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1834.

BRAZIER

PATTESON, J.-I cannot allow this sum to be set off against costs, as that would in fact be trying the question of negligence on the part of the attornies. But they have a right to have it tried by a jury.

Rule discharged.

BRYANT.

GRAY and Others v. KIRBY. UPON a motion for reading the Master's report, the If a London following facts appeared :—Mr. James Upton, who resided agent receives

money improat Tadcaster, was concerned for the plaintiffs as their so- perly, the re

medy of the licitor, in a certain Chancery suit, mentioned in bills deli- client is not vered to his clients from 1816 until 1823, when he became against him, but

against his bankrupt. Mr. Upton's son, Mr. George Upton, then be- attorney. came solicitor for the plaintiffs in the Chancery suit, and acted for them till his father obtained his certificate. Mr. James Upton got his certificate in 1824, when he resumed his practice, and continued to act as solicitor to the plaintiffs till October, 1828, when he retired from the profession. During a portion of Mr. James Upton's employment by the plaintiffs, a Mr. Robert Lys was his London agent, and during the residue of that employment the same Mr. Lys, in conjunction with his partner, a Mr. Thomas Lys, conducted, as agent, the Chancery suit in question. After Mr. James Upton's retirement, his son Mr. George Upton, in conjunction with a Mr. Thompson, his partner, became concerned for the plaintiffs in the Chancery suit; Messrs. Lys acting also as their London agents therein. In the course of James Upton's employment, the plaintiffs advanced him 10791. 13s., of which 4501. was an advance in respect of the Chancery suit only. At the time James Upton became bankrupt, he owed Robert Lys 4591. 14s. 4d. on a promissory note, for general agency business. Lys proved his debt, and signed Upton's certificate, but

1834.

GRAY

KIRBY.

received no dividend. Mr. Upton, after he had resumed his employment, remitted Lys, at various times between 1825 and 1829, to the amount of 2831. on account of that debt, he (Upton) being desirous of paying 20s. in the pound on all his debts, should his estate be sufficient, but without intending to revive such debt in law. Robert Lys received 5131. 8s. 1d. from the accountant-general in August, 1830, at which time James Upton stood indebted to him for the balance of principal and interest on the bankruptcy debt, and for general agency business done by himself and by himself and partner, Thomas Lys, up to October, 1828, in the sum of 3881. 16s. Id., the bills for which had been regularly sent to Upton. It should, however, be observed that Lys never brought forward the balance of the bankruptcy debt in any of those bills; but after he had got the money from the accountant-general in 1830, he sent Upton a general cash account, giving him credit on one side for the whole of the 5431. 8s. 1d., and on the other side charging him with the bankruptcy and other balances, up to October, 1828, above referred to, but such accounts shewing, after all, a considerable balance in Upton's favour. But Lys admits that he received the 5431. 8s. Id. as the agent of the several solicitors, and he says that they were entitled to credit for the same, as follows:

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To James Upton, as his share of the costs of the suit, up to October, 1828, when he retired

To George Upton, as his proportion between the bankruptcy and certificate of his father

To Upton and Thompson, as their share, after October, 1828.

59 60

48 10 2

£543 8 1

1831.

GRAY

v. KIRBY.

The several bills of costs of James Upton against his clients, up to October 1828, were taxed at 10341. 158. 8d., and that sum being deducted from the 10791. 13s. Od. received on account, left a balance in favour of the clients of 441. 178. 4d. only.

On the part of the clients, it was contended before Master Le Blanc, who taxed the bills, that, as they contained the whole of Upton's charges in the Chancery suit, they were entitled to credit from him for the 4351. 11s. 11d., so received by his agents, Messrs. Lys, as his ( Upton's) share of the costs of such suit as before mentioned; and that, although Upton had relinquished his employment of solicitor in the cause long before those costs were awarded by the Court, yet in this respect, he was still answerable to his clients, there being no privity whatever between them and Messrs. Lys, or either of them. And, as a further argument, to shew that Upton was alone liable, it was contended that Messrs. Lys, as between themselves and Upton, had a lien on the money received, not only to the extent of their bill in the suit in question, but also for their general balance.

On the other hand, it was insisted on the part of Mr. Upton, that, immediately on his retirement, his agents, Messrs. Lys, became not only the agents of his successors, Upton & Thompson, but also the agents of his clients the plaintiffs, and, consequently, that they (Messrs. Lys) received the costs in question in the latter character. It was also insisted, that the right to receive the money was vested in the clients, and not in Mr. Upton, the clients having advanced him more than the 4351. 11s. 11d. on account of their Chancery suit only; and that, had Upton applied to the Court in respect of any lien upon the fund, the clients would have had a complete answer by shewing such overpayment. With regard to any lien which Messrs. Lys might have claimed in respect of the fund as between themselves and Upton, it was contended that

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1834.

GRAY

KIRBY.

the same could not possibly extend farther than their costs in the suit in question. But admitting such lien to extend to Messrs. Lys' general balance, the bankruptcy debt of Robert Lys could not possibly be revived to the prejudice of the clients, and consequently, that, as between Messrs. Lys and the clients, nothing would be due, such bankruptcy debt having exceeded in amount the 4351. 11s. 11d. For these reasons, it was contended, therefore, that the 4351. 11s. 11d. must be deemed to have been received by Messrs. Lys in their character of agents to the clients in the suit, and not as agents to Upton, who had retired from the suit so long previously.

Upton, notwithstanding he had so retired from the suit, furnished Messrs. Lys with a draft of his own bill of costs, to enable them to make out the clients' bills of costs for taxation, but gave them no directions as to their receiving the money from the accountant-general when payable. He, however, told one of his clients in 1829, which was after his retirement, that when those costs were received, he would account for them, and pay over the balance, if any. When he heard from Messrs. Lys that the costs had been received, he informed his clients of the fact; and considering that he had been already paid all that was due to him by his clients, he advised an application by them to Messrs. Lys to pay over the money to themselves. The clients made that application, and Messrs Lys were afterwards threatened with proceedings, on the ground that they had received the costs on the clients' account; but it did not appear that the clients ever relinquished their claim on Upton, or that Messrs. Lys ever admitted their liability to account to the clients. The 5431. 8s. ld. was received by Robert Lys alone under an order of Court, in which he was called the solicitor for the clients; a fact, on which great stress was laid by Upton. But it is the constant practice of the registrars so to designate the London agent in the absence of any

1831.

GRAY

KIRBY.

notice to the contrary, and in this case no such notice was given either by Upton or his clients.

Under all these circumstances, Master Le Blanc was of opinion that the 4351. 11s. 11d. was in point of law received by Messrs. . Lys in their original character of agents to Mr.James Upton, and, consequently, that he Mr. Upton was alone answerable to his clients, notwithstanding his previous retirement from the cause. On a review of all the accounts, the Master's allocatur was ultimately for the sum of 4801. 9s. 3d. in favour of the plaintiffs. A demand of this sum was afterwards made on Upton, but he refused to pay. A rule nisi for an attachment for nonpayment was obtained against him, and, at the same time, a rule nisi by Upton for referring the matter back to the Master. Both rules afterwards came on to be heard, and they were both referred by consent to Master Goodrich, with directions to him to give credit to Upton for the sum of 274l. 7s. 1d. for bankruptcy business done by him, with power to direct whether a writ of attachment should issue, and for what sum, without a fresh application to the Court. Master Goodrich heard the case from beginning to end, and he was ultimately of opinion that Master Le Blanc was correct in the view he had taken. As, however, the point was one of some nicety, he was desirous that the opinion of the Court should be taken on it.

The Attorney-General and Dundas, on the part of Upton, contended that the view which both Masters had taken of the case was incorrect. The plaintiffs were entitled to receive credit for 1351. Ils. 11d., part of the 5431. 8s. 1d., which had been paid into the hands of Lys by the accountant-general, but not from Mr. Uplon; that sum was received by his London agents without his authority, and therefore he ought not to be charged with it. The receipt of the agents could not charge him ; and

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