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, 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. 66 x Kemble v. Farren, 6 Bingh. 141. y Cross v. Eglin, 2 B. & Ad. 106. CHAP. V. ATTORNEY. Of Actions brought by Attornies and Solicitors for the Recovery of their Fees. Of the Statutes 3 Jac. 1. c. 7. § 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 debta, 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. But it seems doubtful, whether, in this case, an action of debt would lie c. 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 a Adm. in Bradford v. Woodhouse, Cro. Jac. 520. b Ambrose and Roe, Skin. 217, 218. Adm. in Sands v. Trevilian, Cro. Car. 194. c Aff. Bradford v. Woodhouse, Cro. d Thursby v. Warren. Cro. Car. 159. in writing, authorize a solicitor of the Court of Exchequer to practise there in his name (1). To an action of assumpsit for fees due to the plaintiff as an attorney h, the defendant may plead the statute of limitations, viz. that he did not promise or undertake within six years next before action brought. servant to any, By stat. 3 Jac. 1. c. 7. s. 1. "No attorney, solicitor, or 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 person. 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. courts, but to suits in the courts of Westminster Hall only. In an action brought by an attorney against an executor for fees, and sums of money expended by the plaintiff in several suits for the testator of the defendant, the defendant pleaded this statute, and that the plaintiff had not given to the testator, nor to the defendant, before the writ brought (3), any bill of charges according to the statute: on demurrer, it was adjudged a good plea. In Milner v. Crowdall, 1 Show. 338. where the same plea was pleaded, on demurrer, because defendant had not averred his plea, the objection was overruled, the plea being in the negative (4). By stat. 2 Geo. 2. c. 23. s. 23. (made perpetual by stat. 30 Geo. 2. c. 19. s. 75.) for the better regulation of attornies and solicitors, it is enacted, that "no attorney of the Courts of King's Bench, Common Pleas, or Exchequer, &c. nor any solicitor in Chancery, &c. shall commence or maintain any action or suit for the recovery of any fees, charges, or disbursements (5), at law or in equity, until the expiration of one month (6), or more, after such attorney or solicitor respectively shall have delivered unto the party to be charged therewith, or left for him, at his dwelling-house (7), or last k Brooks v. Hague, T. Raym. 245. (3) This allegation seems essential, for in Clark v. Godfrey, Str. 633. it was settled, by the Court of Common Pleas, on great consultation, that the bill must be delivered before action brought, in order that the client may have an opportunity of looking it over before he incurs further expense. (4) In this case it was said by the court, that this statute might be given in evidence under the general issue. (5) Charges for conveyancing are not within this statute. See post, Hill v. Humphreys, p. 164. and 2 Bos. and Pul. 345. See also Buller's N. P. 145. Money paid by an attorney for costs which his client is adjudged to pay, is a disbursement within the statute. Crowder, Lavie, and Co. v. Shee, 1 Campb. N. P. C. 437. But a plaintiff's attorney, who, at the defendant's request, puts in bail for him, and afterwards pays the debt and costs, without having them first taxed, and without making any charge for his own labour therein, need not deliver a bill a month before he sends for the money so advanced; for the statute applies to cases where a person employed as an attorney sues to recover a compensation for his labour and skill. Prothero v. Thomas, 6 Taunt. 196. (6) The term "month here means a lunar month. Hurd v. Leach, 5 Esp. N. P. C. 163. Ellenborough, C. J. (7) Leaving at the counting-house is not sufficient. 2 Bos. and " Pul. 343. : place of abode, a bill of such fees, charges, and disbursements, written in a common legible hand, and in the English tongue, except law terms and names of writs, and in words at length (8), except times and sums, which bill shall be subscribed with the proper hand of such attorney or solicitor and upon application of the party chargeable by such bill, or of any other person in that behalf authorized, unto the Lord Chancellor, or the Master of the Rolls, or unto any of the courts aforesaid, or unto a judge or baron of any of the said courts, respectively, in which the business contained in such bill, or the greatest part thereof in amount or value shall have been transacted, they may refer the bill, &c. to be taxed (although no action be depending in such court touching the same)." The foregoing provisions, being beneficial to the subject, have received a liberal construction1; hence, where part of the charges of an attorney's bill was for drawing an affidavit, and for attendance on the party at the swearing, it was holden, that they were charges for proceedings in court, because the oath must either be administered by the court, or by some authority delegated by the court; and that an action could not be maintained for the recovery of such charges, because a bill had not been delivered a month before the action was brought. So where an action was brought for the amount of a bill for business done at the quarter sessions m, upon a prosecution for an assault, it was holden, that the action could not be maintained, because there was not any signature to the bill which had been delivered (9). 1 Winter one, &c. v. Payne, 6 T. R. m Clarke v. Donovan, 5 T. R. 694. 645. (8) By statute 12 G. 2. c. 13. § 5. every attorney, clerk in court, and solicitor, may write his bill of fees, charges, and disbursements, with such abbreviations as are now commonly used in the English language. (9) Buller, J. had ruled otherwise in Stephenson v. Taylor and another, York Summer Assizes, 1786, on the ground that the statute was confined to business done in a court of record, wherein attornies are admissible and sworn. See the first section of the statute 2 G. 2. c. 23. and quære to what courts does the word aforesaid in § 23 refer? An attorney's bill may be referred to be taxed, though all the business charged was done at the quarter sessions. Ex parte Williams, 4 T. R. 496. Clark v. Donovan, 5 T. R. 694. S. P. recognized in Sylvester v. Webster, 9 Bingh. 388. in which it was holden, that an action could not be maintained upon such bill, unless it had been delivered. So a dedimus potestatem charged in an attorney's bill, is a sufficient item to enable the court to refer the bill for taxa |