1. In this case I am prepared to make the order which is asked for by the attorney against the plaintiff. An action was brought by the plaintiff against the defendant. The defendant happened to be the receiver appointed by the Court of the assets of a certain firm. The plaint in the action shows that in the course of the work the defendant did as receiver for that firm he executed certain promissory notes on which the plaintiff became in the end the endorsee, and the action was brought really against him as the maker of the note by a person to whom it had been endorsed by the original payee. That being so there can be no doubt that the receiver was personally liable and that the action was brought against him personally. Whatever the rights may be between the defendant in that action and the firm over whose assets he had been appointed receiver, that was a matter which had nothing to do with the case, and in no way bound the plaintiff. It is like the simple case of an executor who, in order to carry out his duties, orders certain goods--it may even be for the funeral of his testator. The action that has to be brought against him by the supplier of those goods would be an action against him personally in respect of his order, and if it were brought in the form of an action against the executor as representing the testator's estate, it would be an action which was wrong in form. In the old days you could not have coupled such a claim with a count for a debt which had been incurred by the testator in his lifetime.
2. Now, in the course of certain interlocutory proceedings, the defendant was successful and he obtained orders against the plaintiff for certain costs which have been taxed at Rs. 1,030. The defendant died, no steps were taken to reconstitute, the action, and the action was dismissed, no order being made as to costs. In these circumstances the attorney for the defendant comes before me and asks that I make an order to pay him Rs. 1,030 against the person who was plaintiff in the action. Now, the lien of an attorney for his costs upon property recovered or preserved is not only one of the oldest doctrines of law, but one which is based on very manifest justice, and the objection to the order that I am asked to make is that, although the law which prevails here recognises the solicitor's lien I have no jurisdiction to make such an order as this because there is nothing in the Code or in the Rules that enables me to make a direct order for payment to the attorney. What exactly is the correct method of enforcing a solicitor's lien I do not know on this hypothesis, but I presume it would be by starting another suit and going into the whole matter from the beginning with a plaint and written statement. In my view that is entirely unnecessary. I find that it has been held by the late Chief Justice of this Court when sitting as a Puisne Judge at first instance on the Civil Side, Khetter v. Kally (1898) 2 C.W.N. 508, 511, that there is authority to make an order for payment direct in this class of cases. If I may be allowed to say so, I think that the short and summary way in which that point was deal with was the correct way to deal with it, to regard it as a matter of settled law, that when the Court has jurisdiction in an action it has jurisdiction not only as between the parties to that action, but also as regards those officers of the Court who act for the parties. If, for example, one is minded to give parties their costs out of a fund, and the fund is a fund that is in Court, it is an old Chancery practice to order payment to the solicitor direct, and not to the parties. Why? Because the solicitor is recognised by the Court; the matters between the solicitor and his client, so far as they concern that action, are just as much under the hand of the Court as is the contention between the party and party, and the improvement as to procedure that was introduced into England by the Solicitors' Act is an improvement as to procedure only. Thus it may be that it is a better remedy to a solicitor to apply against his own client in the action for an injunction to restrain his client receiving the proceeds of the judgment, and thus defeating the solicitor. That remedy in the action it is still open to the Court to give. As between the solicitor and his client, the action is in the hand of the Court, and when I find that the late Chief Justice did not feel himself hampered by any technicality, I am certainly not going to create a technicality that seems to me to be contrary to principle.
3. Now, the only other point which has been taken by Mr. Buckland is this. He says that this summary remedy is not to be regarded as a remedy ex debilo justifies: it is only to be resorted to in a proper case, and prima facie it is not a proper case unless it is clearly shown that the attorney is unable to recover his costs from his client.
4. Two cases have been cited to me for that, and upon consideration I think both of these cases are very special ones. The first is a divorce suit Harrison v. Harrison (1888) L.R. 13 P.D. 180: it is a case where a husband was granted a divorce against his wife, and one of the terms of the divorce was that he had to provide or secure an income for the wife to live upon of 130 per annum. The wife's solicitors took out an application under the Solicitors' Act, and proposed to take their costs out of this annual maintenance of 130, and the Court said in effect, 'We won't do that unless you satisfy us that that is really necessary.' Prima facie the person responsible to pay the wife's costs was the husband, who in England is liable to pay the costs of his wife in such an action even although the wife is the opposite party. The Court's view was:--'We are not going to put our hand upon this tiny fund that is intended for the woman's living unless we are shown it is reasonable and necessary in the circumstances. We do not think it would be a proper case under the Solicitors' Act.' It was argued in that case that this 130 was a mere matter of alimony as it is strictly called; the Court held it was not alimony in strictness, and that the Solicitors' Act did, technically speaking, apply to it but in substance it was a maintenance or living fund for the wife, and the Court would not let the solicitors have recourse to that without being satisfied that it was reasonable and necessary.
5. The next case was the case of Jackson v. Smith (1884) 53 L.J. Ch. 972, Now that case is this: there was a partnership action, an action for dissolution, and there was a receiver appointed, the affairs of the partnership were wound up and there was a certain fund in Court, but the creditors of the firm had not been paid out of the fund; and when the learned Judge who decided that case (Mr. Justice Kay) was making his order upon further consideration he held that unless he was shown that the plaintiff was unable to pay his own attorney's costs, he would not there and then at once make a charging order upon this fund so as to put this attorney's costs in front of the creditors of the partnership. The plaintiff, who apparently did not desire to pay his own attorney's costs if he could get out of it, preferred that the fund which the partnership creditors had to look to, should bear the brunt in the first instance. The Court said no, and I do not think that either of these decisions interferes with the exercise of my discretion upon the facts of this case. I am not going to lay down that I shall require an attorney, before I enforce his lien, to satisfy me that he has utterly exhausted every possibility in order to get payment otherwise. It seems to me that this solicitor is quite reasonable in coming to the Court to ask that the Court should allow him to stand in the shoes of this defendant and to claim, this money which the plaintiffs have been ordered to pay. The original, client is dead; there is evidence that his legal representatives are not people of substance; there is definite evidence they are unable to pay; and I think it is no abuse at all of the summary powers of this Court for this attorney to ask for an order which merely puts him in the shoes of his own client so that this sum of money which was ordered to be paid in 1916 should at last be realised.
6. I shall direct that this order be made so far as the plaintiff is concerned, and that the plaintiff be ordered to pay those costs to the attorney direct. As regards the legal representatives of the defendant, I have express power under the rules to make an order upon them to pay the costs of the attorney. The order ought strictly to have been asked in chambers, but of course it is elementary that anything I can do in chambers I can a fortiori do in Court, and I do not think that any costs have been thrown away in joining both matters in one motion. So far as the legal representatives are concerned, I shall only allow the applicant the costs as of a chamber application to be added to the amount which I shall order them to pay. The plaintiff must pay to the applicant half of the costs of this motion.