mise is laid because such request is surplusage, and therefore the day on which it is made is wholly immaterial.

Of the Replication.-To a plea of tender the plaintiff may reply a subsequent demand and refusal.

The usual form of this replication is, that, "after the making of the tender mentioned in the plea, and before the commencement of the action, the plaintiff demanded the said sum (the sum tendered,) but that the defendant refused to pay the same," &c. Issue being joined on the fact of this demand, it will be incumbent on the plaintiff to prove that he demanded the precise sum before tendered. Proof of a demand of a larger (u) sum than that which was originally tendered will not support the issue. The demand ought to be made by some person authorized to give the debtor a discharge. Hence, in a case where the demand had been made by the clerk to the plaintiff's attorney (x), who had never seen the defendant before going upon this errand, Lord Ellenborough held the demand insufficient; admitting, however, that the demand by the attorney himself might have done. If to the plea the plaintiff reply a latitat (y) (85), and that the tender was not made before the suing out the latitat, the defendant may rejoin, that plaintiff had not any cause of action at the time of suing it out; because the plaintiff by the replication makes the latitat the commencement of the suit; therefore it may be considered in the nature of an original writ, and

(u) Spybey v. Hide, 1 Campb. 181, Ld. Ellenborough, C. J.; Rivers v. Griffiths, 5 B. & A. 630, S. P. These cases were both recognized in the case of Brandon v. Newington, 3 Q. B. 915; 2 G. & D. 194, in which the authority of two cases in

the Exchequer, viz., Cotton v. Godwin, 7
M. & W. 147; and Tyler v. Bland, 9 M.
& W. 338, was denied.

(x) Coles v. Bell, 1 Campb. 478, n.
(y) Wood v. Newton, B. R. 1 Wils. 141.

(85) Denison, J., doubted whether the replication of a latitat was good, because it was not material when the process issued. This was upon a supposition that the latitat was only process. 1 Wils. 148. Indeed when the issuing out of a latitat is not replied to the statute of limitations, or to avoid a tender, or given in evidence to support a penal action, it is considered but as process, and not as the commencement of the suit. Foster v. Bonner, Cowp. 454. It is in the election of the plaintiff to consider the memorandum, or the actual suing out of the writ, as the commencement of the suit, this is the rule, subject to the exception that in penal actions and in cases on the statute of limitations the defendant may always resort to the real time. Pugh v. Martin, 3 Doug. 347. But now by R. G. H. T. 4 Will. IV. No. 1, every pleading, as well as the declaration, shall be entitled of the day of the month and year when the same was pleaded, and shall bear no other time or date, and every declaration and other pleading shall also be entered on the record made up for trial and on the judgment roll, under the date of the day of the month and year when the same respectively took place, and without reference to any other time or date, unless otherwise specially ordered by the court or a judge. See also 1 & 2 Vict. c. 110, s. 2.

defendant ought to have the same advantage of it as the plaintiff. The same observation which was made at the conclusion of the cases relating to the plea of set-off applies here, viz. that if by the plea of tender being found for the defendant, the balance proved on the non assumpsit is under 40s. ; yet, if that, added to the sum tendered, exceed 40s. the jurisdiction of the superior court will not be affected (z), and the defendant will not be permitted to enter a suggestion on the roll in order to obtain his costs (a).

V. Damages. Judgment, p. 164.

WHERE an action is brought for not delivering goods upon a given. day, the true measure of damages is the difference between the contract price (b), and that which goods of a similar quality and description bore on or about the day, when the goods ought to have. been delivered. Contract for a quantity of oil at a certain price, to be delivered at a future day; in an action for not accepting and paying for the oil, the proper measure of damages (c) is the difference between the price contracted for and the market price at the time when the contract ought to have been completed. Where A. contracted for the purchase of wheat "to be delivered at B. as soon as vessels could be obtained for the carriage thereof," and subsequently (the market having fallen) A. gave the seller notice that he would not accept it, if it were delivered, the wheat being then on its transit to B., it was holden (d), in an action against A. for not accepting the wheat, that the proper measure of damages was the difference between the contract price and the market price on the day when the wheat was tendered to A. for acceptance at B. and refused; and not on the day when the notice was received by the seller. But in an action for not replacing stock (e), the highest value as it stood either when it ought to have been replaced, or at the time of trial, is to be taken, but not any higher price (ƒ) to which the stock may have risen at any intermediate time. In an action for not accepting

(z) Heaward v. Hopkins, Doug. 448.
(a) Middx. Court of Conscience, stat.
23 Geo. II. c. 33, s. 19 (86).

(b) Gainsford v. Carroll, 2 B. & C. 624.
(c) Boorman v. Nash, 9 B. & C. 145.
(d) Phillpotts v. Evans, 5 M. & W.

475, recognizing Leigh v. Paterson, 2 Moore, 588.

(e) Shepherd v. Johnson, 2 East, 211. (f) M'Arthur v. Ld. Seaforth, 2 Taunt. 257.

(86) But see the words of the statute, by which it is enacted, "that if any action of debt or assumpsit shall be commenced in any of the king's courts at Westminster, and the defendant shall live or reside in Middlesex, and the jury upon the trial of such cause shall find the damages for the plaintiff under 40s., unless the judge shall in open court certify on the back of the record, that, 1, the freehold or title to the plaintiff's land, or 2, an act of bankruptcy principally came in question, &c., the defendant shall recover double costs." See also Clark v. Askew, 8 East, 28; Nightingale v. Barnard, 4 Bingh. 169. But see stat. 5 & 6 Vict. c. 97, s. 2, post, tit. Imprisonment."

railway shares, it was holden that the proper measure of damages, is the difference of the prices on the day when they ought to have been accepted, and on the day when they were resold by the vendor, such resale being within a reasonable time (g).

Where an agreement contains several stipulations, some of them touching matters of great importance to the parties, and others matters of little or no importance, a stipulation for liquidated damages, generally, upon any violation of the agreement, shall not be carried (h) into effect; but otherwise, if the agreement specify the particular stipulation or stipulations to which the liquidated damages are to be confined.

Where the contract was for about 300 quarters (more or less) of foreign rye, shipped on board a particular vessel coming from Hamburgh; the vessel brought 345 quarters, and the sellers refused to deliver any part, unless the purchasers would accept the whole. It was holden (i), that they were not bound to accept the whole: Ld. Tenterden, C. J., and Littledale, J., being of opinion, that by the words "about" and "more or less," the parties could not have contemplated so large an excess as 45 over 300 quarters; and per Parke, J., and Patteson, J., "It lay on the sellers to show that such an excess was contemplated; and if from the obscurity of the contract they were unable to do so, their defence failed." In this case evidence was received, that the words " more or less," in a contract for grain, according to the custom of merchants, does not require the purchaser to accept so large an excess. The judge, however, gave leave to move; the court did not decide on its admissibility; Littledale, J., expressed a doubt. N. He said also, When land is described in conveyances, it is often mentioned as containing so many acres and roods, "be the same more or less," but it is always understood that the excess bears a very small proportion to the quantity named, a much smaller proportion than that of 45 to 300 quarters.

Judgment.-Although it is a rule (k), that the court will look to the whole record, and give judgment according to the truth there disclosed, however irregular the mode of pleading may be; yet the court cannot pick out of various parts (1) of the record a different cause of action from that for which the plaintiff proceeds.

(g) Stewart v. Cauty, 8 M. & W. 160. (h) Kemble v. Farren, 6 Bingh. 141, recognized in Horner v. Flintoff, 9 M. & W. 678.

(i) Cross v. Eglin, 2 B. & Ad. 106.

(k) Le Bret v. Papillon, 4 East, 502; Charnley v. Winstanley, 5 East, 266.

(1) Head v. Baldrey, 6 A. & E. 469; 2 Nev. & P. 217, S. C.

CHAPTER V.

ATTORNEY.

Of Actions brought by Attornies and Solicitors for the Recovery of their Fees, p. 165.

Of the Statute 6 & 7 Vict. c. 73, p. 165.

Liability of Attornies for Negligence and Unskilfulness, p. 176.

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.

The stat. 6 & 7 Vict. c. 73, (22nd August, 1843,) s. 1, after reciting that the laws relating to attornies and solicitors, are nume

(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. See further provisions as to the appointment of examiners, and the admission of attornies and solicitors, in stat. 6 & 7 Vict. c. 73, ss. 15, 16, 17, 18. With respect to the certificate requisite for an attorney, see stat. 37 Geo. III. c. 90, ss. 26, 7, 8, 30; (but see 2nd part of 1st schedule of stat. 6 & 7 Vict. c. 73;) and see stat. 44 Geo. III. c. 59, and stat. 6 & 7 Vict. c. 73, ss. 22, 23, 26. See also Eyre v. Shelley, 6 M. & W. 269.

rous and complicated, and that it is expedient to consolidate and simplify, and to alter and amend the same, by s. 1, repeals the several acts and parts of acts, which are set forth in the first part of schedule I; and the several acts and parts of acts which are not repealed, are enumerated in the second part of the same schedule; and by s. 2, it is enacted, that "after the passing of this act, no person shall act as an attorney or solicitor, or as such attorney or solicitor sue out any writ or process, or commence, carry on, solicit or defend any action, suit or other proceeding, in the name of any other person, or in his own name, in the Court of Chancery, or Courts of Queen's Bench, Common Pleas, or Exchequer, or Court of the Duchy of Lancaster and Durham, or in the Court of Bankruptcy, or in the Court for the Relief of Insolvent Debtors, or in any county court, or in any court of civil or criminal jurisdiction, or in any other court of law or equity, in England and Wales, or act as an attorney or solicitor in any cause, matter or suit, civil or criminal, to be heard, tried, or determined before any justice of assize of oyer and terminer, or gaol delivery, or at any general or quarter sessions of the peace for any county, riding, division, liberty, city, borough or place, or before any justice or justices, or before any commissioners of her majesty's revenue, unless such person shall have been previously to the passing of this act admitted and enrolled and otherwise duly qualified (e) to act as an attorney or solicitor under or by virtue of the laws now in force, or unless such person shall after the passing of this act be admitted and enrolled and otherwise duly qualified to act as an attorney or solicitor, pursuant to the directions and regulations of this act, and unless such person shall continue to be so duly qualified and on the roll at the time of his acting in the capacity of an attorney or solicitor as aforesaid.

The 26th sect. enacts, that no person who as an attorney or solicitor shall sue prosecute defend or carry on any action or suit or any proceedings in any of the courts aforesaid, without having previously obtained a stamped certificate which shall then be in force, shall be capable of maintaining any action or suit at law or in equity for the recovery of any fee reward or disbursement for or in respect of any business matter or thing done by him as an attorney or solicitor as aforesaid, whilst he shall have been without such certificate as last aforesaid.

And by sect. 27, every person who shall have been duly admitted an attorney of any one of the superior courts of law at Westminster, shall be entitled upon the production of his admission therein, or an official certificate thereof, and that the same still con tinues in force, to be admitted as an attorney in any other of the said courts, or in any inferior court of law in England or Wales, upon signing the roll of such other court, but not otherwise (ƒ);

(e) See Williams v. Jones, 2 Q. B. 276; (f) See Prior v. Smith, 6 Dowl. P. C. 299 1 G. & D. 649.