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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. In 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 à 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 2001.; 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 with out 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 parti cular purpose ; and, besides, business had been done which would have exhausted the money in hand.
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 question 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. Fea. therstonhaugh. 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 by the state of the cash account between of the Rolls.
the solicitor and the client, and that for " In compliance with your Lordship's instance, counsel's fees would not the less directions, we, the undersigned, beg leave properly be introduced into the bill of respectfully to state,
costs as a professional disbursement, be" That we have been unable to reconcile cause the client may have given money all the reported cases with the actual prac expressly for paying them, and that purtice of the profession in charging some pay- chase-money or damages would not be ments as professional disbursements in bills properly so introduced, notwithstanding of costs, and others as payments in cash the solicitor may have advanced the money accounts. The practice is almost universal out of his own funds. to make a distinction between such pay “We have availed ourselves of your ments, and if we may be allowed to state Lordship's permission to state our opinion what, in our opinion, is the principle on without reference to the decided cases, which the practice of the profession rests, some of which, we are aware, are not quite apart from, and without reference to the in accordance with it ; but we are satisfied reported cases, we should state it as follows that, although instances may, no doubt, viz.,
be produced to the contrary, the general “ That such payments as the solicitor, practice of the profession is in accordance in due discharge of the duty that he has with the principle we have above stated. undertaken, is bound to make, so long as (Signed by) he continues to act as solicitor, whether
Henry Ramsay Baines. his client furnishes him with money for the
Robert Bayly Follett. purpose, or with money on account, or not,
Joseph Parkes. as, for instance, fees of the officers of the
Philip Martineau. court, fees of counsel, expenses of wit
Richard Mills. nesses, &c., and also such payments in
John Wainwright. general business, not in suits, as the soli- “ Taxing Masters' Office, citor is looked upon as the person bound 20th of June, 1849." by custom and practice to make, as, for Such payments as the solicitor may instance, counsel's fees on abstracts and make in the due discharge of his duty, conveyances, payments for registers in which he has undertaken as solicitor, proving pedigree, stamp duty on convey whether the client furnishes him with the ances and mortgages, charges of agents, money or not, ought to be allowed him stationers, or printers employed by him, as professional disbursements, -as fees &c., are by practice, and we think properly, to officers and counsel in a suit or action, introduced into the solicitor's bill of fees fees to counsel on abstracts, or drafts in and disbursements.
conveyancing, charges to stationers, and “ But that payments, which the solicitor the like; but payments, which the solicitor is not either by law bound to make, or by is not bound to make, -as purchasecustom looked upon as the person to make money or interest money paid into court, as, for instance, purchase-monies, or interest bills due to trustees and other parties, thereon, monies paid into court, damages, legacy duties, and the like, are not, I or costs paid to opponent parties, bills due think, within the rule, and ought properly to the solicitors of trustees, mortgagees, or to be charged in a cash account; and these other parties, legacy or residuary duties, payments are not to be affected by the or other payments of a like description, existence or non-existence of a cash which the solicitor makes, as agent, on the account for other purposes. From this order of the client, and not in discharge of certificate, and other inquiries which I his own duty or liability as solicitor, are have made, it appears to me to be the by practice, and we think properly, charged practice of the profession to distinguish, as in the cash account.
I have pointed out, cash advances from 66 We think also that the question, whe- professional disbursements, and that those ther such payments are professional dis- payments only, which are made in perbursements or otherwise, is not affected formance of professional duties, and in a New SERIES, XVIII.-Chanc.
professional character, ought to be allowed as disbursements in the bill of costs.
Considering the sum of 641. 18s. 6d. now in question was a sum which it was not incumbent on the petitioner to pay, I have come to the conclusion that it was not paid in his professional character, and ought not to have been introduced into the bill of costs. I think the petition ought therefore to be dismissed, but under the circumstances without costs.
pany is established for public benefits, and it cannot resolve to apply capital to be raised for the completion of an entire work to the completion of a part ; that such would be illegal against landowners and also against shareholders; that shareholders are not bound by the determination to perform a part of the work only, when the powers of the act of parliament are given for the completion of the whole, and that there might be a right to relief; and the demurrer was overruled.
[See Waring v. Williams (3), Hindle v. Shackleton (4), Harrison v. Ward (5), Hays v. Trotter (6), Woollison v. Hodgson (7).]
COHEN V. WILKINSON. June 7, 8.)
Railway Company-Resolutions-Contract-One Shareholder sole Plaintiff-Demurrer – Act of Parliament — Powers Capital, if applicable to make a part of the line only.
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 Ports. mouth 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 1,500,0001. in 30,000 shares of 501. each; that the sum of 128,4671. 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 27,5851. 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 the directors, it had become known to the stated that at the next ordinary half-yearly plaintiff, for the first time within the last meeting on the 27th of February 1849, the fourteen days, that the directors had revived directors submitted a report to the pro- the plan and intended to make that part of prietors, a portion of which was as follows: the line, and had advertised in the Times of -“Since the last meeting of the proprietors, the 18th of May last that an extraordinary the attention of the directors has been con- general meeting of the company would be stantly applied to the subject of the arrange- held on the 12th of June, to sanction an ment contemplated in the leading paragraph arrangement entered into with the Brighton of their report made to that meeting, whereby Company for working that part of the line the funds expended on this undertaking when constructed, and also respecting the might be rendered effectual to some extent tolls, and that the directors intended to purfor the purposes for which they were ad. chase lands between Epsom and Leathervanced, but they regret that they are still head for the purposes of the said railway, and unable to announce anything definite," and to enter into contracts for the same, and also that the chairman at the said meeting after to enter into contracts with contractors and alluding to the failure of the proposed arrange- others for the construction of the line bement with the Brighton Railway Company, tween Epsom and Leatherhead. in reference to the Epsom and Dorking To this bill the defendants, the directors, section of the line, which the directors put in a general demurrer for want of equity. intended to construct, observed, “We are Mr. Malins and Mr. Bovill, for the defennow in the third year of our existence, and dants, in support of the demurrer. This bill after having struggled through two sessions was filed against the defendants, who are to obtain our act, we fell upon evil times, directors of the Direct London and Portsand as the powers of our act expire next mouth Railway, to restrain them from the June, there is no human probability that exercise of powers vested in them by act of we can carry out the intentions of our act." parliament, on the ground that the company
The plaintiff, by his bill, then alleged proposed to make a portion of the line only, that it appeared by the proceedings at and to apply the funds collected for that the said meetings that the company and purpose. In Cooper v. the Shropshire Union the directors thereof had long since aban- Railway and Canal Company (1), a bill doned all intention of making a railway, was filed to restrain the company from proin pursuance of this act, from Epsom ceeding with the railway, but, as the comto Portsmouth, a distance of about fifty-six pany had kept within their powers, the miles, but that there had been under their Court allowed a demurrer to the bill. In consideration a plan for making a railway this case the company were within the powers from Epsom to Leatherhead, a distance of of their act; they were constructing a part of about four miles only, but the plaintiff their line. The bill in this case was filed thereby submitted that the directors were by a member of the company, who was also a not authorized by their act to make a rail- member of a rival company; he alleged that way from Epsom to Leatherhead only, and the whole of the line was at one time abanthat the application of the monies of the doned, but that it was now intended to procompany to that purpose would be illegal. ceed with so much as lay between Epsom The bill then stated that the directors had and Leatherhead, and he insisted that the taken no proceedings whatever for the exer- compulsory powers of taking lands could cise of their compulsory powers of taking only be enforced previous to the 26th of June, lands situate between Leatherhead and when they expired, but agreements for the Portsmouth, and that the period for so doing lands between Epsom and Leatherhead had having now nearly expired, it had become in many cases been entered into, and steps almost if not quite impracticable to purchase had been taken to obtain the whole, and it lands between those places sufficient for the was not necessary that the purchases should purpose; that though it appeared from what be completed before that day. In Brocklehad taken place at the said meetings that bank v. the Whitehaven Junction Railway the plan of making a railway from Epsom to Leatherhead only, had been given up by
(1) 13 Jurist, 443.