ver, although there has been error in the execution of his duty, if the error be such as a cautious man might fall into. Entire items for useless work may be discarded by a jury; c Montriou v. Jefferys, 2 C. and P. 113. d Hill v. Featherstonhaugh, 7 Bingh. * 569; recognised in Shaw v. Arden, 9 Bingh. 287. this, that a party cannot enforce a charge for doing business which is useless to his employer." Per Tindal, C. J.; Shaw v. Arden, 9 Bingh. 290. The same doctrine was laid down by Lord Ellenborough in Farnsworth v. Garrard, 1 Campb. 38. The late Mr. Justice Buller thought (and I, in deference to so great an authority, have at times ruled the same way,) that in cases of this kind, a cross action for the negligence was necessary; but that if the work be done, the plaintiff must recover for it. I have since had a conference with the judges on the subject: and I now consider this as the correct rule, that if there has been no beneficial service, there shall be no pay; but if some benefit has been derived, though not to the extent expected, this shall go to the amount of the plaintiff's demand, leaving the defendant to his action for negligence The claim shall be co-extensive with the benefit." There is a distinction, however, in this respect, between a contract and a security; for in an action on a bill of exchange, a partial failure of consideration is no defence; as where a bill had been accepted for the price of some hams, which turned out so bad that they were almost unmarketable; this was holden to be no defence, but the defendant must seek his remedy by a cross action. Morgan v. Richardson, 1 Campb. 40. n. recognized by Ld. Ellenborough, C. J. in Tye v. Gwynne, 2 Campb. 346. See also Mann v. Lent, 10 B. & C. 877. In Morgan v. Richardson, money had been paid into court, but Ld. Ellenborough said, that that circumstance formed no ingredient in the opinion he then expressed. A. and B. entered into an agreement for the sale of the lease of a house; B. was let into possession, and accepted a bill for the purchase-money; in an action brought by A. against B. for non-payment of the bill, it was holden, that B. could not defend the action by proving that A. had refused to execute an assignment of the lease but that B. must bring a cross action, or go into equity for a specific performance. Moggridge v. Jones, 3 Campb. 38. See further on this subject the case of Fisher v. Samuda and another, 1 Campb. 190. where Ld. Ellenborough expressed an opinion, that where an action has been brought for the value of goods furnished at a stipulated price, and the purchaser does not, either in bar of the action, or to reduce the damages, object to the quality of the goods, but allows the seller to recover a verdict for the full price agreed upon, he cannot afterwards maintain a cross action, on the ground of the goods being of a bad quality, and unfit for the purpose for which they were ordered. * See Denew v. Daverell, 3 Campb. 451. Duncan v. Blundell, 3 Stark. N. P. C. 6. but in the case of an entire item for work partly useful, the jury are precluded from reducing that item, in an action to recover the amount of the bill, and the client must resort to a cross action. An attorney is not liable to be assessed in the poor rates in respect of the profits of his professione. An attorney who has attended on a subpoena, as a witness in a civil suit, cannot maintain an action against the party who subpoenaed him, for compensation for loss of time. An attorneys who has commenced an action for his client, has a right to refuse to go on without an advance of money on account, provided he gives his client reasonable notice of his intention. The contracth of an attorney or solicitor retained to conduct or defend a suit is entire and continuing, viz. to carry it on to its termination, and can only be determined by the attorney upon reasonable notice. Assumpsit on an attorney's billi.-To prove that a copy of the bill had been delivered pursuant to the statute, the plaintiff's clerk was called, who swore that he had delivered to the defendant a bill signed by the plaintiff, containing an account of the business done. He was then proceeding to state the items of this bill from the plaintiff's books, when the defendant's counsel objected that no notice had been given to produce it. It was insisted that this was unnecessary, and Jory v. Orchard, 2 Bos. and Pul. 39. and Anderson v. May, 2 Bos. and Pul. 237. were cited; but, per Lord Ellenborough, C. J. "If there are two contemporary writings, the counterparts of each other, one of which is delivered to the opposite party and the other is preserved, as they may both be considered as originals, and they have equal claims to be considered as originals, and they have equal claims to authority, the one which is preserved may be received in evidence without notice to produce the one which was delivered. So it must have been in the cases which have been cited, and if a duplicate of the bill delivered is offered I am ready to receive it. But I am quite clear, that this evidence from the plaintiff's books is inadmissible to prove that a bill was delivered according to the statute. I approve of the practice as to notices to quit, and I remember when the point was first ruled by Mr. Justice Wilson, who said that if e R. v. Startifant, 7 T. R. 60. f Collins v. Godefroy, 1 B. and Ad. 950. g Lawrence v. Potts, 6 C. and P. 428. See also Wadsworth v. Marshall, 2 Cr. and Jer. 065. h Harris v. Osbourn, 4 Tyrw. 445; 2 Cr. and M. 629. S. C. i Philipson, Gent. one, &c. v. Chase, 2 Campb. 110. But see Colling v. Treweek, ante, p. 166. a duplicate of the notice to quit was not of itself sufficient, no more ought a duplicate of the notice to produce, and thus notices might be required ad infinitum." Plaintiff nonsuited. Liability of Attornies.-An action on the case may be maintained by a client against his attorney for negligence or unskilfulness in the discharge of his professional duty: as where an attorney neglected to charge a defendant (a prisoner) in execution within the time allowed by the practice of the court, by reason of which neglect the defendant was superseded; it was holdenk, that the action was maintainable against the attorney for negligence, but that as it sounded in damages, it was competent to the jury to find what damages they thought fit, and that they were not restrained to find the amount of the whole debt, in a case where it appeared that the debtor was not totally insolvent, and that the creditor might probably in time obtain some part of his debt by execution against his goods. A. a complainant in chancery, employed B. as his solicitor, during whose employment an irregular order to dismiss the bill on a certain day, unless publication passed, was obtained; before that day arrived, C. was appointed the solicitor of A. and the bill having been dismissed because no step was taken by C., it was holden', that an action would lie against C. for negligence, because he should have conformed to the order, or should, within the time, have moved to vacate it. Defendant, an attorney, being employed to raise money on mortgage for plaintiff, disclosed to the proposed lender defects in the title of the plaintiff, by reason whereof plaintiff was subjected to actions at the suit of the said lender, was delayed in obtaining the money he wanted, and compelled to give a higher rate of interest; it was holden", that this was a breach of duty, for which an action lay against defendant, notwithstanding he had been the attorney of the proposed lender before his retainer by the plaintiff. If attornies, employed by a vendor to settle, on his part, the assignment of a term, allow him to execute an unusual covenant, without explaining the liability thereby incurred, they are responsible" to him for consequent loss, notwithstanding he is himself, at the time of his assignment, aware of the fact, in respect of which he afterwards incurs liability on his covenant. But it is not every neglect that will subject an attorney to k Russell v. Palmer, 2 Wils. 325. See Pitt v. Yalden, 4 Burr. 2060. 1 Frankland v. Cole, 2 Cr. and J. 590. m Taylor v. Blacklow, 3 New Cases, 235. n Stannard v. Ullithorne and others, 10 Bingh. 491. such an action for an attorney is only bound to use reasonable care and skill in managing the business of his client.— He is only liable for crassa negligentia.-Hence an action cannot be maintained against an attorney for negligence in not discovering a defect in the memorial of an annuity, which was subsequently holden to be a defect, upon a doubtful construction of the statute. Where an attorney was sued for negligence in allowing judgment to go by default, in an action which the plaintiff had retained him to defend: the negligence being proved, it was holdenP, that it was his duty to adduce evidence to show that the plaintiff was not damnified by the judgment by default, and that the plaintiff was not bound to establish, that there would have been no recovery against him if a plea had been put in. The Court of Chancery has no jurisdiction to make a solicitor responsible for negligence in the conduct of a suit. The solicitor under a commission of bankruptcy is not liable in the first instance to the messenger, whom he nominates, for his bill of fees; but if the solicitor agree with the petitioning creditor to work a commission for a sum certain, and receive a great part of that sum, he will be liable to such messenger' (14). In an action against an attorneys for suffering M. C., a debtor in custody at the suit of the plaintiff to be superseded, it was averred that M. C. was indebted to the plaintiff. It appeared in evidence, that at the time of contracting the supposed debt, M. C. was a married woman. This was holden to be a fatal variance. Evidence. The regular proof of a person being an attorney, is either by the production of the original roll, signed by the party on his admission, together with proof of his signature, as evidence of identity; or by an examined copy of the roll, together with the admission; but in an action by an attorney for slandering him in his profession, it is sufficient for him to prove that he has acted as an attorney in the court of which he is alleged to be an attorney, and if the defendant's words assume that the plaintiff is an attorney, it operates as an admission that he is so, and supersedes necessity of other proof ". o Baikie v. Chandless, 3 Campb. 17. s Lee v. Ayrton, one, &c. Peake's N. t 2 Phillips' Evid. p. 159, 5th ed. (14) The provisional assignee is not responsible for the fraud of an agent appointed with due care. Raw v. Cutten, 9 Bingh. 96. CHAP. VI. AUCTION. Of Agreements relating to the Sale of Lands and Goods by Auction. Cases where the Duty attaches. Liability of Auctioneer. Recovery of Deposit and Interest on Defect of Title. A SALE of lands by auction is within the 4th section (1) of the statute of frauds (29 Car. 2. c. 3.), and to make it binding, the solemnities required by that statate must be observed: the auctioneer is to be considered as the agent of both parties". With respect to the sale of goods by auction, it has not been decided that such sales are within the 17th section (2) of the same statute; but the better opinion seems to be that they are. Assuming that they are, it has been determined that the auctioneer is the agent of both parties, and that a note or memorandum in writing of the bargain, made and signed by him, will be sufficient to give validity to the contract. The defendant bought a lot of goods for more than 10l. at an auction. a Walker v. Constable, 1 Bos. and Pul. 306. b Kemeys v. Proctor, 3 Ves. & Beames, 57. See this subject more fully discussed under tit. Statute of Frauds. c Simon v. Motivos, 3 Burr. 1921. more fully stated in Bull. N. P. 280. under the name of Simon v. Metivier. Best report in 1 Bl. Rep. 599. cited in Mason v. Armitage, 13 Ves. Jun. 25. (1) By which it is enacted, that "no action shall be brought whereby to charge a defendant upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." (2) By which it is enacted, that "no contract for the sale of any goods, wares, and merchandizes, for the price of 101. or upwards shall be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the same bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." |