The state of the dealings between the parties being such as I have mentioned, it remains to be seen what authority there is, as applicable to that state of circumstances. There are three or four cases in which Lord Eldon has maturely considered this subject; and I will take these cases in order. The first in point of There, an action had time is Langstaffe v. Taylor. (a) The next case, in point of date, is Cooke v. Setree. (b) There, the bills had been delivered, pending the relation of solicitor and client, and pending a suit, and bonds given, and an action brought upon them, and an injunction granted to restrain proceedings in the action; and an application was made to dissolve the injunction. Lord Eldon did dissolve the injunction, and expressed himself thus: "Even after payment, if the client can point out in the bill gross errors, charges amounting to imposition and fraud, the Court will open the whole;" but he (a) 14 Ves. 262. (b) V. & B. 126. says, 1837. HORLOCK v. SMITH. 1837. HORLOCK v. SMITH. says, "where there is no fraud, imposition, or evidence of undue pressure or influence, and the proceeding at law has gone to judgment and a writ of error, the question is reduced to this: if there have been subsequent dealings, in respect of which it can be made probable, that there has been any receipt, that ought to be taken in discharge of the bond, that may form a ground for inquiry;" but, being of opinion that in that case there was not such evidence of omission of credits as would probably lead to a result favourable to the client, he did not make any order for that inquiry. That case very much resembles this in many respects; there were allegations of improper charges; but no specific items were pointed out, as being founded in imposition, fraud, or even error: none, therefore, of which the Court could take notice. There was some evidence of items of credit having been omitted; but Lord Eldon did not consider that that was a reason for sending the bill to be taxed, but, if made out, a ground for distinct inquiry as to what sums had been received which ought to have been set off against the amount of the bill. That observation applies, therefore, directly, to the three sums for which it is in this case alleged, that credit was not given. If a case had been made out with respect to those three sums, it might be a very proper inquiry, whether sums had not been received, which ought to have been credited to the client, and so go in part discharge of the bill of costs; but, according to Lord Eldon's judgment in Cooke v. Setree, if there is no objection to the bill of costs itself, there is no ground for the taxation of the bill of costs itself. The next case, in order of time, is Plenderleath v. Fraser. (a) There, Lord Eldon, in the year 1814, refused (a) 3 V. & B. 174. fused the taxation of a bill delivered in December 1811, for which a bond had been given in February 1812, and upon which bond an action had been brought, and the money paid; saying, "where, payment having been made of a solicitor's bill, it has been long acquiesced in, the Court will not direct taxation, unless very gross charges are distinctly pointed out;" and, thinking that the charges, although in some respects improper, did not amount to fraud, he refused the application. In Clutton v. Pardon (a), Lord Eldon says, that a client, by paying the bill, does not necessarily waive the right to taxation; that he may intimate that he pays it without prejudice, and that there may be cases, where, without one word being said, the client would have a right to have a bill taxed; and he observes upon the fact, that the papers had been obtained from the solicitor, upon payment, without any intimation that there was to be a taxation. That fact occurs in this case. These are the whole of the cases which were referred to as having come under the consideration of Lord Eldon; and it is to be observed, that none of them supported the order of taxation upon the general allegation of improper charges, when payment had been made, after the relation of solicitor and client had ceased, and when the client had the assistance of another solicitor. In support of the order in the present instance, one case before Sir John Leach, Howell v. Edmunds (b), was cited. There, the bill was paid six months after it had been delivered, and the application for taxation was made eight months after payment. A taxation was ordered, upon the ground, not only that the suit was pending when the bill was paid,—from which circumstance alone Sir 1837. HORLOCK v. SMITH. 1837. HORLOCK บ. SMITH. Sir John Leach said that influence and pressure would be presumed but also that there had been actual pressure, by a threat from the solicitor to arrest the client. That case was decided upon the particular circumstances belonging to it. It certainly appears to lay down a proposition, to which it is not necessary to advert here, namely, that a bill paid during the pendency of a suit will be opened, inasmuch as from the pendency of the suit, pressure will be inferred; which, perhaps, may admit of qualification; but Sir John Leach did not decide that particular case upon that ground, because he found evidence that there had been actual pressure. Two cases decided by Sir Thomas Plumer were cited. The first of these is Gretton v. Leyburne (a). In that case, the bill was delivered in February 1818; and in March, the client's son (it does not appear whether he was an attorney) balanced and settled the account with the solicitor; and it appeared that the sum of 12364. was payable to the solicitor. Complaints were afterwards made by the son with respect to the amount of the bill; but those complaints do not appear to have been the result of any minute examination of the items. On the 1st of August, however, the parties agreed together that 361. should be taken off; and the bill was finally settled at 1200l. That took place in August 1818. Then, in May 1819, part of the bill was paid, and bonds given for the remainder; and in April 1823, an application was made to tax the bill. It seems that the suit in which the costs had been incurred had terminated; and it does not appear that any new solicitor had been employed by the client. Sir Thomas Plumer refused the application, saying, that the client had had ample opportunity to examine the charges, and had (a) Turn. & Russ. 407. thought thought proper to settle the bill by taking off 36/.; and evidence being offered of improper charges, he said; "Probably, many of the items in the bills would be disallowed by the Master; but that is not enough, after such dealings, to give the party a right to have the bills taxed. Items which would be disallowed do not amount to that fraud, which must be made out, in order to subject to taxation bills that have been so settled." In Crossley v. Parker (a), Sir T. Plumer ordered a bill to be taxed which had been delivered in August, and paid in November 1818, the suit continuing all the time, and the solicitor continuing all the time to act for the client, and the client having no other professional assistance. That case contains a great variety of circumstances which do not occur here; and it cannot be an authority in the present case. Some of the older cases have also been referred to. In The Drapers' Company v. Davis (b), Lord Hardwicke ordered the taxation of a bill for which a judgment had been given seventeen years before. That is always cited as a very strong case; but there, there had been no payment, but a judgment taken pending the suit, and the client had no other professional assistance, and exorbitant charges were alleged and proved. In Aubrey v. Popkin (c), a solicitor had obtained, first a bond, and afterwards a mortgage, by threatening to abandon the client; and had possession of his papers; no other professional person had acted for the client; and threats had been used. Such being the state of the decisions, it remains to apply the rules so laid down to the facts of this case. (a) 1 J. & W. 460 (6) 2 Atk. 295. (c) 1 Dick, 403. Here 1837. HORLOCK บ. SMITH. |