L. JJ. 1868 In re Ex parte After Lee's death, his executor, in July, 1860, sent in a bill of costs, from 1855, amounting to £1862 11s. 9d. Neville obtained the usual order to tax this bill, containing the common directions for the executor to give credit for all sums of money received by him or his testator on Neville's account, and directing the Taxing Master to certify the balance. The Taxing Master required a cash account to be brought in. It appeared that Lee had kept no books of account except a day-book, and that there were no proper materials for making out an account of his receipts and payments on Neville's behalf. The executor brought in a cash account shewing Neville debtor to a large amount, but it was found wholly incorrect, and an amended account was brought in with no better result. The Taxing Master found, therefore, that he could not take the cash account. The bill of costs was reduced by Neville's proving some parts of it paid, and was ultimately taxed at £748 16s. 5d. The Taxing Master certified the amount of costs as taxed, but stated that as Lee had received large sums of money on account of Neville, of which the executor was unable to render any proper account, and the executor had failed to prove that there was anything due from Neville, he found that nothing was due. The executor took objections to this certificate, and ultimately the Master of the Rolls ordered payment of the taxed costs, deducting the costs of taxation. Neville appealed. Mr. Jessel, Q.C., and Mr. Caldecott, for the Appellant : This case is governed by the principle of White v. Lady Lincoln (1). Where a solicitor has had cash dealings with his client his bill of costs is only an item in the account between them. It is his duty to keep proper accounts, and make out his case by proof: the onus is on him. The cash account must be taken under an order for taxation: Cooper v. Ewart (2); and where, by his negligence, the solicitor has made it impossible to take it, he cannot recover his costs. The circumstances render it extremely improbable that the costs have not been paid. Mr. Southgate, Q.C., and Mr. Freeling, for the executor, were not called upon. SIR W. PAGE WOOD, L.J.: This appeal is founded on the case of White v. Lady Lincoln (1), which does not appear to us to be applicable to the case before us. We take the facts to be as they appear in the certificate of the experienced and able Taxing Master to whom the taxation was referred. A large bill of costs was brought in, commencing from the year 1855, but it appeared that a large portion of it had been paid, and the demand was reduced on taxation to £748 16s. 5d. The Taxing Master finds this amount proper as to quantum of charge, but, under the circumstances, was of opinion that it should not be allowed, or, in other words, ought to be assumed to have been paid. The solicitor had been employed by Mr. Neville as solicitor, and also as receiver of his rents, and if no account of the rents had been rendered, the case would have come nearer to White v. Lady Lincoln. He was also employed in specific operations for raising money on mortgage and by discounting bills, and the usual course was, that when a bill was discounted the solicitor received the money, and the account was settled there and then, the solicitor retaining his remuneration in respect of that particular transaction, and handing over the balance to the client. A similar course was taken as to the mortgage transactions. The circumstances in White v. Lady Lincoln were quite different. Lord Eldon there pointedly rests his judgment on Jackson's being the Duke's general age, bound in duty to him to keep regular accounts of his money transactions, and the same principle is indicated in Lord Rosslyn's previous order. The principle is founded on this, that, when you employ a man as general agent, he can receive money to an amount which you have no means of finding out unless he keeps regular acounts of his receipts and payments. So here, if no account of the rents had been furnished, Lee must have been charged with the full amount of the rental, and would have had to discharge himself. But the case is very different when a solicitor is employed to raise money on mortgage, or by discounting a bill. The client there is aware of the whole transaction, and knows what the solicitor receives. The question then is, whether the solicitor is to be deprived of his costs because he did not keep a cash account of sums thus received, from which it was the usual course of dealing between (1) 8 Ves. 363. L. JJ. 1868 In re LEE. Ex parte NEVILLE. the parties that his costs of the particular transactions should be deducted at the time, and the balance handed over. I think that there is no ground for the contention that in such a case the onus is thrown on the solicitor to shew that his costs in respect of other matters have not been paid. It was urged then that, as a matter of evidence, it ought to be presumed that the costs had been paid, but I do not see any sufficient reason for coming to such a conclusion. In 1854 there was a complete settlement of the rent account, and nothing was included for law expenses; but it is an undisputed fact that law business had been done, and to such amount that Mr. Neville gave Lee above £1000 for it. This shews that, concurrently with the account then settled, there was a running account for professional charges, and it is clear from the documents produced that other business was done than what was paid for at the time out of the proceeds of the transactions to which it related. The circumstances of Mr. Neville shew that there was likely to be a large amount of law business done afterwards. The question is, whether, in these circumstances, a solicitor, because he has gone on not putting down every sum which he receives, is to have it presumed against him that his costs have been paid. It was pressed upon us that, but for Mr. Neville's having kept some vouchers, he would have had to pay over again a large part of the costs which he had already paid. That is nothing more than we are all liable to we do not keep receipts for articles supplied by tradesmen. For any one engaged in business not to keep accounts is blameable, but it is not a breach of duty towards another person such as ought, in the absence of actual fraud, to be visited with the consequences fraud, unless the party omitting to keep them stands in the relon of general agent to the other. SIR C. J. SELWYN, L.J.:— r To see whether the case of White v. Lady Lincoln (1) applies, we must look at the nature of the employment of the solicitor, and it is clear, from Mr. Neville's own evidence, that Lee received rents for Mr. Neville, and also received moneys in respect of separate transactions on mortgages and bills, but was not his general agent. (1) 8 Ves. 363. No regular bills of costs were delivered as to these transactions, but sums for costs were deducted from the moneys raised. It is admitted that there was a settlement of accounts in April, 1854, which appears to have been on a similar footing, a sum having been paid for costs without the delivery of any bill; but, looking at the receipt, the payment evidently was only in discharge of costs up to that time. It is clear, then, that the course was not to settle the costs for general professional business at the times when the costs of particular transactions for raising money were settled. A rent account was carefully settled in 1854, and the balance paid, the account not including any professional charges, though it is clear that professional business had been done. No presumption that such business has been paid for can be raised from Mr. Neville's vague affidavit that he paid various sums on account of costs, not specifying when, nor shewing any reason why he cannot prove the amounts. Solicitors: Mr. Mayhew; Messrs. Torr, Janeway, & Tagart. L. JJ. 1868 In re Ex parte Ex parte SQUIRE. In re GOULDWELL. An assignment of the whole of a debtor's property for the benefit of creditors may be given in evidence as an act of bankruptcy, though unstamped, and not registered under the Bankruptcy Act, 1861. Ponsford v. Walton (1) followed. THIS was an appeal from a decision of the Judge of the County Court at Beverley, refusing to annul an adjudication in bankruptcy in his Court. On the 30th of June, 1868, Gouldwell assigned all his property to John Blyth by a deed in the form of schedule D. to the Bankruptcy Act, 1861. This deed was never stamped or registered. On the 8th of July, Squire, who was a creditor of Gouldwell, filed a petition for adjudication of bankruptcy against him in the (1) Law Rep. 3 C. P. 167. L. JJ. 1868 Nov. 10. L. JJ. 1868 Leeds District Court, proceeding on the execution of the above deed as an act of bankruptcy; and on the following day, the 9th Ex parte of July, Gouldwell was adjudicated bankrupt. SQUIRE. In re GOULDWELL. On the same 9th of July, but at an earlier hour in the day, Gouldwell was made bankrupt on his own application to the County Court at Beverley. On the 21st of August, the County Court Judge refused an application to annul the County Court adjudication, being of opinion that as the deed of assignment had not been stamped or registered, it was not admissible in evidence as an act of bankruptcy, and that the Leeds adjudication, therefore, was invalid. Squire, who was assignee under the Leeds bankruptcy, appealed. Mr. De Gex, Q.C., for the Appellant: An adjudication on the bankrupt's own application ought to be set aside in favour of one on the application of a creditor, which is more advantageous to creditors, as it relates back and will defeat the deed of assignment. The adjudication before the Commissioner was good, for the unstamped and unregistered deed is admissible in evidence for the purpose of treating it as an act of bankruptcy: Ex parte Wensley (1); Ex parte Potter (2); Ponsford v. Walton (3). Mr. Jemmett, contrà. SIR W. PAGE WOOD, L.J.: The Court has an inclination in favour of any reasonable application by creditors to substitute an adjudication on the petition of a creditor for one on the bankrupt's own application. Here we have not any considerable creditor who wishes matters to proceed under the bankrupt's own adjudication; and unless there is some objection to the adjudication in the Court of Bankruptcy it ought to prevail. If we saw any good reason for supposing it invalid, we should not interfere in the way now asked. But we entertain a strong opinion that the decision in Ponsford v. Walton ought to be followed. It proceeds on this ground, that an unstamped deed passes the estate, and although, until stamped, it cannot be received in evidence for (2) 13 W. R. 189. (1) 1 D. J. & S. 273. (3) Law Rep. 3 C. P. 167. |