Delivery and Proof of the Bill.

453

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 Some of the above decisions were under the repealed statute, but they seem to be still applicable, as the wording of the two is very similar; for by the 2 Geo. 2, c. 23, s. 23, the bill is to be "delivered to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, p. 57, et seq. As to evidence of sending bill by post, see Skilbeck v. Garbett, 7 Q. B. 846, and other cases cited ante, pp. 350, 351.

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. C.

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. 450. 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 is 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, ante, p. 453. If part of the business was 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, ante, p. 453, 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, ante, p. 453, 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.

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. 283. 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 has been held, under the old act, that the defendant cannot 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, to the amount, to taxation by the proper officer. It seems, however, that as 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. &

Defence.-Disputed Charges.-Negligence, &c., of Plaintiff.

455

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, do 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 sues in a court which is without adequate powers to examine material witnesses out of the jurisdiction, and the suit fails 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. Íf a solicitor, through inadvertence or inexperience, does 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 are 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 gives 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. Ĉ., 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 culpable negligence as to disentitle the plaintiff to recover for his work, although in consequence of the mistake the bill is withdrawn. Bulmer v. Gilman, 4 M. & Gr. 108; see also In re Sadd, 34 Beav. 650; 34 L. J., Ch. 562. It is a good defence, that the plaintiff paid no attention to the defendant's case, but resided at a distance from the place where his business was carried on, and that, in fact, it was transacted there by another person employed by the plaintiff; Taylor v. Glassbrook, 3 Stark. 75; Hopkinson v. Smith, 1 Bing. 13; and this was ruled without reference to the success or miscarriage of the business done. The plaintiff's negligence may now in any case be set up as a counterclaim pro tanto under Rules, 1883, O. xix., r. 3.

Want of certificate, admission, &c.] The defendant may put the plaintiff to prove, under a special defence, that the plaintiff had a certificate, vide ante, pp. 449, 450; or was duly admitted. Hill v. Sydney, 7 Ad. & E. 956. By the 23 & 24 Vict. c. 127, s. 22, the Law List, purporting to be published by the authority of the Commissioners of Inland Revenue, and to contain the names of solicitors who have obtained stamped certificates for the current year (from 16th November or any later day to 15th November in the next year), on or before the 1st of January in the same year, shall, until the contrary be made to appear, be evidence in all courts, &c., that the persons named in it as such solicitors are so certificated; and the absence of the name of any person from the List shall be prima facie evidence that he is not so qualified to practise as a solicitor under a certificate for the current year; but in the latter case an extract from the Roll of Attorneys under the hand of the registrar for the time being (or of the secretary of the Law Society, while that society acts as registrar) shall be evidence of the facts appearing in the extract. See J. Act, 1875, s. 14.

Agency business.] Where one solicitor does business for another, the solicitor who does the business universally gives credit to the solicitor who employs him, and not to the client for whose benefit it is done. If the solicitor in such case intends not to be personally responsible, it is his duty to give express notice that the business is to be done on the credit of the client. Per cur., Scrace v. Whittington, 2 B. & C. 13. But such notice, though it may protect the solicitor from liability, will not necessarily make the client liable. See Robbins v. Fennell, 11 Q. B. 248, 256: Robbins v. Heath, Id. 257, n. ; and Peatfield v. Barlow, L. R., 8 Eq. 61.

Statute of Limitations.] The contract to conduct a suit is entire and can only be determined on reasonable notice that the solicitor will not proceed

Action against Solicitor for Negligence.

457 without payment or advances from the client; and where the suit ended within six years the Statute of Limitations will not bar the demand for any part of the business; Harris v. Osbourn, 2 Cr. & M. 629; Martindale v. Falkner, 2 C. B. 706; Harris v. Quine, L. R., 4 Q. B. 653; for the solicitor cannot in general sue for his costs until the suit is ended or his client dead, and the statute does not run till the happening of one of those events. Whitehead v. Lord, 7 Exch. 691; 21 L. J., Ex. 239.

ACTION AGAINST SOLICITOR FOR NEGLIGENCE.

What amounts to actionable negligence.] An error of judgment on a point of law, open to reasonable doubt, is not sufficient; Kemp v. Burt, 4 B. & Ad. 424; there must be gross ignorance or gross negligence in the performance of his professional duties; Purves v. Landell, 12 Cl. & F. 91. The solicitor is bound to bring a fair amount of skill, care and knowledge to the performance of his duty, and this will be a question of fact for the jury under the direction of the judge, who will explain the nature of the duty, and the degree of negligence which makes him responsible. Hunter v. Caldwell, 10 Q. B. 69, 83, Ex. Ch.

The omission to take the proper steps for renewing a writ, issued to save the Statute of Limitations, was held to be actionable negligence. S. C. Where a mortgage was prepared under the defendant's advice, and the solvency of the mortgagor was questionable to the knowledge of the attorney, it was held his duty to search at the Insolvent Debtors Court; and if the language of the defendant shows that he considered his search expedient, this is evidence of his suspicions; Cooper v. Stephenson, 21 L. J., Q. B. 292; but the court declined to say whether or not searches of this kind are necessarily, and in all cases, essential; Ibid. See also Langdon v. Godfrey, 4 F. & F. 445. It may not be part of the duty of a solicitor to know the legal operation of conveyances, but it is his duty to take care not to draw wrong conclusions from deeds before him, but to lay them before counsel, or draw the conclusions at his own peril; and therefore where a solicitor acted on the advice of counsel to whom he had mis-stated the legal effects of certain deeds which did not accompany the case, this was held evidence for the jury of negligence for which he was responsible. Ireson v. Pearman, 3 B. & C. 799. A solicitor instructed to take or to defend legal proceedings is liable for failure by reason of his own culpable neglect; as, where he was retained to proceed on a statute against an apprentice, and he proceeded under a wrong section of the statute as against a servant; Hart v. Frame, 6 Cl. & F. 193; or, where the solicitor and his witnesses were absent when a cause was called on; and the counsel had a brief and was present, and was obliged to withdraw the record; Hawkins v. Harwood, 4 Exch. 503; or, where he sued 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.

There are numerous other cases on this subject, and they establish, in general, that a solicitor is liable for the consequence of ignorance or nonobservance of the rules of practice of the court in which he sues; for the want of care in the preparation of the cause for trial; or of attendance thereon with his witnesses; and for the mismanagement of so much of the conduct of a cause as is usually allotted to solicitors. But he is not answerable for