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APRIL, IT)11]
The Gazette of the Incorporated Law Society of Ireland.
211
of Solicitors, which brings the position of
Solicitor on the record automatically to an
end, necessarily takes away any right of
proceeding in this Division with regard to the
payment of his bill.
It was not unreasonable
for Mr. Whitehead to send his bill .to the
Solicitor who
succeeded him
and,
sub
sequently, to the lady herself.
Rules 154
and 155 deal with taxation. The Court may
say there shall be a stay of proceedings until
the costs are paid and discharged.
In the
case of
Nairne
v.
Nairne
(85 L. T. 649) the
Solicitors
themselves put an end to the
relation of Solicitor and client.
In this case
it ceased by the act of the petitioner. The
question is different here. The question is :
Can a client, by merely giving notice of a
change of Solicitors, take away the ordinary
position of Solicitors as to security for their
costs ?
In my judgment it is not fair that
it should be so. This Solicitor should be able
to
secure
some
protection
against
the
husband for the costs which he has incurred
for the wife without having recourse
to
common law proceedings.
Therefore,
the
proceedings
in
this application must be
stayed in order that the suit may be kept
alive, and in order to give the Solicitor an
opportunity to carry in his bill. The costs
of this application and in Chambers may be
added to the bill, without prejudice to any
subsequent order as to costs, in order to
avoid a second taxation. Leave to appeal
was granted.
(Reported
Times Law Reports,
Vol. xxvii.,
326 ;
Solicitors' Journal,
Vol. lv., 366).
KING'S BENCH DIVISION (ENGLAND).
(Before Joyce J.)
Re Shuttleworth ; Lilley v. Moore.
March
16, 1911.—
Costs—Taxation
•—
Will—
Solicitor—Executor
—
Insolvent
estate—
Administration action—Profit costs.
A SOLICITOR who is sole executor and trustee
of a will is not entitled, if the estate is found
to be insolvent, to his costs of defending an
administration action in person, nor to any
other costs, except his out-of-pocket expenses,
even though the Will contained a clause
empowering
him
to make
professional
charges, and
the order in
the action on
further consideration directed the costs of
the defendant
to be
taxed as between
Solicitor and client, and retained by him out
of the balance due from him.
This was a summons by the defendant in
an administration action for a review of
taxation. The testator, by hisWill, appointed
the defendant (who was a Solicitor) and
another, executors and trustees thereof, and
declared
that
the defendant
should be
entitled to charge for professional work done
by him in the course of administration. The
second executor predeceased the testator.
The testator died in 1908, and an administra
tion action was commenced by a creditor of
the estate. The Defendant appeared
in
person. The Master's certificate found that
the estate was insolvent, and an order on
further consideration was made in Chambers
by which it was ordered
(inter alia)
that it
be referred to the Taxing Master to tax as
between Solicitor and client the costs of the
plaintiff and defendant of the action, including
in the costs of the defendant any charges
properly incurred by him as executor of the
testator's Will and not already taxed or
allowed beyond his costs of the action ; and
that the defendant should retain the amount
of his costs when so taxed out of the balance
certified to be due from him. The defendant
|
brought in a bill of costs which was taxed by
j
the Taxing Master at £15 8s. The defendant
thereupon brought
in objections
to
the
taxation, on the ground that the Taxing
Master had not followed the order on further
consideration, and that he ought to allow
the Defendant ordinary costs in the action
as between Solicitor and client. The Taxing
Master overruled the objections on the ground
that the case was concluded by authority ;
and in his answer to them, he said that the
sum which he allowed to the defendant was
" sufficient
to amply cover his disburse
ments." The defendant then took out the
present summons for review, and appeared
in person at the hearing.
The Judge, in giving judgment, said :—
In this case my sympathies, if I am entitled
to have any, are with the applicant. He was
appointed executor by the testator, with full
power to charge for his costs.
Proceedings
were taken by a creditor to administer the
estate, and in those proceedings the applicant,