Blunden v Desart

• Jurisdiction: Ireland
• Judgment Date: 01 June 1842
• Date: 01 June 1842
• Court: Rolls Court (Ireland)

(In the Rolls.)

Blunden

and

Desart.

Rolls.

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

A Solicitor's lien for costs incurred partly before and partly after the date of a judgment confessed by the client to a third person, gives to the Solicitor priority over the judgment, even as to the costs which were incurred after its date.

In the year 1800, the late Sir John Blunden, Bart., being seized in fee of certain estates, subject to a charge of £10,000 (created by the will of Sir J. Blunden the elder, dated 8th June 1782), retained Albert Maxwell as his Attorney and Solicitor; and from thenceforward Maxwell was continued to be so retained until Sir John's death in the year 1818. In and previous to the year 1805, most of the title deeds relating to the said estates had come into the possession of Maxwell, as Sir John's Solicitor; and in 1815, some costs being then due to Maxwell, Sir John confessed a judgment to a third person, who afterwards assigned to a Mr. Hyland. Between the time of entering up that judgment and the death of Sir John in 1818, costs to a large amount became due to Maxwell, a considerable portion of which was incurred in endeavouring to sell part of the estates under private contracts entered into by Sir John, and in clearing the title for that purpose.

In November 1818, after the death of the late Sir John, the bill in this cause was filed by Harriet Blunden, the mother and next friend of the present Sir John Blunden, Bart., then a minor, who was heir-at-law of the late Sir John, and also entitled to the charge of £10,000 created by the will of Sir John the elder, for the purpose of having that charge raised by sale of the estates, the title deeds of which still continued in the possession of Maxwell; and in the year 1818, a decree was pronounced directing the usual accounts.

On the 21st of July 1821, an order was made in this cause, upon the application of the plaintiff, that Maxwell should within one week furnish his bill of costs and a list of credits on oath; and that the Master should ascertain the balance, and report whether there were any funds in the receiver's hands, or any other funds applicable to pay the same. The Master made his report under that order, on the 14th of June 1822, finding that there was a balance of £1543. 17s. 10d. due to Maxwell for costs, after deducting all credits; and that the rents and profits of the estates were liable to the payment of that balance, as well as of the other debts of the late Sir John; and that, consequently, the amount in the receiver's hands was applicable to the payment thereof; but that there were several other creditors who had claims and demands against the same, as to the amount of which no evidence was laid before him.

In 1832, there was a report in the cause; and on the 4th of June 1833, a final decree was pronounced, directing a sale for payment of the plaintiff's demand, and of all prior and contemporaneous encumbrances.

On the 27th of June 1833, an order was made in the cause, directing that Maxwell should, within one fortnight from the date thereof, lodge in the Master's office all title deeds, tenants' leases, articles, or muniments of title relating to the lands and premises decreed to be sold (i. e., the estates of the late Sir John), in his power or possession, in order to enable the parties to proceed to sell under the decree; without prejudice to such lien, if any, as he might be able to establish against the funds in the cause.—The deeds, &c., were accordingly brought in by Maxwell, in compilance with the terms of that order, and the estates were sold, and the deeds delivered to the purchasers who had gone into possession.

On the 6th of May 1841, an order was made in the cause, upon the motion of Maxwell, that the Master, in proceeding to allocate the funds in the cause, should have regard to the order of the 31st of July 1821, and the report made in pursuance thereof on the 14th of June 1822, and the order of the 9th of July 1822, confirming said report; and the Master was also directed to inquire and report, whether Albert Maxwell had a demand to any and what extent upon the funds in the cause, in preference and priority to any and which of the creditors and parties having demands thereon.

The Master made his report under that order, on the 22nd of April 1842, and thereby found that Maxwell had a demand against the funds in the cause to the extent of £1583. 6s. 7d. on foot of his costs, as Attorney and Solicitor of the late Sir John Blunden, and that he was entitled to priority in respect of said demand over the creditors and parties having demands created subsequently to the month of February 1812.

To this report, Hyland, the judgment creditor, excepted on the ground that the Master thereby found that Maxwell was entitled to priority to the creditors having demands subsequent to February 1812; although a very large proportion of the costs was incurred after the entering of the judgment vested in him; whereas, the Master should have reported that Maxwell was entitled to priority to him only in respect of the costs which were incurred previously to the date of the entry of that judgment.

An application was now made on behalf of Hyland, that the exception should be allowed, and the Master's report varied accordingly.

Mr. Pigot, Q. C., and Mr. D. Lynch, for the motion.—Supposing a Solicitor's lien for costs equivalent to an equitable mortgage, it must still be subject to the rule which governs a legal mortgage, and cannot be for future costs; Jones v. Tripp (a). In the year 1805, all the title deeds had been deposited with Maxwell; but it does not appear that any

costs were incurred before the year 1812; and in 1815, when the late Sir J. Blunden confessed the judgment now vested in Hyland, the costs incurred by Maxwell did not exceed £200, and the lien he then had could not be for any larger amount than that sum. There was not then any debt or encumbrance affecting the estate of Sir J. Blunden, to prevent the judgment now vested in Hyland from being a perfect and abundant security for the debt due to him; but according to the Master's report we are to be wholly deprived of that security (the fund being deficient) by subsequent and private dealings between our debtor and his Attorney, of which we had no notice, and over which we could have no control. We submit that such is not the law, and that the Master ought to have reported that Maxwell was entitled in priority to us only in respect of such costs as were due to him from Sir John at the time of the entry up of our judgment. Morgan v. Scott (a) was a case like the present: in it your...