013-NLR-NLR-V-33-AMBALAVANAR-v.-WANDURAGALA.pdf
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MAARTENSZ A.J.—Ambalavanar v, Wanduragala.
.1931
Present: Maartensz A.J.
AMBALAVANAR v. WANDURAGALA.
196—C. E. Kurunegala, 4,947.
Juien—Sum deposited for respondent's cost with his proctor—Dismissal ofappeal—Costs paid direct to client—Bight of proctor to retain deposit.
The appellant in an action deposited with the respondent’s proctora sum of money as security for the payment of respondent’s costa ofappeal.
When the appeal was dismissed, the appellant paid the costs directto the respondent and sued the proctor for recovery of the money,—
Held, that the proctor had no lien on the money deposited with himfor the recovery of the costs due to him from his client.
A
PPEAL from a judgment of the Commissioner of Requests,Kurunegala.
Hayley, K.C. (jvith him Peri Sundaram), for plaintiff, appellant.
H. V. Perera (with him Weerasuria), for defendant, respondent.
July 16, 1931. Maartensz A.J.—
. This appeal raises, so far as I am aware, an entirely new point withregard to a proctor's lien for his costs.
It arises on the following facts which are not in dispute.
The plaintiff, Mr. Ambalavanar, was the defendant-appellant in caseNo. 11,886 of the District Court of Kurunegala, and deposited with the•defendant, Mr. Wanduragala, who was the proctor for the respondent,Marthelis, Rs. 200 as security for the respondent's costs of appeal.
The appeal was dismissed and Mr. Ambalavanar alleging that he hadpaid and settled the costs due to Marthelis, including the costs of appeal,brought this action to recover the sum of Rs. 200.
Mr. Wanduragala in his. answer pleaded (1) that the payment to therespondent was fraudulent and collusive, made with the object ofdepriving him of his costs, (2) that his costs were a first charge on the sumof Rs. 200 and that any settlement with Marthelis should have includedthe sum of Rs. 200 in his hands, (3) that Marthelis wras a ^necessaryparty to the action.
MAABTENSZ A.J.—Ambalavanar v. H'anduragala.
61
The action was tried on the following issues: —
Can the defendant deduct any sum of money out of the amountdeposited with him by plaintiff as security for costs of appealon account of costs due to him from his client, Marthelis Appu?
(*2) Did defendant hold the said sum of Rs. 200 for and on behalf ofhis client?
Has the defendant any lien over the sum of Rs. 200 or any portionof the said sum as it was not costs recovered by the defendantas proctor by his own exertion?
{4) Has the plaintiff paid to Marthelis Appu the costs in full due toMarthelis Appu (plaintiff in case No. 11,885^?
On the fourth issue the learned Commissioner held ip the affirmativeas payment to the respondent had been certified in case No. 11,885.
I agree with him that the first and third issues practically raise thesame question, that is, whether the defendant has a lien over the sumof Rs. 200 for the payment of the costs due to him from Marthelis. Theseissues were answered in the affirmative, so was the second issue. Therecan be no question that the defendant received the sum of Rs. 200 asagent of this client, Marthelis.
At the trial the defendant said that on accounts being gone into withMarthelis a sum of Rs. 124.75 was found to be due to him, the defendant,and that later he filed a bill which was taxed. The taxed bill was potproduced nor was a statement filed by the defendant of the items whichmade up the sum of Rs. 124.75.
The learned Commissioner, however, accepted the defendant's state-ment as to what was due to him and with the defendant’s consent gaveplaintiff judgment for the balance of Rs. 25.25. From this order theplaintiff appeals.
The learned Commissioner in the course of his judgment held that thepayment to the respondent was a surreptitious and collusive act betweenthe plaintiff and the respondent to deprive the defendant of the costsdue to him from the respondent. It was contended that this findingcannot be supported as the question whether the payment was fraudulentand collusive did not arise under the issues tried. I must uphold thiscontention for the reason urged by the appellant. If the respondentdesired to raise this question he should have had an issue framed forthat purpose.
Under the issues tried the appellant was not called upon to meet theaverment of fraud and collusion in the answer and did not give evidence.It is quite possible, however, that he would have given evidence if therewas an issue as to whether the payment was fraudulent and collusive.
In the absence of a finding that the payment was fraudulent and collusivethe plaintiff's settlement with the respondent direct cannot be impeached,as was held in the case of Vaitelingam v. Gunesekera1.
In that case the defendant paid the plaintiff his costs. The plaintiff’sproctor subsequently issued writ for the recovery of his costs and had aland of the defendant sold in execution.
/
1 (1878) l S. C. C. p. 71.
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MAABTENSZ A..J.—Amhalacanar c. W'niidurayala.
On the defendant’s objection to confirmation of the sale, it was held(1) “that when a plaintiff gets judgment with costs against a defendant,although the plaintiff thereby acquires a right to be paM his costs by hisdefendant, yet, as between the plaintiff and the plaintiff’s proctor, thecosts earned by the plaintiff’s proctor are a' debt due to him by theplaintiff and not by the defendant.*'
“That a defendant against whom a judgment has been pronouncedwith costs has a perfect right to pay the amount of debt and costs to theplaintiff behind the back of the plaintiff's proctor, unless the plaintiff'sproctor has given him notice not to do so.'*
Phear C.J. further held that “ the judgment in the present casehaving been actually satisfied by the defendant’s previous payment, theFiscal could not, by purporting to sell the defendant's property upona writ subsequently issued, make pass the title to the property."
The only question left for decision is whether the defendant’s lien wasextinguished by the payment to the respondent.
In support of his contention that it was extinguished the appellant'scounsel referred me to the case of Turner v. Letts1 and Bell v. Taylora, inwhich i.t was held that a solicitor’s right of lien was exercisable against theclients, and In re Harold Wilde v. Walford 3, where it was held that asolicitor has no higher right than his client.
The defendant's reply to this contention was two-fold. First, there wasin fact no money in the hands of the defendant as it had been appropriatedin payment of costs as soon as the plaintiff’s appeal in case No. 11,885was dismissed. Secondly, that a payment by the plaintiff to therespondent behind the defendant’s back did not extinguish the lien.
In support of the first contention it was argued that as soon as the appealwas dismissed the money in defendant’s hands ceased to be. a meresecurity in the defendant's hands for the payment of the costs of appealand became a payment of those-.costs and that the payment to Martheliswas an overpayment which should be recovered from him.
I am unable to gree with this argument. The sum of Bs. 200 wasdeposited as security for the costs of appeal and remained as such untilthose costs were taxed and the amount due as costs ascertained. Itcannot be appropriated by defendant's decision to do so to other costs,if any, due from his client to himself, even if those costs had been ascer-tained by a taxed bill or bill accepted as correct by Marthelis.
But neither the appeal nor the other costs were ascertained whenMarthelis was paid and this action filed, and there could not be an appro-priation in settlement of an unascertained amount.
I must uphold the appellant’s objection that the plea of appropriationcannot be raised in appeal as it was not raised in the Court below. This isnot a mere technical objection. The defendant has not said in hisevidence that he appropriated the amount in settlement of costs due tohim, nor did he either in the issues or his answer raise the plea that themoney had been appropriated in settlement of what was due to Marthelis.
The respondent's second contention that thq defendant’s right of lienis still in force cannot be sustained as at the time the action was filed
nothing was due from the plaintiff to Marthelis.
> (38SS) 24 L. J. Ch. €38.* (1836) 8 Simon 23$.
(3884) S3 L. J. Ch. SOS-
LYALL CtHANT J.—Gooneralne c. Bishop of Colombo.(i-'l
The lien which .the defendant seeks to enforce in this case is the liento which a solicitor is entitled at Common law. This lien can be exercisedagainst the client only, and it attaches to the property only to the extentof the client’s interests therein. The solicitor has no higher ri'ght thanhis client. (HaUbury's Law of England, Vol. 26, p. 821, a. 1343.)
If the money in respect of which .the lien is claimed is already in thesolicitor's hands he may retain thereout the amount of his costs and payover the balance to the client. (Ibid. a. 1344.) This rule must be readsubject to the rules in section 184H and if the client is not entitled to themoney in the solicitor's hand he cannot claim a lien over it.
Applying these principles to the present case, as soon as Mnrthelis waspaid he ceased to have an interest in the sum of Bs. 200 in the handsof the defendant and, in the absence of proof that the settlement wasfraudulent and collusive, made with the object of depriving the defendantof bis costs, the defendant’s lien was extinguished.
I would, therefore, allow the appeal and enter judgment for plaintiffas prayed with costs in both Courts.
♦
Appeal allowed.