25. Undertaking to pay what appear due, admits the retainer. one, &c. v. Jones, 2 Campb. 496. lenborough, C. J. 1810.

And see Lyng v. Revell, 5 Wentw. 145. 34. If, after action brought, the debt

24. An attorney may bring an action] for his fees at the expiration of a lunar month from the delivery of his bill. be paid without the knowledge of plainHurd, gent. v. Leach, 5 Esp. 168. El-tiff's attorney, the plaintiff may proceed lenborough, C. J. 1804. for the costs. Toms v. Powell, 6 Esp. shall 40. Heath, J. Kingston, 1806. Lee, And the court of K. B. refused to grant, El-on this ground, a rule nisi for a new trial. 7 East, 536; S. C. 3 Smith, 554. 26. Therefore, in an action on the bi!!, And see Smith v. Brocklesbury, 1 Anst. it is sufficient to produce the judge's or-161; Swain v. Senate, 2 N. R. 99; Chapder for the taxation, the defendant's un-man v. Haw, 1 Taunt. 341; Middleton v. dertaking, and the master's allocatur. Hill, 1 M. and S. 240; post, E. 3, 4. Ibid. 35. It is no defence to an action by an

27. Without proving the several items lattorney for his bill, that he neglected to having been done; Phillips v. Roach, file a plea of nonjoinder in abatement, Esp. D. N. P. 10. Hereford Summer when instructed to do so expressly for deAssizes, 1762. lay. Johnson, gent. v. Alston, 1 Camph.

28. Provided a foundation be laid by 176. Ellenborough, C. J. 1808. shewing the existence of the causes and 36. Or that the bill was incurred in business in respect of which the charges suing out a commission of bankruptcy, in are made, and proving the main articles. consequence of a mistaken representation Anon, Esp. D. N. P. 10. Smyth B. Staf-by the plaintiff that it would operate in ford, 1763.

And see Tidd, 389.

29. Where two persons who are not partners, are liable for business done on their joint retainer, it is sufficient if the attorney deliver a copy of his bill to the party who has been entrusted with the management of the business. Finchett, gent. v. How and Jarratt, 2 Campb. 277. Ellenborough, C. J. 1809.

30. In an action against bail for the costs of rendering a tender of their costs, is invalidated by a subsequent refusal by one of the bail. Peirse v. Bowles and another, 1 Stark. Ellenborough, C. J. 1816.

N. After delivery of a bill to the intestate, it is not necessary to redeliver it to administrator. Reynolds v. Caswell, 4 Taunt. 193.

31. Semble, that separate bills need not be delivered to underwriters who join in the consolidation rule. Crowder v. Shee, ubi supra.

the Isle of Man. Pasmore v. Birnie, 2
Starkie, 59. Ellenborough, C. J. 1817.
Et vide, Dig. 17, 1, 29, 4; Templer v.
M'Lachlan, 2 N. R. 136.

C. LIABILITY FOR MISCONDUCT.

C. (a) Plaintiff's loss, how proved.

37. Declaration against an attorney for suffering A. to be superseded, averred, that A. was justly indebted to the plaintiff. It was proved that A. was a married woman. The variance was held fatal. Lee v. Ayrton, one, &c. Peake, 119. Kenyon, C. J. 1792.

38. Dub. whether, if the averment had been omitted, the action would have lain. Ibid.

N. That it would not, see Gunter v. Clayton, 2 Lev. 85; Alexander v. Macaulay, 4 T. R. 611; 2 Saund. 150, n. 1.

And see Bentley v. Donnelly, 8 T. R. 32. Semble, that an attorney may 127. maintain an action against assignees of a 39. An action for negligence in conbankrupt, upon a bill delivered a month ducting a suit against excise officers for before the commencement of the suit, a seizure, cannot be maintained, if it apthough not taxed by a master in chan-pear that the seizure was lawful. Aitcery. Finchett v. How, ubi supra. cheson and another v. Madock, one, &c.

33. Bail to the sheriff are prima-facie and another, Peake, 162. Kenyon, C. liable to the attorney for the expense of J. 1792. putting in bail above. Hector v. Car- 40. But it will be presumed, that the penter, 1 Stark. 199. Ellenborough, C. seizure was unlawful until the contrary is J. 1816. shewn. Ibid.

41. Where the statute of limitations is | attorney on the record. H. 21, E. 3, pleaded to such an action, semble, that six fo. 46, pl. 64. years are to be computed from the time the plaintiff was damnified, not from the committing of the blunder. Compton v.

And see 11 E. 4, fo. 2; Manning's Exch. Pra. 585, 6.

Chandless, one, &c., 4 Esp. 18. Kenyon, D. SUMMARY JURISDICTION OF THE

C. J. 1801.

42. An attorney is not culpable in neglecting to file a plea of nonjoinder in abatement, expressly for delay. Johnson, gent. v. Alston, 1 Campb. 176. Ellenborough, C. J. 1808.

43. A bill for business done in a particular court, is not evidence that the party Green was an attorney of that court. v. Jackson, Peake, 236. Kenyon, C. J. 1794.

And see Berryman v. Wise, 4 T. R. 366; Cross v. Kaye, 6 T. R. 663.

44. To prove a party an attorney, the book kept by the master of the king's bench, into which the names of the attornies are copied from the original Toll, is evidence. Rex v. Crossley, gent., 2 Esp. 526. Kenyon, C. J. 1797.

C. (c) Gross negligence, what shall be.

COURT OVER.

48. If, in an action brought to recover the balance of an account, the plaintiff's attorney deliver a particular, setting out the debtor side of the account, but omitting to give the defendant credit for payments which the plaintiff does not mean to dispute at the trial; semble, that the court will order the attorney to pay the costs on both sides. Adlington v. Appleton, 2 Campb. 410. borough, C. J. 1810.

And see 7 Mod. 299, case 286.

E. PRIVILEGES.

Ellen

49. Where a bill filed against an attorney in vacation, is entitled generally of the preceding term, he may plead the statute of limitations, and shew that the six years had elapsed when the bill was actually filed. Snell v. Phillips, one, &c. Peake, 209. Kenyon, C. J. 1794.

And see Tidd, 376, 7.

50. An attorney acting in the fair discharge of his duty, should not be made a co-defendant in an action of trespass and false imprisonment, brought against his client. Sedley v. Sutherland and Kenyon, C. J. others, 3 Esp. 202.

1800.

45. Though it is now fully settled by the decision in Askew v. Mackreth, 1 N. R. 214, and other cases, that the grant, or assignment, of an annuity is void, unless the trusts in the annuity deeds are recited in the memorial, the omisSed vide Barker v. Braham, 3 Wils. sion of such a recital, previously to these decisions, is not gross negligence, for 368. Recognized in Carrett v. Smallwhich an attorney is answerable to his page, 9 East, 341. client. Baikiev. Chandless, gent. one, &c. 3 Campb. 17. Ellenborough, C. J. 1811.

46. S. P. ruled in Compton v. Chandless, gent. 3 Campb. 19. Le Blanc, J. 1802.

And see Trowbridge v. Hard, Latch,

220.

C. (d) Effect of negligence.

51. Where the grantee of a void 47. An attorney is not bound to attend the trial of a cause, and is not liable for the annuity recovers the consideration from loss of a suit occasioned by the absence his attorney, the latter cannot sue the of a witness, whose attendance he had grantor. Burdon, gent. v. Webb, 2 Esp. 527. Kenyon, C. J. 1797. reason to expect. Dar v. Ward, 1 Stark. 409. Ellenborough, C. J. 1816.

N. The attorney is not bound to attend at Nisi Prius, though he remain

AUCTION.

A. RIGHTS AND LIABILITY OF AUC

TIONEER,

(a) Rights against vendor.
(b) Rights against vendee.
(c) Liability to vendee.

B. RIGHTS AND DUTIES of vendee.

C. AUCTION DUTY.

A. RIGHTS AND LIABILITY OF
AUCTIONEER.

A. (a) Rights against vendor.

1. An auctioneer cannot claim a per

And see Morgan v.
Prin. and Agent, 250; Dig. 21. 2. 70.

6. An auctioneer is bound to take the same care of goods sent to him for sale, as he would of his own, but he is not liable for unavoidable accidents. Maltby, assignee of Duroveray, v. Christie, 1 Esp, 340. Kenyon, C. J. 1795.

Acc. Coggs v. Bernard, 2 Lord Raym.' centage which exceeds a fair remune-917. S. C. Holt. 131.

ration for his trouble, except upon the And see Woodlife's case, Moor, 462, footing of a special agreement. Maltby, pl. 650; Anon. Owen, 51; 1 Vin. Abr. assignee of Durouveray, v. Christie, 1161, Co. Litt. 189, a. and ibid. n. 6. Esp. 340. Kenyon, C. J. 1795. 7. An auctioneer who sells goods after

2. Dub. whether notice of the exist-notice that they do not belong to his ence of a custom to pay such per-cent-employer, is personally liable for the age, would be evidence of an agreement. amount. Hardacre v. Stewart, 5 Esp. Ibid. 103. Ellenborough, C. J. 1804. And see Burrough v. Skinner, 5 Burr, 2639.

3. An action was brought against an auctioneer to recover the deposit upon an alleged defect of title. The auctioneer gave notice to the vendor to

come in and defend, which not being B. RIGHTS AND DUTIES OF vendee. done, the former paid the deposit, interest, duty, and costs, to the vendee.

8. Purchaser of two houses in disHeld, that in an action for money paid, tinct lots, may refuse to take one house the auctioneer might recover the interest if no title can be made to the other. and duty, but that he could not entitle Chambers v. Griffiths, et alt. 1 Esp. 150. himself to the costs, without declaring Kenyon, C. J. 1794. specially. Spurrier v. Elderton, one, fc., 5 Esp. 1. Ellenborough, C. J. 1803.

And see Dig. 21. 2. 55-Ibid, 21.

56. 1.

2.

And see post, VENDOR, E.

9. Where the conditions of sale provide, that any mistake in the particular shall not vitiate the contract, such stipulation does not extend to a wilful misdescription of the situation of the pro

A. (b) Rights of auctioneer against perty, calculated to enhance its apparent

vendee.

4. Auctioneer may sue the vendee in his own name, though the name of the vendor be declared at the time of sale. Athyns and Batten, v. Amber, 2 Esp. 493, Eyre, C. J. 1796,

value. Duke of Norfolk v. Worthy, "1 Campb. 340. Ellenborough, C. J. 1808.

10. Conditions of sale, pasted on the auctioneer's box, give sufficient notice to the buyer. Mesnard v. Aldridge, 3 Esp. 271. Kenyon, C. J. 1801. And see Dig.

entitled to recover the value.

Dean v. off the wharf. Cobban and another v.

Keate, 3 Campb. 4. Ellenborough, C. Downe, 5 Esp. 41. Ellenborough, C. J. J. 1811.

1803.

11. A delivery at a wharf to an un-
person found there, is not suffi-
charge the wharfinger or the
Buckman v.
Buckman v. Levi, 3 Campb.
Ellenborough, C J. 1813.

to

4. The hirer of a horse is not responsible for an injury received during the known term, without proof of positive neg-cient ligence. Cooper v. Barton, 3 Campb. vendee. 5, n. Le Blanc, J. Lancaster, 1810. 414. And see Doct. and Stud. dial. 2, cap. 38. Longman v. Galini, Abb. 270.

12. A public company who insist upon their own servants being employed in the unloading of goods, are responsible for the negligence of such servants, though they derive no benefit from the

B. LIABILITY OF KEEPER FOR HIRE. labour. Gibson v. Inglis, Esq., 4 Campb. (And see AUCTION, 6.)

5. A warehouseman is not answerable for destruction by rats, reasonable care having been taken to prevent such an accident. Cailiff and another v. Danvers, Peake, 114. Kenyon, C. J. 1792.

72. Ellenborough, C. J. 1814.

into which a vessel is put for repair, is 13. The proprietor of a dry-dock, answerable for an injury arising in the day-time from the bursting in of the dock-gates, though the gates were strong pressure of the water; if the accident enough to have resisted the ordinary 6. A farmer taking in horses to agist, cient number of men been on the spot. might have been prevented, had a suffiis liable only for negligence. Broad-Leck and another v. Maestaer, 1 Campb. water v. Blot, Holt. 547. Gibbs, C. J. 138. Ellenborough, C. J. 1807. 1817.

So a hoyman, Dale v. Hall. 1 Wils. 281. Sed vide Abb. 255.

7. Bailee of goods to be kept for hire, is not answerable for a theft committed by his servants. Finucane v. Small, 1 Esp. 315. Kenyon, C. J. 1795.

Acc. Moore v. Mourgue, Cowp: 480; 29 Ass. pl. 28. Sed vide dict. per Wilson, J. in Shiells v. Blackburn, Í H. Bla. 161.

8. The responsibility of a warehouseman commences from the moment that his tackle is applied to the goods for the purpose of lifting them into the warehouse. Thomas et alt. v. Day, 4 Esp. 262. Ellenborough, C. J. 1803.

And see Goff v. Clinkard, 1 Wils. 282.

9. And it is no excuse for an injury done in raising the goods from the cart, that the owner's agent (the carman,) refused to secure them in the manner

And see Amies v. Stevens, Į Stra. 128;

Bull. N. P. 69.

which the warehouseman pointed out. (8)

Ibid.

10. Where it is proved to be the custom of wharfingers, when goods are sent to be forwarded coastwise, to deliver them to the mates of the coasters, and not to ship the goods themselves, or make any charge for shipping; the responsibility of the wharfinger ceases with the delivery to the mate, though the goods are lost before they are carried

BANKRUPT.

A. TRADING.

B. ACT OF BANKRUPTCY.

(a) Departing the realm.
(b) Beginning to keep house.

(c) Absenting himself.
(d) Departing from dwelling-house.
(e) Fraudulent conveyance.
(f) Lying in prison.
Whether an act of bankruptcy may
be purged.
(h) Concerted.

C. PETITIONIng creditor.

D. COMMISSION.

(a) Under what circumstances valid.
(b) By whom impeachable.
(c) How contested.