* 606 *O'BRIEN v. LEWIS. 1863. June 5. July 23. Before the LORDS JUSTICES. A solicitor's lien for his costs upon costs ordered to be paid to his client by the opposite party in a suit remains, notwithstanding such solicitor having ceased to be the client's solicitor in the suit, and notwithstanding that he has taken the client's body in execution under a judgment against him for the amount of the solicitor's costs. Semble, per Lord Justice KNIGHT BRUCE, that against the judgment should be allowed what had been or might be recovered by the lien. THIS was an appeal of the plaintiff in the suit from a decision of the Vice-Chancellor STUART, holding upon the petition of the respondents, who had been originally the plaintiff's solicitors in the suit, that they were entitled to a lien for their costs upon the costs decreed in the suit to be paid by the defendants to the appellant, notwithstanding that the respondents had ceased to be the appellant's solicitors in the suit, and notwithstanding that they had taken the body of the appellant under a judgment obtained by them against him for the amount of their costs. The case below is reported in the fourth volume of Mr. Giffard's Reports, (a) in an earlier part of which volume (b) is also reported the suit on the hearing before the Vice-Chancellor, whose order then made was affirmed by the Lord Chancellor (Lord WESTBURY) on appeal. (c) The facts on the present appeal, and the scope of the arguments addressed to the Court, sufficiently appear from the judgments of the Lords Justices. Mr. Greene and Mr. Cates appeared for the appellant. Mr. Brooksbank, for the defendants in the suit. Mr. Bacon and Mr. Jessel, for the respondents, the appellant's former solicitors. (a) Page 396. (b) Page 221. (c) 30th January, 1863. * 607 *The following were the authorities referred to, viz. :For the appellant: Blackstone's Commentaries, (a) Foster v. Jackson, (b) Burnaby's Case, (c) Horn v. Horn, (d) Taylor v. Waters; (e) 1 & 2 Vict. c. 110, § 16; Houlditch v. Collins, (g) Morgan v. Cubitt, (h) Beard v. M'Carthy, (i) Chilton v. Whiffin, (k) Cohen v. Cunningham, (1) Shaw v. Neale, (m) Jauralde v. Parker, (n) Ex parte Christy, (0) Cowell v. Simpson, (p) Chase v. Westmore, (q) Balch v. Symes, (r) Barker v. Smart, (8) Roberts v. Ball, (t) Davies v. Bush, (u) Vigers v. Aldrich, (v) Holcroft v. Manby, (x) Lloyd v. Mansell, (y) and distinguished Lloyd v. Mason (2) from the pres ent case. For the respondents, the former solicitors: — Bac. Abr. tit. "Execution D.," (aa) Peacock v. Jeffrey, (bb) Simpson v. Hanley, (cc) Thompson v. Parish, (dd) as overruling Beard v. M' Carthy, (i) * Cowell v. Simpson, (p) *608 Barker v. St. Quintin, (ee) Richards v. Platel, (gg) Lloyd v. Mason. (2) July 23. THE LORD JUSTICE KNIGHT BRUCE.-In this case a client having become indebted to his solicitor upon a bill of costs, was sued at law for the amount by the solicitor, who recovered judgment in the action and issued execution upon the judgment, namely, a writ of ca. sa., against the client, who was taken under the writ accordingly. This, however, did not procure payment. The debt remaining unsatisfied, unless so far, if at all, as it could properly be considered to have been extinguished or satisfied by the judg(a) Vol. 3, pp. 414, 415 (21st ed.). (r) T. & R. 87. (b) Hob. 59. (c) 1 Stra. 653. (d) Ambl. 79. (e) 5 M. & Sel. 103. (h) 3 Exch. 612, 615. (i) 9 Dowl. 136. (k) 3 Wils. 13. (1) 8 T. R. 123. (s) 3 Beav. 64. (t) 3 Sm. & G. 168. (x) 13 L. J. (N. S.) C. P. 208. (aa) Page 395 (7th ed.). ment and execution. There is a fund in Court on which the solicitor claims against the client a right of lien, the ordinary solicitor's lien, for the amount of the bill. That right of lien the solicitor clearly has, unless he has lost it by the judgment and execution, which the client contends that the solicitor has done. That is the question now for decision, and upon it I think the solicitor right, and the client wrong. The execution was not a satisfaction of the debt, at least in any such sense. A mortgagee, we know, who is his mortgagor's creditor for the mortgage debt, may sue the mortgagor at law for it, may recover judgment in the action, and under the judgment take the mortgagor's person in execution without losing the benefit of the mortgage security, but may still enforce that security, the debt remaining unpaid. A solicitor does not, as to * 609 *his lien, appear to me to stand in a worse position; and the present solicitor's right of lien for the costs, for the recovery of which the action that ended in the execution and caption was brought, appears to me to remain. I agree, therefore, with the Vice-Chancellor, who has so decided in the present instance. Perhaps it may be right to add to the order a direction for allowing against the judgment what has been, or shall be, obtained by means of the lien. THE LORD JUSTICE TURNER. I am of the same opinion. Two points were relied upon on the part of the appellant in support of this appeal: first, that the debt due from the appellant to the respondents was merged in the judgment; and, secondly, that it was satisfied by the appellant's having been taken in execution under the judgment. But assuming the debt to have been merged in the judgment, the collateral security, by virtue of the lien, would nevertheless subsist, according to the case of Lloyd v. Mason; (a) and as to the debt having been satisfied by the appellant's having been taken in execution, I think it clear, upon the authorities, that the debtor's being taken in execution does not extinguish the debt or operate as payment of it; and if the debt be not extinguished, and the lien subsists, the order of the Vice-Chancellor complained (a) 4 Hare, 132. 1 See 4 Kent, 183, 184; 2 Dan. Ch. Pr. (4th Am. ed.) 815; Tappan v. Evans, 11 N. H. 311; Hale v. Rider, 5 Cush. 231, 232. of by this appeal cannot be otherwise than right. I had in the course of the argument some doubt on this part of the case, in consequence of * what was said in Beard v. *610 M' Carthy, (a) but this doubt has been wholly removed by the case of Thompson v. Parish. (b) I think this appeal must be dismissed with costs. In the Matter of the Arbitration between The EASTERN COUNTIES RAILWAY COMPANY and The EASTERN UNION RAILWAY COMPANY. THE EASTERN COUNTIES RAILWAY COMPANY v. THE EASTERN UNION RAILWAY COMPANY. 1863. July 23, 24. Before the LORDS JUSTICES. An arbitrator who, in making his award as to certain disputed questions of account, was to have regard to the principles of taking the accounts shown in certain accounts prepared by public accountants, submitted the written statements of claims made by either disputant to such accountants for their report thereon, upon receiving which he forthwith made his own award in accordance therewith and in the absence of the parties: Held, that his award must be set aside without prejudice to any question, first, because the report of the accountants must be considered as evidence on which either party had a right to be heard, and that the issue of the award was made with undue haste; and secondly, because the arbitrator had too far delegated his own authority to the accountants.1 THIS was a motion by the defendant company by way of appeal from the refusal of the Vice-Chancellor WooD to set aside an arbitrator's award. Certain questions of account pending between the plaintiff and defendant companies, The Eastern Counties Railway Company and The Eastern Union Railway Company, were, by agreement between the companies, submitted to an arbitrator, who was in his award to have regard to the principles of taking the accounts shown in certain accounts prepared by Messrs. Coleman & *611 Co., who were professional accountants. Before the arbi * (a) 9 Dowl. 136. (b) 5 C. B. (N. S.) 685. 1 See Eads v. Williams, 4 De G., M. & G. (Am. ed.) 674, and note (2); Anderson v. Wallace, 3 Cl. & Fin. (Am. ed.) 26, and cases in note (2). trator either party submitted their claims in writing, the opposite party replying thereto also in writing. The whole of these statements and counter-statements were then handed over by the arbitrator to Messrs. Coleman & Co., with a request to them to examine and report upon the accounts of the defendant company. They did so, never having, as it appeared, examined the accounts of the plaintiff company, and upon receipt of their report the arbitrator forthwith made his own award in accordance therewith, and without further communication with the parties. The Solicitor-General (Sir ROUNDELL PALMER), Mr. Daniel, and Mr. Lorence Bird, for the appellants. Mr. Rolt and Mr. Knox Wigram, for the respondents. For the appellants, it was contended that the award, in addition to being one-sided, was not that of the arbitrator, but that of Messrs. Coleman & Co. The arbitrator had no right either to hand over the questions which were for him to decide to the decision of Messrs. Coleman & Co., as he had in effect done, it being clear that he had not himself looked into the accounts; and if he had had such right, he ought not to have made his award upon the question in the absence of the parties. They referred to Walker v. Frobisher, (a) Dobson v. Grover, (b) Harvey v. Shelton, (c) and distinguished Anderson v. Wallace (d) from the present case. For the respondents, it was contended that the arbi* 612 trator's duties as to the principle upon which his award was to be based were settled by the agreement of reference, and that what he had done was merely to call in the aid of Messrs. Coleman & Co. as experts with reference to the details of the accounts, as he was perfectly justified in doing. The arguments founded upon the fact of the arbitrator's having made his award in the absence of the parties, were answered by the acquiescence of the appellants, who, knowing that Messrs. Coleman & Co. were engaged upon the accounts of their company, made no application for permission to inspect or comment upon their report. The Lord Justice KNIGHT BRUCE said, that, in his judgment, |