McAulay v Adam and Brown
| Jurisdiction | Scotland |
| Judgment Date | 01 January 1835 |
| Date | 01 January 1835 |
| Court | Court of Session |
English Reports Citation: 6 E.R. 1481
FROM THE COURT OF SESSION.
Mews' Dig. i. 367; iv. 859, See Metropolitan Asylum District v Hill 1880, 5 A.C. 582.
APPEAL from the court op session. DONALD M'AULAY,-Appellant; JAMES ADAM and DAVID BROWN,- Respondents. [Mews' Dig. i. 367 ; iv. 859. See Metropolitan Asylum District v Hill 18^0 5 A.C. 582.] A client having required his attorney's bills of costs to be taxed, the attorney intimated to him that in that case he would make out new accounts, in which H.L. vi. 1481 47a Ill CLARK & FINNELLY. M'AULAY V. ADAM AND BROWN [1835] he would charge his full legal fees, which were not charged to that extent in the bills delivered, and accordingly he employed a person to remodel the accounts, and that person inserted in the new accounts fictitious charges, and increased other charges which were in the former accounts. The attorney denied all knowledge of the insertion of the fictitiousi charges, and abandoned thorn before the auditor to whom the accounts were by order of Court remitted to be taxed. The Court by a subsequent order instructed the auditor to report specially on the different subjects and points raised by the client's answers, imputing to the attorney a participation in the fabrication of the fictitious charges. These charges having been abandoned, the auditor made no inquiry into them, but reported on the other costs, taxing off about one-fourth of the whole bill, and no objection being lodged to that report when it came before the Court, it was confirmed with costs. held, that it was not competent for the client to appeal to the House of Lords against the order confirming the report, as he had not lodged objections in writing to it in the Court below. [386] An appeal for mere costs does not lie, yet if an appeal is brought on a substantial question, not colourable, the House may deal with the costs awarded by the Court below (see the last preceding case, pp. 371 and 372). Accordingly, in an appeal which appeared to the House to have been brought for costs, but in which the order appealed from was varied materially, in favour of the Appellant, by the correction of an error, which, however, he might have prevented by a mere suggestion to the Court below, it was held that the Appellant is not, on the ground of that variation, entitled to1 be absolved from costs; but, under the circumstances, the appeal was dismissed without costs. The Appellant is a, surgeon in the Island of Lewis, (Scotland) and the Respondents are Writers to the Signet in Edinburgh. The Respondent Adam acted for several years as agent for Donald M'Aulay, sen., deceased, and for his son, the Appellant, in various lawsuits in which they were concerned. In the year 1828 Adam entered into partnership with the Respondent Brown, and during three years that the partnership subsisted, the law business of Messrs. M'Aulay was conducted by Messrs. Adam and Brown. A state of accounts between them and the Appellant, as at March 1830, was rendered to him, by which it appeared that, after giving credit for the sums paid on account, there was a balance then due to Messrs. Adam and Brown of £464 17s. 5d., exclusive of an account of expenses previously incurred to Mr. Adam, and due to' him individually. That account was furnished with a view to an amicable adjustment. The Appellant, having been afterwards pressed for a settlement, desired that the accounts should be submitted to the auditor of Court for taxation, and the Respondents agreed to that proposal; but as they alleged that the accounts were stated at a lower rate than [387] they were entitled to -have charged, they reserved to themselves the power of stating the charge at the full amount which they were entitled to demand. The accounts were accordingly referred to a Mr. Robertson, to remodel them for the auditor, and a copy of them, as remodelled, was sent to the Appellant. The partnership between the Respondents being dissolved in July 1831, Brown, who was empowered to' collect the outstanding debts due to the firm, wrote several letters to' the Appellant, asking for a settlement, without effect. In the mouth of November of that year the Appellant, having come to Edinburgh with a parcel of cattle for sale at Hallow-fair, the Respondents raised an ordinary action against him, and thereupon attached his cattle; but upon his giving two bills of £200 each (one of which has been since paid), his cattle were liberated, the action was aban doned, and the Appellant then gave consent in writing that the accounts between the Respondents and him should be audited under the authority of the Court of Session. , The Respondents, consequently, presented a petition to the Court on the 17th of November 1831, conformably to the Act of Sederunt of February 6th, 1806,* and * One of the enactments of that Act is as follows:-"In order to' provide am easy method by which the accounts of practitioners, as between agent and client, 1482 m'aulay v. adam and brown [1835] ni clark & finnelly. they produced therewith copies of their [388] remodelled accounts, one amounting to £381 10s. ll|d. for expenses incurred for the joint behoof of the Appellant and his deceased father, a second amounting to £524 10s. ll^d. for expenses incurred on behoof of the Appellant only, from which latter was to be deducted £304 13s. 8d., in respect of payments on account. The petition prayed the accounts to be remitted to the auditor of the Court to tas: the same, etc. On the next day the Court granted warrant of service of the petition on the Appellant, and he was ordered to lodge answers thereto within eight days. On the 15th of December 1831 the following interlocutor, which is the first of those appealed from, was pronounced : " The Lords haying heard this petition, and counsel for the parties, remit the petitioners' accounts to the auditor of the Court to tax and to report, and the parties or their agents to- attend for taxing on or after the first sederunt day in January next." [389] The Appellant afterwards abtained an enlargement of the time to lodge his answers) to the petition, and in the mean time some meetings took place between his agent in Edinburgh, Mr. Roy, and the Respondent, Brown, to whom Mr. Roy pointed out many new and fictitious charges in the remodelled accounts, which were not in the accounts first rendered to the Appellant, whereupon Mr. Brown declared that he had never seen the accounts as remodelled; that he was wholly ignorant of such improper charges haying been introduced, and disapproved of them, and he agreed not only to strike them off, but also to withdraw other charges, which were likewise considered objectionable. A correspondence took place between Mr. Roy and the Respondent, Brown, as to other charges in the accounts, upon which they could not come to any arrangement. The Appellant ultimately gave in his answers, in which he admitted his liability for a business account to the Respondents, but he denied that he owed, all the sums charged in the accounts, founded oil in the petition; and he alleged that Mr. Robertson, to whom the first accounts were referred to be remodelled, " proceeded to concoct and fabricate a new account, as large as he could make it, by inventing and inserting additional fictitious charges, and altering, remodelling and constructing documents to correspond to these. The result of the whole was the accounts now founded on in the petition, which contain charges innumerable, not in the original accounts, not actually incurred, and the mere fruit of invention. Fees are stated as paid to counsel, which never were paid; consultations are charged for, which never took place. There are borrowings and revisings and meetings set down, not one of which ever happened. There are [390] memorials to counsel, and copies of papers charged, none of which ever were drawn at the time, and which, if they exist at all, in this Court, may be checked and liquidated, the Lords do farther ordain, that it shall be competent, either to the client or to the agent, to make a summary application to the Court or to the Lord Ordinary before whom the cause may depend, or has formerly depended, to get the account claimed by the ugent remitted to the auditor of Court, in order to be examined and taxed according to these regulations; which remit shall, on the application having been served on the opposite party, and produced in Court with a written intimation, be forthwith granted; and the auditor shall thereafter inquire and report upon the said account to the Court or the Lord Ordinary; and the party shall haye it in their power to state objections to the report, all in manner abo'Vementioned; and the sum so to be ascertained as the amount of the account shall alone form a charge against the client," etc. " And in case either party means to object to the report of the auditor, he shall immediately lodge with the clerk a note of his objections, stating them shortly, and without entering into argument; a copy of which note shall be, transmitted by him to the agent on the other side; and the Court or the Lord Ordinary may either direct the same to be, answered in writing, or viva voce at the bar, as the case may require, the expense of such discussion being always laid upon the objector, in case his objections shall not be sustained; and the interlocutor to be pronounced shall be final." By another Act of Sederunt it is provided, " That when in any cause a report has been obtained from an accountant or other professional person, and the parties, or either of them, shall be dissatisfied with the report, the cause sliall be enrolled before the Lord Ordinary for debate on the report, and a, note of the objection shall be furnished to the opposite party 48 hours before the enrolment." 1483 Ill CLARK & FINNELLY. M'AULAY V. ADAM AND BROWN [1835]...
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