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said plt., before that time, done, performed, and bestowed, in and about the drawing, copy. ing, and engrossing, of divers conveyances, deeds, documents, and writings, for the said Jeft., and in and about other the business of the said deft., and for the said deft., and at his special instance and request; and also for divers journeys and other attendances by the said plt., before then made, performed, and given, in and about other the business of the said deft., and for the said deft., and at his like special instance and request: and being so indebted, &c. (Conclusion in assumpsit as ante, 139; in debt, post, “Debl." The above form should be altered, if there were no suit, &c., proseculed, or no deeds, &c., prepared according to the facts. It is usual in assumpsil to add the following form of a quantum meruit; also the common count for work and labour, the money counts, and account stated.
THE LIKE ON A QUANTUM MERUIT. (* The commencement of this count in assumpsit is as ante, 139; in debl, as post, “Debt.") had before that time done, performed, bestowed, and given, other his [*1571 work and labour, care, diligence, journeys, and attendances, as the attorney and solicitor of and for the said dest., and upon his retainer, iu and about the proseecuting, defending, and soliciting, of divers other causes, suits, and businesses, of and for the said deft., and had also, at the like special instance and request of the said dest., before that time done, performed, and bestowed, other his work and labour, care, diligence, journeys, and attendances, io and about the drawing, copying, and engrossing, of divers other conveyances, deeds, documents, and writings, for the said deft., and in and about other the business of the said dest. and for the said deft.; and had also, at the like special instance and request of the said deft., before that time made, performed, and given, divers other journeys and attendances in and about other the business of the said deft., and for the said deft., he, the said deft., undertook. (Conclude in assumpsit, as ante, 139; in debl, as post, “Debt." Add the counts advised in the above precedenls.)
INDEBITATUS COUNT BY AN AGENT AGAINST AN ATTORNEY. (The commencement in assumpsit is as ante, 139; in debt, as post, “Debt.") for the work and labour, care and diligence, journeys and attendances, or the said plt., by him, the said plt., before that time done, performed, and bestowed, for the said deft., as the agent of the said deft., and upon his retainer, and at his special instance and request, in and about the prosecuting and defending of divers suits, causes, and businesses, for the said deft., and for fees due and of right payable to the said plt., in respect thereuf, and in and about the drawing and engrossing of divers deeds, documents, and writings, for the said deft., and at his like special instance and request; and also for other work and labour, care and diligence, of the said plt., by him before that time done, performed, and bestowed, for the said deft., and at his request, and also for divers journeys and attendances by the said plt., before that time taken, made, and performed, for the said deft., and at his like, &c., and being so indebted, &c. (Conclusion in assumpsit, as ante, 139; in debt, as post, “Debl." Add the counts advised as above in first precedent.)
See olher Precedents of Declarations, as clerk in court of the Exchequer, 2 Chit. Pl. 70; as one of the sixty clerks in the court of chancery, ib.; as a proctor in prosecuting an appeal to the High Court of Delegates, ib. 71.
Evidence for Plaintiff. The plt. must, in this action, prove his retainer by deft., that he has performed the work and business, the reasonableness of the charges, and in some cases, the delivery of his bill, and lastly, his damages.
Proof of Plaintiff's Retainer by Defendant.] The plt. should prove that deft. retained him as an attorney, to do the business in question. This may be done by the producing of deft.'s written instructions, by letter or otherwise, and proving the hand-writing, &c., or by calling plt.'s clerk, or other person who heard deft. give instructions, or admit the retainer. It will be sufficient evidence of a retainer, that, after an award made, dest. directed plt. to do the needful, though plt. was not employed in the first instance: Dawson v. Lawly, 4 Esp. Rep. 65. Proof of a retainer to commence a suit which is afterwards abated by a
plea of nonjoinder, is sufficient evidence of a retainer to commence another action against the parties named in the plea of abatement: Crook v. Wright, R. & M. 278. The retainer may sometimes be inferred from the deft.'s acquiescence in the plt.'s services, or from his voluntarily availing himself of such services. If the father of the deft. employed the plt. to defend a suit for deft., to prove that fact, and the deft. knew of the retainer, and does not disapprove of it is suffi
cient : Cameron v. Baker, 1 C. & P. 268. Proof of a judge's [*1587 *order, referring the bill to be taxed, and of the dest.'s under
taking to pay what shall appear to be due, and the master's allocatur, is sufficient evidence of a retainer: Lee v. Jones, 2 Camp. 496. So, proof of deft.'s attending the taxation of plt.'s bill, and not objecting to the items, is sufficient: Warren v. Cunningham, Gow, 71. Where one attorney does business for another, the attorney who does the business, universally gives credit to the person who employs him, and not to the client for whose benefit it is done: if, therefore, the attorney in such case intends not to be personally responsible, it becomes his duty to give express notice that the business is to be done on the credit of the client, and it furnishes no defence that the business was known by the plt. to be done for the benefit of the client: Scrace v. Wittington, 2 B. & C. 11, 3 D. 8. R. 195. In an action against two defts., it seems that, if the business was not not done for the joint benefit, the mere proof of a joint parol employment, and a joint promise to pay, will not suffice, as the case would fall within the Statute of Frauds, requiring such retainer to be in writing; Hellings v. Gregory, 1 C. & P. 627. Plt. should, therefore, in such action be prepared to prove there was a joint benefit: and see further, as to proof in actions on guarantees, post, “ Guarantee." But, if A. & B., being arrested on a bill of which one is drawer, and the other acceptor, go to an attorney, and request him to defend them, and he does so on their joint application, there is sufficient consideration to support a joint promise to pay; consequently to sustain a joint action against them: 1 C. & P. 627.
No proof of plt.'s actually being an attorney, or of his having taken out the annual certificate, is required : Berryman v. Wise, 4 T. R. 367. Proof of his being retained as such suffices: Pearce v. Whale, 5 B. & C. 38; 7 D. L. R. 512. The disproof lies on deft. : ib. post. See further, as to proof of the deft.'s retainer, post, “ Work and Labour;" ante, “ Assumpsit," " Admission.".
For costs, &c. in bankruptcy, before the choice of assignees, the petitioning creditor is liable, Hartop v.Jukes, 2 M. & S. 438, ex parte Hurtop, 1 Rose, 449, Hart v. Biggs, Holt, C. 245, Hart v. White, ib. 376, Bowles v. Perring, 5 Moo. 290, 2 B. S. B. 457; the assignees are not, ib. 4 D. &. R. 621, 1 G. & J. 35; and, where the petitioning creditor was afterwards made assignee, and the action was brought against him and the other assignee jointly, it was holden the plt. could not recover: Fincheti v. Howe, 2 Camp. 278; Tarn v. Heys, 1 Stark. 278. So, where the solicitor who sued out the commission was retained by the assignees, and, having made out and delivered his bill to them, as well for the business done before the choice of assignees as for that done after, was paid by them a sum of money on account generally, it was holden
ATTORNEY, ACTIONS BY, FOR HIS BILL.
that he was bound (as the assignees themselves would have been) to appropriate the sum so received to the payment of that portion of the bill for which the petitioning creditor was liable; and that, therefore, in an action by the petitioning creditor against him for the amount of a private debt, he could not, under those circumstances, set off the amount of the petitioning creditor's costs of the commission, for they were already satisfied: Phillips v. Dicas, 15 Eust, 248. In another case, indeed, it was holden at Nisi Prius, that where assignees retain the same solicitor that sued out the commission, they make themselves liable to him for the costs, as well before as after the choice of assignees, as upon an original retainer; Turn v. Heys, Holt, 378; 1 Stark. 278, s. c.; Archb. B. L. 219.
Proof of the Work and Business being done.] After proof of the retainer, the performance of the work and business must be proved. This may be done by the plt.'s clerk, or other person who has acted and can speak of the causes and the business in respect of which the charges are * made, and can prove the main items: Esp. D. 10. [*159] It is not the practice to require proof of every item. It seems, however, the plt. should adduce the best possible proof of the main items; and, therefore, in an action to recover the expenses of procuring the execution of a bail-bond, and other charges connected with it, the court held the plt. could not recover any part of his claim, without producing the bond itself in evidence: Swin ford v. Green, 3 Stark. 135. In some cases the necessity of actual proof of the business being done may be dispensed with, as by proving the deft.'s admission of it: thus, proof of a judge's order referring the bill to be taxed, and the deft.'s undertaking to pay what shall appear to be due, and of the master's allocatur, will be sufficient evidence of the business having been done: Lee v. Jones, 2 Camp. 496; see further, post, “ Work and Labour," ante, “ Admissions."
Proof of Delivery of Bill, when necessary.] If the action is brought for the recovery of any fees, charges, or disbursements at law or in equity, the plt. must prove the delivery of a bill thereof to deft., or left for him at his dwelling-house, or last place of abode, before the action was commenced, the bill being written in a common legible hand, and in the English tongue (except the law terms and names of writs), and in words at length (except times and sums), the bill being also inscribed with the proper hand of the plt. : 2 Geo. 2, c. 23, s. 23; 30 Geo. 2, C. 19, s. 75, &c. And, by the same act, upon application of the party chargeable by such bill, or any other person in that behalf authorized, unto the Lord Chancellor, Master of the Rolls, or unto any of the courts aforesaid in which, &c., they may refer it to be taxed.
With respect to what items render a bill necessary to be delivered under this act, they are all such as are incurred in respect of business done in any court. A charge merely for suing out a writ of dedimus protestatem, ex parte Prickett, 1 R. N. 266, or, "for taking instructions, drawing affidavit, swearing the same, and money for oath, Winter v. Payne, 6 T. R. 646 ; or for business done in the insolvent court, in procuring the discharge of an insolvent, Smith v. Wattleworth, 4 B. VOL. I.
3 eine Meriv. 500Sessions in WW1.5
& C. 364; or obtaining a bankrupt's certificate, Collins v. Nicholson, 2 Taunt. 321, Ford v. Webb, 3 B. f. B. 241; or for business done at quarter sessions, ex p. Williams, 4 T. R. 496, Clarke v. Donovan, 5 ib. 694; or in a criminal suit at the court of Great Sessions in Wales, Lloyd v. Manna, Tidd, 330, but see 2 Meriv. 500; or for business done under an extent, Tidd, 330, 3 Price, 280; or for attending and examining deft.'s proposed bail," and "attending the plt. in several actions commenced against dest., and arranging with him to take cognovits therein,” Watt v. Collins, R. f. M. 284, 2 C. & P. 45, s. c.; or for attending a lock-up house, and obtaining defi's release, and filling up the bail-bond, Fearne v. Wilson, 6 B. 8. C. 86; or for drawing a warrant of attorney, and attending deft. respecting it, although deft. never executed it, Wilson v. Gutteridge, 3 B. &. C. 157, 4 D. &. R. 738, s. C., Weld v. Crawford, 2 Stark. 538, 4 Camp. 68; sed vide Burton v. Chatterton, 3 B. 8. A. 488 : renders a bill necessary to be delivered within the statute; and it makes no difference, though the plt. proceeds only for the costs out of pocket: Miller v. Towers, Pea. Rep. 102.
On the other hand, the plt. need not prove a delivery of his bill to recover a charge not taxable, or where the court has not power to tax; as where a charge is wholly for conveyancing, Tidd, 329, Hooper v. Till, Doug. 199, n., B. N. P. 145, or for preparing an affidavit of a petitioning creditor's debt and bond, &c., the affidavit not having been sworn, and no commission ever having issued : Burton v. Chatterton, 3 B. . A. 488; Wilson v. Gutteridge, 3 B. &. C. 158: nor where the charge is for searching at Judgment Office to ascertain whether satisfac
tion of a judgment had been entered on the roll, whether issue [*160] had been entered, and *whether it had been docketed, in an
action between A. & B. Fenton v. Correa, R. & M. 262; 2 C. 8. P. 45, S. C.; nor where the charge is for parliamentary business, Tidd, 329; or for negotiating an annuity, Weld v. Crawford, ib., 2 Stark. 538; or for paying debt and costs pursuant to undertaking, Prothero v.
Thomas, 1 Marsh, 539, 6 Taunt. 196, s. C. Nor need an attorney deliver his bill where he sues another attorney: Ford v. Maxwell, 2 H. Bl. 589. 12 Geo. 2, c. 13, s. 6, enacts, that 2 Geo. 2, c. 23, s. 23, “shall not extend to any bill of fees, charges and disbursements due from any attorney or solicitor or clerk in court,” but that they may use such remedies between themselves as before. Therefore, an agent need not sign or deliver his bill before he sues thereon: Dougl. 199, n.; Bridges v. Francis, Pea. Rep. 1; Nelson v. Garfuth, 1 Esp. Rep. 221. And this has relation not to the period of doing the business, but to that of action brought, for, if his client afterwards becomes an attorney, the former need not deliver a bill signed in order to recover his charges, Ford v. Maxwell, 2 H. B. 589, 1 Esp. Rep. 420, s. C.; or where plt. transacts business for a client who becomes an attorney subsequently : ib. Nor need the executors or administrators of an attorney deliver a bill of costs for business done by their testator or intestate previous to suit: 1 Barnard, 433, Andr. 276. The statute is confined merely to the attorney himself, and does not extend to his personal representatives: Barret v. Moss, 1 C. &. P. 4. As to the necessity of a delivery of a bill in case of a set-off, post.
athey paid to a bill of ill at alle
There appears some uncertainty as to whether the plt. may recover for items which do not require a delivery of a bill, where there are also other items which do require it; but the distinction appears to be that he may recover such items, where they have no reference to the business of an attorney, and he has delivered no bill at all before action, but that he cannot where they have such reference, and he has delivered a bill before action : see Mowbray v. Fleming, 11 East, 285; Winter v. Payne, 6 T. R. 645; Hill v. Humphreys, 2 B. & P. 343; 1 Camp. 439, n. Therefore, where plt. had delivered no bill at all before the action brought, but afterwards delivered a bill of particulars, he was held entitled to recover for money paid to his client's use, having no reference to his business of an attorney, although other items in the particulars were taxable: Mowbray v. Fleming, 11 East, 285; Hemming v. Wilton, 4 Carr. f. Payne, 318. And a disbursernent by an attorney, in consequence of his undertaking to pay the debt and costs, is not a disbursement in reference to his business of an attorney : Prothero v. Thomas, 6 Taunt. 196; 1 Marsh. 539, s. c. On the other hand, where a single item in the bill delivered requires such delivery, the bill must be proved to have been regularly delivered before the plt. can recover any item in it having reference to the business of an attor. ney: Wilson v. Gutteridge, 3 B. &. C. 157; 4 D. f. R. 738, s. C.; Winter v. Payne, 6 T. R. 645; Hill v. Humphreys, 2 B. & P. 343. By a late decision at nisi prius, the above distinction does not appear be supported, for it was there considered, that where a bill is delivered according to the statute, containing various taxable items, one item of which is not sufficiently described according to the statute, the plt. may still recover the residue of his bill, Drew v. Clifford, R. f. M. 280, sed quære; in a more recent case, this doctrine was denied : Reynolds v. Taplin, 6 Dec. 1826, coram Abbott, C. J. at Guildhall.
hand, whetst be prove it havinen
Humphreys, does not appea
Mode of Proving Delivery of Bill.] The delivery is usually proved by the person who delivered the bill, or by deft.'s admission of the receipt of it: ante, “Admissions." Where a bill was produced, with an endorsement upon it, in the handwriting of a deceased clerk of the plt., whose duty it was to have delivered the bill, purporting that he had delivered a copy on a particular day, and the endorsement was proved to have existed at that date, it was held that the entry was prima facie evidence of the delivery of the bill: Champneys v. Peck, 1 Stark. 404; ante, 57. The delivery may be proved by a copy or duplicate, original, without any notice *to produce the bill delivered, An- [*1617 derson v. May, 2 B. 4. P. 237; for the bill delivered is in the nature of a notice of demand and action, Coling v. Treweeck, 6 B. S. C. 399, Vincent v. Slaymaker, 12 East, 377; and a copy of the bill, though not signed by the plt., the original of which only was signed, has been delivered to the deft., is admissible in evidence, without proof of notice to produce the original, 6 B. &. C. 399; but, in a case where no copy of the bill was either proved to have been made, or produced in evidence, and the plt. attempted to prove the delivery by reading the items of charge from plt.'s books, from which the bill was stated to
natuseo, Vincened by the fou, is admb. & C.89 been madey by se