Chambless, 6 Randolph, 86; Gates v. Goreham, 5 Vermont, 317; Shafer v. Stonebreaker, 4 Gill & Johns. 345; Gardner v. Buckbee, 3 Cowen, 120; Hibshaum v. Dulleban, 4 Watts, 183.

A suit against a defendant as endorser of a note given as conditional payment of goods sold, and a suit against the defendant for goods sold, are upon distinct and different causes of action, and a judgment in the first cannot be pleaded in bar of the second: Clark v. Young, 1 Cranch, 181. A. brought a suit against B. for a month's labour, and B. under the general issue set up as a defence, that the labour had been done under

a contract for a year, which he had voluntarily abandoned before it was performed; and the jury found a verdict for the plaintiff, on which judg ment was rendered. It was held that such finding was not an estoppel which could preclude B. from maintaining an action against A. upon the contract, the judgment in the former suit not being upon the same matter in controversy in the latter: Towns v. Nimms, 5 New Hamp. 259. See further Ramsey v. Herndon, 1 M'Lean, 450; Wood v. Corl, 4 Metcalf, 203; Jones v. Richardson, 5 Ibid. 247; Salem India Rubber Co. v. Adams, 23 Pickering, 256.

Ex parte KEIGHLEY, In re KEIGHLEY v. GOODMAN. Feb. 25. The 91st section of the County Court Act, 9 & 10 Vict. c. 95, does not preclude an attorney from recovering from his client a reasonable remuneration for his work and labour done out of court, before the institution of a suit, or take away the right of the superior courts to allow on taxation a reasonable remuneration for this description of labour.

ON the 28th of November, 1848, Keighley delivered to Goodman two bills of costs,-the one, of 73l. 98. 2d., for general business; the other, of 201. 198. 2d., for business done in relation to a suit in the Edmonton county court, wherein Goodman sought to recover damages against one Martin for an excessive distress upon goods in the possession of Goodman under a mortgage-deed. In the suit in the county court, Goodman claimed, and recovered, 197. 198., being 127. 10s., the sum levied beyond the amount due for rent, and 71. 98., for damages,— that sum having been charged by Keighley for investigating the matter on his behalf,-together with 61. 28. 4d. for costs.

On the 5th of April, 1849, Keighley brought an action against Goodman, in this court, to recover the sum of 561. *18. 6d., the *339] balance alleged to be due to him upon the above bills. On the 14th, the first bill was taxed by Master Methold, under an order of COLTMAN, J., and 97. 68. 6d. struck off. On the 23d of April, MAULE, J., made an order for the taxation of the second bill; and, on the 10th of May, the parties attended before Master Park, who disallowed the whole bill, making the following endorsement on the order :—« I certify that I have disallowed the whole of the bill of costs (201. 198. 2d.) under this order, because I consider that the act 9 & 10 Vict. c. 95, s. 91, limits the remuneration of the attorney to 158.

The master's allocatur was as follows:

£ 8. d.

"14th May, 1849. Amount of bill ordered to be taxed by this order "Ditto of bill under order of 23d April

ལམ འ ད

94

[*340

When the parties were before the master, Goodman claimed credit only for the sum of 121. 5s. 6d. received of Mr. Murrell, and 197. 198., the damages awarded to him in the county court,-making together 331. 48. 6d.; but Mr. Keighley insisted upon giving credit for the whole amount received from the clerk of the county court,-267. 18. 4d.: and, after the taxation, Goodman *tendered to Keighley the amount found due by the allocatur, and the further sum of 61. 28. 4d., together, 241. 28. 4d.; which sum Keighley refused to accept. J. Brown, in Trinity term last, moved, on behalf of Keighley, for a rule calling upon Goodman to show cause why the master should not be at liberty to review his taxation. He submitted that the master had taken an erroneous view of the 91st section of the 9 & 10 Vict. c. 95,(a) the scale of fees in schedule (D) showing that more than the sums mentioned in that section must be actually disbursed before a judgment could be obtained in the county court. [MAULE, J.-How much is charged in the bill for "appearing and acting" in the county court ?] The bill is not so framed as to show what is the precise sum charged for the attorney's mere *appearance in court. The Court of [*341 Queen's Bench, in a case of Ex parte Clipperton, in re Green, 12 Jurist, 1044, decided that this section of the act applies to costs (a) Which enacts "that no person shall be entitled to appear for any other party to any pro ceeding in any of the said courts, unless he be an attorney of one of Her Majesty's superior courts of record, or a barrister-at-law instructed by such attorney on behalf of the party, or, by leave of the judge, any other person allowed by the judge to appear instead of such party; but no barrister, attorney, or other person, except by leave of the judge, shall be entitled to be heard to argue any question as counsel for any other person in any proceeding in any court holden under this act and no person not being an attorney admitted to one of Her Majesty's superior courts of record, shall be entitled to have or recover any sum of money for appearing or acting on behalf of any other person in the said court: and no attorney shall be entitled to have or recover therefore any sum of money, unless the debt or damage claimed shall be more than 408., or to have or recover more than 10s. for his fees and costs, unless the debt or damage claimed shall be more than 57., or more than 158. in any case within the summary jurisdiction given by this act; and in no case shall any fee exceeding 17. 38. 6d. be allowed for employing a barrister as counsel in the cause: and the expense of employing a barrister or an attorney, either by plaintiff or defendant, shall not be allowed on taxation of costs, in the case of a plaintiff, where less than 57. is recovered, or, in the case of a defendant, where less than 57. is claimed, or in any case, unless by order of the judge."

between attorney and client, and includes everything that is done by the attorney in regard to a suit in that court, whether before, or at, or after the hearing. That clearly is not a correct view of the statute. [MAULE, J.-I should certainly say that appearing and acting in court, must be something different from business done in the attorney's office. WILDE, C. J.-These regulations would seem to be applicable only as between party and party. MAULE, J.-It is not incident to a court to tax costs as between attorney and client.]

A rule nisi having been granted,

Byles, Serjt., in the course of the same term, showed cause.-The words of the 91st section are clear and precise, that the attorney shall in no case be allowed, on taxation, more than 158., for appearing or acting on behalf of any other person in the county-court. [MAULE, J. -Is he to have 158. only, or 158. plus the expenses out of pocket?] Fifteen shillings plus the expenses out of pocket. The court of Queen's Bench has, in the case referred to, put a construction upon the statute, which must govern this case, viz., that the prescribed fee includes every thing that is done by the attorney in relation to the suit, whether before, or at, or after the hearing. PATTESON, J., in delivering the judgment of the court, there says: "The words of the section are very clear,that no attorney shall be entitled to have or recover therefore' (that is, for appearing or acting on behalf of any other person in the countycourt), more than the sums there specified, which have been allowed by the master. We are of *opinion that the legislature did not *342] intend to make any distinction between an attorney's right to recover from the opposite party, and from his own client. We think that the costs intended to be allowed between party and party, in regard to the attorneys, are, all such costs as such attorneys are entitled to receive from their clients; and that the latter part of the section, which, requires the order of a judge for the allowance of such costs as between party and party, was meant as a further check against the unnecessary employment of attorneys, but does not limit and control the preceding part of the clause. We are further of opinion that the words ' acting for any other person in the county-court' include every thing that is done by the attorney in regard to a suit in that court, whether before, or at, or after the hearing." [WILDE, C. J.-I must confess I should have thought that the 91st section applied only to taxations in the county-court, and had nothing to do with costs as between attorney and client.] The case of in re Green, is plainly in accordance with the real intention of the legislature. [WILDE, C. J.-The clause seems to contemplate that the attorney would be no more employed before the hearing than the barrister is.] It may be so. [WILDE, C. J.-Suppose the attorney does not appear at all in court, is he to have nothing for his trouble in investigating and advising?] The policy of the statute was, to discourage the employment of professional men in these local

courts. [WILDE, C. J.-The effect of your construction of the 91st section would be, to drive the suitors into the hands of parties who certainly are not the best calculated to promote their interests.] Whatever the consequence may be, the court will not, with a view to avoid a supposed inconvenience, reject the natural and obvious construction of the clause.

*J. Brown, in support of his rule.-The 91st section clearly [*343 applies only to costs incurred after the levying the plaint in the county court. The case of In re Green could not have been well considered; and it is not exactly parallel with this case: the items that were objected to there, were, for writing two letters, and for instructions to sue.

WILDE, C. J.-Considering that the point is one of very general interest, and that the case referred to is somewhat loosely reported, we will take time to deliberate, and to ascertain what was really decided by the Court of Queen's Bench. Cur. adv. vult. MAULE, J., now delivered the judgment of the court :-(a) This was a motion to review the taxation of an attorney's bill. The master had disallowed certain items for business done in conducting preliminary inquiries before commencing a suit in one of the county courts established under the act of 9 & 10 Vict. c. 95. The ground of the disallowance was, that the 91st section of that act prevented the attorney from having or recovering, for the services in question, any larger sum than 158. And this construction of the section appears to have been adopted by the Court of Queen's Bench, in the case of Ex parte Clipperton, in re Green, for which we were referred to The Jurist, vol. 12, p. 1044.

Having heard the case argued on this question, and having taken time to consider it, we find ourselves compelled to adopt a differ[*344 ent construction of the *section in question. That section begins by providing that no person but an attorney, or a barrister instructed by one, or a person allowed by the judge to appear instead of such party, shall be entitled to appear in a county court, for any other party: and such person is, by the next clause, restricted from being entitled to be heard to argue a question as counsel, without leave of the judge. This is followed by a clause in the following words," and no person, not being an attorney admitted in one of Her Majesty's superior courts of record, shall be entitled to have or recover any sum of money for appearing or acting on behalf of any other person in the said court; and no attorney shall be entitled to have or recover therefore any sum of money, unless the debt or damage claimed shall be more than 40s., or to have or recover more than 10s. for his fees and costs, unless the debt or damage claimed shall be more than 57., or more than 158. in

(a) The judges. present at the argument, were, WILDE, C. J., COLTMAN, J., MAULE, J., and WILLIAMS, J. COLTMAN, J., had died before the judgment was prepared.

any case within the summary jurisdiction given by this act." The section then goes on to provide that no fee exceeding 1l. 38. 6d. shall be allowed for employing a barrister "as counsel in the cause," and that the expense of employing a barrister or attorney shall not be allowed, on taxation of costs, unless 5l. is recovered or claimed, or without the order of the judge.

The first clause, regarding the description of persons who may be allowed to appear in the county court, for another party, or instead of such party, seems very clearly to apply only to the appearance in the court as a representative of a party who would otherwise be obliged to appear for himself. The next provision, restricting the right to be heard to argue as counsel, also evidently applies only to a proceeding in court. The clause in question begins with this provision,-" and no person, not being an attorney, admitted, &c., shall be entitled to have or recover any sum of money for appearing or acting on behalf of any *other person in the said court." These words, certainly, in their *345] literal construction, apply only to what is done in the court: and this is not only the literal sense, but the natural and obvious sense of the words; and the subject of the preceding part of the section being matters in court only, confirms this construction: indeed, it would be difficult, by affirmative words, more expressly to confine the enactment to what is done in court, than by those actually used, appearing or acting on behalf of any other person in the said court." The words. next following, on which the present question immediately arises, are,"And no attorney shall be entitled to have or recover therefore any sum of money, unless the debt or damage claimed shall be more than 408., or to have or recover more than 10s. for his fees and costs, unless the debt or damage claimed shall be more than 57., or more than 158., in any case within the summary jurisdiction given by this act." Here, the word "therefore" clearly is intended to refer to the preceding words, for appearing or acting on behalf of any other person in the said court:" so that the right to have or recover anything in cases not above 408., is also taken away only in respect of the appearing or acting in court on behalf of the party to the suit. It is true that the word "therefore" is not repeated in the provision as to cases where 108. or 158. may be had or recovered; the words being,-to have or recover more than 108. "for his fees and costs," without saying "therefore." But it appears to us that this provision is to be considered as applying to fees and costs for appearing and acting on behalf of any other person in the said court. If this were not so, it would follow, that, in cases not exceeding 40s., an attorney might recover for what was done out of court, but not in cases exceeding that amount.(a) Indeed, the *Court of Queen's Bench, as reported in The Jurist, seem to have considered that the restriction of fees to 10s. and 158., as

*346]

(a) Quære.