactions between a solicitor and
his client, unless there was an agreement between them, either express or implied,
that the sums received by the solicitor should be applied in liquidation of his costs.
In support of that proposition they referred to Anon. (2 Vez. 452), In the Matter qf
Smith (4 Beav. 309), and to Jones v. James. They added that the opinion expressed
by His Honor in Russel v. Buchanan (ante, vol. ix. p. 167), before he had consulted
the Masters, namely, that a general account between a solicitor and his client cannot
be taken under the common order, was correct; and that the order for taking such an
account which His Honor made in that case after consulting the Masters had been
corrected on appeal.
THE VICE-CHANCELLOR [Sir L. Shadwell]. Although it is perfectly true that
under the common order an account cannot be taken of matters in which a solicitor
has acted for his client, not in the character of a solicitor, yet, where it appears that
in a variety of transactions the solicitor has been acting in the character of a solicitor,
and in that character has received sums of money for his client, and has actually
charged his client for the very business done in respect of the receipt of those sums
of money, it would be a strange violation of justice to say that he should be at liberty
to keep the amount of the sums he had so received in his pocket, as constituting a
general debt due from him to his client, and that the client should not have the right
[567] to say that the sums received were probably applicable by the solicitor to the
payment of the bill of costs. That would be introducing a rule Which would work
very great hardship on those who employ solicitors, and who, all along, suppose that
by the receipt of money the bill of costs is in a state of liquidation.
I think the proper way is to refer it back to the Master to review the taxation;
and I must declare that, in acting on the order made for taxation, the Master is to
have regard to the sums of money which were received by the solicitors, in their
character of solicitors, on behalf of the Petitioners, their clients.(1)
[567] GArrLAND v. TANNER. April 26, 1847.
New Orders. Answer. Defendant; Insufficiency.
If a bill is wholly demurrable the Defendant, if he answers it, must answer fully.
On the bearing of exceptions to the Master's report as to the sufficiency of an
answer in this cause, the same question arose as in Mason v. Wakeman (ante, p. 374),
relative to the 38th General Order of August 1841; and His Honor said that he
remained of the same opinion respecting that order as he had expressed in the case
referred to.
It will be seen, however, on referring to the memoranda at the foot of page 478, ante,
(1) Affirmed by the Lord Chancellor, see 2 Phill. 362.
709
15 IlM. 566.
GATTLAND V. TANNER](ViewImageLocal?handle=hein.slavery/ssactsengr0853&div=1&collection=&method=preview&ext=.png&size=3)