town agent (r). And it has been decided that the section does not include the case of an attorney transacting business in a court in which he is not admitted, by an agent who is (s). And see Humphreys v. Harvey, ante, p. 181. By section 36-If any person commence or carry on any proceedings in the county court, "who is not or shall not then be legally admitted an attorney or solicitor according to this act," he is rendered incapable of maintaining any suit at law or equity for any fees, &c., on account of such proceedings "or otherwise in relation thereto;" and is also liable to be punished for contempt of court. The above section refers to the old county courts. The new County Courts Act, 9 & 10 Vict. c. 95, has not in terms repealed this section; on the contrary, the 4th section expressly enacts, "that for all purposes, except those which shall be within the jurisdiction of the courts holden under this act, the (old) county court shall be holden as if this act had not been passed." It is, however, practically obsolete. The 91st section of the 9 & 10 Vict. c. 95, enacts, that "No person not being an attorney admitted to one of her Majesty's superior courts of record shall be entitled to have or recover any sum of money for appearing or acting on behalf of any other person in the said court, and no attorney shall be entitled to have or recover therefore any sum of money unless the debt or damage claimed shall be more than 40s., or to have or recover more than 10s. for his fees and costs, unless the debt or damage claimed shall be more than 5l., or more than 15s. in any case within the summary jurisdiction given by this act, &c."-The word "therefore," in the above section, applies only to the preceding words "for appearing or acting on behalf of any other person in the said court;" the section, therefore, does not prevent an attorney from recovering from his client remuneration beyond the amounts therein mentioned, for services rendered by him out of court in respect of the subject-matter of the plaint, and before its commencement (t). See Clutterbuck v. Hulls, 15 L. J. (Q.B.) 310. By s. 37 of the 6 & 7 Vict. c. 73-" No attorney or solicitor, nor any executor, administrator or assignee of any attorney or solicitor (u), shall commence or maintain any action or suit for the recovery of any fees, charges or disbursements for any business done by such attorney or solicitor, until the expiration of one month after such attorney or solicitor, or executor, administrator or assignee of such attorney or solicitor, shall have delivered unto the party to be charged therewith, or sent by the post to or left for him at his counting-house, office of business, dwelling-house, or last known place of abode, a bill of such fees, charges and dis (r) Jones v. Jones, 5 Dowl. 474. (s) Hulls v. Lea, 10 Q. B. 940. (t) Keighley v. Goodman, 1 L., M. & P. 204. (u) Previous to this act it was not ne cessary for an executor (Williams v. Griffith, 10 M. & W. 125), or an assignee of an attorney (Lester v. Lazarus, 2 C., M. & R. 665), to deliver a bill before ac tion. bursements, and which bill shall either be subscribed with the proper hand of such attorney or solicitor (or, in the case of a partnership, by any of the partners, either with his own name, or with the name or style of such partnership (x)), or of the executor, administrator, or assignee of such attorney or solicitor, or be enclosed in or accompanied by a letter subscribed in like manner referring to such bill, &c. "This act, so far as it relates to the delivery and taxation of an attorney's bill, ought to be construed liberally for the client, and strictly for the attorney, for the latter knows the law and the former does not" (y). The act is retrospective in its operation, and applies to bills outstanding on the passing of the act, 22nd August, 1843, of which, therefore, a bill must be delivered in accordance with the above section (2). It extends only to actions for fees, &c.; an attorney, therefore, may bring an action on a promissory note given on account of his fees, &c. without delivering any signed bill, even although such note includes future disbursements (a). But if at the trial he fails on the count for work and labour, because no signed bill has been delivered, he cannot resort to the count on an account stated to recover, although he prove that his charges were assented to by the client, the plea of "no signed bill" being pleaded to both counts (b). No delivery is necessary to enable an attorney to set-off his bill (c); but he should in such a case deliver his bill in time to get it taxed before trial (d). Where the defendant under a plea of setoff to an action on an attorney's bill put in an account rendered to him by the plaintiff, by which the plaintiff credited him with certain sums on the one hand, and on the other side of the account debited the defendant with his bill of costs, for which no signed bill had been delivered, leaving, however, on the whole account a balance due to the plaintiff, it was held that the plaintiff might avail himself of the bill of costs contained in the account, to defeat the defendant's plea of set-off, "for the neglect to deliver such a bill merely prevents an attorney from recovering the amount by action, but does not bar the debt" (e). The "month" is by the interpretation clause, s. 48, a calendar month (f), and in the computation of the time the days on which the bill was delivered, and on which the writ was issued, are to be excluded (g). Money paid by an attorney for costs which his client is adjudged to pay is a "disbursement" (h); but not money paid "by the client to the attorney to make some specific payment over the amount of which the attorney was to have no discretion, and merely acted as a conduct pipe. If the client's money come generally to the hands of the attorney without any specific direction as to the mode of applying it, and he uses it for the client's purposes, although the proportions in which he shall use it is not determined by his discretion, such use must constitute a disbursement within the meaning of the act of parliament" (i). So a charge for attending at a lock-up house, and obtaining defendant's release and filling up the bail bond, is a disbursement (j). But money lent is not (k); nor money paid by an attorney in consequence of his undertaking to pay the debt and costs in an action in which he is not concerned (). The above section says, "for any business done by such attorney. or solicitor."-" This does not mean for every description of business which a person, being an attorney or solicitor, does for another, but for such professional business as he is employed to do as an attorney or solicitor, that is, by reason of his character as an attorney or solicitor" (m). Acc. per Lord Langdale, M. R., in Allen v. Aldridge, 5 Beav. 405, where it was held that the fees, &c., of the steward of a manor, a solicitor, were not taxable. Hence, in Smith v. Dimes, it was held that the bill of one solicitor against another for agency business was taxable (n); such a bill, therefore, must now, it seems, be delivered in accordance with the above section; though this was not necessary previously (0). The bill must be delivered to the party chargeable, i. e. to him personally or to his agent (p). A delivery at the dwelling-house of the defendant, to his servant, is evidence for the jury of a delivery to the defendant (q). So where the plaintiff delivered his bill to the solicitor of a railway company provisionally registered, and proved that the bill was subsequently in the hands of the defendant, a member of the provisional committee, who looked it over and said he had seen that bill before, that the charges were high, but that it was not intended to dispute them, and subsequently added that inquiry should be made of the solicitor as to the state of the funds, and an answer sent; it was held, that there was evidence to go to the jury of a delivery to the defendant himself (r). In an action against the executors of a client, a delivery (h) Crowder v. Shee, 1 Campb. 436; but see Sparrow v. Johns, 6 Dowl. 554. (i) Per Coleridge, J., Harrison v. Ward, 4 Dowl. 39. (j) Fearne v. Wilson, 6 B. & C. 86. (n) But see Re Simons, 3 D. & L. 156. (o) Hill v. Sydney, 7 A. & E. 956. (p) Per Bayley, J., Vincent v. Slaymaker, 12 East, 372. (q) M Gregor v. Keily, 18 L. J., Exch. 391. (r) Phipps v. Daubney (in error), 16 Q. B. 514. to the client in his lifetime would seem to be sufficient (s). But a delivery to an agent is sufficient. Hence, where a party in a cause having changed his attorney in the progress of it, a judge's order was afterwards obtained by the second attorney for the delivery to him of a bill signed by the first attorney, which delivery was accordingly made: this was held to be a sufficient delivery to enable the first attorney to bring an action against the client for the amount of such bill (t). To constitute a delivery, the bill must be left with the party charged; for in a case where the plaintiff had delivered his bill to the defendant in due time, who acknowledged his debt, and said that he would pay it, but that he did not know what to do with the bill, upon which the plaintiff took it back again, it was held, that the bill ought to have been left with the defendant: for the intention of the statute was, that the client should have due time to examine the charges made by the attorney, and take advice upon them, if necessary (u). In like manner it has been held, that although an attorney shows his client a copy of his bill, explaining the different charges to him, in the reasonableness of which the client acquiesces, the attorney is notwithstanding bound to leave a copy of the bill with him (x). Where several are jointly liable to an attorney for business done, the delivery of a copy of a bill to one of them, from whom the attorney has received his instructions, is sufficient (y). But where in an action against a provisional committee-man, the bill was delivered to another member of the committee, at his place of business, it was held, that no sufficient delivery had been made to charge the defendant; that the ordinary rule with reference to a de livery to one of two partners or joint contractors could not be held to apply to such a case as this, and that the bill should have been delivered either at the place of business of the company, or to some person who might reasonably be supposed to represent the provisional committee (z). See Tate v. Hitchins, post, 187, 188. It must be delivered to the party " to be charged therewith," and the bill or letter accompanying the bill must not leave this in doubt. Where, therefore, an attorney had transacted some business for the defendant's niece, a Mrs. H., while staying in the defendant's house, and subsequently to her departure therefrom sent in his bill to the defendant, headed-" In the matter of Mr. and Mrs. H., Mr. G.'s" (the attorney's) "costs and charges"-and enclosed in the following letter, addressed to the defendant:-"As I understand Mrs. H. is no longer residing under your care, and presuming, (s) Reynolds v. Caswell, 4 Taunt. 193, per Mansfield, C. J. (t) Vincent v. Slaymaker, 12 East, 372. (y) Finchett v. How, 2 Campb. 277. (z) Edwards v. Lawless, 5 'Rail. Ca. 357; and see Egginton v. Cumberledge, 1 Exch. 271. therefore, that you may not be remaining longer in town, I beg to hand you my account, in the hope that it will be found satisfactory," &c.; it was held, that this was not a delivery to the party "to be charged," for that it was uncertain who really was meant to be charged, and whether the delivery was meant to charge the defendant, or whether it was merely delivered to him as the friend of the real client, Mrs. H. (a). Where, however, in an action against a provisional committee-man, a bill was sent in headed Northampton, Lincoln and Hull Railway, to R. H. D. (the attorney) debtor;" it was held, that such a heading was sufficient to charge all the persons who were responsible on the part of the railway company, including, therefore, the defendant (b). It is sufficient if the party to be charged can be collected from the bill and letter accompanying taken together (c). "Or sent by post. "-Where the letter in which the bill was enclosed, was placed by the plaintiff's clerk in a box in the office, and the clerk proved that the postman invariably called every day and took the letters out of that box, it was held, that there was evidence for the jury of a sending by post within the above words (d). "Or left, &c. at his counting-house, office of business, dwellinghouse, or last known place of abode."-The provisional committee of a railway company, amongst whom was the defendant, took offices in Moorgate Street, London, and put up a brass plate with the name of the company engraved on it. In January, 1846, the scheme was abandoned, and the defendant never afterwards attended at the office in Moorgate Street, or interfered in the affairs of the company. A sub-committee was however appointed, for the purpose of ascertaining and settling the claims on the committee-men, and the brass plate continued on the door in M. Street. In September, 1846, the plaintiff delivered his bill at the office in M. Street, to a person there who seemed to be a clerk, addressed to "The Provisional Committee of the Company." The Court of Common Pleas were equally divided as to whether there was a sufficient delivery at the defendant's "office of business," within the meaning of the act (e). The defendant may show, that at the time of the delivery of the bill, the place at which it was delivered was not his last known place of abode (f). The plea that no signed bill was delivered, must be pleaded specially, and cannot be given in evidence under the general issue (g). The "month" mentioned is, by the interpretation clause, s. 48, a calendar month, and should be so pleaded (h). The plea should negative any sending by post (i). În a separate plea by one of two partners or joint contractors, it is not necessary to allege (a) Gridley v. Austin, 16 Q. B. 504. (b) Phipps v. Daubney (in error), 16 Q. B. 514. (c) Taylor v. Hodgson, 3 D. & L. 115. (d) Skilbeck v. Garbett, 7 Q. B. 846. (e) Blandy v. De Burgh, 6 C. B. 623. |