Hawkes v Cottrell
| Jurisdiction | England & Wales |
| Judgment Date | 07 May 1858 |
| Date | 07 May 1858 |
| Court | Exchequer |
English Reports Citation: 157 E.R. 462
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 27 L. J. Ex. 369.
[243] hawkes v. cottrell. May 7, 1858.-Plaintiff, a solicitor, employed by the defendant a prochein ami in a suit in Chancery, sent in his bill before the termination of the suit. The defendant contended that he was not responsible. The solicitor then wrote offering to go on if a certain sum was paid him, and if the defendant would admit that he was personally responsible. The defendant not consenting to this :-Held, that the solicitor was entitled to sue for his costs without waiting for the termination of the suit.-Per Martin, B , and Channell, B.- The rule, that a solicitor cannot sue for his costs till the termination of the suit in which he is employed, is subject to an exception where the client comes forward and disclaims his liability. [S. C. 27 L. J. Ex. 369.] Assumpsit on an attorney's bill. Plea Never indebted. At the trial, before Watson, B, at the Middlesex sittings in this term, it was proved that the defendant, in Hilary Term, 1854, as next friend for some infants, had given an authority to the plaintiff to institute a suit in Chancery praying that the trusts of a certain settlement might be carried into execution The suit was for the benefit of the trustees of the settlement, of whom the defendant's brother was one. The defendant had never actually interfered, except by signing the retainer, and contended that, being only nominally a party, the plaintiff was not to look to him for payment. It appeared further, that in August, 1854, an order was made in the suit that tie trusts should be carried into execution ; and in March, 1855, it was referred to tha taxing Master to tax all parties their costs, and directions were given as to the mode in which tie income was to be disposed of until the further order of the Court. The plaintiff took no other steps in the suit, and made no application to the Court for the payment of his costs out of the estate, but in November, 1857, he sent in his bill of costs to the defendant, and subsequently wrote several letters applying for payment. On the 14th of January, 1857, the plaintiff's agent wrote to the defendant's brother, who was acting for him, as follows--"Mr. Hawkes is quite willing to prosecute this suit on being paid costs out of pocket, and upon the clear understanding that both the plaintiff and yourself consider it right that this suit should be proceeded with...
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Frederick Henry Collins, an Infant (by Henry Collins, his Next Friend) v Brook
...the prochein ami for his costs, because the contract is with him, not with the infant Marnell v. Pickmoie (2 Esp 472), Hawkes v. L'dtrdl (3 H & N 243) The power of the prochein ami to receive the damages is absolute, and he can give a valid discharge for them, even though he has commenced t......