seller notice that he would not accept it, if it were delivered (x), the wheat being then on its transit to B.; it was held in an action against A. for not accepting the wheat, that the proper measure of damages was the difference between the contract price and the market price on the day when the wheat was tendered to A. for acceptance at B., and refused; and not on the day when the notice was received by the seller (y).

But where the defendant holds in his hands the money or goods of the plaintiff, thereby preventing him from using it, the rule is different. Therefore in an action for not replacing stock, or not redelivering shares lent (2), the highest value as it stood either when it ought to have been replaced or returned, or at the time of trial, at the option of the plaintiff, is to be taken (a), but not any higher price to which the stock may have risen at any intermediate time (b).

In an action for not accepting railway shares, it was held, that the proper measure of damages is the difference between the contract price, and the price to be obtained within a reasonable time after breach (c). Where by the terms of a contract goods were to be delivered at stated periods, but they were not all delivered at the respective times, the purchasers not countermanding them, but requesting from time to time that the supply might be delayed, and ultimately the purchasers refused to accept any more; it was held, that the jury were justified in taking into their calculation in assessing the damages the whole quantity which remained to be delivered, though consisting in part of quantities which, without being actually countermanded, had, by the desire of the purchasers, been kept back at the times appointed for delivery (d).

Where an agreement contains several stipulations, some of them of great importance and value to the parties and others of little or no importance, a sum agreed to be paid generally (e), by way of damages for the breach of any of them, shall be construed as a penalty, and not as liquidated damages, even though the parties have in express terms stated the contrary (f). But if the breaches against which the agreement is directed be all of uncertain amount,

(a) That such an act is a breach, see Hockster v. De la Tour, 2 E. & B. 678; i. e., if the vendor elects to treat it as such. Leigh v. Paterson, 8 Taunt. 540.

(y) Phillpotts v. Evans, 5 M. & W. 475. (2) Owen v. Routh, 14 C. B. 491. See Tempest v. Kilner, 3 ibid. 253.

(a) Shepherd v. Johnson, 2 East, 211.

(b) MArthur v. Lord Seaforth, 2 Taunt. 257; but see Sedgwick on Damages (3rd ed.) 276, et seq.

(c) Stewart v. Cauty, 8 M. & W. 160. (d) Cort v. Ambergate Railway Company, 17 Q. B. 127.

(e) Secus (semble), if the agreed sum is

expressly directed to be paid upon each and every breach. Goldsworthy v. Strutt, 1 Exch. 659. This substantially involves the question whether for a single breach, the damage sustained by which is capable of being measured by a precise sum, a larger sum can be agreed upon as liquidated damages. There seems nothing in reason against it, but the question cannot be considered as settled. See Atkins v. Kinnier, Reynolds v. Bridge.

(f) Kemble v. Farren, 6 Bingh. 141; Jones v. Green, 3 Y. & J. 304; Atkins v. Kinnier, 4 Exch. 776.

or the stipulated sum be confined to such breaches, the sum agreed to be paid will be considered as liquidated damages, and not as a penalty (g); for "there is nothing illegal and unreasonable in parties by their mutual agreement settling the amount of damages uncertain in their nature at any sum upon which they may agree" (h).

Where the contract was for about 300 quarters (more or less) of foreign rye, shipped on board a particular vessel coming from Hamburgh; the vessel brought 345 quarters, and the sellers refused to deliver any part, unless the purchasers would accept the whole: it was held, that they were not bound to accept the whole: Lord Tenterden, C. J., and Littledale, J., being of opinion, that by the words "about," and "more or less," the parties could not have contemplated so large an excess as 45 over 300 quarters; and Parke and Patteson, JJ., that it lay on the sellers to show that such an excess was contemplated; and if from the obscurity of the contract they were unable to do so, their defence failed. Littledale, J., said, "When land is described in conveyances, it is often mentioned as containing so many acres and roods, be the same more or less,' but it is always understood that the excess bears a very small proportion to the quantity named, a much smaller proportion than that of 45 to 300 quarters" (i). In Bourne v. Seymour, 24 L. J. (C. P.), 202, it was held that the words "about 500 tons" meant 500 tons at least, and that the contract was not fulfilled by the delivery of a smaller amount.

Judgment.-Although it is a rule that the court will look to the whole record, and give judgment according to the truth there disclosed, however irregular the mode of pleading may be (k); yet the court cannot pick out of various parts of the record a different cause of action from that for which the plaintiff proceeds (1).

(g) Reynolds v. Bridge, 6 E. & B. 528. (h) Per Tindal, C. J., Kemble v. Farren. (i) Cross v. Eglin, 2 B. & Ad. 106. In this case evidence was received that the words "more or less," in a contract for grain, according to the custom of merchants, do not require a purchaser to accept so large an excess. Littledale, J., doubted, saying that evidence was often received to explain mercantile terms, but that these were words of general import. But it is clear such evidence is receivable. Evidence is receivable to show that 1,000 rabbits meant 1,200 rabbits; Smith v. Wilson, 3 B. & Ad. 728; that a bale of cotton meant a compressed bale, not a bag; Taylor v. Briggs, 2 C. & P. 525, that "a month," which at common law means lunar month (but see 13 Vict. c. 21, s. 4), meant calendar month; Simpson

v. Margitson, 11 Q. B. 23; that a sale of pockets of hops at 100/. meant a sale at 51. per cwt., though it was proved that a pocket of hops contained more; Spicer v. Cooper, 1 Q. B. 424; that "Lady-day" meant "old Lady-day" Doe v. Benson, 4 B. & Ald. 588; that mess-pork of Scott & Co. meant mess-pork manufactured by Scott & Co.; Powell v. Horton, 2 B. N. C. 668; and to explain the terms " level," 'deeper than,' below;" Clayton v. Gregson, 5 A. & E. 302; and the distinction between "good" and "fine" barley; Hutchinson v. Bowker, 5 M. & W. 535; that a "bale" of gambier meant a package of a particular description; Gorrissen v. Perrin, 2 C. B. N. S. 681.

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(k) Le Bret v. Papillon, 4 East, 502; Charnley v. Winstanley, 5 East, 266. (1) Head v. Baldrey, 6 A. & E. 469.

ATTORNIES and solicitors (a) may maintain an action of simple contract, for the recovery of their fees (b), against their client, or the solicitor or agent employing them (c). To such an action the defendant may plead the Statute of Limitations (d).

The 6 & 7 Vict. c. 73, s. 2, enacts, that "No person shall act as an attorney or solicitor, or as such attorney or solicitor sue out any writ or process, or commence, carry on, solicit or defend any action, suit or other proceeding, in the name of any other person, or in his own name, in Her Majesty's High Court of Chancery, or Courts of Queen's Bench, Common Pleas, or Exchequer"-or Court of the Duchy of Lancaster and Durham-" or in the Court of Bankruptcy, or in the Court for the Relief of Insolvent Debtors, or in any county court, or in any court of civil or criminal jurisdiction, or in any other court of law or equity, in that part of the United Kingdom of Great Britain and Ireland called England and Wales, or act as an attorney or solicitor in any cause, matter or suit, civil or criminal, to be heard, tried or determined before any justice of assize, of oyer and terminer, or gaol delivery, or at any general or quarter sessions of the peace for any county, riding, division, liberty, city, borough or place, or before any justice or justices, or before any commissioners of Her Majesty's revenue, unless such person shall have been previously to the passing of this act" (22nd Aug., 1843) "admitted and enrolled and otherwise duly qualified to act as an

(a) See R. G. E. T. 1846, and regulations approved by the judges with regard to the examination of attornies; 2 C. B. 789; 3 D. & L. 833; and 6 & 7 Vict. c. 73, ss. 17 and 18; as to the examination of solicitors of Court of Chancery, and the orders made by the Master of the Rolls in pursuance thereof, 5 Beav. 13. As to the admission of colonial attornies to practise

in England, see 20 & 21 Vict. c. 39, Solicitors' Amendment Act (Ireland); 12 & 13 Vict. c. 53; and see 14 & 15 Vict. c. 88.

(b) Bradford v. Woodhouse, Cro. Jac.

520.

(c) Sands v. Trevilian, Cro. Car. 194. (d) Oliver v. Thomas, Ld. Raym, 2.

attorney or solicitor under or by virtue of the laws now in force, or unless such person shall after the passing of this act be admitted and enrolled and otherwise duly qualified to act as an attorney or solicitor, pursuant to the directions and regulations of this act, and unless such person shall continue to be so duly qualified and on the roll at the time of his acting in the capacity of an attorney or solicitor as aforesaid "

The above section includes two distinct disabilities; 1, want of admission and enrolment, which (semble) are one and the same thing; and, 2, want of due qualification; e. g., if the attorney be in prison (e) (see section 31, infra). An attorney could not before this act, unless duly enrolled in the court in which the action was brought, maintain an action against his client for his fees or against the opposite party for costs, although in other respects he were duly qualified (ƒ); but the admission of one partner was held to be sufficient in an action for fees brought by the partnership (g). An unqualified person acting as an attorney may be indicted under this section, in addition to his incapacity to recover his fees under section 35, and to his liability for a contempt of court under section 36 (h). If the attorney be duly admitted, &c., and qualified at the time the work was done, a subsequent disqualification will not, it seems, affect his right to recover (i). If a person act in a suit as attorney, who is not really so, the court will either stay the proceedings till a proper attorney be appointed (k), or set them aside (l).

By section 26, it is enacted, that-"No person who as an attorney or solicitor shall sue, prosecute, defend, or carry on, any action or suit or any proceedings in any of the courts aforesaid, without having previously obtained a stamped certificate which shall be then in force, shall be capable of maintaining any action or suit at law or in equity for the recovery of any fee, reward, or disbursement, for or in respect of any business, matter, or thing, done by him as an attorney or solicitor as aforesaid, whilst he shall have been without such certificate as last aforesaid."

The above section only disables an uncertificated attorney from suing for business done by him in some suit or proceeding in court, and not for business which has no reference to any suit (m).

By section 31-" No attorney or solicitor who shall be a prisoner in any gaol or prison, or within the limits, rules, or liberties of any gaol or prison, shall or may during his confinement in any gaol or prison, or within the limits, rules or liberties of any gaol or prison, as an attorney or solicitor, in his own name or in the name of any other attorney or solicitor, sue out any writ or process, or com

62.

(e) Williams v. Jones, 2 Q. B. 276.
(f) Humphreys v. Harvey, 1 B. N. C.

(g) Arden v. Tucker, 4 B. & Ad. 815.
(h) R. v. Buchanan, 8 Q. B. 883.

(i) Williams v. Jones, supra.
(k) Bayley v. Thompson, 2 Dowl. 655.
(1) Hawkins v. Edwards, 4 Moo. 603.
(m) Richards v. Suffield, 2 Exch. 616.

mence or prosecute or defend any action or suit in any courts of law or equity or matter in bankruptcy, and such attorney or solicitor so commencing, prosecuting or defending any action or suit as aforesaid, and any attorney or solicitor permitting or empowering any such attorney or solicitor as aforesaid to commence, prosecute or defend any action or suit in his name, shall be deemed to be guilty of a contempt of the court in which any such action or suit shall have been commenced or prosecuted, and punishable by the said courts accordingly, upon the application of any person complaining thereof; and such attorney or solicitor so commencing, prosecuting or defending any action or suit as aforesaid, shall be incapable of maintaining any action or suit at law or in equity for the recovery of any fee, reward or disbursement for or in respect of any business, matter or thing done by him whilst such prisoner as aforesaid in his own name or in the name of any other attorney or solicitor."

The above section does not, it seems, apply to an attorney in prison suing as plaintiff (n); nor to cases where the attorney is imprisoned subsequently to the commencement of the suit, and only continued the suit while in prison (o). In Noel v. Hart, 8 C. & P. 230, it was held, that an attorney who had been imprisoned subsequently to the commencement of the suit, and while in prison continued the proceedings and brought them to a successful issue, was entitled to recover, his client having been in constant communication with him. But where the imprisonment prevents this, it seems the attorney cannot recover at common law, and independently of the above section, for the client is entitled to the benefit of the attorney's judgment and assistance (p).

By section 35-"In case any person shall in his own name, or in the name of any other person, sue out any writ or process, or commence, prosecute or defend any action or suit, or any proceedings in any court of law or equity, without being admitted and enrolled as aforesaid, or being himself the plaintiff or defendant in such proceedings respectively, every such person shall be and is hereby made incapable to maintain or prosecute any action or suit in any court of law or equity, for any fee, reward or disbursements on account of prosecuting, carrying on or defending any such action, suit or proceeding, or otherwise in relation thereto, and such offence shall be deemed a contempt of the court in which such action, suit, or proceeding shall have been prosecuted, carried on, or defended, and shall and may be punished accordingly."

The above section would not, it seems, apply to an attorney practising without a certificate (ante, p. 181) if duly admitted and enrolled (q); nor to a country attorney conducting a suit through his

(n) Kaye v. Denew, 7 T. R. 671.

(o) Longmore v. Rogers, Willes, 288, n.

(p) Hopkinson v. Smith, 1 Bingh. 13. (q) Hodgkinson v. Mayer,6 A. & E. 194.