Now by the Attorneys and Solicitors Act, 1870 (33 & 34 Vict. c. 28), s. 4, a solicitor "may make an agreement in writing with his client respecting the amount, and manner of payment," for his fees or disbursements, &c., either by a gross sum, or commission, or salary, but where the agreement is in respect of business transacted in court, the amount payable thereunder shall not be received by the solicitor until the agreement has been approved by a taxing officer. A client is not now bound by an oral agreement to pay the solicitor a lump sum in satisfaction of past costs. In re Russell, 30 Ch. D. 114. A receipt containing the terms of an agreement, assented to by the client, but signed by the solicitor only, is insufficient. Ex parte Munro, 1 Q. B. D. 724. There must be an agreement in writing signed by both parties. S. C., Id. 727, per Ld. Coleridge, C. J. By sect. 8, no action shall be brought to enforce such agreement, but the same may be enforced by the court on motion. This section applies only to an action to recover the agreed remuneration, and does not prohibit an action for refusing to allow the work to be done. Rees v. Williams, L. R., 10 Ex. 200. An agreement under this Act obviates (see sect. 15) the objection of no signed bill having been delivered, when an action is brought to enforce a solicitor's charges.

44),

Now under the Solicitors' Remuneration Act, 1881 (44 & 45 Vict. c. s. 2, general orders are made as to "the remuneration of solicitors in respect of business connected with sales, purchases, leases, mortgages, settlements, and other matters of conveyancing, and in respect of other business not being business in any action or transacted in any court, or in the chambers of any judge or master, and not being otherwise contentious business." See Stanford v. Roberts, 26 Ch. D. 155; Humphreys v. Jones, 31 Ch. D. 30, C. A. But by sect. 8 (1), in respect of such business it shall be competent for a solicitor and client, before or after or in the course of such business, to make an agreement for the remuneration of the solicitor to such amount, and in such manner, as they shall think fit, by a gross sum, or by commission or percentage, or by salary or otherwise. (2) "The agreement shall be in writing, signed by the person to be bound thereby, or by his agent in that behalf." (3) The agreement may be made on the terms that the remuneration shall or shall not "include all or any disbursements made by the solicitor in respect of searches, plans, travelling, stamps, fees, or other matters." (4) The agreement may be sued and recovered on or impeached and set aside in like manner and on the like grounds as an agreement not relating to the remuneration of a solicitor." Where an action is brought on such an agreement, the defence of no signed bill will not be available. By sect. 9,

"the Attorneys and Solicitors Act, 1870," supra, "shall not apply to any

business to which this Act relates."

Delivery of the bill, how and to whom.] Where the non-delivery of a signed bill is pleaded, plaintiff must prove that the bill was not only delivered, but left with the defendant for examination. Brooks v. Mason, 1 H. Bl. 290. Showing and explaining the bill without a regular delivery is not sufficient. Crowder v. Shee, 1 Camp. 437. It has been held not sufficient to prove that the bill was delivered at a particular place not shown to be the defendant's abode, and that the defendant afterwards delivered it to his attorney's clerk; Eicke v. Nokes, M. & M. 303; unless it appears that the defendant had it in his possession a month before action; per Alderson, B., Eggington v. Cumberledge, 1 Exch. 271; in which case a delivery of a bill by a local attorney to the general attorney of a company, who submitted it to the provisional committee, one of whom present was the defendant, a month before action, was held suffi

cient. Accord. Phipps v. Daubney, 16 Q. B. 514; 20 L. J., Q. B. 273, Ex. Ch. A delivery at the office of a public company, or to a person representing it, would be sufficient; but a delivery to one provisional committee-man at his private place of business is not sufficient alone, as against a co-committee-man; Edwards v. Lawless, 6 C. B. 329; but if two be shown to be joint contractors, the delivery to one is good as against the other. Mant v. Smith, 4 H. & N. 324; 28 L. J., Ex. 234. See also Blandy v. De Burgh, 6 C. B. 623.

The delivery of the bill to the attorney of the party has been held good, where that attorney had obtained the order for delivery of the bill; Vincent v. Slaymaker, 12 East, 372; or where the party himself afterwards attended the taxation. Warren v. Cunningham, Gow, 71. So, a delivery to one of the retaining persons, who has been authorized to act for the others, is a delivery to all. Finchett v. How, 2 Camp. 277. Thus, where an attorney had been retained jointly by several persons to defend several suits against each, in the subject-matter of which they had a common interest, it was held that the delivery of a bill to one was sufficient to enable the plaintiff to maintain a joint action against all. Oxenham v.

Lemon, 2 D. & Ry. 461. Some of the above decisions were under the repealed statute, but they seem to be still applicable, as the wording of the two is very similar; for by the 2 Geo. 2, c. 23, s. 23, the bill is to be "delivered to the party to be charged therewith, or left for him at his dwelling-house or last place of abode."

Delivery of the bill, how proved.] As to proof of delivery of bill by indorsement made on a copy by a deceased clerk in the ordinary course of his business, see Champneys v. Peck, 1 Stark. 404, and other cases cited ante, pp. 60, 61 et seq. As to evidence of sending bill by post, see Skilbeck v. Garbett, 7 Q. B. 846, and other cases cited ante, p. 374.

Delivery of the bill, at what time.] The bill must be proved to have been delivered one calendar month before the commencement of the action; 6 & 7 Vict. c. 73, ss. 37 and 48. See Ryalls v. The Queen, 11 Q. B. 781. The month must have been reckoned exclusively of the days on which the bill is delivered and action brought. See Blunt v. Heslop, 8 Ad. & E. 577; and Freeman v. Read, 4 B. & S. 174; 32 L. J., M. C. 226. In calculating the calendar month, the days of the calendar furnish the only guide to follow; e.g., if the bill be delivered on the 28th day of one month, the action may be commenced on the 29th day of the following month, without regard to the length of the month. S. Č.

The commencement of the action is determined by the date of the issuing of the writ of summons (Rules, 1883, O. ii. r. 1); and as this date appears on the statement of claim (see Rules, 1883, Forms, App. C.), the plaintiff need now give no further evidence of when he began the action, in order to show it is not premature.

Proof, and form of the bill.] The bill may be proved by a copy or duplicate original, without any notice to produce the bill delivered. Anderson v. May, 2 B. & P. 237; Colling v. Treweek, 6 B. & C. 394. But, it is not now necessary in the first instance for the plaintiff to prove the contents; it is enough to prove that a bill of fees, &c., subscribed or inclosed in a signed letter, was duly delivered, and the defendant may show that it was not a bona fide compliance with the Act. See 6 & 7 Vict. c. 73, s. 37, ante, p. 482. The Act does not prescribe any form of making out the bill, as 2 Geo. 2, c. 23, s. 23, did. See Reynolds v. Caswell, 4 Taunt. 193, on the old Act. And this has not been sufficiently attended to in cases decided since the last Act, in which the courts have been influenced too much by the strict requirements of the old one. Thus, it has been held that the bill must still show in what court the business was

done; Engleheart v, Moore, 15 M. & W. 548; Martindale v. Falkner, 2 C. B. 706; but, it is sufficient if the court appear by reasonable inference; Martindale v. Falkner, supra; Sargent v. Gannon, 7 C. B. 742. It has, however, been decided that, the authority to tax, and the scale in all the superior courts of law being the same, it was prima facie enough if it appeared to be business done in any of those courts, and that the defendant ought to have applied for a better bill, if it were bona fide necessary; Cozens v. Graham, 12 C. B. 398; 21 L. J., C. P. 206; Cook v. Gillard, 1 E. & B. 26; 22 L. J., Q. B. 90; and the cases contra, decided shortly after the passing of the present Act, must not be relied on. And, if the cause be sufficiently described to be understood, the technical title need not appear. Anderson v. Boynton, 13 Q. B. 308. The bill must show, either by the heading, or by the accompanying letter or envelope, the party charged. Taylor v. Hodgson, 3 D. & L. 115; Lucas v. Roberts, 11 Exch. 41; 24 L. J., Ex. 227; Gridley v. Austen, 16 Q. B. 504; Champ v. Stokes, 6 H. & N. 683; 30 L. J., Ex. 242. A mistake in the date of the items, which does not mislead, will not vitiate the bill. Williams v. Barber, 4 Taunt. 806. So, a mistake in the name of the parties to the cause at the head of the bill, if not of a nature to mislead, or if the right name appears indorsed. Sargent v. Gannon, supra. If part of the business were done in a court named in the bill, and part in an unnamed one, it has been considered that the plaintiff cannot recover any part. Ivimey v. Marks, 16 M. & W. 843; Dimes v. Wright, 8 C. B. 831. But this is the rule only where there is not enough in the bill to show on what scale the costs should be taxed; and where a part of the business appeared to have been done in an unnamed superior court of law, but the bulk of it in a named court of law at Westminster, this was held enough. Keene v. Ward, 13 Q. B. 515. The reasoning of the Q. B., in S. C., and Cook v. Gillard, supra, seems to impugn the doctrine of Ivimey v. Marks, and Dimes v. Wright, supra, that a bill insufficient for part is bad altogether; which is, however, supported in Pigot v. Cadman, 1 H. & N. 837; 26 L. J., Ex. 134. On the other hand, Cook v. Gillard, supra, and Keene v. Ward, supra, are adhered to, and the cases in the Exchequer dissented from, in Haigh v. Ousey, 7 E. & B. 578; 26 L. J., Q. B. 217. And the Q. B. point out that the C. P. had expressly decided, in Waller v. Lacy, 1 M. & Gr. 54, that an attorney may recover for such of the items of his bill as are sufficiently described, although, as to others, the bill is insufficient. Where the solicitor A. who did the work assigned his business and debts to B., it was held that a bill signed by B. was sufficient to entitle him to sue. Penley v. Anstruther, 52 L. J., Ch. 367; Ingle v. McCutchan, 12 Q. B. D. 518.

Interest.] The General Order, cl. 7, made under the Solicitors' Remuneration Act, 1881 (44 & 45 Vict. c. 44), provides that "a solicitor may accept from his client, and a client may give to his solicitor, security for the amount to become due to the solicitor for business to be transacted by him, and for interest on such amount, but so that interest is not to commence till the amount due is ascertained, either by agreement or taxation. A solicitor may charge interest at 4 per cent. per annum on his disbursements and costs, whether by scale or otherwise, from the expiration of one month from demand from the client. And in cases where the same are payable by an infant, or out of a fund not presently available, such demand may be made on the parent or guardian, or the trustee or other person liable." See Withington v. Neumann, 40 Ch. D. 475.

The solicitor is, under this order, entitled, after the taxation of his bill, to recover interest on the taxed amount, from one month from the date of

the delivery of the bill, although he made no claim for interest until the taxed amount was paid. Blair v. Cordner, 19 Q. B. D. 516, M. R., and L. JJ.

Defence.

Non-delivery of bill.] The defence of non-delivery of a bill must be specially pleaded. Lane v. Glenny, 7 Ad. & E. 83; see Rules, 1883, O. xix. r. 15, ante, p. 301. Proof that the bill was delivered to a servant of the defendant at his house is prima facie evidence of delivery to the defendant. M'Gregor v. Keily, 3 Exch. 794. In the absence of the defence, the solicitor may prove and recover a specific sum agreed to be paid. Scarth v. Rutland, L. R., 1 C. P. 642.

Disputed charges.] Where a bill has been delivered containing taxable items (and almost all items are so now), it was held, under the old Act, that the defendant could not object to the reasonableness of the charges at the trial. Williams v. Frith, 1 Doug. 198; Anderson v. May, 2 B. & P. 237; Lee v. Wilson, 2 Chitty, 65. The reason seems to have been that the defendant might have had them taxed by more competent persons than a jury, and must therefore be taken to have acquiesced in them conclusively. But by the present Act (6 & 7 Vict. c. 73, s. 37) it is only after a verdict or writ of inquiry, or the expiration of one year from the delivery of the bill, that the reference to taxation at the request of the party chargeable is not grantable of course; and in point of practice a verdict is almost always taken subject, as to the amount, to taxation by the proper officer. See Lumley v. Brooks, 41 Ch. D. 323, C. A. And even where a testator had retained the bill for twelve months before his death, it was held that this was prima facie evidence only that the charges were reasonable, and certain items objected to by the executor were referred to the taxing master for his report as to whether they were fair and proper to be allowed, and to what amount. Cole v. Park, Id. 326, C. A. It seems, however, that the plaintiff is not entitled as of right to have the amount so ascertained. Ex parte Ditton, 13 Ch. D. 318, C. A.

The delivery of a former bill is conclusive against an increase of charge on any of the same items contained in a subsequent bill for the same business, and strong presumptive evidence against any additional items; but real errors or omissions are to be allowed for. Loveridge v. Botham, 1 B. & P. 49. Where the bill had been taxed previously to the signed bill being delivered, the master's allocatur was not conclusive against the plaintiff on a plea of nunquam indebitatus, but only strong evidence that no more is due; Beck v. Cleaver, 9 Dowl. 111; there the difference of amount depended on when the retainer of the plaintiff was revoked. It is a good defence that the plaintiff undertook the cause gratis; and the declaration of his clerk to that effect, when he attended to tax costs, is evidence for the defendant. Ashford v. Price, 3 Stark. 185. The stat. 33 & 34 Vict. c. 28, ss. 4, 11, does not require that an agreement with the client "to charge him nothing if he lost the action, and to take nothing for costs out of any money that might be awarded to him in such action," should be in writing. Jennings v. Johnson, L. R., 8 C. P. 425. If a solicitor undertake to charge a client only costs out of pocket, "in case the damages or costs should not be recoverable," and the client recovers, but the defendant becomes insolvent, the solicitor is not limited to costs out of pocket. In re Stretton, 14 M. & W. 806. The plaintiff is prima facie entitled to be paid for professional services; but, where the defendant proves facts which are evidence of gratuitous services, the jury ought not

to be told "to find for the plaintiff unless the defendant has established his defence," but should be asked whether, taking all the evidence together, the plaintiff has proved his title to payment; for the onus of proof lies on him, and if the matter is made doubtful in their minds by the evidence, they ought to find for the defendant. Hingeston v. Kelly, 18 L. J., Ex. 360.

Negligence or misconduct of plaintiff.] The plaintiff's negligence in the conduct of the business cannot be set up as a defence, if it has not been such as to deprive the defendant of all benefit; Templer v. M'Lachlan, 2 N. R. 136; but where such has been the case, as where the defendant's appeal against the removal of a pauper wholly failed from the plaintiff going to the wrong sessions and wrongly signing the notices himself, the plaintiff cannot recover; Huntley v. Bulwer, 6 N. C. 111; and if a solicitor conducting a suit commits an act of negligence by which all the previous steps become useless in the result, he can recover for no part of his business. Bracey v. Carter, 12 Ad. & E. 373. So where an indictment for perjury failed for misnomer of the commissioner before whom it was committed, and the jury found gross negligence, the plaintiff cannot recover; Lewis v. Samuel, 8 Q. B. 685; even though the client was only to pay costs out of pocket, which was all the plaintiff sought to recover. S. C. A solicitor cannot recover costs of suit in an inferior court, which, as he ought to have known, had no jurisdiction in the matter, and was restrained by prohibition. See Robinson v. Emanuel, L. R., 9 C. P. 415, 416. So if a solicitor sue in a court which is without adequate powers to examine material witnesses out of the jurisdiction, and the suit fail accordingly, he cannot recover his costs of the suit; but he may recover the costs of letters before suit demanding the debt. Cox v. Leach, 1 C. B., N. S. 617; 26 L. J., C. P. 125. So where a solicitor commences an action on two foreign bills, without having first ascertained whether they had been specially indorsed to his client, which the solicitor knew was necessary by the foreign law, and the action is discontinued for want of such indorsement, he can recover no costs. Long v. Orsi, 18 C. B. 610; 26 L. J., C. P. 127. If a solicitor, through inadvertence or inexperience, do useless work, he cannot recover anything for it. Hill v. Featherstonhaugh, 7 Bing. 569. And entire items for useless work may be expunged. Shaw v. Arden, 9 Bing. 287. But if there be other causes conducing to the loss of the benefit besides the plaintiff's negligence, the negligence is no defence. Dax v. Ward, 1 Stark. 409. It was no defence to an action for business done in defending a suit, that the plaintiff was instructed to put in a plea for delay, which he neglected to do. Johnson v. Alston, 1 Camp. 176. Nor that the plaintiff refused to go on with a suit in Chancery, if the defendant did not supply him with money; Rowson v. Earle, M. & M. 538; for though a solicitor cannot suddenly and without notice abandon a cause, yet if he give reasonable notice, he is at liberty to discontinue the conduct of it, on the refusal by the client to supply him with money; and he may recover for the work done. Vansandau v. Browne, 9 Bing. 402. Where a solicitor prepares for a client a document which turns out to be illegal, but with regard to the legality of which there was reasonable doubt, he is entitled to recover for preparing it. Potts v. Sparrow, 6 C. & P. 749. The illegality must at all events be pleaded; S. C., 1 N. C. 594; unless it makes the work done wholly useless; semb. Tabram v. Warren, 1 Tyr. & Gr. 153; Roberts v. Barber, Chitty, Preced. by Pearson, p. 225. So the misinterpretation of a rule or order (such as a standing order of the House of Lords, by a solicitor acting as a parliamentary agent), the construction of which is doubtful, is not such