the purchase of his interest (sect. 161) has been settled by arbitration (sect. 162), he may maintain an action against the company on the award so made. De Rosaz v. Anglo-Italian Bank, L. R., 4 Q. B. 462.

Defence.

A denial of the making of the award will now be taken to put in issue its making in point of fact only, and not its validity in law. See Rules, 1883, O. xix., rr. 15, 20, ante, pp. 283, 284. Adcock v. Wood, 6 Exch. 814, 20 L. J., Ex. 435. Nor, could the defendant under such a defence show that it was set aside. See Roper v. Levy, 7 Exch. 55; 21 L. J., Ex. 28.

A defence of an oral agreement to pay a less sum, at an earlier date, than that named on the award, and payment thereunder, is good, by way of accord and satisfaction after breach, by non-payment of the first instalment; and is proved, although the payment was made and accepted after the substituted day, if the plaintiff received the payment and made no objection on the ground of its being too late. Smith v. Trowsdale, 3 E. & B. 83; 23 L. J., Q. B. 107.

Corruption or misconduct of the arbitrators is not matter of defence; at least, where application might have been successfully made to the court to set the award aside. 1 Wms. Saund. 327 a. (3); Wills v. Maccarmick, 2 Wils. 148; Braddick v. Thompson, 8 East, 344; Brazier v. Bryant, 3 Bing. 167; Grazebrook v. Davis, 5 B. & C. 534; Whitmore v. Smith, 7 H. & N. 509; 31 L. J., Ex. 107. The omission to give one of the parties an opportunity of being heard, is misconduct of the arbitrators, and falls within this rule. Thorburn v. Barnes, L. R., 2 C. P. 384. Nor, can the award be impeached on the ground that the decision of the arbitrator has proceeded on a mistake. Johnson v. Durant, 2 B. & Ad. 925. But, the defendant may show that it is not conformable to the submission, where the defence is properly pleaded.

Although an award is not final if it do not award costs in some way, where they are in the discretion of the arbitrator, yet if the submission can be made an order of court, the amount need not be specified, as the taxingmaster has jurisdiction over them; and the costs need not have been taxed before action brought. Holdsworth v. Barsham, 4 B. & S. 1; 32 L. J., Q. B. 289, Ex. Ch.

As to calling the arbitrator as a witness to show that he has exceeded his jurisdiction in making his award, which was good on the face of it, see Buccleugh, Dk. of, v. Metropolitan Board of Works, L. R., 5 H. L. 418, cited ante, p. 155.

It may be observed that, where the amount of compensation to be paid for land compulsorily taken has been fixed by an award under the Lands Clauses Act, 1845, an action for the amount cannot be maintained until a conveyance of the land has been executed. E. London Union v. Metropolitan Ry. Co., L. R., 4 Ex. 309.

ACTION ON A SOLICITOR'S BILL.

By the J. Act, 1873, s. 87, the time-honoured name of "attorney-at-law' was abolished, and attorneys and solicitors are now all called "solicitors of the Supreme Court," vide post, p. 450.

In an action upon a solicitor's bill, the plaintiff must prove, when denied

Action on a Solicitor's Bill.-Retainer.

449

(1), his retainer as solicitor by the defendant; which may be done by showing either an express retainer, or that the defendant attended at his office, and gave directions, or in other ways recognised his employment; (2), that the business was done; which may be proved by a clerk, or other agent, who can speak to the existence of the cause, or the business in respect of which the charges are made, and can prove the main items.

Retainer.] Proof of a judge's order, referring the bill to be taxed, and of the defendant's undertaking to pay the taxed costs, and of the master's allocatur, will be sufficient proof both of the retainer and of the business having been done. Lee v. Jones, 2 Camp. 496. In an action against an ordinary corporation, the plaintiff must show a retainer under seal. Arnold v. Poole, Mayor of, 4 M. & Gr. 860; Sutton v. Spectacle Makers Co., 10 L. T., N. S. 411, E. T. 1864, Q. B. But, in the case of commercial companies incorporated by act of parliament, such as railway companies, there is usually a power to retain solicitors and other like officers without a retainer under seal. So, such power is conferred on companies incorporated under the Companies Acts, 1862, 1867, by sect. 37 of the latter act. And, where by an act of parliament, the directors of a railway company had power to appoint and displace officers, this was held to extend to an attorney, who therefore need not be appointed under the common seal of the company. R. v. Cumberland, Justices of, 5 D. & L. 43, n.; 17 L. J., Q. B. 102. And, where the retainer, by a common law corporation, is by resolution only, such retainer is sufficient to warrant payment by the corporation, though it may not be sufficient to found an action against them. R. v. Lichfield, 10 Q. B. 534. The liquidator of a company, is not personally liable to the solicitor employed by him, in a voluntary liquidation, for the costs thereof; In re Trueman's Estate, L. R., 14 Eq. 278; nor, in a compulsory liquidation; Ex pte. Watkin, 1 Ch. D. 130. When several actions against several defendants are consolidated, and are to abide the event of one, the same solicitor having been retained by each of the defendants, he is entitled to hold all the defendants liable to the costs of the action tried, as on a joint retainer. Anderson v. Boynton, 13 Q. B. 308. Though a lessee or mortgagor is usually to pay the expenses of the lease or mortgage, yet he is not directly liable for them to the solicitor of the lessor, or mortgagee, who prepared the instruments; Rigley v. Daykin, 2 Y. & J. 83; but slight evidence is sufficient to show direct liability, as that the solicitor received instructions from the lessee, and was desired by him to send the bill of costs to him; Smith v. Clegg, 27 L. J., Ex. 300; Webb v. Rhodes, 3 N. C. 732. As to the liability of the husband for the costs of preparing a marriage settlement, see Helps v. Clayton, et ux., 17 C. B., N. S. 553; 34 L. J., C. P. 1; it must, however, be observed that in this case the dicta were made obiter, as the action was brought upon the retainer of the wife, given dum sola. As to the liability of the husband, on the retainer of his wife, living apart from him, see Wilson v. Ford, L. R., 3 Ex. 63.

Admittance, Certificate, &c.] The stat. 6 & 7 Vict. c. 73, s. 2, prohibits any person from acting in any way as solicitor unless duly admitted, enrolled, and qualified. By sect. 31 no solicitor shall prosecute or defend suits, in his own or another's name, whilst in prison, nor sue for fees, rewards, or disbursements, in respect of any business done by him whilst such prisoner. By the Stamp Act, 1870, s. 59, (1) "Every person who in any part of the United Kingdom (a) directly or indirectly acts or practises in any court as an attorney, solicitor," &c., "without having in force at the time a duly stamped certificate according to the provisions" of that act; "(b) on applying for any such certificate does not truly specify the facts and circumstances

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upon which the amount of duty chargeable upon his certificate depends: shall forfeit the sum of 50l., 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 v. 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. 647; 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 thereunder shall not be received by the solicitor until the agreement has been approved by a taxing.

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