( 258 )
1920. The proxy authorizes him to appoint counsel, but if he does so.without being paid the fee by his client, is it part of his proper functions
Wtieauriya as proctor to advance the amount ? In IX C. 12,4351 had the questionv. Kaluappu 0f surveyor’s account paid by a proctor. And I there held that therecovery made on that account was payable to the proctor, who haddisbursed, as the surveyors looked to the proctors for their fee if1 theclients failed to pay. But that case was-not an advance I believe, buta payment of'the bill out of recoveries made from costs dtte. It was, inany case, due to the proctor. So that this does not exactly definitelytouch the question* whether a proctor has this lien mentioned in sections75 and 212 of the Code for moneys advanced in the interest of hisclient.
I should always be inclined to hold definitely that the surveyor’s billand counsel’s fees are not part of the costs payable to the proctor.Certainly, it is not the custom for the proctor to advance these itemsor inour these costs.* If they do so, are they entitled to claim this' particular lien ?, I am of opinion that I could not so hold withoutholding that it was part of their duty to help suitors with funds in orderto carry on their litigation. I hold there is no such lien, and that it isa matter of good faith or other security if a proctor assists his clientfinancially.
I therefore disallow Mr. Weerasuriya’s claim to the amount Its. 87*30,qnd allow the plaintiff’s claim to the seized amount Its; 153*46, with'costs.. ."
H. E. Garvin (with Mm Keuneman), for the appellants—Proctor’slien for costs is recognized by the Code in sections 75 and 212. Costsinclude all legitimate disbursements; See Halsbury, vol. XXVI.,section 1342; Civil Procedure Code, section 208. Advocate’s feesand' money spent oh stamps are legitimate disbursements. In reMetcalfel1 Lien extends to all costs taxed. Perera v. Per era;2Appu Sinno v. De Silva?
Cooray9 for the respondent*—The question is only as to. theextent of the lien. The lien extends to costs recoverable by the* client and payable by him to the proctor. The advocate’s costs arepayable to the client, as they are primarily paid by him .; they do •not therefore come within the costs recoverable by the proctor. Theproctor is not expected to advance advocate’s fees. He has no lienfor such advances.
July 27, 1920. Bertram C.J.—
The question raised in this case is whether a proctor’s lien forcosts extends to disbursements made as part of his professionalduty, or whether itis confined to payments for his personal services?I do not think that there can be the least doubt in the matter. Thq.nature of a proctor’s lien for costs has been explained by previousjudgments of this Court, in particular by the judgments in the
(1862) 30 Beav. 406.* {1907) U N. L. Rl h
8 (1911) 16 N. L. B. 61.
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qases of Perera v. Perera1 and Appu Sinno v. De Silva? A summaryof the law may be found in the Article on Solicitors i^. Lord Hals-bury’s Lam of England, section 1342. It is there explained thatthe lien attaches to all property recovered or preserved by theexertions of the proctor. There can be no question that the fundin Court, whioh we are considering in this case, was brought intoCourt through the professional exertions of the proctor in the case.The property liable to the lien is, as I have said, property recovered .or preserved by the proctor’s professional exertions. It extends toall eosts of recovering or preserving the property. We haveto ask ourselves then, in the first place, is the fund in Court afund to which the lien applies; and, in the second place, what are theitems which the proctor is entitled to claim by virtue of the lien ?The answer to the second question is: "All costs legitimately in-curred for the purpose." Then oomes the question, What is meantby costs ? I understand that the word includes all sums whiohmay properly be included in a bill of oosts for taxation.
It has been long settled by authority that a distinction must bedrawn between professional disbursements and non-professionaldisbursements; that the former may be included in a bill of costs,and that the latter may not be so included, and that both counsel’sfees and stamps for the purpose of Court fees are professionaldisbursements, which may be legitimately included in a hill of costs.Mr. Garvin has referred us to the* case /» re Metcalfe8 as an expressauthority on that point.
Further, I may draw attention to the fact that our own Code(section 208) defines costs as including both “ the expense of stamps ”and “ fees and charges for advocates.” In several places our Codemakes allusion to the proctor’s lien for costs. Wherever theseallusions occur, the word “ costs ” must be interpreted by thedefinition contained in section 208, which is entirely in'accordancewith the English rules governing the matter.
I can have no doubt, therefore, that in this case the DistrictJudge’s judgment is’based upon a misconception, and I am ofopinion that the appeal should be allowed, with costs, here andbelow.
Schneider A.J.—I agree.
Appeal allowed.

1 (1907) 11 N. L. R. 1.* (1911) 16 N. L. r'61.
8 (1862) 30 Beav/406.
Wijeettriya>. Kalmppu