BUT THE COURT refused to grant a new trial and said the difference is, whether the communication were made by the cli ent to his attorney in confidence, as instructions for conducting his cause, or a mere gratis dictum; that the former was not the case here: on the contrary, the purpose in view had been already obtained and what was said by the client was in exultation to his attorney, for having before deceived him, as well as his adversary, and for having obtained his suit: 4 Term Rep. 431.

And in lord Say and Sele's case an attorney was admitted to prove that a deed dated 23 Oct. was not executed until five months after; for that a thing of such a nature as the time of executing a deed, could not be called the secret of his client, and it was a thing he might come to the knowledge of without his client's acquainting him, and was of that nature, that an attor ney concerned, or any body else, might inform the court of. 10 Mod. Rep. 41.

And in Doe v. Andrews, the court held that an attorney has no privilege to refuse to give evidence of collateral facts, as to prove the exccution of a deed, for by attesting an instrument a man pledges himself to give evidence of it, whenever he is called upon, and his being an attorney on the other side is no reason for breaking this engagement and lord Mansfield said, he had known an attorney obliged to prove his client's having sworn and signed the answer upon which he was indicted for perjury. Cowper's Rep. 816.

Where writings come to an attorney's hands in the way of his Detaining of business as an attorney, the court, on motion will make a rule writings. for him to deliver them back to the party from whom he received them but where they come to his hands in any other manner, or on any other account, the party must resort to his action for the recovery of the same. 1 Sulk. 87. 8 Aiod. Rep.

310.

But the court will not compel an attorney to give up writings without the other party agrees to pay him his reasonable demands. 12 Mod. Rep. 554.

And where deeds are delivered to him on a special trust, as by a mortgagor, in order to prepare a mortgage, the court will compel him to deliver them to the mortgagee, although the mort gagor may be indebted to him, for in that case, he cannot detain them for any other money than what may be due to him for drawing the mortgage and doing that very business. 8 Mod. Rep. 307.

And the court under circumstances will entertain a summary jurisdiction over an attorney of the court in obliging kim to de

* The case of the King v. Watkinson, Mic. 18 Geo. 2, reported in 2 Strange 1142, is expressly contrary: but sir John Strange adds a quære, observing that it was a fact in his own knowledge, and no matter of secrecy committed to him by his client.

VOL. 1,

R

The act of an

ing to his client.

liver up deeds, on satisfaction of his lien, though they came into his hands as steward of a court, and receiver of rents: but if it appear that a third person is interested in the deeds the court will direct the master to take a security from the person to whom they are delivered, to produce them on demand for the inspection of such third person. Hughes v. Mayre. 3 Term Rep.

275.

But the court will not proceed summarily against an attorney who has acted as a steward to another, and not as steward of a court baron to compel him to account before the master for his receipts and payments in respect of a mortgaged estate, and to pay the balance to his employer,and to deliver up upon oath all deeds, papers, and writings relative to the estate: this being the proper subject of a bill in equity, and not like the case of a mandamus to compel a steward of a manor to deliver up court rolls, in lieu of which this summary mode of proceeding has been adopted, when the steward of the court is an attorney. Cocks v. Harman, 6 East's Rep. 404.

If the plaintiff and defendant's attorney, do agree to things, in attorney bind- order to the proceedings in their client's cause, which are not ma nifestly prejudicial, though the clients do afterwards refuse to con sent to their agreement, yet the court will compel the performance of it, for as they are attornies the law allows them to make such agreement, and if the clients should avoid them afterwards, it would be mischievous in delay of justice. Lilly's Practical Re gister, 49. See also 3 Viner's Abridgm. 201.

Name to be indorsed on writs or process.

But if A, who is indebted to B, upon being sued by an attor ney in the name of B, and under a supposed warrant of attorney from B, pays to such attorney the amount of the demand, yet if such warrant of attorney is forged, the attorney, though igno. rant thereof, acts without the authority of A, and A may be ob liged by B to pay it over again, and A's remedy is against the attorney who trusted to the counterfeited warrant of attorney, although he conceived that he was acting under the real authority of B. 1 Term Rep. 62.

By 2 Gev. 2. c. 23, Every writ or process for arresting the body, and every writ of execution, or some label annexed to suck writ or process, and every warrant to be made out thereupon, shall be subscribed or indorsed with the name of the attorney, clerk in court, or solicitor,, immediately employed; and every copy of any writ to be served on the defendant shall be so subscribed or indorsed. s. 22.

But the not subscribing or indorsing the name on the warrant made out on the process, shall not vitiate the same ; provided the writ be subscribed or indorsed: but the sheriff making out snea warrant, and not subscribing or indorsing the name, shall for feit 51. to be assessed upon him as a fine, by the court out of which the process issued, half to the king, and half to the pariy ggrieved. 12 Geo. 2. c. 13. s. 4.

without autho

And the court of King's Bench, in the case of Oppenheim qui Attorney's tam v. Harrison, set the proceedings aside for irregularity, it name used appearing that, although they had the name of a regular rity. attorney in fact set to them; yet it was so set without any authority from him; and against the attorney who so set the name they granted an attachment. 1 Burrows 20. But when an attorney sucs by attachment of privilege, his name need not be indorsed on the writ, for the act only extends to cases where the attorney sues for another person. 4 Term Rep. 275.

tody, a sworn

All warrants for confessing judgments taken by any sheriff or On executing bailiff from any person in custody, if not executed in the presence warrant of atof some sworn attorney, and his name set thereto as a witness, shall torney in cusnot be of any force, and upon oath that the same was not done, attorney for the the same shall be set aside, and the sheriff or officer punished; and defendant to be if judgment be entered thercon, the same on motion will be set present, aside, and if execution be executed the party will have restitution. Gen. Rule, Easter Ter. 15 Car. 2.

And there shall also be an attorney prescat on the behalf of the defendaut. Gen. Rule, Easter Ter: 4 Geo. 2. 2 Strange

902.

vocable.

But where a warrant of attorney to confess a judgment is Warrant of atgiven it is not revocable; and the court will give leave to en torney not reter up the judgment though the party does revoke it, it is how ever determined by the party's death, unless the party dies in the vacation following, in which case it may be entered up in that vacation, as of the precedent term, but it only binds purchasers from the time of siguing. Salkeld 88. 2 Ld. Raymond

766.

And a warrant of attorney to confess a judgment executed by a prisoner in custody on criminal process is good though he have no attorney present. 4 Term Rep. 433.

By an order of the courts it is provided, that no person with Changing the out rule of court, order of the judge or secondary, and notice attorney. to the adverse party, or his attorney, shall change, or shift his attorney; or if done by such order as aforesaid, such attorney newly coming in is to take notice at his peril of the rules in the cause, whereof the former attorney was liable to take notice, and shall also pay such first attorney, upon demand, all such feesas the secondary shall tax to be due to him. 1 Bacon's Abridg.

189.

And the attorney can only be changed by such order, though he be ever so great a cheat. 7 Mod. Rep. 50.

IV. The attorney's remedy for his fees.

By 3 Jac. 1. c. 7, No attorney or solicitor shall be allowed to deliver bilka any fee given to a serjeant or counsellor, or money given to the signed. clerks in court, for copies, unless he have a ticket subscribed by

the serjeant, counsellor, or clerk, and he shall give a true bill of all other charges to his client, subscribed with his name, before he shall charge his client with any fees, and if he shall demand by his Penalty on bill any sum he hath not laid out, the party grieved shall have making a false his action against him, and recover his costs with treble da charge. mages; and such attorney or solicitor shall be discharged from practising any more. s. 1.

Not to sue till

a month alter delivery of his bill..

A defendant pleaded this statute against an action brought by an attorney, that he had not given a bill of charges, and the plea was held good. 3 Salkeld 19.

But when the executor of an attorney, or his administrator, sues for fees, it is not necessary that the bill should be signed. Comberbach's Rep. 348. Barnardiston K. B. 433.

Nor where there is a special agreement to pay; nor where it is for conveyancing business. 2 Barnardiston, R. B. 164. Barnes 37.

- But if part of an attorney's bill is for business done in court, and the rest for conveyancing, or parliamentary business, the master has power to tax the whole. 1 Douglas, Svo. edit. 199.

Upon a motion in Hil. Ter. 31 Geo. 3, that an attorney's bill for fees, all of which were due for carrying on a prosecu. tion by indictment at the quarter sessions, should be referred to the master to be taxed, THE COURT said they could not interfere, the whole of the business having been carried on in the inferior court; but that, if any part of the attorney's demand had ari. sen from the conduct of business in the superior court, they would have referred the whole bill: the motion was therefore refused; but lord Kenyon afterwards, iu Michaelmas Term 32 Geo. 3, said that on inquiry from the officers of the crown office he understood that there were several instances in which this court had referred an attorney's bill to be taxed, though the whole business had been carried on at the court of quarter sessions. Ex parte Williams, 4 Term Rep. 124, 496.

If an attorney encourages one person to sue another, on a promise that if he will let him prosecute, it shall not cost him a jarthing, yet after the business done an action will lie for the attorney's costs. Per Eyre, Ch. J. in C. B. 1726, reported in 3 Viner 301, Pl. 8.

By 2 Geo. 2. c. 23, no attorney or solicitor shall sue for recovery of his fees until the expiration of one month, after he shall have delivered to the party, or left at his dwelling house or last place of abode, a bill * of his fees signed with the proper hand of such attorney or solicitor. c. 23.

* Buller, J. on a case at York, was of opinion that it is not necessary to deliver a bill for business done at the sessions; the statute only prescribing it in case of business done in a court of record, where attornies are admissible and sworn: 4 Term Rep. 29, note (3) But surely it would be more liberal in an altorney to conform to the regulation.

And the client on submission to pay the whole sum, that Taxation. on taxation shall appear due, may have the bill taxed by the proper officer, (and no suit shall be commenced for the said fees during the taxation) and on taxation and settlement of the bill, the party shall forthwith pay the whole sum that shall be found due, and in default thereof be liable to an attachment, or such other proceedings at the election of the attorney as he may be liable to by law. 2 Geo. 2. c. 23. s. 23.

And if it appear on the taxation that the attorney or solicitor Attorney being hath been overpaid he shall forthwith refund on pain of attach over paid. ment, or such other proceedings, as aforesaid. Ibid.

Also if the bill taxed be less by a sixth part than the bill de Costs of taxalivered, the attorney or solicitor shall pay the costs of taxation: tion. but if it shall not be less, the court shall charge the attorney or client according to their discretion, in regard to the reasonable. ness, or unreasonableness of the bill, Ibid.

But this shall not extend to any bill of fees due from an at- But this does torney or solicitor, to any other attorney or solicitor, or clerk not extend to in court; but they may use such remedies for the recovery bills between thereof as they might have done before the making of the said agents. act. 12 Geo. 2. c. 13. s. 6.

rity of the

Yet it is now settled that agents bills may be referred to be Yet agents taxed, though not within 2 Geo. 2, by reason of this clause of 12 bills may be Geo. 2, for they may be taxed under the general jurisdiction and taxed under the authority of the court, questions on bills of this sort being better general autho understood and settled by the master, than by a jury or judge at Nisi Prius, but it seems, that the rules for these references have always been made, with the condition that the defendant shall bring the fees claimed into court, subject to restitution, of what shall appear on the taxation, not to be due. 1 Douglas, 8vo. edit.

200.

court.

of taxation.

An attorney delivered his bill, and after his death it being Executor not taxed, and above a sixth part taken off, it was moved that liable to costs the executrix might pay the costs; but the court held she should not: for the words of the act affect the attorney or solicitor only, and the executrix is not to blame if she stands on his bill, or makes out one from his books. 2 Strange 1056. After an attorney's bill has been delivered a month, and no Bill must be application has been made to have it taxed by the master, the taxed by the defendant will not be permitted to question the reasonableness master, not by of the items, on a trial before a jury at nisi prius, or on a writ a jury. of inquiry before the sheriff: but an attorney's bill may be taxed after action brought, and at any time before verdict, or judgment, unless the money has been paid. 1 Douglas, 8vo,

edit. 198.

His bill may be It is not necessary that an attorney's bill should have been de- set offin actions livered a month to entitle him to set it off, in an action brought against him, against him, it being sufficient for that purpose if it has been delivered a

though not de

month.