or any part thereof, to the said E. F. before he subscribed his said petition as aforesaid, or to the plaintiff, assignee as aforesaid, although often requested so to do, and the said moneys are in arrear if necessary, add a count on promises to the assignee; see mext form plaintiff, as assignee as aforesaid, of £—————, and suit, &c.

to the damage of the therefore he brings his

+2. By the Assignee of an Insolvent Debtor, on a cause of action accruing after the Petition. (ƒ)

Commencement as in last form.] For that whereas the defendant, after the said E. F. subscribed his petition to the said Court for the Relief of Insolvent Debtors, for his relief and discharge from imprisonment, as such insolvent debtor as aforesaid, according to the provisions of the said statute, to wit, on [&c.] was indebted to the plaintiff, as assignee as aforesaid, in £— for goods sold and delivered by the plaintiff, as assignee as aforesaid, to the defendant, at his request [or for money by the defendant had and received for the use of the plaintiff, as assignee as aforesaid,” inserting such other debt as may be due and can be included.] and iu £— for money found to be due from the defendant to the plaintiff, as assignee as aforesaid, upon an account stated between the defendant and the plaintiff, as assignce as aforesaid: And the defendant, in consideration of the premises, afterwards, to wit, on the day and year aforesaid, promised the plaintiff, as assignee aforesaid, to pay him the said moneys on request; yet the defendant hath not paid the said moneys, or any part thereof; to the damage of the plaintiff, as assignee as aforesaid, of £; and therefore he brings his suit, &c.

BY AND AGAINST ATTORNEYS.

1. Declaration by an Attorney, for his Bill of Costs for prosecuting or defending Suits, or for Conveyancing, or otherwise. (g) Commencement, &c. as in the form ante, 42, to the asterisk, and then pro

(f) See ante, 12, note (h); Chit. jun. Contr. 2d ed. 162, 166.

(g) An attorney may maintain assumpsit or debt for the recovery of his bill of costs. In many cases the latter is the preferable form of action. The common count for work, as ante, 42, 43, would suffice. But it is usual to state the plaintiff's capacity of attorney, and that he did the work in that character. See the law on this sub. jeet, Tidd, 9th ed. 325 to 335; Chit. jun. Contr. 2d ed. 440, 446; and id. n. (z); and the notes to the pleas in actions by and against attorneys, post. The old doctrine that an attorney is bound to continue a suit which he has been retained to prosecute or defend, until its termination, although his client refuse to supply the ne

cessary pecuniary means, is over-ruled; and upon reasonable notice, and demand and refusal of the necessary funds, the attorney may decline further proceedings, and recover his bill to the extent to which he has, at the time of abandonment, conducted or defended the action, although such action be unfinished; Vansandau . Brown, 9 Bing. 402; 2 M. & Sc. 543, S. C.; Wadsworth v. Marshall, 2 C. & J 665; Rowson v. Earle, M. & Mal. 538; Hoby v. Built, 3 B. & Ad. 350. In general, however, an attorney's contract, on being employed in a suit, is that he will complete it; and the Statute of Limitations run against his bill of costs only from the time the suit is ended; Harris and another v. Osbourn, 2 C. & M. 629; Rothery v. Mun

ceed;] for the work and labor, care, diligence, journeys, and attendances tof the plaintiff, by him done, performed, and bestowed, as the attorney and solicitor of and for the defendant, (h) and at his request, and for fees due and of right payable to the plaintiff in respect thereof, and for materials (i) and necessary things by the plaintiff provided in and about the said work and labor for the defendant, and at his request, and in £-for money paid [&c. add money paid, account stated, and breach, as ante, 43.]

2. General Count against an Attorney, for negligence in conducting an action at the Plaintiff's suit against a third person. (k) Commencement as ante, 1; see ante, 12.] For that whereas heretofore, to wit, on [c.] in consideration that the plaintiff, at the request of the defendant, had then retained and employed him as an attorney of the said Court [or" of the Court of -" to prosecute and conduct a certain action in the same Court by and at the suit of the plaintiff against one S. S. for the recovery of a certain large sum of money which the plaintiff claimed (1) to be due to him from the said S. S. for fees aud reward to the de

fendant in that behalf, he the said defendant undertook, and then promised the plaintiff to use due and proper care, skill, and diligence in and about the bringing, prosecuting, and conducting the said action; nevertheless the said defendant did not regard his said promise in this, that he did not use due or proper care, skill, or diligence in and about the [bringing,] prosecuting or conducting the said action, (m) and on the contrary thereof, he the said defendant, as such fattorney, then [brought,] prosecuted and conducted the said action in so careless, irregular, unskilful and improper a manner, contrary to his duty as such attorney as last aforesaid, that by reason thereof the proceedings of the defendant in the said action, as such attorney as aforesaid, afterwards, to wit, on [&c.] became and were futile and unavailing, and the plaintiff did not succeed, and was defeated therein, and was forced to suffer himself to be and was nonsuited therein [according to the facts,] and he the said plaintiff thereby wholly lost the means of recovering the money by him claimed and sought to be recovered as aforesaid, and is not likely ever to obtain the same; and thereby also the plaintiff became liable for and was subjected to the costs and expenses of the said S. S. by him incurred in defending the said action, to wit, £and was then obliged to pay the same to him; and thereby also the plaintiff incurred and was subjected to other expenses, to wit, £, in prosecuting the said action, and was and is otherwise injured, to the damage of the said plaintiff of £, and therefore he brings his suit, &c.

3. General Count against an Attorney, for negligence in defending a cause at the trial. (n)

For that whereas before the making of the defendant's promise hereinafter next mentioned, an action was depending in the said Court [or "in the Court of —,"] by and at the suit of one B. R. against the plaintiff, and heretofore, to wit, on, [&c.] in consideration thereof, and that the plaintiff had then retained the defendant, as an attorney of the said Court, to manage and conduct the defence of the plaintiff to the said action, for reward to the defendant, he the defendant then promised the plaintiff to use due care and diligence in managing and conducting the said defence; and although the said action was proceeded with, yet the defendant hath disregarded his promise, in this, to wit, that he did

tual debt; and it seems better not to do so, See Lee v. Ayrton, Penke's R. 115; Brown v. Jacobs, 2 Esp. R. 726.

(m) The New Rules render it necessary that there should be but one count for carelessness, &c. in one transaction; and it is therefore often expedient to lay the cause of action in a general form. But in cases where there is no difficulty in proving a particular neglect, &c. it may be more correct to state it in a more specific shape. effected by alleging that de

fendant did not use due care, &c. in and about the bringing, &c. the said action, "in this, to wit, that afterwards, to wit, on, &c. he proceeded to trial in the said action without taking due care to provide and adduce proper evidence on the plaintiff's behalf in support thereof," &c. according to the fact, "and by reason thereof," &c. as above.

(n) Hoby v. Built, 3 B. & Ad. 350; Reece v. Rigby, 4 B. & A1. 202; Godefroy v. Jay, 7 Bing. 413; 5 M. & P. 284, S. Č. See next form.

nor would use due care, skill, or diligence in managing or conducting the defence to the said action, and therein failed and made default; and afterwards, to wit, on [&c.] managed and conducted the said defence in so careless, unskilful, and improper a manner, (o) that by reason thereof the said defence then failed and was rendered futile, and the said B. R. then recovered a verdict in the said action against the said plaintiff, for a large sum, to wit, £ ; and the plaintiff was afterwards, to wit, on [&c.] forced to pay the same, and a large sum, to wit, -, for the costs of the said B. R. in prosecuting the said action; and thereby also fthe plaintiff paid and became subject to divers costs and expenses, to wit, £in attempting to defend the said action, and incidental thereto; to the plaintiff's damage, &c.

4..Assumpsit against an Attorney (employed to conduct an Action against another Attorney for negligence,) for carelessly omitting to adduce proper Evidence, whereby Plaintiff was nonsuited. (p)

For that whereas before the making of the promise and undertaking of the defendant hereinafter mentioned, a certain action had been commenced and prosecuted by and at the suit of S. D. against the plaintiff, in the Court of our lord the king, for a certain cause of action alleged to have accrued to the said S. D. against the plaintiff, and the plaintiff had retained and employed one C. J. as his attorney, for reward to be paid to him in that behalf, the said C. J. then being an attorney of the said Court of our said lord the king of the bench, to defend the said action for the plaintiff, and the said C. J. had undertaken such defence for the plaintiff, and such proceedings were thereupon had in the same Court in the said action, that afterwards, to wit, on [&c.] it was considered and adjudged by the said Court that the said S. D. should recover against the plaintiff the sum of £30; which said sum of £30 the plaintiff was then forced and obliged to pay and did pay to the said S. D. in satisfaction of the said judgment ; and thereupon the plaintiff had been and was desirous of commencing and prosecuting a certain action against the said C. J. for negligence in conducting his said defence, and for the recovery of the said sum of £30 so paid to the said S. D. as aforesaid; of all which said several premises the said defendant, before the making of his promise hereafter mentioned, had notice; and thereupon heretofore, to wit, on [&c.] in consideration that the plaintiff, at the request of the defendant, would retain and employ the defendant as his attorney, for fees and reward to the defendant in that behalf, to prosecute and conduct the said action of the plaintiff against the said C. J., the defendant undertook and then promised the plaintiff to prosecute and conduct the said last-mentioned action with due care, skill, and diligence; and the plaintiff avers, that he, confiding in

(0) See ante, 62, note (m), and the next form.

(p) See form, &c. Godefroy v. Dalton, 6 Bing. 460; Hoby ". Built, 3 B. & Ad. 350.

the said promise of the defendant, did afterwards, to wit, on [&c.] retain and employ the defendant, as such attorney as aforesaid, to prosecute and conduct the said last-mentioned action on the terms aforesaid; and the defendant then accepted the said retainer and employment, and under and by virtue thereof, afterwards, to wit, on [&c.] as the attorney of and for the plaintiff, commenced an action at the suit of the plaintiff against the said C. J. in the said Court of our said lord the king of the bench at Westminster, for the purpose aforesaid; and afterwards, to wit, on [&c.] the said C. J. appeared and pleaded to the said action, and issue was joined thereupon; and afterwards, to wit, on [&c.] the said last-mentioned cause came on for trial in the said Court of our said lord the king of the bench, before, his majesty's chief justice of the said Court of the bench, and was then tried before the said ———, and although it was then the duty of the defendant, under and by virtue of his said retainer and his said promise, to have had in the said Court of our said lord the king of the bench, at the trial of the said last-mentioned action, evidence of the said judgment in the said first-mentioned action against the plaintiff at the suit of the said S. D., in order that it might then have appeared to the said Court of our said lord the king of the bench that judgment had been obtained by the said S. D. against the said plaintiff in the said firstmentioned action for the said sum of £30, whereof the defendant then had notice; yet the defendant, not regarding his said promise, but contriving and intending to injure the said plaintiff in this respect, did not nor would prosecute the said last-mentioned action with due care, skill, or diligence, but therein made default in this, to wit, that he wholly neglected and omitted to have proper evidence of the said judgment in the said first mentioned action ready to be produced to the said Court at and upon the said trial; by reason whereof the plaintiff was then wholly unable to prosecute his said action against the said C. J. with effect, and was then compelled to suffer himself to be nonsuited in the said last-mentioned action, whereby he was not only hindered and prevented from recovering from the said C. J. the said sum of £30 so paid to the said S. D. as aforesaid, in satisfaction of his said judgment, but was also subjected to and necessarily paid a large sum, to wit, the sum of £—, to the said C. J., for his costs and charges in and about his defence of the said last-mentioned action, and hath also been forced and obliged to incur a further great expense, amounting in the whole to £, in and about recommencing and prosecuting his said action against the said C. J. To the plaintiff's damage of £; and therefore he brings his suit, &c.

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