Culpable nonfeazance.] When an attorney has received money for his client, and refuses or neglects to pay it over, the client may either maintain an action against him for it, see Sibley v. Leicester, 2 Dowl. 234, or the court, upon application, will compel him to pay it over, (subject, of course, to his lien,) provided he be an attorney of the court. Sharp v. Hawker, 3 Bing. N. C. 66. But they will not require him to pay interest upon it. Fenn v. Wild, 1 Dowl. 498. Ex p. Corpus Christi College, 6 Taunt. 105; but see Ex p. Burgin, 1 Dowl. N. C. 292. And where an attorney, employed by both the vendor and purchaser of certain property, received the purchase money, and neglected to pay it over; and he afterwards became a bankrupt and obtained his certificate: the court held that as no fraud upon his part had been stated, they would not interfere; if fraud, indeed, had been stated, they might have punished him for it, by making him pay over the money. Re Bonner, 1 Nev. & M. 555. And where the attorney of a trustee, induced him and the cestui qui trust to allow him to sell out the trust money, which was in the funds, saying that he could obtain a higher interest by investing it upon mortgage; but instead of obtaining a mortgage, he applied it to his own purposes: after upwards of a year had passed without his investing the money, the court, upon application, ordered him to reinvest the money in the funds on or before a certain day, and to pay the costs; but a fiat in bankruptcy issued against him on the day next after that so appointed, upon which he obtained his certificate: upon an application to the court for an attachment, it was urged for the attorney, that as the claim was clearly barred by his certificate, the court would not interfere; but the court held that as the party was in contempt before the bankruptcy, and as fraud appeared clearly upon the face of the whole transaction, they would defeat the fraud by issuing the attachment. Re Newbury, 5 Nev. & M. 419, 1 Har. & W. 575. But the court will not interfere, if the client's right depend upon an alleged agreement between him and his attorney, and the right be contested by the attorney; Hodson v. Terrall, 2 Dowl, 264; nor will they interfere, except upon the application of the client; Re Fenton, 5 Nev. & M. 239, 1 Har. & W. 310; nor will they interfere, unless the attorney's engagement or liability arise from his employment as an attorney. Re Chitty, 2 Dowl. 421, 533. Exp. Faith, 9 Id. 973. Exp. Cowie, 3 Dowl. 600. Cocks v. Harman, 6 East, 404. Re Ld. Cardross, 7 Dowl. 861. Where, indeed, an attorney was employed by A. an administrator, to get in the debts, &c. due to the deceased, the court after A.'s death, ordered the attorney to account to his executors, although he had never been employed by A. or his executors to conduct any suit in law or in equity on his or their behalf; but the court held that the employment in this

case was so connected with the attorney's professional character, as to afford a fair presumption that his employment was in consequence of that character, and that they would therefore interfere in a summary way, to compel him faithfully to execute the trust reposed in him. Re Aitkin, 4 B. & A. 47. Ex p. Knight, 1 Bing. 91. Ex p. Corpus Christi College, 6 Taunt. 105. Ex p. Hall, 7 Moore, 437. But the courts at present seem rather disinclined to interfere to the extent of this case of Re Aitkin, and at all events, it may be deemed the very utmost extent to which they will go. And it is quite clear that where the transaction has no reference to the professional character of the attorney, the court will not interfere in this summary way; and therefore where an attorney advanced 107. upon a deposit of bills of exchange to the amount of 251., and he afterwards received the amount of the bills, Patteson, J. refused a rule to make him pay over the balance. Ex p. Schwalbanker, 1 Dowl. 182. Where a rule called upon an attorney to furnish an account of monies received by him, and he furnished one, it was holden to be no ground for moving for an attachment against him, that he had omitted in the account sums which the party alleged that he had received. Exp. Laurence, 2 Dowl. 230.

The motion, &c.] A motion against an attorney, to show cause why he should not be struck off the roll, or for a rule calling upon him to answer the matters of an affidavit, must be made by counsel; the court will not allow any other person to address them upon the subject. Ex p. Pitt, 5 B. & Ad. 1077, 2 Dowl. 439, 3 Nev. & M. 566. This application is always made to the court, and never to a judge at chambers; so is the motion for an attachment. But an application that an attorney pay over money or the like, if it be made in a cause, is usually made to a judge at chambers; but if there be no cause in court, the application must be made to the court. Ex p. Higgs, 1 Dowl. 495. It must be made to that court of which the party is an attorney; see Evans v. P 2 Wils. 282; and the affidavit must state that he is an attorney of that court. Re Becke, Har. & W. 417. Ex p. Lord, 1 Hodg. 195, but see Ex p. King, 3 Dowl. 41. Ex p. Hore, Id. 600. Sharp v. Hawker, 5 Dowl. 186, and see Re Williams, Id. 236.

The motion must be made within a reasonable time after the commission of the offence or other misconduct complained of: and therefore where the application was not made until three years and a half after the attorney was admitted, and the misconduct complained of occurred before his admission, the court refused the rule; Re Gent. 2 B. & Ad. 766; and even where only three terms had elapsed, the application was holden to be too late. Garry v. Wilks, 2 Dowl. 649. Also,

we have seen, (ante, p. 45, n (k), that any application to strike an attorney off the roll, for any defect in his articles of clerkship, or in the registry thereof, or in his service under such articles, or in his admission and enrolment, must be made within twelve months from the time of his admission and enrolment. 6 & 7 Vict. c. 73, s. 29. It may be necessary to mention that a rule nisi that an attorney shall answer the matters of an affidavit, cannot be moved for on the last day of term; Re Turner, 1 Har. & W. 217, 3 Dowl. 557. Baily v. Jones, 1 Chit. 744; and in the Exchequer, the court require it to be made so early in the term, that the attorney may have time to show cause against it during the same term. Ex p. -, 2 Dowl. 227.

The form of the motion may readily be collected, from what has been already stated, ante, p. 91, &c. where we have considered in what cases, and how, the courts will punish an attorney for misconduct. Where the misconduct arises from not doing something which the attorney was required to do by a rule of court, or a judge's order made a rule of court, the application must be for an attachment, and not that the attorney shall answer the matters of the affidavit. Ex p. Townley, 3 Dowl. 39. Ex p. Grant, Id. 320. And you cannot move for the rule nisi in the alternative, that he do a certain act, or that an attachment shall issue against him; but you must first move that he do the act, and make that rule absolute; and if the attorney afterwards disobey the rule, move for an attachment. Roscoe v. Hardman, 5 Dowl. 157, 2 Har. & W. 118. But where a rule was made absolute, that an attorney should do a certain act, and that if he did not do so, an attachment should issue against him: it was holden that, upon the usual affidavit of his having disobeyed the rule, the attachment might issue in the first instance. Ex p. Grant, 3 Dowl. 320.

The affidavit in support of the application may be intituled in the cause in which the misconduct arose, if in fact it arose in any cause; Simes v. Gibbs, 6 Dowl. 310; if it did not, it may or may not be intituled in the matter of the attorney. If it do not state the misconduct directly and positively, it must state, not merely facts from which it may be inferred, but also the information and belief of the party that the attorney is guilty of the misconduct the deponent imputes to him. Re King, 3 Nev. & M. 716. As to the affidavit in answer, where the party swore to an incredible story, the court made the rule absolute for an attachment, although he positively denied the malpractices imputed to him. Re Crossley, 6 T. R. 701.

If the rule be made absolute against the attorney, he will be obliged to pay the costs as a matter of course. If on the other hand, there appear to be no ground for the application, the rule will be discharged with costs. But if there appear to be reasonable and probable cause for applying to the court against

the attorney, although it eventually turn out that there is no actual ground for imputing misconduct to not give him the costs of the application. Roe, 3 D. & R. 226.

him, the court will Doe d. Thwaites v.

If the matter be referred to the master, he is not confined to the affidavits made use of in court, but may receive any other affidavits the parties may choose to make, on either side. Dicas v. Warne, 2 Dowl. 812.

If the attorney be struck off the rolis of one court, the other courts, upon application, and upon merely reading the rule in that case, will also make the same order, without further investigating the circumstances of the case; Ex p. Yates, 1 Dowl. 724, C. P. R. M. 1654, but see Re Smith, 1 Brod. & B. 522. Ex p. Hague, 3 Brod. & B. 257. Dax, 29; and if afterwards re-admitted by the court which first struck him off, the other courts, upon application, and upon reading the rule for his re-admission, will also order him to be re-admitted. Ex p. Yates, supra. See Ex p. Parry, 5 Dowl. 81.

Striking an attorney off the roll, at his own request.] If an attorney wish to be struck off the roll, for the purpose of being called to the bar, or the like, the court upon application will make an order accordingly, upon his stating by affidavit that no proceedings are pending against him as attorney, and that he expects none. See Ex p. Gray, 9 Dowl. 336.

SECTION III.

Agents to attornies.

Their duties, &c.] Country attornies usually have agents to transact such parts of their business as must be done in London. Both, of course, must be attornies, regularly admitted, and duly certificated. The agent for the plaintiff's attorney sues out the writ, and his indorsement upon it, makes him known to the opposite party; the agent for the defendant's attorney enters a common appearance, and thereby becomes known to the plaintiff's agent; after which, all the proceedings in the cause, to issue and notice of trial inclusive, are transacted between the agents, precisely as if they were the only attornies in the cause. The plaintiff's agent makes up the nisi prius record, sues out jury process, and transmits them to the country attorney, if the cause is to be tried in the country. Notice of trial or inquiry, and of continuance of inquiry, shall be given in town; but countermand of notice of trial or inquiry may be given in either town or country, unless otherwise ordered by the court or a judge. R. G. H. 2 W. 4, s. 57, and see Cheslyn v. Pearce, 1 Mees. & W. 56. And after the cause is tried, the agent in town obtains the postea from the associate,

procures the costs to be taxed, sues out execution, and transmits it to the country attorney, or to the under-sheriff of the county where it is to be executed, or delivers it to the undersheriff's agent in London.

If the trial be in London or Westminster, the country attorney seldom attends it, unless it be a cause of considerable importance, or that his presence be necessary as a witness, or the like and it is accordingly holden to be a matter of discretion with the master, whether he will allow for such attendance in costs or not. Parsloe v. Foy, 2 Dowl. 181. So, if the trial be in the country, the London agent seldom attends it, unless it be a cause of great magnitude; in which case, the attendance of such agent, intimately acquainted, as he must be, with all the proceedings in the cause, may be of serious importance to the client.

If

But although the London agents have thus the management of the cause until trial, and afterwards until execution, there is no privity whatever between them and the clients. an agent be guilty of negligence, and the attorney's client thereby sustain an injury, the client cannot sue him, nor will the court entertain any application against him, upon the part of the client, for there is no privity between them; the client's remedy in such a case is against his own attorney. Ex p. Jones, 2 Dowl. 161, and see Gray v. Kirby, Id. 601. So, the agent cannot sue the client, for the amount of his costs, in any particular cause. Nor has he a general lien on the money or papers of the client in his hands, for any balance due to him by the country attorney; he can claim merely to the extent of his agency costs in the client's suit. White v. Royal Exchange Assurance, 1 Bing. 21, and see Moody v. Spencer, 2 D. & R. 6. Bray v. Hine, 6 Price, 203. But he has the ordinary lien of an attorney, for his general balance, upon the papers or money of his own client, the country attorney, which may at any time come into his hands. Taunton v. Goforth, 6 D. & R. 384, and see Gray v. Kirby, 2 Dowl. 601.

Their bills may now be referred to the master for taxation, in precisely the same manner as the bills of any other attornies. See ante, p. 75.

Where, in a country cause, notice of trial was given, but no further proceedings were taken for seven years, when the defendant obtained a rule nisi for judgment as in case of a nonsuit, and served it upon the agent in town; the agent knew nothing of the plaintiff, he had been agent to his attorney, but had ceased to be so; and the country attorney had left his place of residence, and the agent did not know where he was to be found this being stated to the court, by affidavit, on the part of the agent, the court enlarged the rule, so as to give time to the defendant to serve it upon some other person. Curtis v. Tabram, 1 Har, & W. 523.

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