George Shaw, - Appellant; James Neale and Frederick William Remnant, - Respondents
| Jurisdiction | UK Non-devolved |
| Judgment Date | 16 March 1858 |
| Date | 16 March 1858 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 1422
House of Lords
Mews' Dig. i. 79; iv. 746, 850; viii. 506, 521, 1624; ix. 1040, 1418, 1612; xiii. 1440, 1687, 1732. S.C. 27 L.J. Ch. 444; 4 Jur. N.S. 695; 6 W.R. 635; and, below, 20 Beav. 157; 24 L.J. Ch. 563; 1 Jur. N.S. 666. On point as to rule for taxation of costs and allocatur, see Mansfield v. Ogle, 1859, 4 De G. and J. 38; and R.S.C., 1883, Ord. 42, r. 24. On point as to solicitor's lien, considered in North v. Stewart, 1890, 15 A.C. 457; distinguished in In re Knight (1892), 2 Ch. 368; and see s. 28 of the Solicitors' Act, 1860 (23 and 24 Vict. c. 127), passed in consequence of the decision in Shaw v. Neale. On point as to priority for future advances, followed in Hopkinson v. Rolt, 1861, 9 H.L.C. 514; and see Menzies v. Lightfoot, 1871, L.R. 11 Eq. 465; and West v. Williams, (1899) 1 Ch. 132.
Lien of Attorney - Rule of Court - Registration of Judgment - 1 and 2 Vict. c. 110 - 2 and 3 Vict. c. 11 - Attorney, Solicitor and Client.
GEORGE SHAW,-Appellant; JAMES NEALE and FREDERICK WILLIAM REMNANT,-Respondents [March 12-15, 16, 1858]. [Mews' Dig. i. 79; iv. 716, 850; viii. 506, 521, 1624; ix. 1040, 1418, 1612; xiii. 1440, 1687, 1732. S.C. 27 L.J. Ch. 444; 4 Jur. N.S. 695; 6 W.R. 635; and, below, 20 Beav. 157; 24 L.J. Ch. 563 ; 1 Jur. N.S. 666. On point as to rule for taxation of costs and allocatur, see Mansfield v. Ogle, 1859, 4 De G. and J. 38; and R.S.C., 1883, Ord. 42, r. 24. On point as to'solicitor's lien, considered in North v. Stewart, 1890, 15 A.C. 457; distinguished in In re Knight (1892), 2 Ch. 368; and see s. 28 of the Solicitors' Act, 1860 (23 and 24 Viet. c. 127), passed in consequence of the decision in Shaw v. Neale. On point as to priority for future advances, followed in HopMnson v. Rolt, 1861, 9 H.L.C. 514; and see Menzies v. Lightfoot, 1871, L.R. 11 Eq. 465 ; and West v. Williams, (1899) 1 Ch. 132.] Lien of Attorney-Rule of Court-Registration of Judgment-1 and 2 Viet, c. 110-2 and 3 Viet. c. 11-Attorney, Solicitor and Client. A rule for taxation of costs, and an allocatur thereon, do' not amount to a "rule " or " order" within the meaning of the 1 and 2 Viet. c. 110, s. 18, so as to be 1422 SHAW V. NEALE [1858] VI H.L.C., 582 capable of being registered as a judgment. The rule absolute for payment of the costs does come within the enactment. There is no obligation on an attorney or solicitor to produce his client for the purpose of being served with process by a third person, and a security obtained by the solicitor from his client during the period of the client's concealment will not be thereby avoided in favour of such third person. An attorney or solicitor has no lien on an estate recovered for a client in respect of the costs and expenses incurred in recovering it (Barnesley v. Powell, Ambl. 102, overruled. He has a lien only on the papers in his hands. An attorney held an assignment of two terms to attend the inheritance of an estate recovered by him for his client. On a rule being made to tax his costs, it was part of the rule that the Master should decide whether, and if so, upon what terms, the attorney should execute to his client assignments of these terms. The Master having made his allocatur, directed that the attorney should on payment of what was due, or on security for the same being-given to his (the Master's) satisfaction, execute assignments of these terms at the cost of the client: Held, that this did not constitute a charge on the estate so as to give the attorney a priority from the date of the allocatur; for that the Master had no power to direct that these terms should stand as a security for the amount of the costs. Under the 2 and 3 Viet. c. 11, if A. has a judgment registered under the 1 and 2 Viet. c. 110, such registration will protect him against all who become mortgagees or purchasers during the currency of the five years, and such protection will continue as to them under [582] a re-registration, even though he should have omitted to re-register within five years; but as to persons becoming mortgagees or purchasers between the period when his first registration ceased and when his re-registration began, he will not be protected, but they will have priority over him (Beavan v. Lord Oxford, 6 De G., M. and Gord. 492, approved). An indenture was executed by N. to R., at that time N.'s attorney, to secure what was then due to R., and also future advances. This indenture was made a first charge on N.'s property. S., who had previously been N.'s attorney, obtained against N. a rule absolute for payment of costs found due on the Master's allocatur; he registered this rule-, and thus became a second incum-brancer. R. then became largely N.'s creditor for costs subsequently incurred : Held, on an order allowing S. to redeem R., that these subsequent costs could not be taken into the account. This was an appeal against a decree made by the Master of the Rolls, relating to the priority of a judgment debt to which the Appellant was entitled over certain mortgage debts and securities in which the Respondent Remnant claimed an interest. In February 1836, James Neale, now deceased, the father of the Respondent Neale, applied to the Appellant, an attorney and solicitor at Billericay, to- undertake the prosecution of a claim advanced by Neale, as heir-at4aw of one Seth Sewell, to certain lands and hereditaments situate at Diversion, in the county of Lancaster, then in the possession of two persons named Postlethwaite, as devisees under Sewell's will. Shaw, as the attorney for Neale, brought an action of ejectment and obtained a verdict at the Summer Assizes of 1836. In Easter Term, 1836, Shaw, as solicitor for Neale, filed a bill in Chancery against the two Postlethwaites, for an account, and to obtain possession of the title-deeds; and by an order of the Court of Chancery, made on the 25th November 1836, they were directed to bring the deeds into Court, which was accordingly done. [583] By an indenture dated 5th January 1837, the premises in dispute were assigned to the Appellant, his executors, etc. for the residue of two terms of 1000 years each, upon trust for Neale, his heirs, etc. and to attend the inheritance.* Shaw's bill of costs against Neale, in respect of the suit, amounted to £220 12s. 5d. * An argument was attempted to be raised in favour of the Appellant, founded 1423 VI H.L.C., 584 SHAW V. NEALE [1858] On the 8th August 1837, an agreement was entered into between and by Neale and the two Postlethwaites, by which the litigation between them was brought to an end by compromise. Each party was to keep what he had got: Messrs. Postle-thwaite, the personalty, and the mesne profits up to that time, the heir-at-law, Neale, the realty, and they were to convey to him their interest in it. All deeds and documents relating to the real estate were to be given up to Neale. In September 1837, the premises recovered by Neale were offered by him for sale by auction at Ulverstone aforesaid, in six lots; lot 5 of which was sold to Richard Brunton for £279. In February 1838, Neale withdrew his business from Shaw, and appointed Remnant his attorney and solicitor; and application was then made to Shaw for his bills of costs. They were delivered in, and on the 14th June 1838, an order was obtained to tax them. At the same time a petition was presented in Chancery for Shaw to deliver up Neale's papers. This petition was dismissed with costs, and the order dismissing it was, in June 1839, registered in the Court of Common Pleas, pursuant to the 1 and 2 Viet. c. 110, but was never afterwards re-registered. The costs due to Shaw on this dismissed petition were taxed, [584] and £25 14s. remained unpaid. The taxation of the other costs was not completed until llth April 1839, when the Master finally allowed the sum of £1238 2s. 3d. The rule to tax, and the allocatur thereon, were on the 16th April 1839, registered by Shaw in the Court of Common Pleas, pursuant to the 1 and 2 Viet. c. 110, and were re-registered on the 30th November 1846, and again 30th November 1852.* Before the taxation was concluded, namely, on the 7th March 1839, Remnant obtained from Neale a warrant of attorney to confess judgment for £1000 as security for £500 and interest. Judgment was entered up thereon on the same day, and was registered on the 5th June in that year, under 1 and 2 Viet. c. 110, and re-registered 4th June 1844, 5th June 1849, and 3d June 1854. On the 12th June 1839, Neale executed to Remnant a conveyance of all the premises for securing to Remnant £647 then due, and also* " all future advances " to be made by him to Neale, not exceeding £1000. On the 16th April 1840, Remnant obtained from Neale [585] an equitable charge on the premises for securing the sum of £1027 8s. 5d., with interest; and on the 23d November in that year, Remnant obtained from Neale another warrant of attorney to confess a judgment in the Court of Exchequer for the sum of £1000, and thereupon a judgment was on the next day entered up, and an elegit issued, which was executed by the Sheriff of Lancaster, who, as it was alleged, delivered possession of the premises to Remnant. This judgment was registered under the 1 and 2 Viet. c. 110, on the 24th November 1840, re-registered on the 24th November 1845, and again on the 25th November 1850. On the 22d January 1841, Remnant obtained from Neale another equitable charge on the premises for securing the sum of £1228, with interest; and on the same day Remnant obtained from Neale a deed of confirmation of the indenture of mortgage of the 12th June 1839. The principal consideration for these charges consisted of on this assignment. It is sufficiently noticed in the judgment (see' post, and see also 8 and 9 Viet. c. 112). * As some argument was raised on the form of words used in the order to tax and on the Master's allocatur, it has been deemed...
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