« EelmineJätka »
promise 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 m 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", 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 a plea the plaintiff reply a latitato (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
m Spybey v. Hide, 1 Campb. 181. Ld.
Ellenborough, C. J. Rivers v. Griffiths, 5 B, and A. 630. S. P.
n Coles v. Bell, Sittings after M. T. 49.
Geo. 3. i Campb. 478. n. o Wood v. Newton, B. R. I 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.
Martin, 3 Doug. 347. But now by R. G. H. T. W. 4. No. 1. every pleading, as well as the declaration, shall be intitled 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.
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 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 P, and the defendant will not be permitted to enter a suggestion on the roll in order to obtain his costs 4.
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", 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 s is the difference between the price contracted for and the market price at the time when the contract ought to have been completed. But in an action for not replacing stock t, 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 u to which the stock may have arisen at any intermediate time. p Heaward v. Hopkins, Doug. 44. & Boorman v. Nash, 9 B. and C. 145. 9 Middx. Court of Conscience, stat. t Shepherd v. Johnson, 2 East. 211. 23 G. 2. c. 33. s. 19. (86.)
u M'Arthur v. Ld. Seaforth, 2 Taunt. r Gainsford v. Carroll, 2 B. and C. 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.
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 * 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 y, 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 Parke, J. and Patteson, J., “It lay on the sellers to shew 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. * Kemble v. Farren, 6 Bingh. 141. y Cross v. Eglin, 2 B. & Ad. 106.
Of Actions brought by Attornies and Solicitors for the Re
covery of their Fees. Of the Statutes 3 Jac. 1. c. 7. 8 1. 2 G. 2. c. 23. & 23. relating to the Delivery of Bills by Attornies, and 12 G. 2. c. 13. 6. Liability of Attornies for Negligence and Unskilfulness.
ATTORNIES and solicitors may maintain an action of debt , 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 liec. An attorney may maintain an assumpsit for soliciting a cause in other courts, as well as in the court where he is attorney d. An attorney may sue by attachment of privilege, though his certificate has expired, and has not been renewed, if it be within a year from the expiration of his certificate, and though he has been in prison for above a year before the suing out of the write. An attorney is not compelled to proceed to the end of a suit, in order to be entitled to his costs, but may, upon reasonable cause and reasonable notice, abandon the conduct of the suit, and in such case may recover f his costs for the period during which he was employed. A solicitor of the equity side of the Court of Exchequer is not entitled to practise in the Court of Chancery; nor, if he does, can he maintain an action for the amount of his bill. And semble, that a solicitor of the Court of Chancery cannot, by consent
& Adm. in Bradford v. Woodhouse, c Aff. Bradford v. Woodhouse, Cro. Cro. Jac. 520.
Jac. 520. Neg. Sands v. Trevilian, b Ambrose and Roe, Skin. 217, 218. Cro, Car. 194.
Adm. in Sands v. Trevilian, Cro. Car. d Thursby v. Warren. Cro. Car. 159. 194.
e Prior v. Moore, 2 M. and S. 605.
in writing, authorize a solicitor of the Court of Exchequer to practise there in his name 8 (1).' .To, an action of assumpsit for fees due to the plaintiff as an attorney 5, the defendant may plead the statute of limitations, viz. that he did not promise or undertake within six years next before action brought.
By stat. 3 Jac. 1. c. 7. s. 1. “No attorney, solicitor, or servant to any, shall be allowed from his client or master, for any fee given to any serjeant or counsellor, or for any sums of money given for copies to any officers in any court of record at Westminster, unless he have a ticket subscribed with their hands and names, testifying how much hath been received or paid, and at what time; and all attornies and solicitors shall give a true bill to their masters (2), clients, or their assigns, of all other charges concerning the suits which they have for them, subscribed with their hands and names, before they shall charge their clients with such fees or charges.” To an action brought by an attorney to recover fees for the prosecution of an habeas corpus', to remove a plaint levied against defendant in an inferior court, and for defending him in that suit after it was removed into the King's Bench, the defendant pleaded this statute : on demurrer, judgment was given for the plaintiff; because this statute does not extend to matters transacted in inferior
g Vincent v. Holt, 4 Taunt. 452. h Oliver v.
Thomas, Ld. Raym. 2.
i Brickwood v. Fanshaw, Carth. 147.
(1) By R. G. H.T. 6 W. 4. followed by regulations in E. T. 6 W. 4. 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. (Ex.) 1. 290. 1 Tyr. & Gr. 233.
(2) Indebitatus assumpsit for agent's fees. It was objected on the part of the defendant, that plaintiff ought to prove a bill delivered. For the plaintiff it was insisted, that agents were not within the statute; that, at the time when it was made, agents were unknown; that the attornies then came to London to solicit their causes in per
Lee, C. J. was of opinion, that the case was not within the statute, but offered to save the point. Verdict for plaintiff, Jones one, &c. v. Price, B. R. May 19, 1748. See also Bridges one, &c. v. Francis, Peake's N. P. C. 1, 2. where Kenyon, C. J. expressed the same opinion. S. P. per Ld. Tenterden, Č.J., in Sandys and another v. Hornby, Gent. &c. 2 M. & Malk. 33.