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Colonial Cases

Miller v. Belbin, 1875

[barrister, action for fees]

Miller v. Belbin

Civil Summary Court, Shanghai
Mowat, 23 March 1875
Source: The North China Herald, 25 March 1875



Shanghai, March 23rd.

Before R. A. MOWAT, Esq.

Action to Recover Professional Fees


   Plaintiff sued to recover Tls. 50, as fees for professional services.

   Defendant said he did not owe the plaintiff a cash.

   Plaintiff, who had stepped into the witness box, asked that witnesses on both sides should be sent out of Court.

   His HONOUR - Presently.  I see from the summons that the claim is in respect of "professional services" - is that as a lawyer?

   Plaintiff - yes.

   His HONOUR - How do you get over the difficulty of a barrister not being able to bring an action for his fees?

   Plaintiff - I am an attorney; Sir Edmund Hornby described me as such, in an order applied for the day before yesterday by Mr.  Wainwright; and I am practising as an attorney.

   His HONOUR - And you wish me to take it that you are an attorney?

   Plaintiff - Yes, of course; and if you will swear me, I will swear that I am.

   Plaintiff was sworn accordingly.

   His HONOUR - Are you a barrister-at-law?

   Plaintiff - yes, in England.

   His HONOUR - Well, you cannot be a barrister-at-law and attorney as well, can you?

   Plaintiff - Are you Counsel for the defendant, or are you not?  Why not let me make my statement?

   His HONOUR - It will save time if I tell you my impression is -----------------

   Plaintiff - I do not want to know anything about your impression.  We want the law of the case.

   His HONOUR - My impression is that as a barrister is, in England, unable to being an action to recover his fees, so you are equally unable.

   Plaintiff - It is filed in the Court that I am an attorney - and practising as an attorney.  And being so, I can sue.

   His HONOUR - Are you alluding to the matter that you have already mentioned as occurring the other day?

Plaintiff - I am alluding to the order which Sir Edmund Hornby made upon me, on the application of Mr. Wainwright.  The order, I say, describes me as an attorney, so I must be one.

   His HONOUR - That was subsequent to the time when you rendered the services for which you sue; it cannot bind the present defendant.  Were you ever admitted as attorney?

   Plaintiff - No, I was not.  I have, however, practised in these Courts as an attorney.  The thing would be different in Hongkong, where barristers are barristers and attorneys are attorneys, - but here they are barristers and attorneys too.  It was originally so in Hongkong, but subsequently altered, and now a barrister there cannot do an attorney's work, nor an attorney a barrister's.  Before they could do both, same as here now.

   His HONOUR - That has nothing to do with the case here.  I do not know what they can or cannot do in Hongkong.  I must ---------

   Plaintiff - it does matter, Sir; whether you know it or not.  If you will not hear me, of coifs there is an end of the case; but I would ask, how is it that an attorney can plead here in an equity court, before the judge, when he sits in equity?  The practice here makes a man a barrister and an attorney at the same time.

   His HONOUR - The difficulty is not as to the practising - it is, whether being a barrister, though acting as a general practitioner, you can sue for your fees.

   Plaintiff - That is the difficulty, and I know it.  And if this is passed, they next thing they will do will be to cheat the attorneys.  If the attorneys ------

   His HONOUR - If that point arises, then will be the time to deal with it.

   Plaintiff - But if an attorney can act as a barrister here, why not a barrister as an attorney?  I think I am admitted here as an attorney in the rules of the court.  Sir Edmund Horn by has power to do that, under a certain rule, - I cannot remember which rule it is.

   His HONOUR - But his or your mere description of yourself as an attorney, will not alter the fact of you being a barrister.  The question is, can you, being a barrister, recover your fees?  In England you cannot, as you yourself admit, do so.  There is no doubt that you can practice here as an attorney, but that of itself does not give a right to recover fees.  I must say I think it is a very hard case, and moreover an anomalous state of affairs that a solicitor can act as a barrister, and recover his fees in both capacities, while a barrister is not able to recover.  But I cannot see any way to helping that.

   Plaintiff - I do not agree with your points of law, but I suppose I must abide by them.

   His HONOUR - Unless you can show me some authority or some precedent.

   Plaintiff - I cannot show you any precedent.

   His HONOUR - I will adjourn the summon s if you like, to give you time to look.

   Plaintiff - I do not want that at all; but I would like to have the judge's order produced, in which I am described as an attorney.  I mean the order taken out by Mr. Wainwright.  There I am described, rightly or wrongly, as an attorney, and I say I am an attorney.

   His HONOUR - Oh, no.

   Plaintiff - Then the order was wrong?

   His HONOUR - It does not follow that, because it is there so stated, it is so.  I am sorry that I must decide as I do, for it is very hard, if a man does work, that he should not be paid for it.  You can take the Judge's opinion on the matter if you choose, by way of re-hearing.

   Plaintiff - No, I don't want that.  I should have been saved a great deal of trouble if I had only known this before.

   His HONOUR - This is the first time it has been before me.  I could not entertain the question until it was brought here.  I have taken some trouble looking over the authorities, to see if I could find one applicable to your case, but I could not.  I will only add that if you did work for the defendant, it is most discreditable in him to refuse to pay you.

    Plaintiff - I you decide you cannot hear me, I cannot go on; but your decision will be without costs?

   His HONOUR - Except cost of summons, which you have paid. - I may remind you that, even if you could sue as an attorney, you would fail at present, as the month that must elapse between delivery of the bill and the action has not elapsed - the summons stating the service to have been rendered on the 2nd March.

   Judgment for defendant.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School