CHAPTER V. ATTORNEY. Of Actions brought by Attornies and Solicitors for the Recovery of their Fees, p. 157. Of the Statutes 3 Jac. I. c. 7, s. 1; 2 Geo. II. c. 23, s. 23, relating to the Delivery of Bills by Attornies, and 12 Geo. II. c. 13, s. 6, p. 158. Taxation of Bill, p. 165. Liability of Attornies for Negligence and Unskilfulness, p. 169. ATTORNIES (1) and solicitors may maintain an action of debt (a), or of indebitatus assumpsit, for the recovery of their fees. The latter form of action is that which is most usually adopted. If a solicitor or agent for a third person retain an attorney, and promise him his fees, indebitatus assumpsit will lie against such solicitor or agent (b). But it seems doubtful, whether, in this case, an action of debt would lie (c). To an action of assumpsit for fees due to the plaintiff as an attorney (d), the defendant may plead the statute of limitations, viz. that he did not promise or undertake within six years next before action brought. (a) Adm. in Bradford v. Woodhouse, Cro. Jac. 520. (b) Ambrose and Roe, Skin. 217, 218; Adm. in Sands v. Trevilian, Cro. Car. 194. (c) Aff. Bradford v. Woodhouse, Cro. Jac. 520. Neg. Sands v. Trevilian, Cro. Car. 194. (d) Oliver v. Thomas, Ld. Raym. 2. (1) By R. G. H. T. 6 Will. IV. followed by regulations in E. T. 6 Will. IV., every person applying to be admitted an attorney of B. R., C. B., and Exchequer, undergoes an examination as to his fitness and capacity, by examiners appointed every year in Easter Term. The first examination took place at the Hall of the Incorporated Law Society in Chancery Lane, on the 4th of June, 1836. The rules and questions relating to this subject will be found in 2 Bingh. N. C. 611, 800; 1 M. & W. 1, 290; 1 Tyr. & Gr. 233; 4 Ad. & Ell. 767. With respect to the certificate requisite for an attorney, see stat. 37 Geo. III. c. 90; ss. 26, 7, 8, 30; and stat. 44 Geo. III. c. 59. See also Eyre v. Shelley, 6 M. & W. 269. By stat. 3 Jac. I. c. 7, s. 1, "No attorney, solicitor, or servant to any, shall be allowed from his client or master, for any fee given to any serjeant or counsellor, or for any sums of money given for copies to any officers in any court of record at Westminster, unless he have a ticket subscribed with their hands and names, testifying how much hath been received or paid, and at what time; and all attornies and solicitors shall give a true bill to their masters (2), clients, or their assigns, of all other charges concerning the suits which they have for them, subscribed with their hands and names, before they shall charge their clients with such fees or charges. To an action brought by an attorney to recover fees for the prosecution of a habeas corpus (e), to remove a plaint levied against defendant in an inferior court, and for defending him in that suit after it was removed into the King's Bench, the defendant pleaded this statute: on demurrer, judgment was given for the plaintiff; because this statute does not extend to matters transacted in inferior courts, but to suits in the courts of Westminster Hall only. In an action brought by an attorney against an executor for fees (f) and sums of money expended by the plaintiff in several suits for the testator of the defendant, the defendant pleaded this statute, and that the plaintiff had not given to the testator, nor to the defendant, before (e) Brickwood v. Fanshaw, Carth. 147. (ƒ) Brooks v. Hague, T. Raym. 245. (2) Indebitatus assumpsit for agent's fees. It was objected on the part of the defendant, that plaintiff ought to prove a bill delivered. For the plaintiff it was insisted, that agents were not within the statute; that, at the time when it was made, agents were unknown; that the attornies then came to London to solicit their causes in person. Lee, C. J., was of opinion, that the case was not within the statute, but offered to save the point. Verdict for plaintiff, Jones, one, &c. v. Price, B. R. May 19, 1748. See also Bridges, one, &c. v. Francis, Peake's N. P. C. 1, 2, where Kenyon, C. J., expressed the same opinion. S. P. per Lord Tenterden, C. J., in Sandys and another v. Hornby, Gent. &c. 2 M. & Malk. 33. See also Hill v. Sydney, 7 A. & E. 956. The court has not any jurisdiction to order agents' bills with their attorney to be taxed, even although a special suit be pending; for the only authority possessed by the court of ordering the taxation of an attorney's bill is conferred by statute; and the 6th section of 12 Geo. II. c. 13 expressly exempts agents' bills from the operation of the 2 Geo. II. c. 23, s. 23; Weymouth v. Knipe, 3 Bingh. N. C. 387; 3 Sc. 764; but, in a case in Chancery, (Jones v. Roberts, 8 Sim. 400,) Sir L. Shadwell, V. C., said, "For a series of years, it has been the established practice of this court to direct the taxation of an agent's bill, on the application of the solicitor who employed him; and it appears to me that I am bound to adopt and follow it, notwithstanding the opinion expressed by the judges of the Court of Common Pleas in Weymouth v. Knipe." In Toghill v. Grant, 2 Beav. 261, Lord Langdale, M. R., concurred with the V. C. the writ brought (3), any bill of charges according to the statute: on demurrer, it was adjudged a good plea. In Milner v. Crowdall, 1 Show. 338, where the same plea was pleaded, on demurrer, because defendant had not averred his plea, the objection was overruled, the plea being in the negative (4). By stat. 2 Geo. II. c. 23, s. 23, (made perpetual by stat. 30 Geo. II. c. 19, s. 75,) for the better regulation of attornies and solicitors, it is enacted, that "no attorney of the Courts of King's Bench, Common Pleas, or Exchequer, &c., nor any solicitor in Chancery, &c., shall commence or maintain any action or suit for the recovery of any fees, charges, or disbursements, at law or in equity, until the expiration of one month (5), or more, after such attorney or solicitor respectively shall have delivered unto the party to be charged therewith, or left for him, at his dwelling-house (6), or last place of abode, a bill of such fees, charges, and disbursements, written in a common legible hand, and in the English tongue, except law terms and names of writs, and in words at length (7), except times and sums, which bill shall be subscribed with the proper hand of such attorney or solicitor: and upon application of the party chargeable by such bill, or of any other person in that behalf authorized, unto the Lord Chancellor, or the Master of the Rolls, or unto any of the courts aforesaid, or unto a judge or baron of any of the said courts, respectively, in which the business contained in such bill, or the greatest part thereof in amount or value, shall have been transacted, they may refer the bill, &c. to be taxed (although no action be depending in such court touching the same)." The foregoing provisions, being beneficial to the subject, have received a liberal construction (g); hence, where part of the charges of an attorney's bill was for drawing an affidavit, and for (g) Winter, one, &c. v. Payne, 6 T. R. 645. (3) This allegation seems essential; for in Clark v. Godfrey, Str. 633, it was settled, by the Court of Common Pleas, on great consultation, that the bill must be delivered before action brought, in order that the client may have an opportunity of looking it over before he incurs further expense. (4) In this case it was said by the court, that this statute might be given in evidence under the general issue. (5) The term "month" here means a lunar month, (Hurd v. Leach, 5 Esp. N. P. C. 163, Ellenborough, C. J.,) consisting of twenty-eight days, exclusively of both the day of delivering the bill and of commencing the action. Blunt v. Heslop, 3 Nev. & P. 553; 8 A. & E. 577. (6) Leaving at the counting-house is not sufficient. 2 Bos. & Pul. 343. (7) By statute 12 Geo. II. c. 13, s. 5, every attorney, clerk in court, and solicitor, may write his bill of fees, charges, and disbursements, with such abbreviations as are now commonly used in the English language. attendance on the party at the swearing, it was holden, that they were charges for proceedings in court, because the oath must either be administered by the court, or by some authority delegated by the court; and that an action could not be maintained for the recovery of such charges, because a bill had not been delivered a month before the action was brought. So where an action was brought for the amount of a bill for business done at the quarter sessions (h), upon a prosecution for an assault, it was holden, that the action could not be maintained, because there was not any signature to the bill which had been delivered (8). An attorney's bill may be referred to be taxed, though all the business charged was done at the quarter sessions (i). So a dedimus potestatem charged in an attorney's bill, is a sufficient item to enable the court to refer the bill for taxation, though with this exception it be entirely for conveyancing (k). So a bill for business done in the Insolvent Court in procuring the discharge of an insolvent (1). Where an action was brought in C. B. by an attorney of that court for the recovery of his bill of charges for business done in the Central Criminal Court, it was holden (m), that a judge might make an order for the taxation of such bill upon the usual terms. Preparing a replevin bond is business done in a county court, and consequently taxable (n). Charges by an attorney for attending and advising a party in a suit that had been brought against him, are taxable charges; and though they be the only taxable charges in a bill consisting of many items, yet the attorney cannot recover any part of his demand without leaving a bill as the statute directs (o). Money paid by an attorney for costs which his client is adjudged to pay is a disbursement within the statute (p). But a plaintiff's attorney, who, at the defendant's request, puts in bail for him, and afterwards pays the debt and costs, without having them first taxed, and without making any charge for his own labour therein, need not deliver a bill a month before he sends for the money so advanced; for the statute applies to cases where a person employed (h) Clarke v. Donovan, 5 T. R. 694. (i) Ex parte Williams, 4 T. R. 496; Clarke v. Donovan, 5 T. R. 694, S. P., recognized in Sylvester v. Webster, 9 Bingh. 388, in which it was holden, that an action could not be maintained upon such bill, unless it had been delivered. (k) Ex parte Prickett, 1 Bos. & Pul. N. R. 266. (1) Smith v. Wattleworth, 4 B. & C. 364. (m) Curling v. Sedger, 4 Bingh. N. C. 743. (n) Wardle v. Nicholson, 4 B. & Ad. 469; 1 Nev. & M. 355; Becke v. Wells, 1 Cr. & M. 75; Tyr. 193. (0) Smith v. Taylor, 7 Bingh. 259. (p) Crowder, Lavie and Co. v. Shee, 1 Campb. 437. (8) Buller, J., had ruled otherwise in Stephenson v. Taylor and another, York Summer Assizes, 1786, on the ground that the statute was confined to business done in a court of record, wherein attornies are admissible and sworn. See the first section of the statute 2 Geo. II. c. 23, and quare to what courts does the word aforesaid in sect. 23, refer? as an attorney sues to recover a compensation for his labour and skill (q). Charges for conveyancing are not within this statute (r), and since the abolition of fines and recoveries, an attorney's bill for preparing acknowledgments of married women, and attending before the commissioners, is not taxable (s); for the certificate of a married woman's acknowledgment is no more than a statutory conveyance. Charges for searching for judgments are not taxable (t). Business done in the Middlesex Court of Requests is not taxable, there being no proper taxing officer of that court, and the attorney not acting therein as such (u). It is sufficient, if some of the items of the bill upon the face of them import that a cause was depending in some court (x), it is not necessary to prove it aliunde. An attorney having transacted common law, as well as conveyancing and other business, not taxable, delivered a bill for all the common law business, which his client examined and admitted to be correct, and directed the attorney to borrow for him a sum of money, which was accordingly done, and credit given to him for that amount; subsequently, on failing to obtain payment for any part of his charges for conveyancing, the attorney brought an action for the residue of his demand; it was holden (y), that he had no right to separate the common law and conveyancing bills, and to appropriate the sum credited in discharge of the former; and therefore he could not maintain an action without delivering a bill. But a bill for business done under a commission of bankruptcy, need not be delivered a month before action (2) brought. An attorney's bill, generally speaking, ought to give a history of the cause, so as to enable the officer to judge of the propriety of the various items of which it is composed. A delivery of a bill, containing the items of the extra costs, and omitting the items of taxed costs which have been received from the other side, is not a sufficient compliance with the statute; but although an attorney's bill contain items not specified according to the statute, he may still recover the portion of his bill, as to which the provisions of the statute have been complied with (a). The bill must be left with the party charged (b), for in a case where the plaintiff had delivered his bill to the defendant in due time, who acknowledged the debt, and said that he would pay it, but that he did not know what to do with the bill, upon which the (q) Prothero v. Thomas, 6 Taunt. 196. (r) Hill v. Humphreys, 2 Bos. & Pul. 345, post, p. 162. See also Bull. N. P. 145. (8) In re Branson, 3 Bingh. N. C. 783. (t) Ex parte Bowles's Trustees, 1 Bingh. N. C. 632; Fenton v. Correa, Ry. & Moo. 262. VOL. I. (u) Becke v. Wells, 1 Cr. & M. 75. M |