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![handle is hein.slavery/ssactsengr0725 and id is 1 raw text is: TAYLOR V. POPHAM
Upon the first question, made by this petition, whether by the manner, in which
this ship was dealt with, it is partnership property, my opinion is, that no such
dealing in the partnership could possibly make it partnership property, as between
the partners ; as that would be a direct infringement of the Act of Parliament. A
distinct question is, whether, though it cannot be so taken as between the partners
themselves, the ship, if dealt with in that manner, ought not upon the Statute of
King James (1) to be considered as partnership property ; whether it was so held,
that the joint creditors can say, it was partnership property before the bankrupty ;
or, on the other hand, the title being of a public, registered, nature, that public
registry must not decide, as among all mankind, where the property is. My opinion
is, that the registry is the evidence of the property; and must be taken to be the
evidence of it even among the creditors.
Upon every ground therefore .this Petition must be dismissed. At the same time
in this case also I shall not refuse liberty to file a Bill ; if they think fit.
(1) Stat. 21 James I. c. 19, s. 11. In Robinson v. Macdonnell, 5 Maul. & Seliv.
228. Ex parte Burn, 1 Jac. & Walk. 378. Kirkley v. Hodgson, 1 Barn. & Cres.
588, and Monkhouse v. Hay, 8 Pri. 256, this Statute prevailed against the Registry.
See upon that Statute, repealed and re-enacted with alterations by 6 Geo. IV. c. 16,
s. 72. Ex parte Martin, 19 Ves. 491, and the note, 494.
[72] TAYLOR v. POPHAM. MONKE v. TAYLOR. May 3d, 1808.
[See Angell v. Davis, 1839, 4 My. & Cr. 365.]
See 13 Ves. 59.-The Order, establishing the Solicitor's lien for Costs upon the fund
of assets, appropriated to the client, subject to securing a debt, from him, and
the Testator as his surety, and afterwards paid by the estate of the latter, was
reversed ; as being inconsistent with the Decrees. In Equity the costs are
arranged according to the equities of the parties; and the Solicitor's lien is only
upon the balance under that arrangement. As to the reason of some cases at
law in favor of the Attorney's lien for Costs, going the length of preventing
compromise, qucere. Distinction, where Costs are disposed of as a subject of
relief : an Appeal not open to the objection upon an Appeal for Costs only. Order
of a preceding Lord Chancellor not to be re-heard upon Minutes ; but must first
be drawn up.
A Petition was presented ; praying, that the Petition, formerly presented in
these causes, by the solicitors of Robert Paris Taylor, deceased, may be re-heard ;
and that the Order, pronounced by the Lord Chancellor (Lord Erskine), may be
reversed. (See the Report, 13 Ves. 59.)
An objection was taken, that the Order had not been drawn up; and, while it
rested in minutes, the Petition could not proceed.
The Lord Chancellor stated, as a rule, that he could not re-hear an Order of a
former Lord Chancellor while in minutes ; but permitted the Petition to proceed
as the terms of drawing up the Order might be imposed, according to the event.
Mr. Richards, for the executors of Peter Taylor, in support of the Petition,
admitting the clear right of a solicitor to receive his costs out of the money recovered,
insisted, that the lien could not prevail against the ap-[73]-propriation, by the express
Order of Lord Thurlow in 1791, of the fund recovered to the demand, established
against the client of that solicitor by a creditor.
Mr. Hart and Mr. Roupell, for the Solicitors, in support of the Order. The
authorities upon this point carefully distinguish the solicitor from the client ; and
establish the equity of the solicitor, paramount that of the creditor. This balance
was recovered by the exertions of these solicitors ; relying upon that fund ; aware,
that their client was insolvent. Lord Alvanley's habit was to suspend the payment
of costs, with the view to excite the activity of the solicitor. That was Lord Thurlow's
object in suspending the payment of these costs : but the Order has had an operation
beyond what was intended, and inconsistent with former authorities. The principle
upon which this Order was pronounced by Lord Erskine, is, that even at law the
attorney has an equitable right to his costs against the fund recovered, as conse-
682
15 VIES. JUN, 72.](ViewImageLocal?handle=hein.slavery/ssactsengr0725&div=1&collection=&method=preview&ext=.png&size=3)