In payment was a professional disbursement, and whether it was properly included in the bill of costs. Had the money been appropriated by the client for the payment of these costs, the attorney would have been the mere agent for payment. Franklin v. Featherstonhaugh (2) it was considered that an attorney was authorized to insert in his bill of costs the amount paid to a proctor employed by him for his client, and it was said to be the constant course to consider similar disbursements as properly forming a part of an attorney's bill. This was more in point than In re Bedson, which turned upon the ground of the disputed item being a professional charge proper to be introduced into the bill of costs if security for it had not been given; but here the item was alleged to be a cash payment, and not a professional disbursement. Mr. Walpole, contrà.-The respondent did not desire to have the one-sixth struck off the bill so as to prevent the allowance of the item for which the undertaking had been given, but when it was given Mr. Remnant had a balance in hand belonging to Mr. Taylor little short of 2007.; it was consequently an undertaking to pay out of monies in his hands. The sole question was, whether this was a taxable item or not. In Re Bedson the whole question was respecting the security given to the solicitor in that case funds in court could not be made available by the client without making certain payments, it therefore came within the ordinary course of professional business for the solicitor to make those payments; but in this case the solicitor had the client's money in hand, and the payment was not in the ordinary course of professional business. Mr. Turner, in reply.-There was no appropriation of any money to the particular purpose; and, besides, business had been done which would have exhausted the money in hand. The MASTER OF THE ROLLS.-The petitioner was employed as attorney and agent for James Taylor, who was the executor of John Taylor, in the general (2) 1 Ad. & E. 475; s. c. 3 Nev. & M. 779; 3 Law J. Rep. (N.S.) K.B. 163. administration of his affairs. James Taylor, as such executor, became indebted to Richard Johnson for costs of an action, in which, for convenience, James Taylor had employed Mr. Smallpiece, who resided near him. A negotiation was commenced for arranging the payment of these costs, and in this matter Mr. Remnant, the petitioner, was employed for James Taylor, who ultimately requested Mr. Remnant to pay those costs for him, and signed an authority for that purpose. The bill of costs was made out by Mr. Remnant against James Taylor, and included the disbursement of the costs paid to R. Johnson on James Taylor's behalf. The Master, in taxing the bill, under the common order, disallowed this as not being a professional disbursement. The ques tion is not whether the amount of 641. 18s. 6d., so disbursed, ought to be repaid; it is admitted to have been paid by Mr. Remnant, and that it ought to be repaid to him the only question is, in what character it ought to be allowed-whether as a disbursement in a bill of costs, or as a cash payment, not to be included in the bill of costs. The allowance or disallowance of this in the professional bill of costs affects the costs of taxation, and this makes it an important question. It is plain that if a solicitor includes cash payments in his bill of costs, more than one-sixth of the costs properly so called may be taxed off, and yet not so much as to reduce the whole bill by one-sixth. It is to be regretted that the cases do not afford any practical rule of general application. The decision in Re Bedson was most relied upon; that decision proceeded upon the notion that the payment was a professional disbursement, as also in Franklin v. Featherstonhaugh. In the case of In re Bedson the only question was, whether, admitting its character as a professional disbursement, that was sufficient to make it a proper payment, under the special circumstances, to be introduced into a bill of costs. I have thought it right that a general rule should be established, and I have accordingly referred this case to the Taxing Masters, and requested them to certify to me their opinion. They have accordingly furnished me with the following certificate. "To the Right Honourable the Master of the Rolls. "In compliance with your Lordship's directions, we, the undersigned, beg leave respectfully to state, "That we have been unable to reconcile all the reported cases with the actual practice of the profession in charging some payments as professional disbursements in bills of costs, and others as payments in cash accounts. The practice is almost universal to make a distinction between such payments, and if we may be allowed to state what, in our opinion, is the principle on which the practice of the profession rests, apart from, and without reference to the reported cases, we should state it as follows, viz., "That such payments as the solicitor, in due discharge of the duty that he has undertaken, is bound to make, so long as he continues to act as solicitor, whether his client furnishes him with money for the purpose, or with money on account, or not, as, for instance, fees of the officers of the court, fees of counsel, expenses of witnesses, &c., and also such payments in general business, not in suits, as the solicitor is looked upon as the person bound by custom and practice to make, as, for instance, counsel's fees on abstracts and conveyances, payments for registers in proving pedigree, stamp duty on conveyances and mortgages, charges of agents, stationers, or printers employed by him, &c., are by practice, and we think properly, introduced into the solicitor's bill of fees and disbursements. "But that payments, which the solicitor is not either by law bound to make, or by custom looked upon as the person to make, as, for instance, purchase-monies, or interest thereon, monies paid into court, damages, or costs paid to opponent parties, bills due to the solicitors of trustees, mortgagees, or other parties, legacy or residuary duties, or other payments of a like description, which the solicitor makes, as agent, on the order of the client, and not in discharge of his own duty or liability as solicitor, are by practice, and we think properly, charged in the cash account. "We think also that the question, whether such payments are professional disbursements or otherwise, is not affected NEW SERIES, XVIII.-CHANC. by the state of the cash account between the solicitor and the client, and that for instance, counsel's fees would not the less properly be introduced into the bill of costs as a professional disbursement, because the client may have given money expressly for paying them, and that purchase-money or damages would not be properly so introduced, notwithstanding the solicitor may have advanced the money out of his own funds. "We have availed ourselves of your Lordship's permission to state our opinion without reference to the decided cases, some of which, we are aware, are not quite in accordance with it; but we are satisfied that, although instances may, no doubt, be produced to the contrary, the general practice of the profession is in accordance with the principle we have above stated. (Signed by) Henry Ramsay Baines. Taxing Masters' Office, 20th of June, 1849." Such payments as the solicitor may make in the due discharge of his duty, which he has undertaken as solicitor, whether the client furnishes him with the money or not, ought to be allowed him as professional disbursements, as fees to officers and counsel in a suit or action, fees to counsel on abstracts, or drafts in conveyancing, charges to stationers, and the like; but payments, which the solicitor is not bound to make, as purchasemoney or interest money paid into court, bills due to trustees and other parties, legacy duties, and the like, are not, I think, within the rule, and ought properly to be charged in a cash account; and these payments are not to be affected by the existence or non-existence of a cash account for other purposes. From this certificate, and other inquiries which I have made, it appears to me to be the practice of the profession to distinguish, as I have pointed out, cash advances from professional disbursements, and that those payments only, which are made in performance of professional duties, and in a 3 C An act of parliament was granted incorporating a company, called the Direct London and Portsmouth Railway Company, and empowering them to make a railway from Epsom to Portsmouth. The company abandoned the intention of making the railway from Epsom to Portsmouth, but they resolved to apply the capital subscribed in making so much of the railway as lay between Epsom and Leatherhead. Upon a bill by one of the original shareholders asking to restrain the company from taking land and applying the capital for making a portion of the line only,-Held, upon a demurrer for want of equity, that it must be considered that the legislature sanctioned the whole undertaking only; that the directors undertook to complete the entire work; and that, as shareholders must be considered to have subscribed their capital under such expectations, they were entitled to have them realized, if possible; that companies differed from partnerships for general trading purposes; that a com This bill was filed by Abraham Cohen on behalf of himself and all other the proprietors of shares in the Direct London and Portsmouth Railway Company except the defendants, against William Arthur Wilkinson, the chairman of the company, and the other directors, and against the company itself, and it prayed that it might be declared that it was not within the powers of the said company to make the proposed railway from Epsom to Leatherhead only, and that the funds of the company could not lawfully be applied for that purpose; that the defendants, W. A. Wilkinson and the other directors, their servants, &c. might be restrained by injunction from making the proposed railway from Epsom to Leatherhead only, and also from applying any of the funds of the company to that purpose, and that they might be restrained from taking, or purchasing on behalf of the company, any lands for the purpose of making such proposed railway, and also from entering on behalf of the company into any agreement for the purchase of any such lands and from taking any other steps or proceedings for effecting any such purchase or purchases; and that they might in like manner be restrained from entering into, or signing, on behalf of the company, any contract or agreement with any contractor, or other person or persons, for causing the said proposed railway from Epsom to Leatherhead only, or the works thereof, or any portion of such railway or works to be constructed or executed or relating thereto; and that the company might in like manner be restrained from sanctioning the toll arrangement mentioned in an advertisement on the 18th of May then last. The bill stated that an act (9 & 10 Vict. c. lxxxiii.) was passed for making a railway from and in connexion with the Croydon and Epsom Railway commencing from a junction therewith in the parish of Epsom to the parish of Portsea, in or near the town of Portsmouth, to be called "The Direct London and Portsmouth Railway." That it contained powers for raising a capital in shares, and for taking the lands required for making the railway, but no period was prescribed therein for the exercise of the company's powers for the compulsory purchase or taking of lands for the purposes of their Act. That by the 123rd section of the Lands Clauses Consolidation Act (8 Vict. c. 18, which, together with the Companies Clauses Consolidation Act, 8 Vict. c. 16, and the Railways Clauses Consolidation Act, 8 Vict. c. 20, were incorporated in the special act of the Direct London and Portsmouth Railway Company) it was enacted that the compulsory powers for taking lands given by the special act should not be exercised after the period prescribed therein, and if no period be prescribed, not after the expiration of three years from the passing of the special act. That the royal assent was given to the special act on the 26th of June 1846, and consequently the powers for the compulsory taking of lands expired on the 26th of June 1849. By the special act, it was also provided that a part of the line lying between Gomshall and Dorking (which it was proposed that the Reading, Guildford and Reigate Railway Company, whose bill was then before parliament, should, if they obtained their act in that session of parliament, adopt as part of their line) should be completed within three years from the passing thereof, and all facilities of communication, &c. thereon should be afforded to the Reading, Guildford and Reigate Railway. And it was thereby also provided that the railway should be completed within five years from the passing of the act, and on the expiration of such period the powers by the special or incorporated acts granted to the company for executing the railway or otherwise in relation thereto, should cease to be exercised except as to so much of the railway as should then be completed. The plaintiff also alleged that the powers of the company to form that portion of their line to be adopted by the other line between Gomshall and Dorking would expire on the 26th of June 1849. The bill further stated that the plaintiff was an original subscriber to the undertaking, and was now a proprietor of seventy-one shares, and had paid the deposits and all the calls which had been made thereon, and that numerous other persons amounting to more than 500 had also subscribed, and that large sums had been paid by them for deposits and calls; that the capital of the company was to consist of 1,500,000l. in 30,000 shares of 50l. each; that the sum of 128,467. 15s. had been raised by the directors, and that after the payment of preliminary and parliamentary and other costs and expenses, there remained in their hands a balance of 27,585l. 2s. 1d. only, as appeared from their report on the 26th of February 1849, and that no part of the line of railway authorized by the act had been made or commenced by the directors. The bill then stated that at the ordinary half-yearly meeting of the proprietors of the company held in August 1848, the directors made a report in which the following passage occurred:" The directors have to regret the loss of the bill to enable the London, Brighton and South Coast Railway Company to hold shares in this undertaking in accordance with the arrangement which had received the sanction of the proprietors of both companies. The directors, however, hope that they may be still able to effect some arrangement under existing powers which will enable this company to commence the construction of the first portion of the line--namely, that between Epsom and Dorking-upon terms which will afford the proprietors a remuneration not only for any further amount which may be required, but also for the capital which they have already expended," and that at the same meeting the chairman, Mr. Wilkinson, after stating that there was no great likelihood of progressing with the affairs of the company, suggested two courses for their adoption-either to allow their powers to lapse, or to obtain an act for dissolving the company but as the only two applications of the latter kind made to parliament had failed, he was of opinion that it would not damage the shareholders to remain as they were, and allow the directors to arrange with the Brighton Company, (who were now the owners of the Epsom and Croydon line) for constructing a portion of the line between Epsom and Dorking. The bill further stated that at the next ordinary half-yearly meeting on the 27th of February 1849, the directors submitted a report to the proprietors, a portion of which was as follows: "Since the last meeting of the proprietors, the attention of the directors has been constantly applied to the subject of the arrangement contemplated in the leading paragraph of their report made to that meeting, whereby the funds expended on this undertaking might be rendered effectual to some extent for the purposes for which they were advanced, but they regret that they are still unable to announce anything definite," and that the chairman at the said meeting after alluding to the failure of the proposed arrangement with the Brighton Railway Company, in reference to the Epsom and Dorking section of the line, which the directors intended to construct, observed, "We are now in the third year of our existence, and after having struggled through two sessions to obtain our act, we fell upon evil times, and as the powers of our act expire next June, there is no human probability that we can carry out the intentions of our act." The plaintiff, by his bill, then alleged that it appeared by the proceedings at the said meetings that the company and the directors thereof had long since abandoned all intention of making a railway, in pursuance of this act, from Epsom to Portsmouth, a distance of about fifty-six miles, but that there had been under their consideration a plan for making a railway from Epsom to Leatherhead, a distance of about four miles only, but the plaintiff thereby submitted that the directors were not authorized by their act to make a railway from Epsom to Leatherhead only, and that the application of the monies of the company to that purpose would be illegal. The bill then stated that the directors had taken no proceedings whatever for the exercise of their compulsory powers of taking lands situate between Leatherhead and Portsmouth, and that the period for so doing having now nearly expired, it had become almost if not quite impracticable to purchase lands between those places sufficient for the purpose; that though it appeared from what had taken place at the said meetings that the plan of making a railway from Epsom to Leatherhead only, had been given up by the directors, it had become known to the plaintiff, for the first time within the last fourteen days, that the directors had revived the plan and intended to make that part of the line, and had advertised in the Times of the 18th of May last that an extraordinary general meeting of the company would be held on the 12th of June, to sanction an arrangement entered into with the Brighton Company for working that part of the line when constructed, and also respecting the tolls, and that the directors intended to purchase lands between Epsom and Leatherhead for the purposes of the said railway, and to enter into contracts for the same, and also to enter into contracts with contractors and others for the construction of the line between Epsom and Leatherhead. To this bill the defendants, the directors, put in a general demurrer for want of equity. In Mr. Malins and Mr. Bovill, for the defendants, in support of the demurrer.-This bill was filed against the defendants, who are directors of the Direct London and Portsmouth Railway, to restrain them from the exercise of powers vested in them by act of parliament, on the ground that the company proposed to make a portion of the line only, and to apply the funds collected for that purpose. In Cooper v. the Shropshire Union Railway and Canal Company (1), a bill was filed to restrain the company from proceeding with the railway, but, as the company had kept within their powers, the Court allowed a demurrer to the bill. this case the company were within the powers of their act; they were constructing a part of their line. The bill in this case was filed by a member of the company, who was also a member of a rival company; he alleged that the whole of the line was at one time abandoned, but that it was now intended to proceed with so much as lay between Epsom and Leatherhead, and he insisted that the compulsory powers of taking lands could only be enforced previous to the 26th of June, when they expired, but agreements for the lands between Epsom and Leatherhead had in many cases been entered into, and steps had been taken to obtain the whole, and it was not necessary that the purchases should be completed before that day. In Brocklebank v. the Whitehaven Junction Railway (1) 13 Jurist, 443. |