1823.

Ex parte

The learned Serjeant submitted, that under the provision contained in the 37 Geo. 3, c. 90, s. 31, Mr. Sherwood SHERWOOD. might be re-admitted on payment of the duty accrued since the last certificate obtained by him, and such further sum, by way of penalty, as the Court should think fit to direct that the only doubt as to the terms of the admission arose on the case of Ex parte Nicholas (a), where Lord Chief Justice Gibbs observed, "that the fear was, that as the applicant had been admitted, and as no certificate was taken out within that year, that admission might be void; and that if a gentleman neglect to take out a certificate within the year, his admission would be void, whether he practised or not; for that the act which required the certificate to be taken out, contained no such qualification."

But the Court referred to the case of Ex parte Cunningham (b), where an attorney was re-admitted on payment of a nominal fine, and without the arrears of duty, after he had ceased to practise six years, on an affidavit explaining the circumstances under which he had discontinued to practise; and they ordered the re-admission to be allowed, on payment of the usual nominal fine of six shillings and eight-pence; and subject to the payment of that sum and of the duty for the two years which Mr. Sherwood had not taken out his certificate, the application was

in

Granted.

(a) 2 Marsh, 123. S. C. 6 Taunt, 408.

-(b) Ante, page 410.

1822.

Ex parte MALIPHANT.

Friday, Jan. 31st.

So an attorney

may be re-ad

mitted on payment of a no

minal fine, where he had

discontinued to

health.

MR. Serjeant Vaughan, on a former day in this Term, moved that the applicant might be re-admitted an attorney of this Court without payment of arrears of duty or fine; on an affidavit, which stated that about the latter end of 1819, he became afflicted with illness, which ren- practise on acdered him wholly unfit for any kind of business; in con- count of ill sequence of which, about the latter end of 1820, he left London, where he had formerly practised, for Wales, where he remained for the benefit of his health until December last, That in consequence of his indisposition, and absence from London, he omitted to take out his certificate for the year 1822; and that he had not, since the expiration of his last certificate, which expired in November, 1821, either in his own name or in the name of any other person or persons, sued out any writ or process, or commenced, prosecuted, carried on, or defended any action or suit, or any other proceeding, in any of the Courts of law or equity, for or in expectation of any given fee or reward.

The Court, considering the affidavit sufficient, the re-admission was allowed, on payment of the nominal fine.

1823.

Friday,

Jan. 31st.

not direct an

attorney's bill

to be referred

ter payment, unless it can be impeached on the grounds of gross overcharge, fraud, or mistake, or some specific charge, which must be distinctly pointed out, and although the application was made by a

cestui que trust,

who had a direct interest in

the subject matter for which the expences in the

WILKINSON, Demandant; GEORGE FOSTER and ROBERT
FOSTER, Vouchees.

The Court will MR. Serjeant Hullock, in the last Term, obtained a rule on the part of a Mr. Capes, an attorney of this Court, to taxation af- calling on the vouchees to shew cause why an order of Mr. Justice Park, bearing date the 11th November, 1892, made for referring Capes' bill of costs to the Prothonotary to be taxed, and which order had been subsequently made a rule of Court, might not be discharged, and all proceedings under it in the mean time be stayed. He founded his motion on an affidavit, which stated, that the charges in the bill in question were incurred for business done relating to certain freehold estates, belonging to both the above named vouchees, and in which they had a joint interest, commencing in 1809 and ending in 1812: that previously to the former year, the vouchee George Foster had conveyed his interest in the estates which formed the subject of the recovery in question, to two trustees, in trust, for the benefit of his creditors; which instrument, previously to suffering the recovery, had, in part execution of the trusts of such conveyance, been mortgaged by the trustees for securing the principal sum of 1500l. with interest; and that the recovery so far as related to George Foster was suffered by him for confirming the mortgage so made by the trustees, who were accordingly made parties to, and executed the deed for making a tenant to the præcipe, and declaring the uses of the recovery and that as far as the same related to Robert Foster it was suffered by him for confirming another mortgage made by him to the same mortgagees: that the recovery, and the business connected therewith, comprised in the bill of costs, as far as concerned the interest of George Foster, was done and transacted by

bill were incur red, yet it havng been previously paid by the representa

tive of a surviving trustee, acting under a deed of trust for sale,-the

Court refused to interfere.

1823.

Demandant,

FOSTER,
Vouchee.

Capes, at the request and on account of the trustees, and not at the desire of George Foster: that both the trus- WILKINSON, tees being dead, the trust devolved upon the son and heir of the survivor, who took the management of the trust that on the purchase monies arising from the sale of the share of George Foster in the mortgaged estates being paid, the bill of Capes, in which the expences of suffering the recovery were charged, was delivered to the attorney of the heir of such surviving trustee, and not to George Foster, and that the bill was approved of by the former, and allowed on the 27th December, 1821, and paid accordingly :-and that the order for referring it to the Prothonotary for taxation was not applied for under any authority from the heir of such surviving trustee or his attorney.

Mr. Serjeant Vaughan now shewed cause, and submitted, that it was quite clear that the business was done by Capes for the vouchees jointly, as his bill was headed in their joint names: that with respect to the deed of trust executed by George Foster, it contained no release from his creditors; and although the heir of the surviving trustee approved of and paid such bill, still that he had acted improperly in so doing, and in negligence of the trust reposed in him. In Hazard v. Lane(a) Lord Eldon said, that "in any case, he could not have held a release to executors as entitled to consideration against the right of a party to have his costs taxed under the statute 2 Geo. 2, c. 23, s. 23: and that the cestuis que trust, whose funds were to bear the whole expences of the suit, had a right to make use of the name of their trustees and executors, (giving them proper indemnity,) to obtain a taxation of the solicitor's bill." That principle is applicable to the present case, and must be adopted as far

(a) 3 Meriv. 291.

1823. as regards the vouchee George Foster, as the cestui que WILKINSON, trust, as he has a direct interest in the subject matter for Demandant, which the expences in Capes's bill were incurred.

FOSTER, Vouchec.

Lord Chief Justice DALLAS. I am of opinion that there is no ground whatever for referring this bill for taxation: if there be any ground to impeach the conduct of the heir and representative of the surviving trustee, an application must be made elsewhere. It is true, that he should have used due caution before the bill was paid and settled; but the party applying to have it afterwards taxed must shew some specific ground to impeach the bill, either by fraud, mistake, some gross overcharge, or a particular charge requiring its revision; and here it appears that Mr. Capes dealt with the attorney to the heir of the surviving trustee, who approved of the bill on his behalf.

Mr. Justice PARK.-It has been settled ever since the time of Lord Mansfield, that when an attorney's bill of costs has been paid and settled, it cannot be referred to taxation as a matter of course, unless some specific ground be laid on which it may be impeached. If this application were granted, it is impossible to say where such a practice might end; and it would place an attorney in a most unprecedented situation, if his bill could be referred to taxation after it had been settled and paid; and more particularly so, in a case where more than a year has elapsed before the application was made.

Mr. Justice BURROUGH.-It appears that the heir of the surviving trustee had power to act under the trust deed; and as the bill in question was delivered to his attor ney, and approved of by him on behalf of such heir, I think there is no ground whatever to induce the Court to interfere, by ordering it to be now referred to taxation.