or any other private or public Act under which the vendor's charges are paid by the purchaser, the scale shall not apply."

Where commission (which includes a lump sum; Burd v. B., 40 Ch. D. 628) is paid by the client to an auctioneer, the solr is not entitled to the scale charge, though the auctioneer merely offers the property for sale: Re Sykes, S. v. S., 56 L. J. Ch. 238; 56 L. T. N.S. 425; Wood v. Calvert, 55 L. T. 53; Re Wilson, 29 Ch. Div. 790; but the solr is not in such case deprived of all remuneration, but is entitled to charge under r. 2 (c): Re Faulkner, 36 Ch. D. 566; Parker v. Blenkhorn, Newbould v. Bailward, 14 App. Ca. 1; reversing Re Newbould, 20 Q. B. Div. 204. Fees paid to valuers in order to obtain the sanction of the Court to a conditional contract for sale are not commission within the rule: Re Macgowan, M. v. Murray, (1891) 1 Ch. (C. A.) 105; and on such a sale the work of the solr in negotiating is completed when the terms are agreed between the parties; and if the Court sanctions the sale he will be entitled to the scale fee: Ib.

A sum paid to a local agent in respect not only of the particular sale, but of work previously done, is "commission paid" within r. 11: Re Withall, 39 W. R. 529.

The vendor's solr was not entitled to charge purchasers with a negotiating fee where a fee had been paid by them to a surveyor: Re Harris, Powell, and Goodale, 56 L. T. N.S. 477; and the mortgagor's solr is not entitled to a negotiating fee for merely introducing a lender : Re Eley, 37 Ch. D. 40.

A re-investment in land under the Lands Clauses Act, is not within the exception in the last clause of this rule, but may be charged for according to the scale: Re Merchant Taylors' Co., 30 Ch. Div. 28; S. C., 29 Ch. D. 209; and the exception extends only to vendor's, and not to the purchasers' costs: Re Stewart, 41 Ch. D. 494.

By r. 5 of the rules applicable to Sched. I., Part 2, where a conveyance or lease is partly in consideration of a money payment or premium, and partly of a rent, then, in addition to the remuneration thereby prescribed in respect of the rent, there is to be paid "a further sum equal to the remuneration on a purchase at a price equal to such money payment or premium." Payment for one and the same piece of business must be either according to the scale, or wholly independent of it, and when a lease is granted in consideration of premium and rent, the scale fee is applicable, even though no abstract of the lessor's title has been furnished to the lessee: Re Robson, 45 Ch. D. 71; and see Re Hickley and Steward, 54 L. J. Ch. 608; 33 W. R. 320; Re Hasties and Crawford, W. N. (88) 95.

Under Sched. II., the fee of 18. per folio for perusing is not payable to a solr making advances to his client upon security of real property and perusing title deeds for that purpose: Re Robertson, 19 Q. B. D. 1; nor to the perusing of abstracts of title, as to which the old fee of 68. 8d. for three sheets of eight folios remains: Re A. Parker, 29 Ch. D. 199.

The directions empowering the taxing master to increase or diminish the charges in Sched. II. for special reasons apply to the items for "drawing, &c." Re Reade's Trusts, Salthouse v. R., W. N. (89) 26; and see Re Rees, R., 58 L. T. N.S. 68.

R. V.

SECTION XI.-ENFORCING ORDER FOR PAYMENT OF COSTS.

1. Order, under Debtors Act, 1869, for Committal of Client for Six Weeks for Non-payment of Taxed Costs, and a Sum fixed for Costs of Application.

WHEREAS by an order dated &c., it was ordered [recite so much as directs payment, and the taxing master's certificate]. Now upon motion &c., and upon hearing counsel &c., and upon reading the said order and certificate, and an affidavit of G., filed &c., of service of notice of this motion, and the said order and certificate upon C., and an affidavit of E. filed &c., whereby it appears that the said C. has, since the date

of the said order, had the means to pay the said sum of £-, and in respect of which he has made default, and has refused or neglected [or refuses or neglects] to pay the same; Let the said C. pay to the said A. the sum of £- for his costs of this application; And Let the said C. for default in payment of the said sum of £- be committed to Holloway prison for the term of six weeks from the date of his arrest, including the day of such arrest, unless he shall sooner pay the said sum of £- and the sheriff's fees for the execution of this order. And Let any sheriff or officer to whom an office copy of this order shall be directed by the masters of the Supreme Court take the said C. for the purpose aforesaid, if he be found within his bailiwick.

This order would now, since the Bankruptcy Act, 1883 (46 & 47 V. c. 52), s. 103, and the Bankruptcy Rules, 1886, 355-362, be made by the Judge or registrar in bankruptcy, to which jurisdiction the power is transferred.

In this case an office copy of the order was endorsed with a direction to the sheriff of Staffordshire for the committal of the Defts, the præcipe for which was dated the 20th Jan. 1871. The return of the sheriff stated that the Defts were arrested by him on the 27th Jan. 1871.

The order ought to direct an immediate committal, and not a committal in default of payment within a week from service, and should direct payment of a sum in gross in lieu of taxed costs, to avoid detention in prison until the costs are taxed: see also Ord. 7 Jan. 1870, r. 13; L. R. 5 Ch. xxxvii. For previous order directing payment by monthly instalments, and in default liberty to apply for committal, see Hewitson v. Sherwin, 10 Eq. 53.

2. Attachment against Solicitor for non-payment of Balance found due from him on Taxation.

WHEREAS by an order dated &c., It was ordered (inter alia) that A. B., the above-named solr, should, within a fortnight after service of the said order, deliver to C. D. a bill of fees and disbursements in all suits, causes, actions, and other matters of business in which he had been employed as the solr for the said C. D., and that it be referred to the taxing master to tax and settle the said bill with all usual and consequential directions; And whereas the taxing master, by his certificate dated &c., certified that there was due from the said solr to C. D. £-. Now, upon motion &c. by counsel for the said C. D., and upon hearing counsel for the said solr; And it appearing to the satisfaction of the Court that the said A. B. has made default in payment of the said £-, and that such default is a default by a solr in payment of a sum of money when ordered to pay the same in his character of an officer of the Court within the meaning of the Debtors Act, 1869; Let the said C. D. be at liberty to sue out a writ of attachment against the said A. B. for his contempt in not having paid the said £ to the said C. D., pursuant to the said order and taxing master's certificate.-Costs.-Re Peters, Kay, J., 6 May, 1887, B. 650.

NOTES.

As to enforcing judgment or order for payment of costs by fieri facias, writ of sequestration, or other process of execution under O. XLII., see inf., Chap. XXVII., "EXECUTION."

An order of Court for payment of costs constitutes a debt within the exceptions under sect. 4 of the Debtors Act, 1869 (32 & 33 V. c. 62), capable of being enforced by committal to prison, on application by motion on notice (Gen. Ord. 7 Jan. 1870, r. 10), for a term not exceeding six weeks, under sect. 5, in default of payment of the debt (under £50, exclusive of costs) or instalments: Hewitson v. Sherwin, 10 Eq. 53; Rogers v. R., sup., Form 1; and see Reg. v. Pratt, L. R. 5 Q. B. 178. The above rule has not been expressly repealed, but the jurisdiction under sect. 5 has now been transferred to the Judge and registrars in bankruptcy; Bankruptcy Act, 1883 (46 & 47 V. c. 52), s. 103, and rules thereunder; Bankruptcy Rules, 1886, rr. 355 -362.

An order on a solr for payment of costs for misconduct as a solr, or for payment of a sum of money in his character of an officer of the Court, is also within the exceptions under sect. 4, and may be enforced by sequestration or by attachment, which now, under O. XLIV. 2, is not to be issued without the leave of the Court or a Judge, to be applied for on notice to the party against whom the attachment is to be issued."

The term of imprisonment is limited to one year: 32 & 33 V. c. 62, s. 4. Cases in which an attachment has been ordered against a solr for default in payment of a balance found due from him upon taxation, are: Re Rush, 9 Eq. 147; Re White, 19 W. R. 39; and see Re V., I. R. 8 Eq. 355.

The liability of a solr to attachment is for non-payment of money or costs as an officer of the Court; not as an unsuccessful litigant: Re Hope, 7 Ch. 523, overruling Re Barfield and Rush, 19 W. R. 466, where a solr was attached for non-payment of a balance due from him quà client: but see Esdaile v. Visser, 13 Ch. Div. 421.

A solr or other person who has been imprisoned under sect. 4 (4) will not be discharged without an order obtained in Court from the Judge by whom the attachment was granted: Re Thompson's Estate, 22 W. R. 857.

The order for payment must be personally served unless otherwise directed.

In a proper case, substituted service of an order upon a solr to pay a balance may be directed: Re Mourilyan, 13 Beav. 84; Re Stevenson, 14 Beav. 27; Re Wisewold, 16 Beav. 357.

Á suit could not be revived for the purposes of costs only (see Dan. 1387). But the Solicitors Act, 1870 (33 & 34 V. c. 28), s. 19, provides that whenever any decree or order shall have been made for payment of costs in any suit, and such suit shall afterwards become abated, it shall be lawful for any person interested under such decree or order to revive [continue] such suit [action], and thereupon to prosecute such decree or order. This section applied only to an abatement which took place after the Act, although the decree or order for payment of costs might have been made before: Doggett v. E. C. R. Co., 6 Ch. 474; and see Huntley v. Wortley, W. N. (73) 4.

Payment of taxed costs may be enforced, notwithstanding the solr has omitted to furnish cash accounts of money received in respect of separate transactions of which the client was at the time aware: Re Lee, Exp. Neville, 4 Ch. 43. The Court will enforce against a firm of solrs an undertaking to pay a sum for costs: Re Woodfin and Wray, 30 W. R. 422.

Under 6 & 7 V. c. 73, s. 26, and 23 & 24 V. c. 127, s. 22, a solr's debt for costs is not extinguished by his being uncertificated, but only his remedy; and the want of a certificate does not exempt the client from payment of costs: Re Hope, 7 Ch. 766.

And items will not be disallowed solely on the ground that at the particular time the solr was uncertificated: Re Jones, 9 Eq. 63.

The Attorneys and Solicitors Act, 1874 (37 & 38 V. c. 68), s. 12, imposes a penalty not exceeding £10 for wilfully and falsely pretending to be duly qualified to act as an attorney or solr; and provides that no costs, fee, reward, or disbursement on account of, or in relation to, any act or proceeding done or taken by any person who acts as an attorney or solr without being duly qualified shall be recoverable in any action, suit, or matter by any person or persons whomsoever.

Under this section, not only an uncertificated solr, but also his client is prevented from recovering costs from the party otherwise liable: Fowler v. Monmouth, &c. Co., 4 Q. B. D. 334; Verlander v. Eddolls, 51 L. J. Q. B. 55,

CHAPTER XVIII.

CHAMBERS, AND PROCEEDINGS UNDER JUDGMENT.

SECTION I.-PROCEEDINGS IN CHAMBERS GENERALLY.

1. General Adjournment to Chambers.

LET this action [or matter, or petition, or application] be adjourned for consideration in Chambers.

2. Particular Reference-Accounts and Inquiries.

LET the following accounts and inquiries be taken and made, that is to say: 1. An account &c.: 2. An inquiry &c.

3. Order on Summons in Chambers.

Mr. Justice K., at Chambers.

UPON the application of the Plt [or Deft] A., and upon hearing the solrs for the applicant, and for &c. [Name any parties or persons appearing], and upon reading [an affidavit of &c., filed &c., of service of the summons on &c.: Name any parties or persons served and not appearing, and enter any evidence], It is ordered that &c.

4. Order on Summons adjourned into Court.

THE application of (the Plt or Deft) A., which upon hearing the solrs for the applicant, and for &c., in Chambers, was adjourned to be heard in Court, coming on (the day of and) this day to be heard accordingly, and upon hearing counsel for the applicant and for &c., and upon reading &c., This Court doth &c.

-

For order on further consideration of action commenced by admon summons adjourned into Court, see Chap. XX.

5. Summons refused or dismissed in Chambers.

UPON the application of (the Plt or Deft) A. that [Recite summons], and upon hearing &c. (Form 3, sup.), the Judge doth not think fit to make any order upon this application [If so, But doth order that the said (Plt or Deft) A. do pay unto the said (Deft or Plt) B. the costs of this application, to be taxed by the taxing master], [Or, if on

summons originating proceedings in Chambers, the Judge doth order that the summons filed in this action do stand dismissed out of this Court], [If so, with costs to be taxed by the taxing master; And Let the said (Plt) A. pay to the said (Deft) B. the amount of such costs when taxed].

If on adjournment into Court, vary introduction as in Form 4; and as to costs, see inf. pp. 278, 284.

APPLICATIONS AND PROCEEDINGS IN CHAMBERS.

By Jud. Act, 1873, s. 39, any Judge of the High Court may, subject to any rules of Court, exercise in Court or in Chambers all or any part of the jurisdiction by the Act vested in the High Court, in all such proceedings as before the passing of the Act might have been heard in Court or in Chambers respectively by a single Judge, or as may be directed or authorized to be so heard by any rules of Court.

By the 18 & 19 V. c. 134, s. 16, the jurisdiction of the Judge in Chambers comprised such of the matters, in respect of which the Court was empowered by Act of Parliament to make orders in a summary way on petition or motion, as the L. C., with the advice of the Master of the Rolls and Vice-Chancellors, or any two of them, might by general order direct. But by Jud. Act, 1873, s. 17, all rules of Court must now be made in the mode there prescribed.

By Jud. Act, 1884, s. 13, the provisions of sect. 16 of 18 & 19 V. c. 134, are extended to all applications under any Act passed or thereafter to be passed under or by virtue of which the High Court of Justice or any Judge thereof is empowered to make any orders in respect of trust funds, or any other matters upon petition or motion in a summary way.

Applications and proceedings in Chambers are now regulated by O. LIV. and O. LV.

By O. LIV. 1, every application at Chambers not made ex parte is to be by summons; and by r. 2, every application for payment or transfer out of Court made ex parte, and every other application made ex parte in which the Judge or proper officer shall think fit so to require, is to be made by summons. Summonses are not to be altered after they are sealed except upon application at Chambers: r. 3.

An originating summons, where service is necessary, is to be served seven clear days before the return thereof; and every other summons two clear days, unless otherwise ordered: r. 4.

Rule 5 provides as to proceeding ex parte when any of the parties fail to attend; and r. 6 for the re-consideration of ex parte proceedings, and as to costs caused by the non-attendance of the party failing to attend; and r. 7 for costs thrown away by such non-attendance when the Judge does not think it expedient to proceed ex parte.

By r. 8, where matters in respect of which summonses have been issued are not disposed of, the parties are to attend again from time to time without further summons.

A party making an application in Chambers may include in it all matters upon which he then requires an order or the directions of the Judge; any such application may be adjourned by the Judge from Chambers into Court, or from Court into Chambers: r. 9; and as to the power of one official to dispose of business for another, see r. 9a.

PROCEEDINGS IN CHAMBERS IN THE CHANCERY DIVISION—APPLICATIONS TO BE MADE THERE.

By O. LV. 1, the business in Chambers in the Chancery Division is to be carried on by the Judges to whom Chambers are attached in conjunction with their Court business, and, by r. la, in any proceeding in Chambers any party may, if he so desires, be represented by counsel.

The business to be disposed of in Chambers by Judges of the Chancery

VOL. I.

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