that no signed bill was delivered to either of them; it is sufficient to state in the words of the statute, that no signed bill had been delivered to the defendant, or left, &c. at his counting-house, and on that issue, if the delivery to one defendant enured as a delivery in law to the other, the verdict would be for the plaintiff, otherwise for the defendant (k). By the same section (the 37th), the court or a judge are," upon the application of the party chargeable with such bill within such month," required to refer it to the proper officer for taxation, "and the court or judge making such reference shall restrain such attorney or solicitor, or executor, administrator or assignee of such attorney or solicitor, from commencing any action or suit touching such demand pending such reference" (l). If no application be made by the party chargeable within such month, then it shall be lawful to make such reference on the application of the attorney himself, his executor, administrator or assignee, or of the party chargeable "with such directions, and subject to such conditions as the court or judge making such reference shall think proper; and such court or judge may restrain such attorney or solicitor, or the executor, administrator or assignee of such attorney or solicitor, from commencing or prosecuting any action or suit touching such demand pending such reference, upon such terms as shall be thought proper: provided always, that no such reference as aforesaid shall be directed upon an application made by the party chargeable with such bill after a verdict shall have been obtained, or a writ of inquiry executed in any action for the recovery of the demand of such attorney or solicitor, or executor, administrator or assignee of such attorney or solicitor, or after the expiration of twelve months after such bill shall have been delivered, sent or left as aforesaid, except under special circumstances (m), to be proved to the satisfaction of the court or judge to whom the application for such reference shall be made, &c." (n). that a Provided also," that it shall not in any case be necessary in the first instance for such attorney or solicitor, or the executor, administrator or assignee of such attorney or solicitor, in proving a compliance with this act, to prove the contents of the bill he may have delivered, sent or left, but it shall be sufficient to prove bill of fees, charges or disbursements, subscribed in the manner aforesaid, or enclosed in or accompanied by such letter as aforesaid, was delivered, sent or left, in manner aforesaid; but nevertheless it shall be competent for the other party to show that the (k) Tate v. Hitchins, 7 C. B. 875. (1) Where, more than a sixth having been taken off on taxation, the defendant presented a petition to the Vice-Chancellor to allow the costs of taxation, and pending this proceeding the attorney brought an action for the residue of the bill, it was held that the action was well brought, and that the above provision did not apply. Hewitt v. Bellott, 2 B. & Ald. 745. (m) See Binns v. Hey, 13 L. J., Q. B. 28; 1 D. & L. 661, S. C. (n) See per Lord Langdale, M. R., Re Downes, 5 Beav. 428. bill so delivered, sent or left, was not such a bill as constituted a bona fide compliance with this act. Provided also, that it shall be lawful for any judge of the superior courts of law or equity to authorize an attorney or solicitor to commence an action or suit for the recovery of his fees, charges or disbursements against the party chargeable therewith, although one month shall not have expired from the delivery of a bill as aforesaid, on proof to the satisfaction of the said judge that there is probable cause for believing that such party is about to quit England." An attorney's bill, generally speaking, ought to give a history of the suit, so as to enable the officer to judge of the propriety of the various items of which it is composed (o); and although the statute does not in terms require the name of the court and cause (if the business be done in court) to be stated, the courts have held that to give due effect to the above section, such information is necessary (p). It will, however, be sufficient, if it can be collected by reasonable intendment, and it is not necessary to specify the particular common law court in which the business was done, the scale of taxation being now uniform in all (q). A bill containing amongst other items (for which the jury found the defendant liable) certain extra costs, without mentioning the taxed costs, is bad, even although the jury find that the plaintiff has no claim for extra costs (r). The attorney may, it seems, recover that part of his bill to which the statute does not apply, i. e. for work done dehors his character as an attorney (s); and if the bill consists of several items, all within the statute, with regard to some of which the provisions of the statute have been complied with, and with regard to others, not, the items as to which the statute has been complied with may, it seems, be recovered (t). The bill may contain usual and intelligible abbreviations (u), and mistakes in dates, &c., not calculated to mislead, will not vitiate it (x). The bill having been delivered a month before the commencement of the action, and the party charged not having made any application to have it taxed during that interval, he will not be permitted to question the reasonableness of the items before a jury (y); although particular heads or items of charge may be disallowed in toto, as not being authorized (2). Delivery of the bill is conclusive evidence against an increase of charge in a subsequent (0) Waller v. Lacy, 1 M. & G. 54. (p) Martindale v. Falkner, 2 C. B. 706. (q) Cook v. Gillard, 1 E. & B. 26; Cozens v. Graham, 16 Jur. C. P. 952; but see Ivimey v. Marks, 15 M. & W. 548. (r) Pigott v. Cadman, 1 H. & N. 837; but see Haigh v. Ousey. (s) Hill v. Humphreys, 2 B. & P. 343; Smith v. Dimes, ante, 185. (t) Haigh v. Ousey, 7 E. & B. 578; quare, whether in such a case an attorney can split his demand, and deliver several bills; Pigott v. Cadman. (u) Reynolds v. Caswell, 4 Taunt, 193, bill of any of the items contained in it, and strong presumptive evidence against any additional items (a). By s. 43-"The certificate of the officer by whom such bill shall be taxed shall (unless set aside or altered by order, decree, or rule of court) be final and conclusive as to the amount thereof, and payment of the amount certified to be due and directed to be paid, may be enforced according to the course of the court in which such reference shall be made; and in case such reference shall be made in any court of common law, it shall be lawful for such court, or any judge thereof, to order judgment to be entered up for such amount, with costs, unless the retainer shall be disputed, or to make such other order thereon as such court or judge shall deem proper.' If the client has paid the attorney more than is afterwards allowed on taxation, he cannot recover the surplus by action against the attorney, or set it off (b). His remedy is, it seems, by an application to the court (c). A judge's order under this section has the same effect as a rule of court for the payment of money under 1 & 2 Vict. c. 110, s. 18; if, therefore, an action be brought on this order, the costs of the writ, &c. will not be allowed (d). An attorney, who has several demands against his client, some of which are barred by the Statute of Limitations, cannot appropriate, in payment of the demand so barred, a sum received by him on account of his client for damages recovered in an action (e).. (See ante, p. 148.) Where, after action brought, the bill is referred to taxation at the request of the defendant, the attorney should make it a condition of the taxation, that the defendant should allow the master to tax interest also, if the attorney wishes to avail himself of a previous notice of a claim of interest, under 3 & 4 Will, IV. c. 42, s. 28 (ƒ). By the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), s. 7" Every attorney whose name shall be indorsed on any writ issued by authority of this act, shall, on demand in writing, made by or on behalf of any defendant, declare forthwith, whether such writ has been issued by him, or with his authority or privity; and if he shall answer in the affirmative, then he shall also, in case the court or a judge shall so order and direct, declare in writing, within a time to be allowed by such court or judge, the profession, occupation or quality, and place of abode of the plaintiff (g), on pain of being guilty of a contempt of the court from which such writ shall appear to have been issued (h), and if such attorney shall declare that the writ was not issued by him, or with his authority or privity, all proceedings upon the same shall be stayed, and no further proceedings shall be taken thereupon, without leave of the court or a judge" (i). It is clearly established that negligence cannot be set up as a defence to an action on an attorney's bill: for the plaintiff does not come prepared to prove anything more than the business done, and is not in a situation to meet a charge of negligence (k). “I do not go to the length of saying that in no case can negligence in the party suing be used as a defence to the action, though I think it can only be used where the negligence has been such, that the party for whom the business was done has thereby lost all possibility of benefit from such business;" per Sir J. Mansfield, C. J., S. Č. "No principle of law is more clearly established than this, that a party cannot enforce a charge for doing business which is useless to his employer;" per Tindal, C. J., Shaw v. Arden, 9 Bing. 290 (1). If, therefore, the business, which the attorney under (h) A false statement would be equally a contempt. Smith v. Bond, 11 M. & W. 326. (i) This is substantially a re-enactment of 2 Will. IV. c. 39, s. 17. (k) Templar v. M'Lachlan, 2 N. R. 136. (1) In this respect the rule with regard to actions by attornies and ordinary actions for work and labour, &c., is the same. There is, however, this difference, that an attorney's claim is not liable to be reduced pro tanto in consequence of negligence on his part, by which the work done is rendered partly useless; Shaw v. Arden, per Parke, B.; Mondell v. Steel, 8 M. & W. 871. (See Cox v. Leach, post.) The rule with regard to other actions was thus laid down by Lord Ellenborough, C. J., in Farnsworth v. Garrard, 1 Campb. 38, which was an action on a builder's bill. "The late Mr. Justice Buller thought (and I, in deference to so great an authority, have at times ruled the same way), that in cases of this kind, a cross action for the negligence was necessary; but that, if the work be done, the plaintiff must recover for it. I have since had a conference with the judges on the subject; and I now consider this as the correct rule (see Denew v. Daverell, 3 Campb. 451; Duncan v. Blundell, 3 Sta. 6), that if there has been no beneficial service, there shall be no pay; but if some benefit has been derived, though not to the extent expected, this shall go to the amount of the plaintiff's demand, leaving the defendant to his action for negligence. The claim shall be co-ex tensive with the benefit." See further on this subject Fisher v. Samuda, 1 Campb. 190, where Lord Ellenborough expressed an opinion, that where an action has been brought for the value of goods furnished at a stipulated price, and the purchaser does not, either in bar of the action, or to reduce the damages, object to the quality of the goods, but allows the seller to recover a verdict for the full price agreed upon, he cannot afterwards maintain a cross action, on the ground of the goods being of a bad quality, and unfit for the purpose for which they were ordered; and this opinion was fully confirmed by the Court of Exchequer in Mondell v. Steele, with this distinction, that the purchaser may still sue for any consequential damages caused by the breach of contract, which he could not have given in evidence in reduction of damages in the former action for the price. There is a distinction, however, in this respect, between a contract and a security; for in an action on a bill of exchange, a partial failure of consideration is no defence; as where a bill had been accepted for the price of some hams, which turned out so bad that they were almost unmarketable; this was held to be no defence, but the defendant must seek his remedy by a cross action; Morgan v. Richardson, 1 Campb. 40, n.; Tye v. Gwynne, 2 Campb. 346; Wells v. Hopkins, 5 M. & W. 8, 9. See also Obbard v. Betham, 1 M. & M. 483; Mann v. Lent, 10 B. & C. 877. In Morgan v. Richardson, money had been paid into court, but Lord Ellenborough takes, wholly fails from his gross ignorance or negligence; as where an attorney was employed to prosecute an appeal at the quarter sessions, and, owing to his gross ignorance, the case was so conducted that the sessions refused to hear the appeal; it was held, that the attorney could not recover (m). So where an attorney commenced an action in the Lord Mayor's Court, whence he knew that a commission to examine witnesses abroad could not issue without great expense, and from the nature of the actionagainst underwriters for particular average loss on a policy of goods which had been shipped to and sold at Calcutta-that he could not go to trial without one; and the actions were in consequence discontinued. Cox v. Leech, 1 C. B., N. S. 617. But an attorney may recover, although there has been error in the execution of his duty; if the error be such as a cautious man might fall into (n). Entire items for useless work may be discarded by a jury (0); but in the case of an entire item for work partly useful, the jury are precluded from reducing that item, in an action to recover the amount of the bill, and the client must resort to a cross action (p). The work becomes useless through the plaintiff's fault, it, in consequence of his misconduct at some particular point, the whole is made ineffectual (q). But in Cox v. Leech, it was held that the plaintiff might recover for letters written by him to the underwriters before commencing the proceedings in the Lord Mayor's Court, although by his subsequent negligence the whole proceedings were rendered nugatory. Such failure of the work is admissible in evidence under the general issue (r). An attorney is not liable to be assessed to the poor-rates in respect of the profits of his profession (s). An attorney who has attended on a subpoena, as a witness in a civil suit, cannot maintain an action against the party who subpoenaed him, for compensation for loss of time; for it is a duty imposed on all persons to attend on a subpoena, and a promise to pay money for the performance of a duty is a promise without consideration (t). An attorney is not, in the absence of an express contract, and of circumstances from which a special contract may be inferred, personally liable to a witness, whom he subpoenas, for his expenses of attendance (u). But he is to a bailiff whom he employs to issue execution for his said, that that circumstance formed no ingredient in the opinion he then expressed. A. & B. entered into an agreement for the sale of the lease of a house; B. was let into possession, and accepted a bill for the purchase-money; in an action brought by A. against B. for nonpayment of the bill, it was held, that B. could not defend the action by proving that A. had refused to execute an assignment of the lease, he having actually occupied the premises for some time, but that B. must bring a cross action, or go |