fees (x). The solicitor under a commission of bankruptcy is not liable in the first instance to the messenger, whom he nominates, for his bill of fees; but if the solicitor agree with the petitioning creditor to work a commission for a sum certain, and receive a great part of that sum, he will be liable to such messenger (y). An attorney who has commenced an action for his client has a right to refuse to go on without an advance of money on account, provided he gives his client reasonable notice of his intention (z). The contract of an attorney or solicitor retained to conduct or defend a suit is entire and continuing, viz. to carry it on to its termination, and can only be determined by the attorney upon reasonable notice (a); till which time the Statute of Limitations does not begin to run, although more than six years have elapsed since the last step in the cause (b). But this rule does not, it seems, extend to other business upon which an attorney is employed. Therefore, where an attorney was employed by his client in procuring money to pay off a mortgage, and, after several ineffectual attempts to procure the money, some of which were more than six years before suit, and others within six years, it was ultimately obtained; it was held, that such employment was not continuous, and that the attorney could not recover for the items which were transacted beyond the six years (c). An attorney, however, is not compelled to proceed to the end of a suit, in order to be entitled to his costs, but may, for satisfactory cause and upon reasonable notice (which it lies on him to show (d)), abandon the conduct of the suit, and in such case may recover his costs for the period during which he was employed (e). So if the client repudiates his retainer (f). The attorney of a defendant has no such interest in the suit as to prevent the parties from compromising it without his consent (g). The lien of an attorney on a judgment is merely a claim to the equitable interference of the court, to have the judgment held as a security for his costs, but he has no authority over the execution of a writ of ca. sa., so as to carry it into effect against the order of the plaintiff, even though the plaintiff and defendant should collude to deprive him of his lien (h). The retainer of an attorney is determined by the death of the client (i). Liability of Attornies.-An action on the case may be maintained by a client against his attorney for negligence or unskilful (x) Maile v. Mann, 2 Exch. 608. (a) Harris v. Osbourn, 2 C. & M. 629. (e) Vansandau v. Browne, 9 Bingh. 402. (f) Hawkes v. Cottrell, 27 L. J., Exch. 369. (g) Quested v. Callis, 10 M. & W. 18. 441. (i) Whitehead v. Lord, supra. ness in the discharge of his professional duty. As where an attorney neglected to charge a defendant (a prisoner) in execution. within the time allowed by the practice of the court, by reason of which neglect the defendant was discharged; it was held, that the action was maintainable against the attorney for negligence, but that, as it sounded in damages, it was competent to the jury to find what damages they thought fit, and that they were not constrained to find the amount of the whole debt, in a case where it appeared that the debtor was not totally insolvent, and that the creditor might probably in time obtain some part of his debt by execution against his goods (k). A., a complainant in Chancery, employed B. as his solicitor, during whose employment an irregular order to dismiss the bill on a certain day, unless publication passed, was obtained; before that day arrived, C. was appointed the solicitor of A., and the bill having been dismissed because no step was taken by C., it was held that an action would lie against C. for negligence, because he should have conformed to the order, or should within the time have moved to vacate it (1). So where the attorney in a case stated for the opinion of counsel took upon himself to draw conclusions from certain important deeds, which he accordingly omitted to lay before counsel (m). So where the attorney in laying out his client's money on the security of a legacy relied upon an extract of the will, and omitted to consult the original (n). So where the attorney does not give reasonable notice to his client of his intention to abandon the cause, unless he is supplied with funds (o). So where an attorney commenced an action on a foreign bill of exchange without ascertaining whether there was an indorsement to the plaintiffs, as required by the law of France (p). "The cases," said Tindal, C. J., in Godefroy v. Dalton, 6 Bingh. 469, "appear to establish in general that an attorney is liable for the consequences of ignorance or non-observance of the rules of practice of this court, for the want of care in the preparation of the cause for trial or of attendance thereon with his witnesses, and for the mismanagement of so much of the conduct of a cause as is usually and ordinarily allotted to his department of the profession. Whilst on the other hand he is not liable for error in judgment upon points of new occurrence, or of nice or doubtful construction, or of such as are usually entrusted to men in the higher branch of the profession of the law." If attornies, employed by a vendor to settle, on his part, the assignment of a term, allow him to execute an unusual covenant, without explaining the liability thereby incurred, they are respon (k) Russell v. Palmer, 2 Wils. 325. See Pitt v. Yalden, 4 Burr. 2060. (1) Frankland v. Cole, 2 C. & J. 590. (m) Ireson v. Pearman, 3 B. & C. 799. See per Tindal, C. J., Godefroy v. Dalton, 6 Bingh. 469; Andrews v. Hawley, 26 L. (n) Wilson v. Tucker, 3 Sta. 154. sible to him for the consequent loss, notwithstanding the vendor is himself, at the time of his assignment, aware of the fact, in respect of which he afterwards incurs liability on his covenant (q). The question of negligence is, it seems, for the jury (r). But it is not every neglect that will subject an attorney to such an action: for an attorney is only bound to use reasonable care and skill in managing the business of his client. He is only liable for crassa negligentia. "That cannot be considered as gross negligence, concerning which persons of competent skill may entertain a doubt (s)." Hence an action cannot be maintained against an attorney for negligence in not discovering a defect in the memorial of an annuity, which was subsequently held to be a defect upon a doubtful construction of the statute (t). So, where an action had been brought on a bond given by R. to secure 10007. and R. admitted his liability, and offered to pay a certain sum, but the attorney for the plaintiff made no application for a compulsory arbitration under sect. 3 of the Common Law Procedure Act, 1854, and ultimately the cause went to trial, where a verdict was taken by consent, subject to a reference to the master to settle the amount due, but in the meantime R. had become bankrupt, and nothing was recovered; it was held, that such an omission by the attorney was not actionable, it being doubtful whether the judge would certainly have referred the cause under the above section (u). Defendant, an attorney, being employed to raise money on mortgage for the plaintiff, disclosed to the proposed lender defects in the title of the plaintiff, by reason whereof the plaintiff was subjected to actions at the suit of the lender, was delayed in obtaining the money he wanted, and compelled to give a higher rate of interest; it was held, that this was a breach of duty, for which an action lay against defendant, notwithstanding he had been the attorney of the proposed lender before his retainer by the plaintiff (x). Where an attorney was sued for negligence in allowing judgment to go by default, in an action which the plaintiff had retained him to defend, the negligence having been proved, it was held that it lay upon the attorney to show that the plaintiff was not damnified by the judgment by default, and not upon the plaintiff to establish that he had been in fact damnified (y). The Court of Chancery has no jurisdiction to make a solicitor responsible for negligence in the conduct of a suit (z). In an action against an attorney for suffering M. C., a debtor in custody at the suit of the plaintiff, to be discharged, it was averred that M. C. was indebted to the (t) Baikie v. Chandless, 3 Campb. 17. See Elkington v. Holland, 9 M. & W. 659. (u) Chapman v. Van Toll, 27 L. J., Q. B. 1. (x) Taylor v. Blacklow, 3 B. N. C. 235. plaintiff'; it appeared in evidence, that at the time of contracting the supposed debt, M. C. was a married woman; this was held to be a fatal variance (a). Where the misconduct or negligence of the attorney constitutes the cause of action, the statute of limitations begins to run from the time of the misconduct (b). Evidence. The regular proof of a person being an attorney, is either by the production of the original roll, signed by the party on his admission, together with proof of his signature, as evidence of identity; or by an examined copy of the roll, together with the admission (c). But in an action by an attorney for his bill, it is sufficient for him to prove that he has acted as an attorney in the court of which he is alleged to be an attorney, and it lies on the defendant to show the contrary (d). So the production of the stamped certificate, countersigned by a master of the Queen's Bench, was held sufficient primâ facie evidence that the party producing it was an attorney of the Queen's Bench (e). In an action brought by an attorney for slandering him in his profession, it appeared that the defendant had charged him with swindling his client, adding a threat that he would have him (the attorney) struck off the roll; it was held, that this threat imported that the plaintiff was an attorney, and superseded the necessity of other proof (f). But if the gist of the slander were that the plaintiff was not in fact entitled to practise as an attorney, such evidence would seem to be insufficient (g). A copy of an attorney's bill, although not signed (the original having been proved to have been delivered to the defendant), will be received in evidence, without proof of notice to produce the original, because the bill delivered is itself in the nature of a notice (h). (a) Lee v. Ayrton, Peake's N. P. C. 119. (h) Colling v. Treweek, 6 B. & C. 394 So secondary evidence may be given of written notice of the dishonour of a bill of exchange, without any notice having been given to produce it. Swain v. Lewis, 2 C. M. & R. 261. CHAPTER VI. AUCTION. PAGE Of Agreements relating to the Sale of Lands and Goods by Auction, Recovery of Deposit and Interest on Defect of Title, . 197 .. 198 .. 200 .. 200 A SALE of lands by auction is within the 4th section, and a sale. of goods (a) within the 17th section, of the Statute of Frauds (29 Car. II. c. 3); and to make it binding, the solemnities required. by that statute must be observed (b): the auctioneer is to be considered as the agent of both parties, and a note or memorandum in writing of the agreement or bargain, made and signed by him, will be sufficient to give validity to the contract (c). But when the sale by auction is at an end, such agency ceases, and the auctioneer's signature to a contract afterwards entered into will not be sufficient (d). If any money is paid as a deposit, though short of the sum stipulated by the conditions of sale, and accepted as such by the auctioneer, it will bind the bargain quoad the auctioneer (e). A bidding at an auction may be retracted before the hammer is down, because the assent of the seller is not signified till that takes place (f). Usually the auctioneer signs a memorandum of the (a) Kenworthy v. Schofield. 2 B. & C. 945. (6) Walker v. Constable, 1 Bos. & Pul. 306. By sect. 4, "No action shall be brought whereby to charge a defendant upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." By sect. 17, "No contract for the sale of any goods, wares and merchandizes, for the price of 107. or upwards shall be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the same bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." (c) Kemeys v. Proctor, 3 Ves. & Beames, 57; Simon v. Metivier, 1 Bl. R. 599. See Bartlett v. Purnell, 4 Ad. & E. 792. (d) Mews v. Carr, 26 L. J., Exch. 39. (e) Hanson v. Roberdean, Peake's N. P. C. 120. (f) Payne v. Cave, 3 T. R. 148. |