charges amounting to fraud. Re Hubbard. (a) What amounts to fraud is defined by Re Barrow, (b) Re Browne, (c) Re Stirke. (d) Here more than one-sixth has been taxed off, but there is nothing like overcharge so gross as to amount to fraud. As regards the first bill no case for taxation at all is made. As regards the second, the case made on the petition is, that the amount was retained against the will of the client, but that is not the case made out on the evidence. As regards payment on the day of delivery, the bill was paid through a solicitor three months after the relation of solicitor and client had ceased between the appellant and the respondent. It would not be wholesome to establish a rule, that a bill which contains items reaching down to the day of its delivery is taxable simply because it is paid on that day, when the client had professional advice at the time of paying it. There was here no jurisdiction to tax at all: Barwell v. Brooks; (e) but if there was, the delay in applying is not accounted for; the petitioner makes no case of having discovered overcharges of which he was not at first aware. In the case of Re Barnard, (g) overcharges were held not enough. In Ex parte Wilkinson, (h) there was actual pressure and payment under protest. Re Finch, (i) Re Fyson, (k) which is very similar to this case, and Re*676 Boyle, (1) are all in our favour. * Mr. Bacon and Mr. Roberts, for Mr. Briscoe. The result of the taxation shows that the bill was most exorbitant, more than two-sixths having been taxed off. There was pressure, for the bill was produced for the first time at the settlement of a purchase, when there was practically no option whether to pay or not. The bill contained charges which ought not to have been made, for large items have been wholly struck out, for instance 67. for a supplemental abstract. Our case is supported by Re Tryon, (m) Re Wells, (n) Re Bennett, (0) Re Jones, (p) Re Philpotts, (q) Re (a) 15 Beav. 251. (c) 1 De G., M. & G. 322. (e) 8 Beav. 121. (g) 2 De G., M. & G. 359. (i) 4 De G., M. & G. 108. (k) 9 Beav. 117. (1) 5 De G., M. & G. 540. Loughborough, (a) Re Lart, (b) Ex parte Walker, Re Fos ter. (c) Mr. Southgate, in reply.-In Ex parte Walker, Re Foster, there were strong circumstances of pressure such as do not exist here. THE LORD JUSTICE KNIGHT BRUCE. - The taxation having been ordered to proceed without prejudice to any question, I desire to deal with the matter as if no taxation had taken place, but subject to this observation, that in my opinion the taxation has not pro duced any thing favourable to the appellant's case. Now * 677 looking at the bill as untaxed, considering the * date of the earliest item of the bill, the position in which the parties stood to each other, and the nature of the business done and of the charges made, I should have said that it was a very high bill. In what circumstances then was it delivered and paid? The bill according to Mr. Pugh's affidavit had probably been asked for on the day before and not merely on the day of the settlement of the purchase. I do not know whether Mr. Pugh was to blame or not, but so it was that the bill was not delivered until the meeting at Mr. Pugh's office. The purchaser's solicitor was in attendance, having come from Wrexham for the purpose of completing, and if the completion had been delayed considerable inconvenience and expense would probably have been occasioned. It is to be remarked also that, so far at least as my judgment goes, it is a just inference from the evidence, that Mr. Briscoe was a gentleman in straitened circumstances, somewhat pressed by debts, and to whom an early settlement was important; and taking the evidence as to what took place at the meeting in the view most favourable to Mr. Pugh, it seems to me that the bill was paid in circumstances of pressure. In saying this I do not mean any thing disparaging to the character or conduct of Mr. Pugh, but still I think that neither Mr. Briscoe nor his solicitor was altogether a free agent in the matter. When to this is added the lateness of the delivery of the bill, and the nature of the bill itself, apart from the result of the taxation which has taken place, I think that the case is one for taxation. It comes, however, very near the line. The delay is a matter for (a) 23 Beav. 439. (c) 2 De G., F. & J. 105. observation, but I do not think that it is sufficient to bar the petitioner's title to relief. I am of opinion that the order of the Master of the Rolls was right, both in directing taxation and in not giving any costs down to the time of the order. Mr. Pugh must pay * the costs of the taxation, but I do not think it a case for * 678 ordering him to pay the costs of the appeal. THE LORD JUSTICE TURNER. I agree, and for reasons so pre cisely the same that I do not think it necessary to add any thing. WALSHAM v. STAINTON. 1863. November 5, 6, 14. Before the LORDS JUSTICES. J. S. and H. S., who were confidential agents of a company, conspired together to depress the selling price of the shares by a system of false accounts and concealment, in order that they might purchase them at an undervalue. By reason of this scheme, fifty-five shares belonging to G. were sold much below their real value, fifteen to J. S. and forty to H. S. The executor of G., upon discovering the frauds which had been practised, filed his bill against the executor of J. S. and the executors of H. S. for relief in respect of all the shares. The representative of J. S. demurred for want of equity and multifariousness. Held, that although J. S. derived no benefit from the sale of the forty shares at an undervalue, yet, as he stood in a fiduciary position towards the shareholders, and was a party to the fraud, he, as well as H. S., was liable to G. for the real value of the shares, and that his executor was a proper party to a suit in respect of them'. Held, also, that as both sales were affected by the same fraud, it was not multifarious to combine the cases as to the fifteen and the forty shares in the same bill. THIS was an appeal by the plaintiff from a decision of Vice-Chancellor Wood allowing a demurrer by William Horn, the legal personal representative of Joseph Stainton, without giving leave to amend. 1 See Kerr F. & M. (1st Am. ed.) 371, 379, 380, 381. 2 See 1 Dan. Ch. Pr. (4th Am. ed.) 337-344; Hamp v. Robinson, 3 De G., J. & S. 97; Way v. Bragaw, 1 C. E. Green (N. J.), 213, 216; Randolph v. Daly, 1 C. E. Green (N. J.), 313; Chase v. Searles, 45 N. H. 511, 519; Coleman v. Barnes, 5 Allen, 374; Richards v. Pierce, 52 Maine, 560; Kennebec and Portland R.R. Co. v. Portland and Kennebec R.R. Co., 54 Maine, 173; Hicks v. Campbell, 4 C. E. Green (N. J.), 183; Adams's Eq. (5th Am. ed.) [310], 602, note (1), and cases cited. The substance of the bill, the defendants to which were the executors of Henry Stainton, the Carron Company, the manager of the company and the executors of Joseph Stainton, was as follows: The Carron Company is a corporation incorporated in 1773 by royal charter, and its affairs are regulated by the charter and two deeds dated respectively 19th January, 1760, and 6th May, 1771. * 679 Books were to be kept *By the latter deed the capital of the company was fixed at 150,000l. to be divided into 600 shares of 2501. each; and no future partner was to have any vote in the management or any right to examine the books unless he held at least ten shares; every holder of ten shares or more was to have one vote for every 25007. of capital he should be possessed of. by the manager for the time being and balanced at least once a year. Two general meetings were to be held every year at Carron; at the October meeting the accounts were to be examined and a committee of management appointed, which was to meet once a month, and part of whose business was to be "to receive all intimations with regard to the sale or disposal of any part of the stock of the company." All shareholders present and future were to be at liberty to sell their shares or any number not less than two of them, on the following conditions: A shareholder wishing to sell was to make intimation in writing to a monthly meeting of the number of shares he proposed to sell, and the price at which he proposed to sell them, and if the company or any shareholder entitled to vote chose to buy them at that price before the second monthly meeting they and he were to be at liberty to do so, but if not, then the shares might be sold to anybody, provided they were not sold at a lower price than that at which they had been offered as above without first offering them at such lower rate to the company or the shareholders entitled to vote, and no sale of any shares to strangers was to take place till such last-mentioned offer had been made at a monthly committee and rejected by the second following one, and so on, so that no shares could ever be sold to strangers without the company and partners entitled to vote having had an opportunity of purchasing them at the same price. Shares sold or attempted to be sold in contravention of this rule *680 were to be ipso facto forfeited to the company. By another clause the right which had been given by the former deed to all the partners, of inspecting the books at their pleasure, was confined to the then partners, every partner present or future who was entitled to vote in the direction of the company's affairs retaining a right to attend the meetings of a monthly committee, and to see and examine the proceedings had by them; and it was, therefore, expressly provided and declared, that the company's books should be only open to the inspection of the then present partners, and of the monthly committees at their meetings, or of any member having authority or commission from the committees to examine the same, with a proviso that any two partners holding not less than twenty shares might obtain such authority from the committees on proper cause shown. The charter directed that 17. per cent on the gross sales might be set aside as a reserve fund, and that the residue of annual profits should be disposed of as the general meetings should direct. Francis Garbett was one of the original shareholders in the company, and one of the persons mentioned as a shareholder in the charter of incorporation. He was, in the month of March, 1771, the holder of fifty-five shares in the company, and in March, 1771, he assigned these shares to Glyn & Co. to secure the balance of a current account due from the firm of Francis Garbett & Co., of which he was a member, but no transfer of these shares in the books of the company was made. Francis Garbett and two other shareholders in the company had, in the year 1770, granted bonds for sums amounting to about 22,000l. to L. Grant, as trustee for the creditors of two persons of the name of Fairholme. * Charles Selkrig was after- *681 wards appointed trustee in his room. Francis Garbett died on the 9th of January, 1800, and the plaintiff was his legal personal representative both in England and Scotland. In the year 1806 Selkrig, without notice to any one interested in Francis Garbett's estate, procured himself to be made executor creditor in Scotland on behalf of the Fairholmes to Francis Garbett to the extent of forty of the said fifty-five shares. Joseph Stainton was manager of the company at Carron from 1786 to his death in 1825, and his brother Henry Stainton was London agent of the company from 1808 till his death in 1851. The half-yearly Courts of the company were duly held, but in many respects the provisions of the charter and deeds were not [529] VOL. I. 34 |