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have accrued, but interest upon the damages given as the value of the capital stock: Dwyer v. Gurry, 7 Taunt. 14. .
As to what deft. may prove in reduction of damages, post, 153.
Under SPECIAL PLEA or DEFENCE.] Where an issue is taken on a special plea, and the general issue is also pleaded, the plt. must not only be prepared to prove all that is required of him by the general issue, but also what is required of him in the issue taken on the special plea. When the special plea is pleaded without the general issue, so as to admit all the other facts but what are denied by such special plea, then no proof of such admitted facts need be adduced, see ante, 39, 40; and the proof will, in general, then consist of an answer to the special plea and the amount of damages.
With respect to when the burden of proving the issue lies on the plt., these general rules may be laid down: that the party who asserts the affirmative is bound to prove the issue, Calder v. Ruiherford, 3 B. & B. 302, Ross v. Hunter, 4 T. R. 33; that, when the presumption of law is in favour of the affirmative, it is not necessary for the party asserting it to prove the same, and the disproof of it lies on the other party, although it involve a negative, 2 Sewl. N. P. 709; that, when the issue involves a charge of culpable omission, the party making the charge must prove it, although he must prove a negative; for the other party shall be presumed innocent till proved guilty : 1 Rol. 83; Williams v. E. I. Comp. 3 East, 193, 9; Rex v. Hawkins, 10 East, 216. And, lastly, that where a party seeks to support his case by a particular fact which lies peculiarly within his own knowledge, the onus of proving such fact, though it involve a negative, will lie upon him: Apoth. Comp. v. Bentley, R. &. M. 159; Spieres v. Parker, 1 T. R. 144; Rex v. Stone, 1 East, 650; see further, post, “ Evidence."
*The proofs under, and in answer to a special plea of defence, [*153] must necessarily depend on its nature and the particular issue
taken; they will be found under the different titles of defences throughout the work: see those titles.
Evidence for Defendant.
We have already seen under what plea deft. may avail himself of his defence, ante, 138; and the evidence should be adduced accordingly. We have also seen upon whom the burden of proving the issue lies, ante, 152.
Defences.] The usual defences consist in denying, or rather disprov. ing, 1. the plt.'s ability to sue, as his being a bankrupt, alien enemy, under coverture, see those titles; or that he had no legal interest in the contract, ante, 142; or that others should have been joined with him in the action, ante, 143, post, “ Partners;" or that too many parties, plts., have sued, ante, 144, post, “ Partners;" or that plt. is a mere assignee of the contract, ante, 144, and see what deft. may successfully show as a defence in this respect, in actions at the suit of executors and administrators, heirs, devisees, assignees of bankrupts, insolvents, and husband and wife, post, those titles. 2. The deft.'s inability to contract, or personal protection from the contract sued on, as being an infant, feme coverte, lunatic, or drunk, see those titles; or that he never entered into the express or implied contract, ante, 145; or that the defts., in an action against several, did not jointly contract, ante, 145, post, “Partners;" or that the plt. and deft. were partners in the contract sued on, ante, 145, post, “Partners;" or that he is a mere assignee of the contract, ante, 146, and as to what defences of this nature dest. may avail himself of, in actions against executors and administrators, bankrupts, insolvents, husband and wife, see those titles. 3. That the action is misconceived, and should not have been in assumpsit, ante, 109; or that it is brought too soon: Mussen v. Price, 4 East, 146; Lee v. Risdon, 2 Marsh. 495; post, “Goods Sold.” 4. That the contract or consideration was not as that stated in the declaration, or what is proved in evidence, see ante, 114, 118, as to variance; or that it is not binding for want of a stamp, post, “ Stamp;" or for want of consideration, ante, 147; or that the contract or consideration was illegal at common law or by statute, post, “Illegal consideration," and the various titles referred to, ante, 5. That the plt. has not performed a condition precedent, or that he has not performed it as stated in the declaration, ante, 121, &c.; or that the dest. has not been ever requested to perform an act which he ought to have been, ante, 130; or has not had a notice he ought to have had, ante, 132. 6. That the deft. has performed the contract, as by payment, tender : see those titles. 7. That deft. has been excused performance by reason of the contract being altered, ante, “Alteration," or rescinded, post, “Releasing Contract,” or released or discharged by award and satisfaction, a negotiable security given, award, judgment recovered, former recovery, foreign attachment, release, &c., see those titles; or higher security given, and post, “ Deed;" or that it has become impossible or illegal to perform the contract, ante, 129; or that deft. is discharged by his bankruptcy and certificate, post, “ Bankruptcy;" or under the insolvent Act, post, “Insolvent;" or by the Statute of Limitations, or set-off, see those titles.
Reduction of Damages.] The deft. should be prepared, as far as he can, to reduce the plt.'s damages, in the event of his being entitled to any. We have already seen as to what proofs plt. may show for the purpose of supporting his damages, and deft. should therefore be prepared, as much as possible, to disprove them. He should show all he can as to his having complied with the contract, as, by having offered to complete it before action brought, or the like: see Rawson V. Johnson, 1 East, 211. He *may, it seems, reduce the damages, by [*1 showing a partial failure by plt. of the consideration. Thus, though there be an agreement that a specific sum of money shall be paid for the performance of a work or act, the claim may be reduced by showing that the work or materials or act were not according to the agreement; and it appears, indeed, that the damages may be reduced in toto, and the whole demand defeated, by showing that the work is not so adequate, or totally inadequate, to answer the purpose for which it was undertaken to be performed, and that the deft. has derived little or no benefit from the act: Duncan v. Blundell, 3 Stark. 6. But, in such
cases, and where the plt. does not go on a quantum meruit, and especially where the object is only to reduce the damages, the deft. should give the plt. notice of the intended defence, so that he may not be taken by surprise : Barten v. Butter, 7 East, 479; Germaine v. Burton, 3 Stark. 32. Proving the service of such notice: post, “Notice.” In the case of a sale of goods, where there is a stipulated price, and a warranty as to the quality, the vendee may retain the goods, and set up their inferiority in reduction of damages, although he has not offered to return them or given any notice to vendor; Cormack v. Gillis, 7 East, 480; Fielder v. Starkin, 1 H. Bla. 17. Where the claim is on a quantum meruit, the deft. may, without notice, reduce the damages, by showing that the work or act was improperly done, and he may entitle himself to a verdict by showing its total ineficiency, and that he has derived no benefit from it: Farnsworth v. Garrard, 1 Camp. 38; Fisher v. Samuda, ib. 191; Denew v. Daverell, 3 Camp. 451; Okell v. Smith, 1 Stark. 108, Chit. Cont. 169. If, however, a bill of exchange have been accepted for the work done, the bad quality and partial insufficiency do not form a ground for reducing the amount claimed: 1 Camp. 40. n.;
Tye v. Gwynne, 2 ib. 346; 3 ib. 38; Moggridge v. Jones, 14 East, 486; Archer v. Bamford, 3 Stark. 175, Chit. Cont. 169. And, according to the case of Hopkins v. Appleby, 1 Stark. 477, if a vendee, &c. of goods deprive the plt. of the means of ascertaining their real value, by using them or otherwise, the dest. cannot reduce the damages. In an action for use and occupation, where there has been a partial eviction or deprivation by the landlord of the full enjoyment by the deft. of the property demised, the deft. should be prepared to prove that fact, for the plt. will only be entitled to damages commensurate with the advantage the deft. may have actually derived from the occupation of the estate: Tomlinson v. Day, 5 Moo. 558; Hall v. Burgess, 5 B. fo C. 338: 8 D. &. R. 67. To prevent a circuity of action and unnecessary litigation in cases of partial failure of consideration, defts. have been allowed of late, instead of being compelled to resort to a cross action, to object, in reduction of damages, such partial failure of consideration, and have therefore held the deft. only to a performance of so much of his contract as would afford the plt. adequate remuneration for that part of the agreement which he has performed, particularly in cases where the party has had notice of such intended defence: Basten v. Butter, 7 East, 484; Havelock v. Geddes, 10 ib. 564; Wilbeam v. Ashton, 1 Camp. 78; Fisher v. Sumuda, ib. 190; Denew v. Deverell, 3 ib. 451, 2; Germaine v. Burton, 3 Slark. 32; Okell v. Smith, 1 Stark. 108, 9; Lewis v. Cosgrave, 2 Taunt. 2; Templar v. M Lachlan, 2 N. R. 136; Bragg v. Cole, 6 Moo. 114; Chit. Con. 276. In an action by an attorney for his fees, negligence by him is no answer to the action, and is only the subject of a cross-demand, 2 N. R. 136; unless, indeed, the negligence has been such as to deprive the plt. of all benefit, and the charges sought to be recovered have been incurred by the plt.'s want of proper caution : Montriou v. Jefferies, 2 C. & P. 113; R. L. M. 317, S. C.; Dax v. Ward, 1 Stark. 409; post, “ Attorney.” In an action by a surgeon, &c. for his bill, if the deft. can prove that he was rather injured than benefited in his health, in consequence of any gross unskilfulness or carelessness on the part of the plt. the latter cannot succeed: Duncan v. Blundel, 3 Stark. 6; ante, "Apothecary.” And *an agent cannot recover his commission if the principal derive [*1 no benefit whatever from the acts of the plt.: Stewart y. Kahle, 3 Slark. 161; ante, “ Agent."
ATTORNEY, ACTIONS BY AND AGAINST.
I. ACTIONS BY, FOR HIS BILL.
Commencement and Conclusions of Declaration, ib.
Declarations for their Fees, ib.
Work done, 158.
Reasonableness of Charges, 162. '
Form of Remedy. The usual remedy for the recovery of an attorney's fees is by action of assumpsit or debt: Bradford v. Woodhouse, Cró. J., 520; Šelw. N.
P. 160. The action lies for soliciting a cause in another, as well as in the court whereof the plt. is an attorney: Sands v. Trevilian, Cro. Car. 194. An attorney has also a remedy for his fees, by lien on the deeds, &c. of his client, Tidd, 82, on the sum recovered by him: ib 338, &c. See further, “Work and Labour.” For costs in bankruptcy, incurred before the choice of assignees, the solicitor's remedy for them is by action, not by petition, see Buck. 175, sed vide 1 G. 4. J. 23, contra; for his costs after the choice of assignees, his remedy is by action or petition, 1 Rose, 44; and this though the bill has not been taxed: Tarn v. Huyes, 1 Stark. 278; Finchett v. Howe, 2 Camp. 278.
Form of Pleadings. Where the month for the delivering of the bill previous to bringing the action expires after the first day of the term, the declaration should not be entitled generally of the term, but specially on some particular
day in the term, after the expiration of the month: Dodsworth [*1567 v. Bowen, *5 T. R. 325; post, “Declaration.” An attorney
may, if he pleases, always lay or retain the venue in Middlesex, Yeardly v. Roe, 3 T. R. 573; but, in the Exchequer, he must be one of the four attorneys of the court to entitle him to this privilege: 1 Price, 384. And, where it is laid in the country by mistake, the court will not allow him to change it to Middlesex: Lewis v. Shelley, 2 Marsh. 426; Pitcher v. Sheriff of Monmouth, ib. 152. When the action is to recover fees on the usual retainer, the usual indebitatus count, shortly describing the business done, as in the following precedent, will suffice, and plt. may recover, even on the common count, for work and labour: Skin. 217; Ambrose v. Rowe, 2 Show, 421. But, where an attorney makes an agreement to conduct an action for a stipulated sum above his costs, subject to certain contingencies, he must declare specially, Guy v. Gower, 2 Marsh. 273; and so, if the defendant be liable in respect of a collateral undertaking in writing, the declaration must be special: 1 Saund. 211, 6. See further, “Assumpsit," "Debt.” As to the plea, ante, 138, post, “Debt.”
COMMENCEMENT AND CONCLUSION OF DECLARATION IN K. B. BI AN ATTORNEY OF K. B. Ellenborough.
Term, 8 Geo. 4.
(supra.) Middlesex to wit (supra.) John Hill, gent., one of the attorneys of the court of our sovereign lord the now king, before the king himself, being present here in court, in his own person, according to the liberties and privileges of the said court for such attorneys, and other officers of the court aforesaid, from time immemorial used and approved or in the same court, complains of Robert Rose, being in the custody of the marshal of the Marshalsen of our said lord the king, of a plea of, &c. (as the plea is). For that whercas, &c. (The conclusion is the same as in other cases.) Pledges, &c.
TUE LIKE IN C. P. BY AN ATTORNEY OF C. P. In the C. P.
- Term, 8 Geo. 4. Middlesex to wit. Robert Rose was attached by his majesty's writ of privilege, issuing out of his said majesty's court of the Bench here, to answer unto John Hill, gent., one of the attorneys of the said court, according to the liberties and privileges of the said court for such attorneys, and other officers of the said court, from time immemorial used and approved of therein, of a plea of, &c. (as the plea is). And thereupon the said John Hill, in his own person, complains, that, whereas, &c. (The conclusion is as usual.) Pledges, &c.
INDEBITATUS COUNT FOR AN ATTORNEY'S FEES. (The commencement of this count in assumpsit is as ante 139; in debt as post, " Debt," for the work, labour, care, diligence, journeys, and attendances, of the said plt., by him the said plt. before that time done, performed, and bestowed, as the attorney and solicitor of and for the said deft., and upon his retainer, in and about the prosecuting, defending, and soliciting of divers causes, suits, and businesses, of and for the said dest., and for certain fees due and of rigbt payable to the said plt., in respect thereof; and also for other, the work and labour, care, diligence, journeys, and attendances, of the said plt., by him, the