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JANUARY, 1918]
The Gazette of the Incorporated Law Society of Ireland.
57
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132
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14
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During the continuance of the present war
and .for a period of six months thereafter
these charges shall take effect.
Recent Decision affecting Solicitors,
(Notes of decisions, whether in -reported or
unreported cases, of interest to Solicitors, are
invited from Members.)
KING'S BENCH DIVISION (ENGLAND).
(Before Avory, J.)
Stezvart-Moore
v.
Sprague.
Nov. 24, 1917.—
Solicitor
—
Promissory note
given by client in respect of untaxed bill
of costs—Promissory note dishonoured—
Right of Solicitor to judgment for full
amount of promissory note.
Action set down for trial under Order
XIV., R. 8.
The action was brought by Mr. Henry
Stewart-Moore, a Solicitor, against Mr. W. G.
R. Sprague, an architect, to recover .£80 on
a promissory note dated June 2ist, 1917,
payable
three months
after date,
and
dishonoured at maturity.
The defendant had for some years had
transactions with money-lenders, and the
plaintiff had acted for him in various pro
ceedings arising out of those transactions.
The plaintiff had delivered bills of costs from
time to time, and on May 4th last delivered
a bill for £163 I2s. id., which had not yet
been taxed. The defendant called upon the
plaintiff, who, after a discussion, agreed to
accept two promissory notes, one the note
now sued upon, and another which had not
yet become due.
The case for the plaintiff was that the
promissory notes were intended to be a final
settlement between the parties, and that the
defendant could not now ask for taxation of
the bill.
If he wanted taxation he ought to
apply for it by summons, and in the meantime
the plaintiff was entitled to judgment on the
note now sued upon
(Ray
v.
Newton
(1913),
i K.B., 249).
For the defendant it was contended that
the plaintiff was not entitled to judgment for
;£8o, as the bill of costs had not yet been
taxed. As the dispute was one between the
maker and the payee of the note, the Court
could go behind the note and see whether
there had been a total or partial failure of
consideration. There had been a part failure
at least, for on taxation something would
have to be taken off the bill.
The note,
therefore, could not be treated as having been
given in final settlement
(Sayer
v.
Wagstaff
(1844), L. J. Ch., 116).
The creditor by
accepting
a
promissory note only gave
extended credit, and there was no settlement
of the original debt until the note was actually
paid. The defendant, therefore, was entitled
to have the bill of costs taxed before paying
the note.
Avory, J., gave judgment for the plaintiff
for
£80.
He had not materials before him to
enable him to say whether the defendant was
entitled to taxation of the bill of costs, and
he expressed no opinion about it.
The
defendant was asking that judgment should
be given on the note less some amount which
it was quite impossible to arrive at.
To
arrive at the amount it would be necessary
to decide whether the defendant was entitled
to taxation of the bill of costs, and also how
much would come off the bill on taxation.
Ray
v.
Newton (supra)
was an authority which
showed that whether the defendant was
entitled to taxation or not the plaintiff must
now have judgment on the note.
See also
Glennie
v.
Imri
(1839), 3 Y. & C., 436.
(Weekly Notes,
December 8th, 1917, page
367).
ALL communications connected with THE
GAZETTE (other than advertisements) should
be addressed to the Secretary of the Society,
Solicitors' Buildings, Four Courts, Dublin.