Authored By : C.H. Hill, Trevelyan

C.H. Hill, J.

1. This is a suit by a firm of solicitors carrying onbusiness under the style of Watkins and Co., and the legal representative ofMr. Algernon F. N. Watkins, a deceased member of the firm, for the recovery ofthe costs of certain proceedings in this Court, under Section 24 of Act XY of1859. The object of those proceedings was to effect the revocation of a patentheld by two persons, named Thomson and Mylne, for a sugar-crushing machine.

2. The plaintiffs case is that the first defendant, Mr.Neil Fox, consulted their firm so far back as the year 1885, with respect tothe revocation of Messrs. Thomson and Mylnes patent, representing that he didso, not only on his own behalf, but also on behalf of other persons, who wereinterested in getting the patent set aside, and that in pursuance of hisinstructions the proceeding mentioned above was instituted on the 26th May1887. In consequence, however, of the circumstance that Mr. Neil Fox washimself a licensee under the patent it was considered unadvisable that heshould be made a party to the proceeding, and it was arranged accordingly thatthe name of the third defendant, Mr. Moses, should be used instead of his. Thiswas done. The warrant of attorney authorizing Watkins and Co. to act was signedby Mr. Moses, and the proceeding was conducted in his name, and, as is alleged,on his account, as well as on that of Mr. Neil Fox.

3. The second defendant, Mr. George Fox, a brother of thefirst defendant, it is said, was one of the persons interested in therevocation of the patent, on whose behalf Mr. Neil Fox had instructed Messrs.Watkins and Co., and on that ground, as well as upon a personal undertakinggiven by him after the proceeding under the Patent Act had ended, guaranteeingthe payment of the costs, he has been included in this suit. With respect tothis undertaking, the plaintiffs case is that on the 9th March 1888, the applicationunder the Act of 1859 having been dismissed with costs on the 20th January1888, Mr. George Fox had an interview with Mr. Algernon F. N, Watkins, at whichhe promised that, if time was given to his brother for the payment of thecosts, he would see that they were paid, and he promised also that he wouldhimself remit at once to Messrs. : Watkins and Co. a sum of Rs. 2,000 then duefor Counsels fees. At the same interview he further instructed Messrs. Watkinsand Co. to delay the taxation of the respondents costs as much as possible.Mr. George Fox, it is said, having given these undertakings and instructions toMr. Watkins, was referred by the latter to Mr. Farr, at that time a member ofthe firm of Messrs. Watkins and Co. and in charge of the particular case, towhom they were repeated and who accepted them. Time was, it is stated,accordingly given to Mr. Neil Fox, but nothing has since been paid by any ofthe defendants. Mr. Neil Fox has not entered an appearance to this action. Mr.Moses has entered an appearance, but has not filed a written statement. Mr.George Fox has filed a written statement, but no one appeared at the hearing,either on his behalf or on that of his co-defendants.

4. By his written statement Mr. George Fox denies all personalinterest in the proceeding under the Patent Act; He denies also having givenany undertaking to pay his brothers costs, and he pleads that the suit isbarred by limitation.

5. To deal in the first place with the case of the firstdefendant. As against him the suit is based (excepting two trifling items) upona bill of cases taxed by the taxing officer of this Court, and there is noreason for supposing that any of the charges which it contains areunreasonable. Mr. Farr, who was at the time a member of the firm of Messrs.Watkins and Co., though he has since then severed his connection with it,deposes to their correctness, and Mr. Neil Fox has himself, in certain letterswhich he wrote to the plaintiffs firm in relation to their claim, admitted hisliability. So that, unless the suit is barred by limitation, there can be noquestion but that he ought to pay.

6. With respect to that question, the following particularsare material: The present suit was instituted on the 7th April 1891, judgmentwas delivered in the proceeding under the Patent Act on the 20th January 1888.On the 20th February 1888 the latest act in relation to the preparation of theorders of the Court in that proceeding seems to have been performed by Messrs.Watkins and Co. On the 9th March 1888 Mr. George Foxs interview with Mr.Watkins took place, at which he is said to have given the undertaking on whichit is now sought to make him liable, and instructed Messrs. Watkins and Co. todo what they could to delay the taxation of the costs of his brothersopponent.

7. In pursuance of these instructions Messrs. Watkins andCo. did attend the taxation for the purpose mentioned, and succeeded apparentlyin prolonging the taxation considerably. The last item in their bill of costsfor services so rendered is dated the 17th September 1888.

8. The question is whether the period of limitation by whichthis suit is governed began to run from the date of judgment in the Patent Actproceeding, or from the date upon which Messrs. Watkins and Co. performed theirlatest act of service in relation to the taxation of the respondents costs.

9. The question is governed by Article 84 of the 2ndSchedule of the Limitation Act, and if the former date be the proper one, thesuit is, so far as Mr. Neil Fox is concerned, barred; if the latter, it iswithin time.

10. The material part of the article in question providesthat a suit by an attorney for his costs of a suit or a particular businessmust be brought within three years from the date of the termination of the suitor business. The first point for determination then is under which category,that of "a suit" or of "a particular business, the proceedingnow in question falls.

11. I am not aware that the first of these terms has beendefined by the Legislature, although it is no doubt provided by the thirdsection of the Limitation Act, that in that Act (unless there be somethingrepugnant in the subject or context) "suit" does not include anappeal or an application, but this distinction must, I think, be confined inits effect to the immediate purposes of the Act, and has no bearing upon thepoint now under consideration.

12. The separation of suits in the article from business ofother kinds might seem at first sight to suggest that it was intended to drawsome general distinction between litigious and non-litigious business. Butnumerous examples of litigious business might be mentioned, to which it would,without an obvious misapplication of language, be improper to apply the word"suit," and I think that the term ought to be confined to suchproceedings as under that description are directly dealt with by the Code ofCivil Procedure, or such as by the operation of the particular Acts whichregulate them are treated as suits.

13. It is unnecessary now, if the term be employed in thatsense, to attempt further to determine its scope. But it seems to me that soused it does not include a proceeding under Section 24 of the Act of 1859.There are differences with respect to the mode of institution, the procedurefor conducting them and their ultimate result, which create a substantialdistinction, I think, between such a proceeding and a suit in the aboveacceptation. The Act of 1859 itself, moreover, maintains throughout thedistinction between the action for infringement for which it provides and the"proceeding" under Section 24. I think, then, that a proceeding underthat section falls under the second category of Article 84, and that what hasto be determined in the present case is, when the business for which Mr. NeilFox retained the plaintiffs firm when he engaged them to conduct thisproceeding terminated.

14. The distinction does not, however, in this instanceappear to me to affect the result very materially; for 1 think that the analogyof an ordinary suit ought to apply.

15. There are, apparently, two cases in the Indian LawReports, in which it has been decided when a suit terminates for the purposesof the Limitation Act, and they unfortunately do not agree. One of these isNarayana Chetti v. Champion I.L.R. Mad. 1 and the other is Balhrishna Pandurangv. Govind Shivayi I.L.R. 7 Bom. 518 [LQ/BomHC/1883/62] . In the former it was ruled that, untilcosts are taxed and inserted in the decree and the decree has issued, a suithas not terminated within the meaning of Article 84 of the Limitation Act. Inthe latter it was held, following what was said in Harris v. Quine IL.R. Q.B.653, that a suit terminates with the judgment of the Court in which it iscommenced. Whether the learned Judges who decided these cases had Section 39 ofthe Code of Civil Procedure before their minds does not appear from anythingsaid in their judgments. But I must, I think, assume that they had, and thecases seem therefore to show that, although there may be proceedings in thesuit subsequent to the judgment or decree, and the suit may therefore still, inthat sense, subsist (for that, I take it, may be inferred from Section 39), thepoint at which for the purposes of the Limitation Act the suit is to be takento terminate is the issue of the decree (according to the Madras Court), or thegiving of judgment (according to the Bombay Court). By judgment "in thedecision of the latter Court I presume is meant the judgment of the Court inthe sense in which the term is used in the Code of Civil Procedure. But whetherthe issue of the decree or the giving of judgment be the proper starting pointfor the running of the period of limitation, would not make any practicaldifference in the present instance, for neither of these things (taking theorder of the Court to be equivalent to a decree) appears to have taken placewithin three years before the institution of this suit. It was not, indeed,contended that they had done so but the learned Counsel for the plaintiffsargued that the later items of their bill attached to the earlier, and in thisway brought the whole of the claim within the period of limitation.

16. The later items are concerned only, however, with thetaxation of the costs of Mr. Neil Foxs opponent. In support of his contentionMr. Dunne relied upon the Madras case cited above-for the purpose of showingthat, while the taxation of costs was proceeding, the suit could not be said tohave ended. But while I doubt with much deference whether the rule laid down inthat case can be supported on principle, I think at all events that it isinapplicable to the practice prevailing on the Original Side of this Court andthat I ought rather to follow the rule laid down in Bombay.

17. The present case, indeed, seems to me to be very like thatof Rothery v. Munnings 1 B. & Ad. 5, the effect of which is thus stated in"Darby and Bosanquets Statutes of Limitation" at p. 39: "Butwhen judgment has been given, and there is no appeal, the Statute begins torun, and subsequent items within the six years incidental to the business ofthe action will not take the earlier items in the bill out of theStatute." In that case the subsequent item was in respect of the taxationof an opponents costs. So that I do not think that the plaintiffs here can successfullyrely on the later items of their bill as an answer to the Statute.

18. Having arrived at this conclusion I thought it desirableunder all the circumstances of the case to suspend my judgment in order toenable the plaintiffs, if they thought fit, to amend their plaint by claimingexemption from the operation of the Statute on the ground of acknowledgments ofhis liability made by Mr. Neil Pox in certain letters, which were before me foranother purpose. I refer to his letters to the plaintiffs firm of the 12th Mayand 1st June 1889. These letters contain clear admissions of liability for thecosts, not only of the proceeding, but of the work subsequently done by Messrs.Watkins and Co., and bring" the suit as a whole within the statutableperiod. The plaint has since been amended accordingly, and I think, therefore,that there ought to be a decree with costs on the usual scale as against thefirst defendant for the full amount claimed. I should, perhaps, add that,although the amendment referred to was made in deference to my opinion, thelearned Counsel for the plaintiffs did not desire to give up his contentionthat the suit was otherwise within time.

19. Next as to the defendant Mr. Moses. I cannot say that Iam satisfied as to his liability when the manner in which he was brought uponthe scene is considered. The mere statement of Mr. Neil Fox that Mr. Moses wasa person who was interested in the revocation of the patent, and on whosebehalf he consulted the plaintiffs firm, is not in my opinion sufficient tocharge him. The application under the Patent Act was, I understand, dismissedon the ground that it was in reality the application of Mr. Neil Fox, alicensee, and not that of Mr. Moses, and Mr. Moses has all along apparentlyrepudiated any "moral liability" for these costs, by which Iunderstand him to mean that they were not incurred for him. I can find noevidence that the proceeding was conducted with reference to him or in hisinterests, and I think that, as in reality he was not a party to theproceeding, but only so in name, it was never intended by him or them that heshould incur any liability to Messrs. Watkins and Co. as a consequence of theemployment of his name. I think, therefore, that, as against Mr. Moses, thesuit ought to be dismissed.

20. Then with regard to Mr. George Fox. I do not think thatthe statement that he was concerned in the retainer of Messrs. Watkins and Co.has been established by evidence. His first introduction to them seems to havebeen on the 9th March 1888, when he came to them to ask time for his brother,and to offer them his guarantee, and he certainly does not seem to have beentreated by them then as a principal. But in respect of his guarantee, althoughhe now denies it in his written statement, I can see no reason to doubt Mr.Farrs evidence. All that there is to oppose to it is the denial contained inthe written statement and the somewhat tardy repudiation of "any expresspromise" in his letter to Messrs. Watkins and Co., of the 20th May 1889.On the other hand, Messrs. Watkins and Co., from the earliest stage of theircorrespondence relative to their claim, asserted this undertaking, and for aperiod of some six months after Mr. George Foxs interview of the 8th March noapplication whatever appears to have been made to his brother by Messrs.Watkins and Co. for payment, although their out-of-pocket costs amounted to avery substantial sum.

21. What I understand Mr. George Fox to have guaranteed wasthe payment by his brother of the costs, not only of the proceeding, but alsosuch costs as might bo incurred in retarding the taxation of the costs of theother side in the proceeding, and his undertaking was to pay those costs in theevent of his brother failing to pay them after Messrs. Watkins and Co, hadgiven him time, that is, as I take it, reasonable time for payment. Messrs.Watkins and Co. did in any opinion give him a reasonable time, their firstdemand after the 8th March having been made at the end of August following; andit was then, 1 think, on his brothers failure to pay, that the liability ofMr. George Fox arose. His plea, of the statute of limitation, therefore, seemsto me to fail, and the suit ought in my opinion, as against him as well asagainst his brother, to be decreed in full with costs on the usual scale.1

1

Decided On: 21.12.1893

Appellants: Administrator-General of Bengal

Vs.

Respondent: Chunder Cant Mookerjee

Honble Judges:

Trevelyan, J.

JUDGMENT

Trevelyan, J.

1. The only question in this case is whether the suit isbarred by the law of limitation.

2. The suit is brought on an attorneys bill of costs. Thelast work done by the attorney for the client was admittedly more than threeyears before suit. The bill is in respect of a suit brought against the client.The attorney acted in the appeal which concluded the suit. The last work he didwas making a copy of the taxing summons, which was taken out by the other sideand sending it to his client. There was nothing more to bo done in the suit,except that the other side, which had obtained a decree for costs, was entitledto execute such decree. It was contended that, for the purpose of theLimitation Act, the suit had not terminated as the attorney might have toappear in the execution proceedings. This contention, if correct, wouldpostpone the attorneys remedy for twelve years.

3. In my opinion a suit can ordinarily be said to haveterminated, when there is nothing more to be done in it, except execution.

4. It was also contended that the plaintiff was entitled toa fresh period of limitation on the ground of (1) a part payment, (2) anacknowledgment of liability.

5. The so-called part payment was clearly made to pay off asum which was paid by the Administrator-General after Mr. Lintons death. Itwas not a part payment of the bill.

6. What is suggested to have amounted to an acknowledgmentof liability is to be found in a letter written by the defendants attorney. Itis as follows : (reads letter ante, p. 953), It is remarkable that the framerof the plaint did not put this letter forward as taking the case out of theAct.

7. The plaintiff relied upon several English cases, the lastbeing a decision by Mr. Justice North in Curwen v. Milburn IL.R. Ch. D. 424.

8. This case went to the Court of Appeal, but was theredecided on other grounds. The cases cited all depend upon the terms of theseveral letters. If the present letter can be construed as an acknowledgment ofliability the plaintiff is entitled to recover. I think that it does not bearsuch a construction.

9. The letter shows, on the face of it, that the attorneyhad no instructions at all. He asks for a postponement, and adds that, duringthe time either the matter would be settled or the case would go on. There isno promise of any kind to settle the bill in the sense of paying a portion ofit.

10. If one attorney were to write to the attorney of theopposite side in a suit which was coming for trial, asking him to consent to apostponement in order that the parties might settle the suit, and if they wouldnot settle, the case would go on. Could this in any sense be treated as anacknowledgement of liability to pay the whole or any portion of the amountclaimed in the suit I think not. In the present case the attorney is not doinganything more. I think that the suit must be dismissed.

.

M.M. Watkins and Ors. vs. N. Fox and Ors. (20.05.1895 -CALHC)