This was an action of account stated with defendant's wife, dum sola. The pleadings, as they eventually stood, consisted of a count on an account stated, plea nunquam indebitatus and thereupon issue.

At the trial a verdict was found for plaintiff, with 20,000l. damages, with leave reserved to move to enter a verdict for the defendant. A rule having been obtained, accordingly,

Nov. 10, 1862, Kennedy in person showed cause. I contend, first, that I am entitled to recover under the rule laid down in Lampleigh vs. Brathwaite, Hob. 105, 1 Smith L. C. 135, that a voluntary courtesy, moved by a previous request, will uphold a subsequent promise of payment; secondly, that I have a good right of action under the promise to compensate me for loss and damage, irrespectively of the claim for services as counsel; thirdly, that remuneration for my services as counsel is recoverable under the express contract, and that the count on an account stated is applicable to each of these cases: Harris's Case, Dyer 272, note 29; Sidnam vs. Worthington, Cro. Eliz. 42; Townsend vs. Hunt, Cro. Car. 408; Bosden vs. Thinne, Yel. 400; Marsh vs. Rainsford, 2 Leo. 111. Comyn's Dig. Act. on Case in Assumpsit, B. 12. This rule is so clear that I should not dwell on it but for a misapprehension which appears to have been created by the note in Wennall vs. Abney, 3 Bos. & Pull. 247, and the language of Lord DENMAN in Eastwood vs. Kenyon, 11 Ad. & El. 438; and Roscorla vs. Thomas, 3 Q. B. 234. The whole law on this subject was discussed in Bradford vs. Roulston, 8 Irish Rep. 468; Veitch vs. Russell, 3 Q. B. 928; Knowles vs. Mitchell, 13 E. 249; Highmore vs. Primrose, 5 M. & S. 65; Roper vs. Holland, 3 A. & E. 99; Pardoe vs. Price, 16 M. & W. 458; Edwards vs. Lowndes, 1 E. & Bl. 89; Topham vs. Morecroft, 8 E. & Bl. 972; Moor vs. Hill, 2 Peake 10; Cleaver vs. Moor, 3 Jur. N. S. 475; Greaves vs. Cook, 2 Jur. N. S. 475; Cocking vs. Ward, 1 C. B. 858. Secondly. The magnitude of my loss or the benefit to the defendant is immaterial. Sturlyn vs. Albany, Cro. Eliz. 67; Haigh vs. Brookes, 10 Ad. & El. 309; Bunn vs. Guy, 4 E. 190; Shadwell vs. Shadwell, 9 C. B., N. S., 159. Thirdly. It is laid down by Blackstone, 3 Com. 28, that

counsel cannot maintain an action for fees, and he refers to 1 Chan. Rep. 38, and Sir John Davies' Rep. pref. 22.

The fee, which was at a late period called "honorarium," did not form the subject of what the Romans called "actio" (and this is the origin of Blackstone's mistake), but by the extraordinaria cognitio before the magistrate or præses of the province. Sandars' Institutes, 475; Dig. 50, tit. 13. The fees therefore at Rome differed from those in England in three ways-they were recoverable, limited in amount, and payable after the business was done. The term honorarium, as applicable to a counsel's fee, was for the first time introduced by Sir JOHN DAVIES, in that preface which Blackstone refers to, and which is so often cited as an authority for the alleged custom; but there is no truth in this statement, and this honorarium must have been the creation of his own brain. Formerly counsel communicated directly with their clients without the intervention of attorneys, and to meet them the serjeants and apprentices used to frequent the Previse or portico of St. Paul's. Chaucer 311; Hollinshed Chron. 1, 304; Hall's Chron. 503; Fortescue, p. 196, Amos' ed.; Dugd. Orig. 142; Stowe's Survey 1, 745; Addison's Templars 375; Ryley's Parl. Plead. 104; Crabb's Hist. Eng. Law, Then as to fees, which word means a stipend, and not an honorarium; and the words "salary," "hire," and wages," are frequently applied to counsel's remuneration. 27 Ed. 3, c. 29; 5 Rich. 2, c. 16; 23 Hen. 6, c. 10; Johnson's Life of Coke 1, 79. And in the mirror of justice a serjeant's fee is called salary. [ERLE, C. J.-Down to my time Queen's counsel received "salary."-Then as to the fees being recoverable, in Brownlow's Entries (published in 1854), p. 172, there is a declaration in debt by a counsel, stating "that the defendant had retained him to be his counsel in any action in which he should sue or be sued, pro salaries 68. 8d. a year," claiming five years' arrears, with a count for 68. 8d. for money lent. Also Rastall's Entries, p. 194, tit. Debt," pl. 3; Id. p. 203; p. 202, pl. 6, 7, 8; Id. p. 429, tit. Maintenance," pl. 10, 11; 34 Hen. 6, Year Book 27; 5 Foss's Judges of England 91; Manning's Serviens ad Legem, p. 272; Plowden, pp. 32, 160; Com. Dig. "Debt," A. 8; Cro. Jac. 482; 8 Mod. R. 42. We also find that actions were brought against

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counsel. Year Books, 14 Hen. 6, fo. 18; 20 Hen. 4, fo. 34, Rolle's Abr. "Action sur case," 6, 91; Moore vs. Rowe, 1 Chan. Rep. He also referred to Thornhill vs. Evans, 2 Atk. 330; Morris vs. Hunt, 1 Chit. 544; Hobart vs. Butler, 9 Tr. Crom. Rep. 157; Doe vs. Hall, 15 Q. B. 171; Egan vs. Kensington Union, 3 Q. B. 935; Re May, 2 Jur. N. S. 1169; Vivany vs. Warne, 4 Esp. 46; Hoggins vs. Gordon, 3 Q. B. 436; Marsack vs. Webber, 6 H. & N. 5; Re Hall, 2 Jur. N. S.; Swinfen vs. Lord Chelmsford, 5 H. & N. 919.

Macaulay, Q. C. in support of the rule.-There is no evidence to support a contract of account stated. If terms imported into an account are not recoverable, no question can arise on any account stated thereon. Truman vs. Hurst, 3 R. 40; Petch vs. Lyon, 9 Q. B. 147; French vs. French, 2 M. & G. 644; Thomas vs. Hawkes, 8 M. & W. 140; Penrice vs. Parke, Finch 75; Thornhill vs. Evans, 2 Atk. 330, 332; Box vs. Barnaby, Hobart 117; Wood vs. Dounes, 18 Ves. 120; Huguenin vs. Baseley, 2 W. & T. Tud. L. C. 462; Earle vs. Hopwood, 9 C. B., N. S., 566.

Field on the same side.- Whitehead vs. Howard, 5 Moore 105; Pierce vs. Evans, 2 C. M. & R. 294; Lubbock vs. Tribe, 3 M. & W. 607; Scadding vs. Eyles, 9 Q. B. 858; Brooks vs. Bockett, 9 Q. B. 849.

No action lies on ordinary fees, nor on an express contract by counsel for work done as counsel. Vin. Abr. "Counsellor," pl. 22, covers the second proposition as well as the first: Poucher vs. Norman, 3 B. & C. 744; Hoggins vs. Gordon, 3 Q. B. 474. Forms of action are no doubt given as in Rastall's Entries 194; but there the judgment went by default, and it is a pregnant fact that from that time no authority can be found. The plaintiff relies chiefly on Lampleigh vs. Brathwaite, but the ground of that decision is questionable. Roscorla vs. Thomas, 3 Q. B. 234, and Kay vs. Dutton, 2 D. & L. 291, have shaken Lampleigh vs. Brathwaite.

Jan. 16, 1863.-ERLE, C. J.-In this case the defendant obtained a rule to show cause why the verdict for the plaintiff should not be

set aside, and either entered for the defendant if there was no evidence of a debt, or for a new trial if the verdict was against the evidence. The material facts upon the question are, in the course of the suit of Swinfen vs. Swinfen the plaintiff, a barrister, became the advocate of the present defendant, and during the continuance of that litigation she made repeated requests to him for exertions as an advocate, and repeatedly promised to remunerate him for the same, and after the end of the litigation she spoke of the amount of this remuneration; and for the purposes of the present judgment we assume that she admitted the amount of debt due for such remuneration to be 20,0007., and promised to pay it. These facts are no evidence to support the verdict if the promise of the defendant did not constitute any obligation; and we are of opinion that it did not. We consider that a promise by a client to pay money to a counsel for his advocacy, whether made before, or during, or after the litigation, has no binding effect; and, furthermore, that the relation of counsel and client renders the parties mutually incapable of making any legal contract of hiring and service concerning advocacy in litigation. For authority in support of these propositions we place reliance on the fact that in all the records of our law, from the earliest time till now, there is no trace whatever either that an advocate has ever maintained a suit against his client for his fees in litigation, or the client against an advocate for breach of a contract to advocate; and as the number of precedents has been immense the force of this negative fact is proportionally great. To this we add the tradition and understanding of the profession, both as known to living memory and as expressed in former times. Sir JOHN DAVIES (Davies's Rep., Pref. 23) declares that understanding at the beginning of the 17th century, when he says "that the fees of professors of the law are not duties certain, growing due by contract for labor or service, but gifts; not merces, but honorarium." Sir JOHN DAVIES would have ample experience of the rules of the profession from his eminence in the law, and his opinion is entitled to much weight. Lord STOWELL, as appears in a work remarkable for learned research (Wallace's Reporters 27), speaks of him as "a poet, a lawyer, and a statesman, and highly distinguished in each

of these characters." Lord HALE declares the same understanding of the profession in the note to Co. Lit. 295 a, saying, "a counsellor cannot bring any action (id est for his fees), for he is not compellable to be a counsellor. His fee is honorarium, and not a debt;" and for this he cites Lord NOTTINGHAM'S MSS. The same note contains the opinion of Mr. Butler to the same effect, saying that in England the fees of counsel are honorary in the strict acceptation of the word. Blackstone also (vol. 3, p. 28) declares the same understanding: "A counsel can maintain no action for his fees, which are given not as locatio or conductio, but as quiddam honorarium, not as salary or hire, but as mere gratuity." As we know of no authorities that conflict with these, we only add the names of the judges who have had occasion to declare an opinion to the same effect, and they are Lord HARDWICKE, Lord KENYON, KINDERSLEY, V. C., PIGOT, C. B., of Ireland, and BAYLEY and BEST, Js. See also Thornhill vs. Evans, 2 Atk. 311; Turner vs. Phillips, 1 Peake 166; In Re May, 4 Jur. N. S. 1169; vs. Butler, 9 Jur. C. L. Rep. 157; and Morris vs. Hunt, 1 Chit. 544. These are authorities for holding that the counsel cannot contract for his hire in litigation. The same authorities we rely on to show that the client cannot contract for the service of a counsel in litigation. There is the same absence of any precedent for such an action, and the reason for the one incapacity is good for both.

We proceed to the authorities on which the plaintiff relied. Instead of examining each citation separately, we think it more convenient to take them in classes, and to give the reason why each class appears to us to have no weight. The proposition is confined to incapacity for contracts concerning advocacy in litigation. This class of contracts is distinguished from other classes on account of the privileges and responsibility attached to such advocacy, and on this ground we consider the cases unconnected with such advocacy to be irrelevant. Thus the barrister who contracted to serve as returning officer (Egan vs. Kensington Union, 3 Q. B. 234), and the barristers who contracted to serve as arbitrators (Virany vs. Warne, 4 Esp. 46; Hoggins vs. Gordon, 3 Q. B. 466; Marsack vs. Webber, 6 H. & Norm. 5), and the barristers who contracted