Further evidence of " special circumstances" will not be received in support of a motion to discharge the refusal in Chambers of an application to tax after payment: Re Munns, 32 W. R. 675.

The lapse of twelve months will absolutely preclude taxation after payment: Re Massey, 8 Beav. 458; and this applies to applications under s. 38 (third-party clause): Re F. E. Smith, 32 W. R. 408; and although it is alleged that trust money was improperly paid to the solr with notice of breach of trust: Re Jackson; Re Cottrell; Boughton-Leigh v. B., 40 Ch. D. 495; and although the bill is not signed: Re Sutton and Elliott, 11 Q. B. Div. 377.

Notwithstanding payment, within four days after service of the writ of summons, of the amount claimed by the indorsement for debt or liquidated demand and for costs, the Deft is entitled to have the costs taxed: 0. III. 7; and see sup. p. 246.

WHAT CONSTITUTES PAYMENT.

As to the legal effect of paying a bill of costs under protest or with intimation of taxing, see Re Massey, 8 Beav. 462; Re Harrison, 10 Beav. 57; Re Neate, ibid. 183; Re Stirke, 11 Beav. 305; Re Welchman, ibid. 319; Re Browne, 15 Beav. 61; 1 D. M. & G. 322; Re Bayley, 18 Beav. 415; Re Cheesman, (1891) 2 Ch. C. A. 289; which seem to establish that mere protest on payment is simply a reservation of the right to tax, and does not give to the payment those incidents of pressure which are required for taxation after payment, especially when the application for taxation is delayed.

Giving a security, acceptance, or promissory note for the amount of the bill of costs is payment: Re Boyle, 5 D. M. & G. 540; Re Currie, 9 Beav. 602; Re Harper, 10 Beav. 284; but the twelve months from payment has been reckoned not from delivery but from payment of the note or bill, unless the giving was treated by the parties as actual payment: Sayer v. Wagstaff, 5 Beav. 415.

Retention by solr of client's money for the amount of his costs is not payment within sect. 41 so as to preclude taxation after the lapse of twelve months: Re Street, 10 Eq. 165; Re Stogdon, 56 L. T. N.S. 355; 56 L. J. Ch. 420; and see Re Cawley and Whatley, 18 W. R. 1125; Re Brady, 15 W. R. 632; Re Bignold, 9 Beav. 269; nor a settlement in account with client, a married woman, without independent advice: Re Stogdon, sup.; nor, à fortiori, an agreement by a solr with an illiterate client to retain out of the proceeds of the subject-matter of the suit his bill of costs taken at a given amount: Re Ingle, 21 Beav. 275.

Where Deft's solr accepted cheque of Plt's solr in payment, it was an accord and satisfaction precluding a subsequent claim by Deft for interest on the costs: Bidder v. Bridges, 37 Ch. Div. 406.

Whether payment by mortgagor to satisfy principal, interest and costs, so as to avoid bringing in accounts in a foreclosure action, is payment within the section, quære: Re Griffith, Jones & Co., 53 L. J. Ch. 303.

SECTION VII.-TAXATION AT INSTANCE OF THIRD PARTY.

1. Order of Course to tax on Application of Third Party—s. 38. UPON the petition of B. of &c. [State the circumstances, as, that the Petr some time since agreed to take a lease of certain premises of one C., who employed the above-named A. as his solr to prepare such lease, and the Petr is liable to pay the said A.'s bill for preparing the same]; that the said solr, on or about the day of, delivered unto the Petr his bill of fees and disbursements which, as the Petr

is advised, ought to be taxed, [If so, and which contains charges for work not done on his retainer, and which the Petr is not liable to pay, and the same does not contain any item for business done in any Court, see sup. p. 230]; that the Petr submits to pay what shall appear to be due to the said solr on the taxation of his bill; It was therefore prayed, and it is accordingly ordered, that it be referred &c. to tax and settle the said bill; And that the Petr and also the said solr do produce &c.; And that they be examined &c.; And it is ordered that if such bill when taxed be less by a sixth part &c. [Sect. I. Form 1, p. 230]; And it is ordered that the amount so to be certified be paid by the party from whom to the party to whom the same shall be certified to be due within twenty-one days after service of this order and of the taxing master's certificate to be made in pursuance thereof, unless the Court shall, upon special circumstances to be certified by the said master, otherwise order, upon application to be made within one week after the date of the said master's certificate by the party liable to pay such amount; And it is ordered that no proceedings be commenced against the Petr in respect of the said bill pending this reference, but the said master is to make his certificate in a month (unless the said master shall extend the time to enable him to make his certificate); or this order is to be of no effect.

And for special orders in the like form, made on application by summons at Chambers, see Re Burne, V.-C. W. at Chambers, 8 Dec. 1871, A. 3077; Re Adams, M. R. at Chambers, 30 Nov. 1875, A. 1879.

The directions to give credit or charge for sums received or paid, and to deliver papers, are not inserted in an order for taxation by a third party liable.

As to the form of special order under sect. 38, and that it will be to tax the bill actually paid, not limiting it to that which would be the proper bill as between the party liable and the party whose costs he agrees to pay, see Re Newman, 2 Ch. 707.

2. Order on Special Application by Party interested-s. 39. THE applicant B. (legatee), by his solr, submitting to pay what, if anything, shall appear to be due to A. (solr), upon the taxation of his bill of fees and disbursements, and for business done, as hereinafter mentioned, Let the said A. deliver to the applicant a bill of all such fees, charges, and disbursements over and above those included in the bills hereinafter mentioned, which are now claimed by the said A. against C. and D., as exors of the will of E. deceased, the testator in the petition named, and payable out of the residuary or general estate of the testator; And refer &c. to tax and settle the bill of fees and disbursements, amounting to the sum of £—, delivered by the said A. to the said C. and D. as such exors, and also the bill to be delivered to the applicant as aforesaid; And Let the applicant B., and the said C. and D., and the said A. produce &c., and be examined &c.; (And Let the said A. give credit for all sums of money by him received of or on account of the said exors in respect of the said bills of costs, or either of them ;) And if the amount of the said bills so taxed shall be

less by a sixth part &c. [Form 1, p. 230] (exclusive of the costs of the application); And Let the said master certify the amount due from the said exors and the applicant to the said A., or from the said A. to the said exors and the applicant, or either of them, as the case may be, having regard to the costs of such reference (exclusive of the costs of this application); And Let such amount be paid &c., unless &c. [Form 1, p. 230]; No costs of this application on either side.-See Re Downes, M. R., 19 Feb. 1844, A. 581; S. C., 5 Beav. 425.

3. Same-Copy Bill to be delivered―ss. 39, 40.

LET H., within one month from this time, deliver to the applicant a copy of the bill of costs, amounting to £-, delivered by him to T. &c., as the trustees of the applicant under the indenture of &c., upon payment by the applicant of the costs of such copy, to be taxed by the taxing master in case the parties differ; And refer &c. to tax and settle the said bill of costs; And Let the said H. and the applicant produce &c. [see Form 1, p. 230].-Re Higham, 25 June, 1853, A. 1231.

For further order for delivery of a copy of the bill within one week, S. C., 1 Dec. 1853, A. 144.

For order, on petition by exors under the Act, to tax their bills, for delivery and taxation of their and testator's bills, against their and his solr, and account of moneys received and paid, see Re Dalby, 8 Beav. 471.

NOTES.

Taxation under 6 & 7 V. c. 73, s. 38 (third-party-liable clause), is by order of course when within s. 37.

Under s. 39 (third-party-interested clause) it is by special application: Re Straford, 16 Beav. 27; Re Bracey, 8 Beav. 338; now made by summons: O. LV. 2 (15).

After payment, an ex parte order to tax, though at the instance of a third party, is irregular: Re Becke, 5 Beav. 406; Re Carew, 8 Beav. 150 (though there discharged without costs).

Taxation at the instance of a third party interested or liable to pay is regulated by the relation of the other two parties: Re Brown, 4 Eq. 464; Re Baker, 32 Beav. 526; Re Harrison, 10 Beav. 57; Re Fyson, 9 Beav. 117.

The third party stands in the position of the client; so that if the client is not entitled to tax the bill as against the solr, the third party could not claim taxation against the solr, nor, under the Act, without bill filed against the client who has paid: Re Massey, 34 Beav. 463 (correcting the decision in Re Jessop, 32 Beav. 406; Re Baker, 1b. 526, that a bill may be taxed as against trustees without the solr having any interest or concern in the taxation); and see Re Press and Inskip, 35 Beav. 34; Re Forsyth, 2 D. J. & S. 509; 34 Beav. 140; Re Gold, 19 W. R. 343; Re Holliday and Godlee, 58 L. T. N.S. 301; Ke Cusack, 21 L. R. Ir. 493; Re Donaldson, 27 Ch. D. 544.

66

A bankrupt is not, pending the bankruptcy, a party interested" in the estate in the hands of the trustee in bankruptcy, so as to entitle him, after discharge and payment of creditors in full, to obtain delivery and taxation under sect. 39 of a bill of costs paid by such trustee out of the estate: Re Leadbitter, 10 Ch. Div. 388; and see Rochfort v. Battersby, 2 H. L. C. 388.

Taxation is as between solr and client: Re Neate, 10 Beav. 181; the clause not being applicable to taxation as between party and party: Re Grundy and Kershaw, 17 Ch. D. 108; Re Cowdell, 31 W. R. 335; 52 L. J. Ch. 246; but in taxation on behalf of c. q. tr. the solr will not be allowed to charge the trust estate for anything not necessary for the admon thereof and see Re Carthew, 27 Ch. D. 487. And if such charges have resulted from fanciful

directions given by the trustee, to the trustee personally must he look for payment: Re Brown, 4 Eq. 464.

For taxation at the instance of c. q. tr. before and after payment, see Re Downes, 5 Beav. 525; Re Massey, 8 Beav. 458; Re Rees, 12 Beav. 256; Re Robertson, 42 Ch. D. 553; of mortgagee's solr's bill at the instance of mortgagor or subsequent incumbrancer, Re Lees, 5 Beav. 410; Re Bignold, 9 Beav. 269; or trustee in bankruptcy of mortgagor, Re Allingham, 32 Ch. Div. 36. The proviso in sect. 41, that applications for taxation must be made within twelve months after payment, applies to applications under sect. 38: Re F. E. Smith, 32 W. R. 407; Re Massey, 8 Beav. 458; as to whether sect. 41 applies to cases under sect. 39, see Re Chown, 52 L. T. N.S. 75; Re Dickson, 8 D. M. & G. 655; Re Dawson, 28 Beav. 605; 8 W. R. 554; Re Drake, inf.; Re Neate, 10 Beav. 181; Re Rees, sup.; Re Massey, sup.

Where a mortgagor obtains an ex parte order to tax the bill of a solr, one of a body of mortgagees, he cannot object to allowance of profit costs: see Re Donaldson, 27 Ch. D. 544.

The petition (now summons) should be served on the mortgagee: see Re Jessop, 32 Beav. 406; Re Baker, ibid. 526.

Specific items of overcharge must be alleged and proved on an application under the third-party clause after payment, as in the case of an application by the client: Re Bennett, 8 Beav. 467; Re Dickson, 8 D. M. & G. 655.

And see Dunt v. D., 9 Beav. 146, where mortgagor's petition to tax mortgagee's solr's bill after payment was dismissed with costs, as alleging neither pressure nor specific overcharge.

But it is not necessary to show fraudulent overcharge: Re Drake, 22 Beav: 438.

Before the Married Women's Property Act, 1870, a husband liable for costs due from his wife before marriage was entitled to tax: Waring v. Williams, 2 Beav. 1.

But in Re Godfrey,, M. R., 1 July, 1875, A. 1228, an order obtained by husband and wife for taxation was discharged with costs, on the ground (inter alia) that the husband was not liable.

Voluntary payment by a party under no liability to pay gives him no right to tax: Re Becke, 5 Beav. 406; Re Heritage, 3 Q. B. D. 726; unless such payment has been made as part of the terms of compromising a suit: Re Hartley, 30 Beav. 620 (subject to explanation given in Re Grundy, 17 Ch. D. 108); and see Vincent v. Venner, 1 My. & K. 212; Waters v. Taylor, 2 My. & Cr. 556. And see Dan. 1744; Morg. 14.

SECTION VIII.-TAXATION BY OR AGAINST REPRESENTATIVES.

1. Order of Course to tax Bill delivered by Solr's Represve.

UPON the petition of B., of &c., it was alleged that the Petr employed the above-named A. as his solr in &c. [Form 1, p. 230]; that the said A. is since deceased, and D. as the admor of the effects [or exor of the will] of the said A., on or about the day of delivered unto the Petr the bill of fees and disbursements of the said A., which, as the Petr is advised [contains, if so, charges for work not done on his retainer, and which the Petr is not liable to pay, and], ought to be taxed; that the Petr submits to pay what shall appear to be due to the said D. as such admor [or exor] as aforesaid on the taxation of the said bill; It was therefore prayed, and it is accordingly ordered, that it be referred &c. to tax and settle the said bill; and that the Petr and also the said D. do produce &c.; And that they be examined &c. [see

Form 1, p. 230]; And it is ordered, that the said D. do give credit for all sums of money received by him or the said A., of or on account of the Petr; And be at liberty to charge all sums of money paid by him or the said A. to or on account of the Petr; And it is ordered, that if such bill when taxed be less by a sixth part &c.; And the said master is to certify the amount due from the Petr to the estate of the said A., having regard to the costs of such reference so to be taxed as aforesaid, or from the estate of the said A. to the Petr, as the case may be, having regard to any sum or sums of money which may have been so received or paid as aforesaid; And it is ordered, that any amount so to be certified to be due from the Petr to the estate of the said A., be paid by the Petr B. to the said D. within twenty-one days after service of this order, and of the taxing master's certificate to be made in pursuance thereof, unless the Court shall upon special circumstances to be certified by the said master otherwise order, upon application to be made within one week after the date of the said master's certificate by the Petr; And it is ordered, that upon payment by the Petr to the said D. of what may be certified to be due to him as such admor [or exor], or in case it shall appear that there is nothing due to him, he, the said D., do deliver to the Petr upon oath, all deeds, books, papers, and writings in his custody or power as such admor [or exor] as aforesaid, belonging to the Petr; And it is ordered that no proceedings be commenced against the Petr in respect of the said bill pending this reference, but the said master is to make his certificate in a month, unless the said master shall extend the time to enable him to make his certificate, or this order is to be of no effect; And in case the said master shall certify that any amount is due from the estate of the said A., and the said bill when taxed shall be less by a sixth part than the said bill as delivered, It is ordered that the said D. do pay to the Petr the amount which the said master shall certify to be due for the costs of this reference.

The above form is applicable, where the order is to tax a bill delivered by the trustee in bankruptcy of a bankrupt solr, mutatis mutandis.

2. Order of Course to deliver Bill to Client's Represve, and to Tax.

UPON the petition of B. &c., the admor of the effects [or exor of the will] of C., of &c., deceased, it was alleged that the said C. in his lifetime employed the above-named A. as his solicitor in &c.; that the said C. has since died, and that letters of admon to his effects [or probate of his will] have [or has] been granted to the said B.; that the Petr is desirous of obtaining the papers in the possession of the said solr belonging to the Petr as such admor [or exor] as aforesaid; but the said solr refuses to deliver up the same until his bill of costs is paid; that the said solr, although applied to, has not delivered his bill of costs against the Petr as such admor [or exor] as aforesaid; that the Petr submits to pay what shall appear to be due in respect of the said bill; It was therefore prayed, and it is accordingly ordered,