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upon which the amount of duty chargeable upon his certificate depends : shall forfeit the sum of 501., and shall be incapable of maintaining any action or suit for the recovery of any fee, reward, or disbursement on account of or in relation to any act or proceeding done or taken by him in any such capacity.”

By the Attorneys and Solicitors' Act, 1874 (37 & 38 Vict, c. 68), s. 12, “No costs, fee, reward, or disbursement on account of, or in relation to, any act or proceeding done or taken by any person who acts as an attorney or solicitor, without being duly qualified so to act, shall be recoverable in any action, suit, or matter by any person or persons whomsoever." A person is duly qualified for the purposes of this section, if he have a stamped certificate in force, or be appointed solicitor to some public department.

The above enactments are wider than 6 & 7 Vict. c. 73, s. 26, which was held only to disable an uncertificated attorney from suing for fees in respect of business done by him in some court referred to in that act. Richards v. Suffield, Ld., 2 Exch. 616 ; Greene v. Reece, 8 C. B. 88. And, it did not apply where a client had taken out an order of course for taxation of the bill, with the usual submission to pay what was found to be due. In re Jones, L. R., 9 Eq. 63.

An attorney of one court could not practise in another court without signing the roll (6 & 7 Vict. c. 73, s. 27), nor, could he recover his fees till he had so done. Latham v. Hyde, 1 Cr. & M. 128 ; Vincent v. Holt, 4 Taunt. 452. So, in an action by several partners, attorneys, for business done in a local court, it appearing that only one of the plaintiffs was an attorney of that court, it was held that they could not jointly recover. Arden v. Tucker, 1 M. & Rob. 191. All the superior courts, except the House of Lords, are now consolidated together, and constitute one Supreme Court of Judicature (J. Act, 1873, s. 3; Bkcy. Act, 1883, s. 93 (1)), and all attorneys and solicitors are now solicitors of that court (J. Act, 1873, s. 87). Signature of the roll of that court only will therefore entitle a solicitor to practise in any division of the Supreme Court.

Signed bill. Special agreement.] The last act which requires delivery of a bill before action is 6 & 7 Vict. c. 73. By sect. 37 of that act, no solicitor, nor any executor, administrator, or assignee of any solicitor, shall commence or maintain any action or suit for the recovery of any fees, charges, or disbursements for any business done by such solicitor, until the expiration of one [calendar] month after such solicitor, or executor, administrator, or assignee of such solicitor, shall have delivered unto the party to be charged therewith, or sent by the post to, or left for him at his counting-house, office of business, dwelling-house, or last known place of abode, a bill of such fees, &c., which bill shall either be subscribed by the solicitor or by any of the partners, with his own name or with the name or style of the partnership, or of the executor, administrator, or assignee of such solicitor, or be enclosed in or accompanied by a letter subscribed in like manner referring to such bill. Provided that it shall not be necessary in the first instance for such solicitor, &c., to prove the contents of the bill delivered, sent, or left ; but it shall be sufficient to prove that a bill, subscribed or enclosed as aforesaid, was delivered, sent, or left; but nevertheless, it shall be competent for the other party to show that the bill so delivered, &c., was not such a bill as constituted a bona fide compliance with this act.

The case of bills, for business in the Houses of Lords and Commons respectively, is provided for by 12 & 13 Vict. c. 78, and 10 & 11 Vict. c. 69, extended by 42 & 43 Vict. c. 17.

The 6 & 7 Vict. c. 73, repeals 2 Geo. 2, c. 23, on which many cases Signed Bill.-Special Agreement.

451 were decided, and the present act is expressed in language, in general sufficiently different, to make most of them inapplicable to it. Those decisions only are here retained which, from the similarity of the language used, are not manifestly useless.

One distinction between this act and the former seems to be, that the power of taxing bills now extends to bills for any business done by a solicitor. It is no longer confined to proceedings taken in a court, and the only qualification is one evidently implied, though not expressed, viz., that it should be done as solicitor. In all such cases a bill must be delivered, sent, or left in the manner required by sect. 37. See Smith v. Dimes, 4 Exch. 32, 40, per cur.

By 12 Geo. 2, c. 13, s. 6, an attorney might sue another attorney for agency business, without delivering any bill, but this act is repealed, and the present act contains no such exception. It also requires assignees and personal representatives of solicitors to deliver bills. In some cases (as In re Gedye, 2 D. & L. 915, and In re Simons, 3 D. & L. 156), it had been held that agency business was virtually excepted out of the 6 & 7 Vict. c. 73. But, in Billing v. Coppock, 1 Exch. 14, where an attorney employed another attorney to defend an indictment, the bill delivered by the latter to the former was held taxable ; and it seems to follow that the delivery of a bill is obligatory. Accord. Smith v. Dimes, 4 Exch. 32. The cases on the effect of including taxable and untaxable items in the same bill are no longer retained, both because all business seems to be now taxable, and because many of the old distinctions were founded on no clear principle, and are not likely to govern the construction of the existing act.

A solicitor's bill cannot be recovered on an account stated, without proof of the delivery of the bill, though the amount has been admitted. Eicke Nokes, 1 M. & Rob. 359 ; Brooks v. Bockett, 9 Q. B. 847. But the solicitor may recover on a promissory note given for the amount. Jeffreys v. Evans, 14 M. & W. 210.

As to setting off a solicitor's bill, see post, tit. Defences-Set-off.

An agreement entered into by a client with his attorney to pay him at a certain special rate for business to be done was not binding, or, at all events, not conclusive upon the client. Drax v. Scroope, 2 B. & Ad. 581. Such an agreement was void, at least to the extent that the attorney could not recover on it, a larger sum than the master would allow on taxation; and therefore, a bill in which a gross sum is charged by the attorney as per agreement, without given specific items, so as to enable the master to tax them, was not

a compliance with the 6 & 7 Vict: c. 73, s. 37. Philby v. Hazle, 8 C. B., N. S.

29 L. J., C. P. 370. But, in the absence of a defence pleaded, of no signed bill delivered, a solicitor might prove and recover a specific sum agreed to be paid. Scarth v. Rutland, L. R., 1 C. P. 642. A solicitor employed as clerk to a public board, at a fixed salary, can recover his salary, although part of the work be done as a solicitor, without having delivered a bill of such part. Bush v. Martin, 2 H. & C. 311 ; 33 L. J., Ex. 17. So, an agreement between a solicitor and his client, that the former shall be paid a fixed yearly salary, to be clear of all expenses of his office, and to include all emoluments, he paying to his client any surplus that may arise, of receipts over payments, and undertaking to do no work for any other client, is legal. Galloway v. London, Cor. of, L. R., 4 Eq. 90.

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 thereundershall not be received by the solicitor until the agreement has been approved by a taxing.

647 ;

officer. 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.

Now by the Solicitors' Remuneration Act, 1881 (44 & 45 Vict. c. 44), ss. 2, 9, the last-mentioned act does not apply to any "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.” 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 annount, and in such manner, as they shall think fit, by a gross sum, or by commission or per centage, 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.

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. Crouder 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 sufficient. 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; Edvards 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 authorised to act for the others, is a delivery to all. Finchett v. How, 2 Camp. 277. Thus, where an attorney

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, 0. 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 primâ 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 bond 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, 0. xix., r. 15, ante, p. 283. Proof that the bill was delivered to a servant of the defendant at his house is primâ facie evidence of delivery to the defendant. MʻGregor 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. &

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