Sect. 8. No action or suit shall be brought upon any such agreement, but every question respecting the validity or effect of such agreement may be examined and determined, and the agreement enforced or set aside, without suit or action, on motion or petition, by the Court in which the business or any part thereof was done, or by a Judge thereof; or if the business was not done in any Court, then, where the amount payable under the agreement exceeds £50, by any superior Court, &c.; where the amount does not exceed £50, by the County Court Judge.

Under this section payment for work done by the solr pursuant to such an agreement shall not be enforced by action, but application shall be made to a superior Court or County Court, according to the amount in dispute, in order to ascertain whether the agreement is reasonable, and whether it shall be enforced or not: Rees v. Williams, L. R. 10 Ex. 200.

Sect. 9. Upon motion or petition such an agreement, if it shall appear fair and reasonable, may be enforced, &c.; and if not deemed to be fair and reasonable, may be declared void, and ordered to be cancelled, and taxation of the costs, &c., in respect of the matters included therein, may be directed as if such agreement had not been made, &c.

Sect. 10. Agreements may be re-opened within twelve months after payment under special circumstances. Agreements made by a client in the capacity of guardian, trustee, or committee of any person whose estate or property will be chargeable with the amount, or any part of it, payable under such agreement, must before payment be laid before the taxing officer of a Court having jurisdiction to enforce the agreement, for examination, and any part may be disallowed, or the direction of the Court obtained on motion or petition; and if the whole or any part of the amount be paid by the client without previous allowance, he shall be liable at any time to account to the person whose estate or property is charged with the amount paid; and if in any such case the solr accept payment without such allowance, he may be ordered to refund the amount so received by him under the agreement.

Sect. 11. Nothing in the Act contained shall give validity to any purchase by a solr of the interest or any part of the interest of his client in any suit, action, or contentious proceeding to be brought or maintained, or give validity to any agreement by which a solr, retained or employed to prosecute any suit or action, stipulates for payment only in the event of success in such suit, &c.

An agreement by which, in the event of success, the solrs are to receive 10 p. c. on the value of the property recovered, amounts to champerty, and is invalid; and the taxing master cannot allow the agreement, or take the opinion of the Court, under sect. 4, before any proceedings have been taken thereunder: Re Attorneys Act, 1870, 1 Ch. D. 573.

But an agreement to charge the client nothing if he loses the action, and to take nothing for costs out of any money awarded in the action, is not invalid under sect. 11, and need not be in writing: Jennings v. Johnson, L. R. 8 C. P. 425.

By the Solicitors' Remuneration Act, 1881 (44 & 45 V. c. 44), s. 8-(1) with respect to the conveyancing and other business to which that Act relates (as to which v. inf. p. 266), solr and client may make agreements before or after, or in the course of the transaction of any such business, for the remuneration of the solr, as they think fit, by gross sum, commission, percentage, salary, or otherwise; (2) any such agreement is to be in writing, and signed by the person to be bound thereby, or by his agent; (3) the agreement may provide for the remuneration, including, or not including, disbursements made by the solr; and (4) may be sued on, impeached and set aside, in the like manner, and on the like grounds, as an agreement not relating to the remuneration of a solr. If, on taxation, the agreement is objected to by the client as unfair or unreasonable, the taxing master may inquire into the facts and certify them to the Court, and, on just cause shown, the Court or a Judge may order cancellation of the agreement, or reduction of the amount payable under it. By sect. 9, the application of the Attorneys and Solicitors Act, 1870, to the business to which the new Act relates, is negatived.

An agreement by mortgagor with his solr to pay a fixed sum for remuneration, so as to include the mortgagee's costs, is an agreement between solr and "client" within the definition in sect. 1 of the Act, and the Court

would not, in the absence of evidence that the agreed sum was an unfair charge, order taxation for the purpose of giving the taxing master jurisdiction to inquire whether such agreement should be set aside: Re Palmer, 45 Ch. Div. 291.

SIGNATURE AND FORM.

The signature of the bill of costs required by the Act of 6 & 7 V. being for the client's protection, he may obtain the common order to tax an unsigned bill: Re Pender, 2 Ph. 69; 8 Beav. 299, 304; and see Re Foster, 2 D. F. & J. 105.

But the provision in sect. 41, that after twelve months from payment a bill of costs cannot be referred for taxation, is not limited to bills which have been signed by the solr: Re Sutton, 11 Q. B. D. 377.

Bill of costs delivered, not signed, but with a letter signed, was held to be signed within the Act, and though delivered to client's agent: Re Bush; Re Carven, 8 Beav. 66, 438.

No particular heading is necessary: Champ v. Stokes, 6 H. & N. 683; but the bill must be delivered in a taxable shape: Philby v. Hazle, 8 C. B. N.S. 647; otherwise no action can be brought on it: Wilkinson v. Smart, 24 W. R. 42.

Where the items were improperly lumped together, the solr was allowed to supply a detailed statement, but not to increase his demand: Re Tilleard, 32 Beav. 476; 3 D. J. & S. 519; nor can he withdraw his bill when delivered without condition, or on a condition which is illegal: Re Kellock, 35 W. R. 695; and see Re Thompson, 30 Ch. Div. 441.

SECURITY FOR COSTS OF TAXATION.

A client resident abroad, applying to tax his solr's bill, must give security for the costs of the proceeding: Re Pasmore, 1 Beav. 94; and for what should be found due: Anon., 12 Sim. 262; but may be allowed to pay a sum into Court instead: Cliffe v. Wilkinson, 4 Sim. 123; a client alleged to be insolvent, was directed to give security for the costs of taxation of a bill already paid: Re Webb, M. R., 17 November, 1876; as to waiver of the right, see Murrow v. Wilson, 12 Beav. 497.

Where taxation was ordered on paying in a sum which accumulated, the solr was only entitled to payment from the fund of what was found due: Re Smith, 9 Beav. 342.

COSTS OF TAXATION.

As to what reductions affect the right to the costs of taxation since 6 & 7 V. c. 73, s. 37, which directs that if the bill, when taxed, be more or less by one-sixth than when delivered, the client or solr, as the case may be, is to pay the costs of the reference, see Re Clark, 13 Beav. 173, 180 (taxing master's certificate); 1 D. M. & G. 43; Re Remnant, 11 Beav. 603, 609; Re Haigh, 12 Beav. 307.

By O. LXV. 27 (38b), "if on the taxation of a bill of costs payable out of a fund or estate (real or personal), or out of the assets of a company in liquidation, the amount of the professional charges (exclusive of disbursements) contained in the bill is reduced by a sixth part, no costs shall be allowed to the solr leaving the bill for taxation, for drawing and copying it, nor for attending the taxation." And by r. 27 (19c), if a solr having the carriage of an order directing taxation fails to leave copy order, and statement of names of parties, &c., at the taxing office within seven days after the order has been perfected, no costs of taxation are to be allowed him.

The bill as delivered is the bill to be taxed, and while new items cannot be introduced in order to affect the costs of taxation (Re Tilleard, 32 Beav. 476), a bill containing items, together with an offer to take less (e.g., £83, say £78), is not a bill delivered, within the meaning of the Act, for the lesser sum: Re Carthew, 27 Ch. Div. 487; Re Paull, ib.

Items struck out on taxation as not chargeable against the person to whom the bill was delivered, will not be omitted from consideration in determining the costs of taxation: Re Clark, sup.

Less than a sixth being taken off on taxation, though more than a sixth was taken off the general account in a suit by the client against his solr for a general account, the solr was allowed the costs of taxation: May v. Biggenden, 24 Beav. 207.

More than a sixth being taxed off, insolvent solr's assignees had to pay the costs: Re Peile, 25 Beav. 561.

One sixth being taxed off, though the reduced amount was more than solr had offered to accept without delivering bill, he had to pay costs: Re Elwes and Turner, 58 L. T. N.S. 580; W. N. (88) 68.

Payments made by the client himself to the solr for counsel's fees and stamps will be considered as part of, and properly be included in, the bill in calculating the amount taxed off: Re Metcalfe, 30 Beav. 406.

Probate duty paid by the solr has been held to be a disbursement within sect. 37: Re Lamb, 23 Q. B. D. 5; but it would be impracticable to follow this case on every occasion, and the taxing masters take Re Remnant, 11 Beav. 603, as their guide.

A solr who has refused to consent to an order of course for taxation may be ordered to pay the costs of a special application: Re Lett, 31 Beav. 488. Under an ordinary reference to tax costs of a solr to a trustee in bankruptcy, the taxation is regulated by the practice in bankruptcy, and 6 & 7 V. c. 73, has no application: In re Marsh, 15 Q. B. Div. 340.

As to the jurisdiction of the Court on party and party taxation to order payment of costs of taxation by a solr who delivers an extortionate bill in order to increase such costs, see Re Grundy, Kershaw & Co., 17 Ch. D. 108. As to costs in case of neglect or delay in proceedings before taxing officer, see O. LXV. 27 (55).

DISCHARGING ORDER.

On application to discharge the common order for taxation as irregularly obtained, the Court considers only if the order is regular: Harris v. Start, 4 M. & Cr. 261; Gregg v. Taylor; Grove v. Sansom, 1 Beav. 123, 297; Watts v. Penny, 11 Beav. 435; Re Lewin, 16 Beav. 608; but in Re Ingle, 21 Beav. 275, the order, though irregular, was under the circumstances upheld; and in Re Webster, (1891) 2 Ch. 102, was left standing, with the omission of the latter part directing payment of what should be found due on taxation.

A solr by acquiescence may preclude himself from objecting to irregularities in obtaining the order: Re Bartrum, 12 W. R. 660, 699.

An order of course to tax costs in one matter, the solr having acted in several, and on payment for him to deliver all papers, was discharged with costs: Holland v. Gwynne, 8 Beav. 134; but see Re Pender, Ib. 299.

For cases in which orders of course have been discharged for misstatement or omission in the petition, see Re Perkins; Re Carven; Exp. Mobbs, 8 Beav. 241, 436, 499; Re Gabriel, 10 Beav. 45; Watts v. Penny, sup.; Re Rees; Re Eldridge, 12 Beav. 256, 387; Re Gedye, 15 Beav. 254; or irregularity in obtaining the order: Re Yetts, 33 Beav. 412; Re Ilderton, Ib. 201.

Where not: Re David, 30 Beav. 278; Re Fluker, 20 Beav. 143; and see Re Flower, 19 W. R. 578, that the common order obtained by an infant's solr will not be discharged, because the fact that the next friend disputes his liability has not been stated.

PROCEEDINGS BEFORE THE TAXING OFFICER— EVIDENCE, &c.

The order for taxation usually directs that the parties be examined: see Form 1, p. 230. By O. LXV. 19b, the proper officer by whom any order directing taxation of costs is drawn up is to certify upon the order the date on which it was signed, entered, or otherwise perfected.

And under the common order for taxation the solr's cross-examination may be taken by an examiner as well as by the taxing master: see Re Flux, 44 L. J. Ch. 375.

By O. LXV. 18, every reference for the taxation of costs in the Chancery Division is to be made to the taxing master in rotation, or in such manner or order as the L. C. may from time to time direct, provided that where there has been any former taxation in the same cause or matter, or on any summons under O. LV. 3 or 4, relating to the same estate or trust, the reference is to be to the same taxing master.

VOL. I.

R

By rr. 19c, d, the solr having carriage of an order directing taxation is to be disallowed the costs of taxation if he does not, within seven days after the order was signed, entered, or otherwise perfected, leave at the office of the taxing officer a copy of the order, with a statement annexed containing the names and addresses of the parties appearing in person and solrs of parties not so appearing; and the taxing officer is to send to the parties or solrs notice by post of a date before which papers are to be left, and a subsequent date on which the taxation will be proceeded with.

In every bill of costs the professional charges are to be entered in a separate column from the disbursements, and every column shall be cast before the bill is left for taxation (0. LXV. 19h); and every bill left for taxation is to be endorsed with the names and addresses of solr and London agent, if any: O. LXV. 27 (58).

By O. LXV. 27 (25), the taxing officers of the Supreme Court are empowered, in relation to the taxation of costs, to examine witnesses, to direct production of documents, &c., make separate certificates or allocaturs, to require any party to be represented by a separate solr, and to direct and adopt all such other proceedings as could be directed on references for taxation and adopted by officers of the Courts whose jurisdiction is transferred by the Act, and to take accounts of what is due in respect of costs, and such other accounts connected therewith as may be directed by the Court or Judge. But a taxing master cannot order shorthand notes to be taken of the evidence before him: Hilleary v. Taylor, 36 Ch. Div. 262; though he has power to allow the costs of such notes taken by consent.

By r. 27 (27), the taxing officer is empowered to arrange and direct what parties are to attend before him, and to disallow the costs of any party whose attendance he shall consider unnecessary in consequence of the interest of such party being small or remote or sufficiently protected by other parties interested.

By r. 27 (30), the same or similar fees are to be allowed for work and labour properly performed, and not provided for in the schedule, as have heretofore been allowed.

R. 27 (34) prescribes the practice on taxation "in case the parties differ." By r. 27 (35), where costs are to be paid out of any money or fund in Court, the taxing officer is, without any directions, to state in his certificate the total amount of all such costs.

R. 27 (37) preserves the rules, orders, and practice of Courts whose jurisdiction is transferred to the High Court of Justice, relating to costs and the allowance of solrs' fees and the taxation of costs existing prior to the commencement of the Act, so far as they are not inconsistent with the Act and rules in pursuance thereof. The effect of this rule is that the old rules of the Court of Chancery, except so far as they are altered by the new rules, are still binding in the Chancery Division: see Pringle v. Gloag, 10 Ch. D. 676, 678. Costs of an admon action brought in the County Court may be taxed in the High Court: Re Worth, 18 Ch. D. 521.

66

An affidavit of increase" as to payments to witnesses was not required in the Chancery Division, there being sufficient evidence for the purpose of taxation in the recitals in the judgment and otherwise: Smith v. Day, 16 Ch. D. 726.

By r. 27 (38), all discretionary fees and allowances are, unless otherwise provided, to be allowed at the discretion of the taxing officer, who is to take into consideration the other fees and allowances to solr and counsel in respect of the work to which such allowance applies, the nature and importance of the cause, &c., the amount involved, the interest of the parties, the fund or persons to bear the costs, the general conduct and costs of the proceedings, and all other circumstances; and where a party is entitled to sign judgment for his costs, the taxing officer, in taxing the costs, may allow a fixed sum for the costs of the judgment.

For particular items which have been sanctioned or disallowed by the Court on review of the taxing master's certificate, see inf., Section IX., "REVIEW OF TAXATION."

SECTION IV.-ENFORCING DELIVERY OF BILL.

1. Order of Course to deliver and Tax Bill-s. 37.

UPON the petition of B. of &c., it was alleged that the Petr employed the above-named A. as his solr, in &c. [Form 1, p. 230]; that the Petr is desirous of obtaining the papers in the possession of the said solr belonging to the Petr, but the said solr refuses to deliver up the same until his bill of costs is paid; that the said solr, although applied to, has not delivered his bill of costs against the Petr; that the Petr submits to pay what shall appear to be due in respect of the said bill; It was therefore prayed, and it is accordingly ordered, that the said solr do, within a fortnight after service of this order, deliver to the Petr a bill of fees and disbursements in all suits, causes, actions, and other matters of business in which he has been employed as the solr for the Petr; And that it be referred &c.-Usual directions [Form 1, p. 230].-See Re Smith, 19 Beav. 329, 330, n.

For order on special application for delivery and taxation of bill, see Re Jervis, M. R., 26 June, 1845, A. 2089; but the direction for delivery should be as in the above form.

2. Form of Order giving Liberty, pending Taxation, to deliver an additional Bill, and to alter Items by Enlargement only.

LET the Petr be at liberty to bring before the master an additional bill of any items of business done or money paid omitted to be charged in his said bill already delivered, and likewise to alter any of the items. already charged in his said bill by increasing or enlarging the same, but he is not to diminish or make less any of the items already charged. And let the master tax such additional bill and enlarged items.-See Foster v. Rayner, L. C., 28 Oct. 1745 (cited in Re Walters, 9 Beav. 302, n.). And see Re Wells; Re Carven, 8 Beav. 416, 438.

NOTES.

ENFORCING DELIVERY OF BILL OF COSTS.

By O. LV. 2 (15), following Gen. Ord. 17 April, 1867, all applications under 6 & 7 V. c. 73 (not being applications for orders of course), for the taxation and delivery of bills of costs, and for the delivery by any solr of deeds, documents, and papers, are to be made by summons at Chambers instead of (as formerly) by petition to the Court.

An order on the solr for the delivery of his bill might, after personal service (see Re Catlin, 18 Beav. 510), have been enforced by attachment: see Lane v. Oliver, 2 Ha. 97.

And now, by O. XLII. 24, every order of the Court or a Judge, in any cause or matter, may be enforced in the same manner as a judgment to the same effect-i. e., in the case of a judgment requiring any person to do any act other than the payment of money or to abstain from doing anything, by writ of attachment or by committal: O. XLII. 7.

To enforce delivery, the order should be endorsed under O. XLI. 5.

An order served without the proper endorsement might be re-served, when properly endorsed, more than fourteen days afterwards, although a motion