Com. Pleas. May 6. The costs given to a plaintiff, in ejectment, against a mort gagor, after payment of the mortgage money, under 7 Geo. 2, c. 20; are taxed costs, as between party and party. DOE d. CAPPS v. CAPPS. MOTION to review the prothonotary's taxation of costs. In an action of ejectment, brought by a mortgagee against the mortgagor, to recover certain mortgaged premises, the defendant paid the principal and interest due on the mortgage, in pursuance of 7 Geo. 2, c. 20; and the prothonatory, upon taxing the costs of the lessor of the plaintiff, allowed costs as between party and party. The rule was obtained upon the ground that, as the statute directed that the defendant should be discharged from the mortgage, if he “should pay all the principal monies and interest due on such mortgage; and also, all such costs as have been expended in any suit or suits at law or in equity upon such mortgage; such money, for principal, interest, and costs, to be ascertained and computed by the Court, where such action shall be depending, or by the proper officer, by such Court to be appointed for that purpose;"-it was clear that the lessor of the plaintiff was entitled to costs, as between attorney and client. Wilde, Serj., for the motgagor, shewed cause. -It has been the universal practice of this court, to tax the costs under this statute, as between party and party, and not as between attorney and client (a). The term "costs to be ascertained," is well understood, in courts of law, to mean costs as between party and party (b). It is stated in an affidavit made by the defendant's attorney, that he has been informed by the officers of the King's Bench and Exchequer, that it is not the practice of those courts, to tax the costs under this statute, as between attorney and client. C. Clarke, in support of the rule.-The affidavit upon which this rule was granted, states that Mr. Bunce, one of the masters of the King's Bench, informed the deponent, that it was not usual to tax the costs under this statute, as between attorney and client, but to tax them liberally; and such a taxation would entitle the plaintiff to more costs than on a taxation like this, between party and party. In Nowell v. Roake (c), it was held in an action for mesne profits, that the plaintiff was entitled to recover by way of damages, expenses incurred in a court of error, in reversing a judgment in ejectment; and that it was reasonable to tax the costs in error, as between attorney and client. TINDAL, C. J.—If this were res integra, I should have been inclined to to read the statute liberally, so as to give the plaintiff a more complete indemnity; but as it appears to have been the practice of the Court, for so long a period, to tax the costs as between party and party, I am not disposed to interfere, and this rule must be discharged. PARK, J.-I am of the same opinion; and it seems rather difficult to understand the meaning of taxing costs, liberally. BOSANQUET, J., and COLTMAN, J., concurred. (a) Mr. Prothonotary Wallington stated, that this had been the practice in this court for many years. Rule discharged. (b) See Grace v. Morgan, 1 Hodges, 398. (c) 7 B. & Cress. 404. BOWMAN v. Willis. ASSUMPSIT for money had and received. Plea-Non-assumpsit. At the trial, before Tindal, C. J., at the Middlesex sittings, after Hilary Term, it was in evidence that the defendant's father had bequeathed certain horses to him, as a legacy: and that, since the testator's death, the defendant had sold one of the horses for 1227., which was the sum sought to be recovered in this action. The plaintiff, who was a horse-dealer, asserted that the horse had only been sent upon trial to the testator, and that it had never belonged to him; and he called Mr. Curtis, who was the executor and residuary legatee under the testator's will, to give evidence of admissions made by the deceased, to that effect. It was objected for the defendant, that the witness was interested in the event of the suit, and was therefore incompetent; but the learned judge being of opinion that the case was within 3 & 4 W. 4, c. 42, ss, 26, 27, objection was overruled, and a verdict was found for the plaintiff. the Talfourd, Serjt., moved for a new trial, upon the ground that the evidence ought not to have been received. The witness had a direct and immediate interest in the result of the suit. If a verdict were found for the plaintiff, the effect of it would be to increase the interest of the witness in the residuary estate of the deceased; and the statute 3 & 4 Wm. 4, c. 42, does not apply to a case like this, where the party has a direct and substantial interest in the event of the suit. Smith v. Prayer (a). [Tindal, C. J.—If the plaintiff had not sold the horse, how could the executor ever be liable?] If it should appear, that the horse was sold to the deceased, the price of it might be recovered by the plaintiff against the executor; it was, therefore, clearly the interest of the executor, who was also the residuary legatee, to prove that there had been no sale. TINDAL, C. J.-This case appears to me to fall precisely within the meaning of the statute. There are cases where a witness may have a direct interest, independently of the verdict, as in the case of a tenant giving evidence to establish his lessor's title. But no immediate benefit will result to the witness, from the termination of this suit, one way or the other; it is only on the supposition that an action might be brought against the witness for the price of the horse, and that this verdict would be evidence in his favour, that his interest arises. Sec. 26 of the statute, provides that, if any witness shall be objected to as incompetent, on the ground that the verdict or judgment in the action in which it shall be proposed to examine him, would be admissible in evidence for or against him; such witness shall, nevertheless, be examined: but in that case, a verdict or judgment in that action, in favour of the party on whose behalf he shall have been examined, shall not be admissible in evidence for him, or any one claiming under him; nor shall a verdict or judgment against the party, on whose behalf he shall have been examined, be admissible in evidence against him, or any one claiming under him. The fol (a) 7 T, Rep. 62. See Doc d. Bath v. Clarke, 2 Hodges, 48. Com. Pleas BOWMAN v. WILLIS. lowing section directs, that the name of the witness shall be indorsed on the record, with the name of the party on whose behalf he was examined; and that such indorsement shall be sufficient evidence that such witness had been examined. If, therefore, the name of this witness were indorsed on the record, it would not be available to be used by the witness in his favour, in any action which might be brought against him; and I do not see how the interest or situation of the witness could be bettered by the plaintiff's recovering in this action. BOSANQUET, J., VAUGHAN, J., and COLTMAN, J., concurred. Rule refused (b). (b) See Yeomans v. Leigh, 1 Murphy and Hurlstone, 87. WEBB V. RHODES. A tenant for an agrement to let an estate dant; and the tended lessor's lease and coun terpart should be prepared by the attorney, at the expense of the defendant. The tenant for life died, after ་་ life entered into ASSUMPSIT for work and materials as an attorney, provided by the plaintiff for the defendant upon his retainer: and for money paid by the plaintiff to the defendant's use. Plea-Non-Assumpsit, and issue thereon. At the trial, before Park, J., at the last Middlesex sittings, the following facts were in evidence:-The plaintiff was an attorney at Reading, and the defendant was tenant of some land to Miss Knight, under a lease which had expired. The plaintiff was Miss Knight's solicitor; and on the 24th of January, 1834, Miss Knight and the defendant having met at the plaintiff's office, the following agreement, which was drawn up by the plaintiff, was executed by Miss Knight and the defendant. The yearly rent which the defendant agreed to pay, was less than the rent which he had formerly paid :—“ Memorandum of an agreement made the 24th of January, 1833, between M. A. Knight of the one part, and J. Rhodes of the other. The said M. A. Knight agrees to let, and the said J. Rhodes agrees to take and rent, of and from the said M. A. Knight, all those several pieces of meadow or pasture land situate, &c.; and the parties agree that a lease shall be granted, commencing at Michaelmas next, for the the term of seven, fourteen, or twenty-one years, in case the said M. A. Knight shall so long live, at and under the yearly rent, &c., which lease shall contain the like covenants, conditions, and agreements, or such of them as shall be considered necessary, as the lease under which the said J. Rhodes now holds the said lands. And it is also agreed, that the said lease and also a counterpart shall be prepared by Mr. Webb, solicitor, Reading, at the expense of the said J. Rhodes." A draft of the lease was subsequently prepared abstract of title, and sent to the defendant, by the plaintiff; but the defendant having objected to some of the covenants, a correspondence upon the subject of the alterations took place between the plaintiff and the defendant's solicitor; and the lease having at length been approved by all parties, the defendant requested that it might be engrossed; but, before it could be executed, Miss Knight, who was only a tenant for life of the estate, died, and the lease remained unexecuted. The plaintiff charged the defendant with half the charge of preparing the the lease was prepared, but before it was executed : : Held, that the defendant was liable to pay the attorney, half the costs of drawing the agreement; and the costs of an lease, and counterpart. agreement; and the whole of the charges for preparing an abstract of the title, Com. Pleas. and for drawing and engrossing the lease and counterpart. It was contended for the defendant that, under these circumstances, he was not liable to pay the plaintiff's demand; but a verdict was found for the plaintiff for 147. 2s. 9d., including 17. 16s., which was half the plaintiff's charge for the agreement. Crowder, in pursuance of leave reserved, obtained a rule nisi to enter a nonsuit or to reduce the damages; upon the ground that there was no privity of contract between the parties. Hoggins and Neville shewed cause. In this case there was an actual retainer of the plaintiff by the defendant; and it appears, that when the agree ment for the lease was executed, the defendant had not consulted with his own attorney. This circumstance distinguishes this case from others which may be cited, to shew that a retainer is necessary to entitle the attorney to recover his costs. Thus in Pratt v. Vizard (a), it was held, that costs of preparing a mortgage could not be recovered, because there was no privity between the parties. Doe d. Peter v. Watkins (b) shews that it is a very usual occurrence for an attorney to be engaged by two parties, for the purpose of saving expense. Then it is contended, that the defendant reaped no benefit from the services performed by the plaintiff; but this is not so; for it appeared that a reduction of rent was provided for in the new agreement. Nor could such an objection prevail, even if this were not so, because it was not through any fault of the plaintiff that the lease was not executed; on the contrary, if the defendant had not raised objections to the terms of the lease, it would probably have been executed before the death of the intended lessor. Wilde, Serjt., and Crowder, in support of the rule.-It is obvious that the plaintiff was attorney to Miss Knight, and not to the defendant. The plaintiff is no party to the agreement between Miss Knight and the defendant; and therefore it cannot be said that it amounted to a retainer. In Grissell v. Robinson (c), where the lessor paid his attorney's bill for a lease which had been prepared, it was held, that the lessor was entitled to sue the lessee for the amount which he had so paid, it being proved to be the usage, that lessees should pay the expenses of the lease. So here the plaintiff ought, in the first instance, to have obtained payment from Miss Knight; and then her executors would have been the proper parties to sue the defendant, if he be liable at all. In Rigby v. Dakin (d), where one employed an attorney to raise money on mortgage, and the attorney employed another attorney, who agreed to advance the money on behalf of a client, but the negociation ultimately failed: it was held, that the attorney of the intended mortgagee could not sue the mortgagor for the costs, although it was proved to be the practice for the proposed borrower to pay the expenses which had been incurred. And, under the circumstances of this case, it is evident that the defendant obtained no benefit by the services of the plaintiff. TINDAL, C. J.—I see no reason for disturbing this verdict. The question (a) 5 B. & Ado. 808. (b) 3 Bing. N.C. 421; 3 Hcdges, 25, S. C. (c) 3 Bing. N. C. 10; 2 Hodges, 138. S.C. WEBB V. RHODES. Com. Pleas. WEBB RHODES. ment. is, whether the jury were right in finding that there was a retainer of the plaintiff by the defendant. It is not a question whether he was retained as his attorney generally, but whether he was retained to perform this stipulated work. The first item in the charge is half the costs of preparing the agreeWhen the parties met at the plaintiff's office, there was no joint purse out of which the expense of the agreement was to be paid; and what is the fair inference which arises, but that each shall pay half. Then the agreement contains a provision that a lease and counterpart shall be prepared by the plaintiff, at the expense of the defendant. Now, all the parties were present at that time; and it is the same as if the plaintiff had been a party to, and had signed the agreement; the effect of the transaction being, that the defendant consented that the plaintiff should prepare the lease, and that he, the defendant, would pay for it. This distinguishes this case from other cases which have been cited, and it is not brought within the principle they have established; and certainly, we should be anxious to avoid circuity of action, when it is possible. I agree that, in some cases, this cannot be avoided; but we should be slow to extend the necessity of putting parties to the inconvenience. As to the first objection, I therefore think that the jury were warranted in finding a verdict for the plaintiff. The next point is, that, as the lease and counterpart were never executed, the defendant obtained no benefit from the services of the plaintiff. But it was not the plaintiff's fault that the lease remained unexecuted; and it was known to all parties that the intended lessor was only tenant for life, and the principle, Actus Dei nemini facit injuriam, is applicable. Nor could it be expected, that the plaintiff intended to forego payment, if Miss Knight should happen to die before the lease was executed. PARK, J.-I had no doubt at the trial, and I now think the verdict is right. The case must be considered much in the same way as it would have been if the plaintiff had been a party to the agreement. If he had been, it is impossible that he could have sued Miss Knight for the expense of preparing the lease. The cases which have been cited are not applicable. BOSANQUET, J.-I am of the same opinion. The rule for a nonsuit could not be granted, if the plaintiff is entitled to recover anything. As to the charge for the agreement, it appears to me, that when the parties came together, to the same attorney, each became liable to half the charges. The principal question relates to the costs of the lease and counterpart; and I concur with the judgments which have already been delivered. It is expressly agreed that the documents shall be prepared at the expense of the defendant; and the plaintiff having afterwards prepared them, he would not have been entitled to require payment from Miss Knight, although he may have been, originally, her attorney. Then, as to the lease never having been executed, that was not the fault of the plaintiff; it was not executed, in consequence of the death of the intended lessor. COLTMAN, J.-It appears to me that this case stands clear of any difficulty, provided the facts shew that there was a retainer to do the work. If there were, whether the work was completed or not, the plaintiff would be entitled to recover for the work which was done. And it seems to me that there was evidence from which the jury might infer a retainer. It seems that the plain |