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Present: De Sampayo J. and Schneider A.J.fife
PERERA v. DON MANUEL.134—D. G. (Inty.) ChUaw, 4,637.
A proctor's lien is not destroyed bv his death, bnt may be enforcedby bis legal representative.
The Court has power to order payment of a stun found to bo dueas costs to a proctor, though the bill has not been formally taxedby the Secretary of the Court.Section 215 of the Civil Procedure
Code is a necessary preliminary only to an action, and a lien overa fund in Court in the very case in which the proctor acted andrecovered money for his client does not amount to an action. Avalid lien is never prescribed, and can be .enforced even after thedebt is barred.
'J’HE facts appear from the judgment.
A. St. V. Jayawardene, for the appellant.
Amarasekere, for respondent.
March 14, 1919. De Sampayo J.—
This appeal involves one or two important points of law withregard to a proctor’s lien. On September 2 and 8, 1912, for whichthe case had been fixed for trial, the Court ordered the plaintiff,who was in default of appearance, to pay the costs of those two daysto the defendant before the next date of trial. The defendant’sproctor was Mr. G. V. de Silva, and he had the bill of costs taxed atRs. 325.63, and this stun was on September 23, 1912, deposited inCourt by the plaintiff. Judgment was ultimately entered in favourof the plaintiff, and under writ of execution issued by him themoney in Court was seized on July 9, 1913. When the plaintiffmoved to draw the money, Mr. Perera filed a bill of costs due tohim from his client, the defendant, with an affidavit verifying theitems, and showing that, after crediting the defendant with moneyswhich he had paid in respect of the expenses of the litigation, therewas due by the defendant to him a sum of Rs. 434.57, and hemoved that his lien on the sum in Court be recorded, which wasaccordingly done. The matter remained in this condition untilFebruary 15, 1918, when the widow and administratrix of Mr.
Perera, who had in the meantime died, appeared in Court andmoved to draw the money in Court, and notice of this applicationwas issued to the parties. The plaintiff stated that he had no causeto show, as the judgment in his favour-had been fully satisfied.
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Perera v.Don Manuel
but the defendant resisted the claim on various grounds. TheDistrict Judge eventually allowed the application, and the defendanthas appealed.
It was urged in the District Court, on behalf of the defendantthat the administratrix had no status in Court, and that theproctor’s lien died with him. This objection was rightly abandonedin appeal by Mr. Jayawardene, who appeared for the defendant.A proctor’s lien is not destroyed by his death, but may be enforcedby his legal representative. (See the Laws of England, vol. 26,page 818, and the authorities therein cited.) Mr. Jayawardene,however, pressed two other points, which require consideration.
The bill of costs filed by Mr. Perera in connection with the claimof a lien has not been taxed by the Secretary of the Court, and it iscontended that, by reason of the provisions of section 215 of theCivil Procedure Code, the lien cannot be enforced. The DistrictJudge is of opinion that, as a matter of fact, the defendant, againstwhom the money had been seized in execution, knew all about hisproctor’s claim and consented to it, and I think the circumstancesjustify that conclusion. It further appears that. in the presentproceedings the defendant was given a chance of calling evidence toprove that the amount claimed was not due to Mr. Perera as costs,but no such evidence was called. In view of these circumstances,it will be inequitable to refuse the claim, unless the law requires aproctor’s bill of costs to be taxed before the lien can be enforced.If such taxation be a condition precedent, I should certainly allowthe administratrix an opportunity of having the bill taxed, but Ido not think the law goes that-length. All that is provided by section215 of the Code is that no proctor shall commence or maintainaction for costs until the expiration of one month after he. shallhave delivered to the party charged a bill of costs, and the sectionproceeds to provide that after such delivery the party or the proctormay obtain an appointment from the taxing officer and have thebill taxed. I shall assume that, not only the delivery of a bill, butthe taxation of it is made a necessary preliminary to the commence-ment of an action. But a step taken to enforce a lien over a fundin Court, especially where it is in the very case in which the proctoracted and recovered the money for his client, does not amount to anaction. He is under no necessity to bring an action at all. Byvirtue of his lien he has a right to ask the Court for its interventionwhenever he is likely otherwise to be deprived of his costs (Mercerv. Graves *). He is therefore entitled to apply to the Courts, if thefund is in Court, for payment of his costs out of it (Moore v. Smith 2).This is exactly what happened in this case, and I do not thinkthat the Court is prevented from making an order for payment ofa sum which is found to be due as costs, though the bill has not
been formally taxed.
1 (1872) L. R. 7 Q. B. 499.
t(1851) 14 Beav. 393.
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The other objection taken is that prescription has run out, andthat the claim of the administratrix cannot be maintained. Here,again, a distinction must be observed. An action might not bebrought by reason of section 11 of the Prescription Ordinance, but,as pointed out above, the present proceedings do not constitute anaction within the meaning of the Ordinance. A valid lien may,however, be enforced even after the debt is barred. Under theSolicitors Act, 28 and 24 Viet., c. 27-r no doubt the Court cannotmake a charge on the property if the right to recover the costs isbarred. That Act does not apply to Ceylon, nor is a lien, existingindependently of a charging order, affected by the provisions of theAct. The common law right to enforce a lien still exists. Beforethe Solicitors Act the solicitor’s lien, remained enforceable, thoughlimitation prevented the debt being recovered by action (Higginsv. Scott *). The reason is that the Statute of Limitations bars theremedy by action, but does not extinguish the debt. See alsoRe Hepburn ex parte Smith,2 where Cave J. put the matter thus:“ There is in law no right without a remedy, and if all remediesfor enforcing a right are gone, the right has in point of law ceasedto exist. In the case of a debt the ordinary and universal remedy isby action against the debtor. There may, however, and sometimesdoes, exist another remedy, not by action against the debtor, butarising out of the possession of the property of the debtor which bylaw or contract may be detained by the creditor until the debt ispaid. This latter remedy may exist, although the remedy by actionis barred, and in that case the debt continues to exist so far asis necessary for the enforcement of this right of lien, but not forenforcing the remedy by action.”
Even this does not appear to be a complete statement of theeffect of the Statute of Limitations. For it was explained inLondon and Midland Bank v. Mitchel* that the statute only barredthe personal action, but that an action might be maintained,notwithstanding the statute, to enforce any security for the debtby sale or otherwise. The law so expounded equally applies to ourOrdinance of Prescriptions, and, in my opinion, the proctor’s lienin this case can be enforced by applying for payment out of thefund in Court.
For these reasons I would dismiss the appeal with costs.
Schneider A.J.—I agree.
Appeal dismiesed. 1
1 (1831) ZB. & Ag. 413.* (1884) L. B. 14 Q. B. D., at page 399.
* (1899) L. B. 2 O. D. 161.
PERERA v. DON MANUEL