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my opinion it is impossible to say that these seven bills are one bill, or are merely chapters or leaflets forming part of a bill. They are seven bills, and therefore, that being so, it is open to the client to proceed by order of course to tax one of them; unless, indeed, the second objection is well founded, and that is this.

It is assumed that there were seven bills due from the client to the solicitor, and it is said it is not open to the client to proceed to tax one of these bills without taxing the others, especially when the order of course obtained contains at the end of it an order that "upon payment by the petitioners to the said solicitor of what may be certified to be due to him as aforesaid, or in case it shall appear that there is nothing due to him, he, the said solicitor, shall deliver to the petitioners upon oath all deeds, books, papers, and writings in his custody or power belonging to the petitioners." A certain sum is found due upon it, and upon payment of that certain sum the solicitor: it is said, is ordered to deliver up all deeds, books, papers, and writings, although he has a lien upon many of them which are held by him in respect of other bills he has against the client.

It is said there is authority on the point. I think it right to say that there are authorities showing that when there are several bills open and unsettled between a solicitor and client you could not by an order of course get one taxed without the others. But in the present case the circumstances are very peculiar. The seven bills amounted together to the sum of £261 15s. There were three payments on account, amounting altogether to £160, and the cash account shows a balance due of £101 158. The client wanted to have the papers, and got them from the solicitor on the terms of paying him £50 more, and he handed them over to the client, and gave this note: "In consideration of your handing to me a cheque for the £50 deposited with you, I hereby undertake to return to you any sum that may be found due from me on taxation of my bills delivered.-Dated this 31st day of December, 1895." So that we have it contemplated that there was a possible taxation of the bills, and this was an undertaking to hand back any excess, that might turn out on such taxation to have been received by the solicitor. Then the next day the solicitor writes this: "Referring to my clerk's interview with you yesterday, it is not my intention to take any further trouble to obtain payment of any balance that might be found to be due to me in the event of a taxation of my bills of costs, and I therefore accept the £50 in full discharge of all claims by me against the company so far as I am concerned, and you will therefore please treat the £30 as the balance due on the cash account, and not the £101 15s. as appears by the said account." So that then he said: "I accept £50 in full. I shall then have received £210, and I accept that in full satisfaction of all these bills." That, of course, did not prevent the client taxing the bills if he liked; but the client proceeded to tax one and not the rest-that is to say, the client accepted the offer that had been made, subject to the taxation of the bill which the client did not

choose to accept at the amount at which it was delivered; so if acceptance were necessary it is acceptance enough of the offer made there.

The result is this-that one bill only is being taxed; but all the bills have been paid in full, subject to the solicitor repaying to the clients any sum which he has received in excess of his claim, and upon the solicitor being paid in full the right of the client to have the deeds handed up is a matter of course, and I see no impropriety therefore under the present circumstances in the order being made in that shape

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when, in point of fact, the client is to say which bill shall be taxed, and the only one selected is taxed.

It cannot be said, and the solicitor cannot complain, that he is ordered to deliver up the deeds when there is something due to him, when the only question between the parties is whether he has been exactly paid or overpaid. If anything might happen to be found the other way as due to him, then I would agree that it would be wrong to obtain an order of course containing terms that on the taxation of one bill all documents should be given up. Having regard to the question between the parties, it seems to me that the order of course was right in this case. The cases referred to by Mr. Cordery clearly establish the propositions there contended for, but this case is outside them altogether.

From this decision the solicitor appealed. appeal was heard on the 8th of May, 1896.

The

authorities as in the court below, and on In re Cordery, for the appellant, relied on the same Johnson and Weatherley, 36 W. R. 374, 37 Ch. D. 433.

Beddall, for the respondent, was not called upon.

LINDLEY, L.J.-I do not think that, after that explanation as to the letter of the 1st of January, 1896, there is anything whatever in this application. There were several bills, and not one only, and there is no difficulty about the matter except possibly the suggestion that the other bills might be taxed. But after that letter it is plain that none of them could be taxed on the application of the solicitor, and that no think North, J., was quite right in refusing the injustice is done by this common order to tax. motion to discharge that order. There is really nothing more in it. The appeal must be dismissed

with costs.

LOPES, L.J.-I agree.
KAY, L.J.-I also agree.
Appeal dismissed.

Solicitors, R. H. Ward; G. B. Crook.

From Q. B. Div. (Lord Esher, M.R., A. L. Smith and Rigby, L.JJ.)

[and Q. B. Div.] (Day and Lawrance, JJ.)

March 31; May 6.

I

REG. v. JUSTICES OF LONDON. (a.) Poor law Rating — Appeal Assessment committee appearing by their clerk-Right of clerk to be heard-Order of the County of London Quarter Sessions, 1890, r. 10--Valuation (Metropolis) Act, 1869 (32 & 33 Vict. c. 67), 88. 27, 62.

Under section 62 of the Valuation (Metropolis) Act, 1869, which provides that "an assessment committee may appear on any appeal by their clerk," the clerk is not entitled to be heard in court for the purpose of signifying his consent to an agreed order.

Rule nisi directed to the justices of the county of London to show cause why a writ of mandamus should not issue commanding them to allow the assessment committee of the parish of St. Mary, Islington, to appear by their clerk upon the hearing of an appeal against an assessment of certain premises, and to give the necessary consent to the alterations in the valuation list according to agreed terms.

A notice of appeal to the County of London (a.) Reported by ERSKINE REID and W. F. BARRY, Esqs., Barristers-at-Law.

House of Lords had been lodged, the solicitors for the successful party obtained payment of the costs from the other party under threat of execution, and the House of Lords subsequently reversed the order of the Court of Appeal with costs,

Held, that the solicitors could not be ordered to refund the costs so received by them.

Semble, that the Court of Appeal had no jurisdiction to entertain the application.

Fitzmaurice v. Jordan, 32 L. R. Ir. 112, 41 W. R. Dig. 189, dissented from.

Application by the plaintiff for an order that Messrs. Crossman & Prichard, the London agents for John Dunlop, Berwick-on-Tweed, the defendant's solicitor, should repay to the plaintiff £66 4s. 2d., being the taxed costs of the defendant's appeal against an order made at chambers.

On the 15th of November, 1892, Mrs. Loftus recovered judgment for £44 18., debt and costs, against the defendant, a married woman.

Upon the defendant's marriage certain property was transferred to trustees upon trust to pay the annual income to her for life for her separate use without power of anticipation. At the date of the judgment there were arrears of income accrued due which had not been paid to her by the trustees. On the 1st of April, 1895, the judge at chambers made an order appointing a receiver of the income of the defendant accrued due and payable at or before the date of the judgment sufficient to satisfy the debt and costs. The defendant appealed from this order, and while the appeal was pending Mr. Hood Barrs, to whom Mrs. Loftus had assigned the judgment debt, obtained an order that he should be substituted for her in all future proceedings. The Court of Appeal discharged the order made at chambers, with costs, holding that the income was protected by the restraint on anticipation until it actually reached the hands of the married woman: see Loftus v. Heriot, [1895] 2 Q. B. 212, 43 W. R. Dig. 112.

On the 5th of July, 1895, a petition of appeal to the House of Lords was lodged, and an application to stay proceedings pending the appeal was refused by the Court of Appeal. On the 29th of July the plaintiff paid to Messrs. Crossman & Prichard, the London agents for the defendant's solicitor, the taxed costs of the appeal, amounting to £66 4s. 2d., under a threat of execution.

The House of Lords subsequently reversed the decision of the Court of Appeal in Loftus v. Heriot, with costs, and restored the order made at chambers, holding that the arrears of income which had accrued due, though not actually paid to the married woman, could be made available to satisfy the judgment: see the report of Hood Barrs v. Heriot (No. 1), ante, p. 481.

The plaintiff thereupon applied for an order for the repayment of the costs as above.

According to the affidavit of Dunlop, the defendant's country solicitor, his London agents applied the £66 4s. 2d., with his consent, towards payment of the amount which he owed them in their cash account with him, and on the 29th of July, 1895, the defendant was indebted to him in a sum in excess of the £66 4s. 2d., and he thereupon, with her consent, applied such sum to the credit of her account with him, and delivered to her a bill of costs showing a balance due to him of over £30.

Oswald, Q.C. (Bartley Denniss with him), for the plaintiff.-An order similar to that asked for here was made by the Court of Appeal in Ireland in Fitzmaurice v. Jordan, 32 L. R. Ir. 112, 41 W. R. Dig. 189. The effect of that decision is that where, after notice of appeal has been served, there being a fair ground for the appeal, the solicitor obtains payment

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of the costs from the unsuccessful party under a threat of execution, the court will order him to repay the costs if the appeal succeeds, in default of his client repaying him. The plaintiff is content to take a similar order here. The London agents have these costs in their possession, as they have applied the money in liquidation of their costs against the country solicitor.

Sylvain Mayer, for the solicitors.-This court has no jurisdiction to entertain this application, as there has been an appeal to the House of Lords. The House of Lords alone could have entertained the application. Next, assuming that this court has jurisdiction, the practice is not to make an order on the solicitors to repay the costs. Lydney and Wigpool Iron Ore Co. v. Bird, 34 W. R. 749, 33 Ch. Ď. 85, shows that in such circumstances the solicitors receive the costs as the agents of their client, and not for their own benefit, and that the client alone is liable to refund the money.

Oswald, Q.C., replied.

Lord ESHER, M.R.-This is an application for an order against certain solicitors to repay the costs of an appeal to this court which had been paid to them by the plaintiff. The case was carried to the House of Lords, who reversed the decision of this court, with costs. I very much doubt whether, after that, this court has any jurisdiction at all to entertain this application. But it is not necessary to base our judgment upon that ground. We will deal with this case apart from any such consideration, and will assume that this court has jurisdiction. The case stands thus. This court gave judgment for the defendant, with costs. The costs were paid by the plaintiff to the London agents, who were the solicitors on the record for the defendant's country solicitor. The costs were paid to them as solicitors for the defendant. Therefore the costs were paid to the defendant through the hands of the solicitors. They were not paid to the solicitors in their own right, but simply to them as agents for the client. The application is now made that the solicitors should be ordered personally to repay to the plaintiff the costs so received by them. No such order has ever been made by any court in England. In Lydney and Wigpool Iron Ore Co. v. Bird the registrars reported to the court that there was no precedent for such an order. In that case Cotton, L.J., thought such an application could not succeed, and he gave strong reasons to show that such an order would be wrong. There is, on the other hand, a decision of great authority in Ireland-Fitzmaurice v. Jordan-which seems to me to be in point. But I must decline to follow that decision. I have carefully read the judgment of the court as delivered by Fitzgibbon, L.J., and I cannot find that he gave any reasons for the order which was made.

I agree with the reasons given by Cotton, L.J., in the Lydney case, and in my opinion this application must be refused.

A. L. SMITH, L.J.-I am of the same opinion. This is a perfectly novel application. It is for an order that the solicitors should repay out of their own pockets the costs paid to them, though they have been guilty of no impropriety, and have not given any undertaking to repay the costs. I have grave doubts whether this court can entertain this application after the case has gone to the House of Lords, and that House has not remitted the case to this court. But I pass that point by, and I assume that this court has jurisdiction. I cannot remember having ever heard of such an application. There is, however, a case in the Court of Appeal in Ireland which seems to me to be in point, and which is an authority in support of

the order now asked for, and we must take it that that case lays down the practice in Ireland. On the other hand, the case of Lydney and Wigpool Iron Ore Co. v. Bird goes to show that where the solicitor has properly obtained the costs, the court, apart from an undertaking given by him to return them if the appeal succeeds, will not order him to repay the costs. That seems to me to be the true view. The application therefore fails.

RIGBY, L.J.-I am of the same opinion. This application is altogether novel. I can see no ground upon which it can be said that we have any jurisdiction to deal with this application, the House of Lords not having remitted the cause to this court. I agree that on every ground the application fails.

Application dismissed.

Solicitor for the applicant, Hood Barrs,

Solicitors for the respondents, Crossman & Prichard.

HIGH COURT.

The testator died on the 7th of March, 1895. This summons was taken out to decide whether (1) estate duty, and (2) settlement estate duty, on the respective legacies of £2,000 and £800 to Matilda Ann Webber and Emily Leach Kersley, and their respective children, ought to be paid out of the legacies or out of the residue.

A. Adams, for the executors.

J. G. Butcher and A. Read, for persons interested in the settled legacies and settled shares of residue.

Austen Cartmell, for the persons interested in the unsettled shares of residue.

NORTH, J.-In this case the testator's will was made before, but he died after, the coming into operation of the Finance Act, 1894. By it, two pecuniary legacies are given, and the residuary estate is divided into thirty shares, which are given to different persons, some being given absolutely and some shares being settled. The question is how estate duty and settlement estate duty should be borne. As regards the shares given absolutely-and, indeed, all the shares-it is clear that estate duty must be paid.

The legacies of £2,000 and £800 would before the Finance Act have to pay 1 per cent. duty, which they now escape. The testator intended that the legacies should be free from duty, although this does not affect the construction of the Act. The Act imposes duty on the personal estate the executor receives, and the executor has to pay this duty. I find nothing in the Act to allow him to recoup himself in any way. By

Testator, who died after the Finance Act, 1894, came into operation, gave a pecuniary legacy to persons by way of succession, and bequeathed his residuary personal estate in shares, some of which were given absolutely and others to persons in succession.

Held, that under the Finance Act, 1894, settlement estate duty as well as estate duty in respect of both classes of the settled legacies should be borne by, and was payable by the executors out of, the general residuary estate. Adjourned summons.

By his will, dated the 27th of February, 1890, Thomas Webber gave and bequeathed the sum of £2,000, free of legacy duty, unto his executors and trustees upon trust to permit Matilda Ann Webber to receive the income thereof during her life for her sole and separate use, and after her death the testator directed his trustees to hold the said sum or the investments representing the same "in trust for such one or more of the children of the said Matilda Ann Webber by Thomas Richard William Webber as being sons or a son shall at my death have attained or shall thereafter attain the age of twenty-one years, or being a daughter or daughters shall at my death have attained that age or married or shall thereafter attain that age or marry; and if more than one in equal shares." The testator also gave a legacy of £800 to Emily Leach Kersley and her issue upon similar trusts; and, after giving certain legacies absolutely, the will proceeded: "And I direct that the residue shall be considered as divided into thirty equal parts," and held by the trustees upon trust as to six parts for the children of R. J. Webber; as to five parts for Matilda Ann Webber for life or widowhood, with remainder to her children; and the testator gave the remaining shares in some cases absolutely,

and in some cases directed them to be settled.

(a.) Reported by G. B. HAMILTON, Esq., Barristerat-Law.

section 5, sub-section (1) (a) deals with settlement estate duty. [His lordship read sections 1, 2, 4, and 6.] The executor is bound to pay the estate duty in respect of all personal property of which the deceased was competent to dispose at his death; and the executor is at liberty to pay the estate duty in respect of any other property passing on the testator's death which by virtue of deceased's will is under the control of the executor. The Act does not ignore the fact that the executor often cannot tell exactly what the property is at the time the affidavit is carried in; section 6 (4) provides for the case of a person accountable for duty who is not the executor. Section 8 (3) provides that the executor is to state everything on which duty is payable, not because he has to pay it, but because such a course is convenient.

Section 6 deals with the recovery of estate duty. Is settlement estate duty included in estate duty? It seems to me that it is: (see section 5, subsection (1) (a)). If not, there is no provision in the Act as to settlement estate duty being paid by any person at all. Turning to the interpretation clause (section 22, sub-section (1) (e)), the expression" estate duty means estate duty under this Act." This seems absurd, but Mr. Cartmell points out that the expression "estate duty" is also used in other Acts. Settlement estate duty is part of the burden the executor has thrown upon him. Is there anything to show that he can throw it upon any particular share? Section 9, sub-sections (1) and (4), do not apply where the whole property has passed to the executor as such. The duty devolving upon the executor, it has to be borne out of the general residuary estate. It is said that it is unfair that the duty caused by the settlement of a share has to be borne by a share which is not settled; but that is a matter for the Legislature, and not for me. In my opinion the executor cannot get back the duty paid.

Solicitors, Surr, Gribble, & Co.; Carr & Sons, or Battams & Hutchinson, Ealing.