Costs of special Act. CH. XIX. s. 1. And where the Act by which a company was incorporated, proContracts of vided, as such Acts usually do, that the "costs, &c. of and incident Employment (Generally). to the preparing for, obtaining and passing of this Act, or otherwise in relation thereto, should be paid by the company;" it was held, that a clerk of one of the promoters of the company, who had done certain work in relation to the obtaining of the Act, could not maintain an action against the company in respect of such work (y). Definition of lien. (e) Lien of Person employed. In Cowell v. Simpson, Lord Eldon, L.C., described lien as primâ facie a right accompanying the implied contract. "In various trades," he observed, "the demand being for work and labour, applied in some instances upon the particular goods, and others upon other goods also, though the possession has been given up, it is universally laid down that if it takes place with a special agreement, there is no such lien, and if it commenced under an implied contract, and afterwards a special contract is made for payment, in the nature of the thing the one contract destroys the other" (z). The right of lien depends on the application of labour and skill by the employé to adapt the article for a particular purLien of work pose coupled with a right of possession (a), so a workman who has bestowed labour and skill in the improvement of a chattel bailed to him, has a lien thereon for the remuneration due to him, whether the amount was fixed by the express agreement of the parties or not (b). So, where a chattel is delivered to a workman, under a contract to perform certain work thereon at an entire price; and, before the work is completed, the order is countermanded, he has a lien on the chattel for the price of the work actually done (c). And the workman's lien attaches on chattels delivered to him in man. Pooley (1856), 11 Exch. 638; Myers v. (y) Re Kent Tramways Co. (1879), 12 (2) Cowell v. Simpson (1809), 16 Ves. 275; 10 R. R. 181. (a) Forth v. Simpson (1849), 13 Q. B. 680. (b) Steadman v. Hockley (1846), 15 M. & W. 553; per Parke, B., Jackson v. Cummins (1839), 5 M. & W. 342; Scarfe v. Morgan (1838), 4 M. & W. 270, 283. A trainer has a lien on a horse delivered to him to train; Forth v. Simpson (1849), 13 Q. B. 680; Jacobs v. Latour (1828), 5 Bing. 130; and the owner of a stallion, which is used to cover a mare, has a lien on the mare for his charge for the use of the stallion; Scarfe v. Morgan (1838), 4 M. & W. 270. A banker has a general lien on all securities deposited with him by a customer; London Chartered Bank of Australia v. White (1879), 4 App. Cas. 413, J. C. It is clear law that a factor has a lien see Stevens v. Biller (1883), 25 Ch. D. 31, C. A.; and so has a "packer"; Ex parte Shubrook (1876), 2 Ch. D. 489, C. A. So, too, an auctioneer has a lien ; see Webb v. Smith (1885), 30 Ch. D. 192, C. A. Likewise a solicitor has a lien on papers and the fruits of an action. For the origin of this lien, see per Lord Eldon, in Cowell v. Simpson (1809), 16 Ves. 275; and for recent cases, see L. R. Digest, tit. Solicitor, Bill of Costs. (c) Lilley v. Barnsley (1844), 1 C. & K. 344. different parcels, and at different times, provided the work done CH. XIX. s. 1. thereon was done under one entire agreement (d). Contracts of Employment But no lien exists if, by the bargain, a future day of payment (Generally). was agreed upon; for, in such case, the detention of the chattel Lien-cont. would be inconsistent with the terms of the contract (e). Nor has the workman any lien, for the cost of taking care of a chattel while work is being done thereon (ƒ). Nor does the right of lien confer the right to sell the chattel on No right of which the lien exists (g). And if, after the work has been completed, the workman relinquishes possession of the chattel, he cannot afterwards detain it as a lien for the sum due to him on account of his work (h). If the person entitled to a lien take security, the mere taking of security does not destroy the lien, but for this rule to apply, there must be something in the facts of the case or the notice of the security taken which is inconsistent with the existence of the lien and which is destructive of it (i). sale. Effect of tak ing security. SECT. 2.-Counsel. The employment of counsel is presumed to be honorary, and a promise to pay counsel, however express, is not binding (k). It was laid down in the single, considered, and unanimous judgment of the Court of Common Pleas in Kennedy v. Broun (k), that a promise by a client to pay money to a counsel for his advocacy, whether made before, during, or after the litigation, has no binding effect, and that the relation of counsel and client renders the parties mutually incapable of making any contract of service concerning litigation; and this judgment was assumed to be correct by the Judicial Committee of the Privy Council in Reg. v. Doutré (1), but with the observation that "it might be supported by usage and the peculiar constitution of the English Bar, without attempting to rest it upon general considerations of public policy." (d) See Marks v. Lahee (1837), 4 Scott, 137. (e) Chase v. Westmore (1816), 5 M. & S. 180; 17 R. R. 301; Jacobs v. Latour (1828), 5 Bing. 130. (f) British Empire Shipping Co. v. Somes (1860), 30 L. J., Q. B. 229 (H. L.). (g) Thames Iron Ship Building Co. v. Patent Derrick Co. (1860), 29 L. J., Ch. 714. (h) Hartley v. Hitchcock (1816), 1 Stark. 408; 18 R. R. 790; but see Ex parte Willoughby (1881), 16 Ch. D. 604. (i) Angus v. McLachlan (1883), 23 Ch. D. 330; and see Ex parte Willoughby, ubi sup. (k) Kennedy v. Broun (1863), 13 C. B., N. S. 677. The defendant, a lady, had promised to pay the plaintiff, her counsel, 20,000l., he having enabled her to retain possession of an estate of the value of 60,000l. A deed of gift in recompense of the services was afterwards set aside in Broun v. Kennedy (1864), 33 L. J., Ch. 342. (1) Reg. v. Doutré (1884), 9 App. Cas at p. 751. Promise to by fees, not binding. Kennedy v. Brown. Contracts of Employment (Counsel). CH. XIX. S. 2. The judgment in Kennedy v. Broun is confined to litigious business; but in Mostyn v. Mostyn (m), where a claim for conveyancing fees in an administration suit failed on the ground that a solicitor has no authority to pledge his client's credit in contracting to pay fees, Giffard, L.J., appeared to be strongly of opinion that fees for any kind of business are irrecoverable. Recovery in solicitor's bankruptcy of fees paid by client to him. Consultation without intervention of solicitor. Counsel not acting as such. Convey ancers. Clerks of counsel.; Negligence. Fell v. Brown There is, however, a manifest distinction between counsel's fees which the client has paid to the solicitor, and fees which he has not so paid, and paid fees have been allowed by a Commissioner in Bankruptcy to be proved for in the bankruptcy of a firm of solicitors (n), but an application to compel an attorney to pay over paid fees to counsel or return them to the client has been refused (o). Cases also may possibly occur where a client may consult counsel without the intervention of a solicitor, which intervention is necessitated by no rule of law, but founded purely on considerations of convenience (p). It does not appear to have been expressly decided that fees would not be legally recoverable in such a case, but it seems clear that the principle of Kennedy v. Broun would à fortiori apply to it, and that the fees would be as legally irrecoverable as a promised gift would be. For work of a counsel not acting as such, he is entitled to be paid as much as anybody else. Thus he may recover remuneration for work done as returning officer at an election (7). A certificated conveyancer, if not called to the bar, may recover fees (r), and an uncertificated person who acts as a conveyancer cannot recover anything for his services (s). The fees of counsel's clerks are mere gratuities and are not recoverable by action at the suit of the clerks (t). They are, however, fully recognised on taxation, R. S. C., Ord. LXV., r. 51, prescribing that "the following fees" [naming them]" are to be allowed to counsel's clerks." Nor can counsel's fee, if paid, be recovered back for nonattendance at a trial (u), nor can counsel be sued for negligence of any kind (x). (m) Mostyn v. Mostyn (1870), L. R., 5 Ch. 457. (n) Hall, In re (1856), 2 Jur., N. S. 1076. (0) Angell, In re (1860), 29 L. J., C. P. 227. (p) See Doe d. Bennett v. Hale (1850), 15 Q. B. 71. (q) Reg. v. Guardians of Kensington Union (1841), 3 Q. B. 935, n. (r) Poncher v. Norman (1824), 3 B. & C. 744. (s) Steadman v. Hockley (1856), 15 M. & W. 553. (t) Cotton, Ex parte (1848), 9 Beav. 107; 10 Jur. 84; and see Teed v. Beere (1859), 28 L. J., Ch. 782, in which embezzled fees were recovered by a barrister from the daughter of his deceased clerk, the Statute of Limitations and distribution of the estate notwithstanding. (u) Turner v. Phillips (1792), Peake, 122. (x) Fell v. Brown (1792), Peake, 96 ; 3 R. R. 633; and see Swinfen v. Lord Chelmsford (1860), 5 H. & N. 890. CH. XIX. s. 2. Contracts of Employment (Counsel). of fees on taxation. Morris v. The fees of counsel are fully recognised on taxation of costs, and by a Rule of Court (R. S. C., Ord. LXV., r. 52), "no fee to counsel shall be allowed on taxation unless vouched by his signature." In Morris v. Hunt (y), the defendant in person, on Allowance taxation, took the objection that by law no man is liable to pay for counsel at all, but the Court (Bayley, Holroyd, and Best, JJ.) emphatically overruled the objection, Bayley, J., Hunt. saying that the reason why counsel cannot sue for their fees is that "it is understood that their emoluments are not to depend upon the event of the cause, but to be equally the same whether the event be successful or unsuccessful; " that "they are to be paid beforehand, because they are not to be left to the chance whether they shall ultimately get their fees or not; that "it is for the purpose of promoting the honour and integrity of the bar, that it is expected that all their fees should be paid at the time when their briefs are delivered;" and that "it is their duty to take care, if they have fees, that they have them beforehand, and therefore the law will not allow them any remedy if they disregard their duty in that respect." allowed. Retaining fees (2) are not allowed as between party and What fees party (a); fees for conferences are not allowed without special reason (b); refresher fees are specially provided for (c). The general rule is that a barrister is bound to accept any brief Obligation to accept in the Courts in which he professes to practise at a proper profes- brief. sional fee, though special circumstances may justify his refusal to accept a particular brief. Any complaint as to the propriety of such refusal, if brought to the notice of the General Council of the Bar and if by them considered reasonable, would be transmitted by them to the Benchers of his Inn of Court (d). briefs. As to premature delivery of briefs, it is prescribed by Ord. XLV., Premature r. 49, that," Where a cause or matter shall not be brought on for trial or hearing, the costs of and consequent on the preparation and delivery of briefs shall not be allowed if the taxing officer shall be of opinion that such costs were prematurely incurred." The 24 "Rules for Regulating the Practice as to Retainers The Retainer of Counsels," proposed by the Bar Council, and approved by the Attorney-General (Sir R. Reid) and by the Council of the (y) Morris v. Hunt (1819), 1 Chit. 544. "In England, the general rule is, prepayment" of fees: per Cur., in Kennedy v. Broun (1863), 13 C. B., N. S., at p. 732. (z) As to amount of these, see Retainer Rules, Ann. Prac. Vol. II. (a) Ord. LXV., r. 44. (b) Ib., r. 45. (c) Ib., r. 48. (d) See letter from Secretary of Bar Council in reply to a barrister's inquiry, in Times of March 24th, 1904. As to "Dock Defence" of prisoner, without intervention of solicitor, see Statutes of Practical Utility for 1903, in note to Poor Prisoners' Defence Act, tit. "Criminal Law," at p. 239. Rules. CH. XIX. s. 2. Incorporated Law Society, are printed at length in the 2nd volume Authority of counsel to Kempshall v. 20. Counsel who has drawn pleadings or advised, or accepted a brief, during the progress of an action on behalf of any party shall not accept a retainer or brief from any other party without giving the party for whom he has drawn pleadings or advised, or on whose behalf he has accepted a brief, the opportunity of retaining or delivering a brief to him, but such counsel is entitled to a brief at the trial, and on any interlocutory application where counsel is engaged, unless express notice to the contrary shall have been given to him with the instructions to draw such pleadings or advise, or at the time of the delivery of such brief. Provided always, such counsel shall not be entitled to a brief in any case where he is unable or unwilling to accept the same without receiving a special fee. 21. No counsel can be required to accept a retainer or brief or to advise or draw pleadings in any case where he has previously advised another party on or in connection with the case, and he ought not to do so in any case in which he would be embarrassed in the discharge of his duty by reason of confidence reposed in him by the other party, or in which his acceptance of a retainer or brief or instructions to draw pleadings or advise would be inconsistent with the obligation of any retainer held by him, and in any such case it is the duty of the counsel to refuse to accept such retainer or brief, or to advise or to draw pleadings, and in case he has received such retainer or brief inadvertently, to return the same. The conduct and control of a cause in which he is engaged are compromise. necessarily left to counsel, who has complete authority over the cause itself, though not as to collateral matters (e), so that, e.g., in a breach of promise of marriage action the plaintiff's counsel may settle with the defendant's counsel that money be paid by the defendant to the plaintiff, and judgment entered for the defendant, but not, without the express consent of the plaintiff, that the defendant's letters should be given up, and that the plaintiff should not molest him (f). This general authority includes the power to withdraw a juror, and an agreement made in pursuance of it with the counsel on the other side is binding on the client (g). But the general authority may be limited. by the client, and if the other side is informed that it has been limited, an act in excess of the limit does not bind the client (h). Setting aside compromise. Neither counsel nor client is bound by a compromise made under a misapprehension, and the Court will set such a compromise aside, accepting, on the question of the extent of the authority to compromise, the statement of counsel if made from his place at the bar, without requiring it to be made on oath (i). But where counsel by the authority of their clients consent to an (e) Swinfen v. Lord Chelmsford (1860), 29 L. J., Ex. 382. (f) Kempshall v. Holland (1895), 14 R. 336, C. A. (g) Strauss v. Francis (1866), L. R., 1 Q. B. 379. (h) Ib. (i) Hickman v. Berens, [1895] 2 Ch. 638, C. A., approving Holt v. Jesse (1876), 3 Ch. D. 177. |