Defence to an Action against Shipowner for Loss of or Damage to Goods, that the Goods were within the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), s. 502, and that the Nature and Value thereof had not been declared (k).

The goods consisted of articles mentioned in s. 502, sub-s. (2), of the Merchant Shipping Act, 1894, that is to say, gold [or, as the case may be], and the true nature and value thereof was not at the time of shipment inserted in the bill of lading, or otherwise declared in writing to the master or owner of the ship, and the loss, in respect of which this action is brought, happened without the actual fault or privity of the defendant, by reason of robbery thereof.

SOCIETIES (a).

(k) See "Shipping," ante, p. 336, where see also as to limitation of liability.

(a) See" Societies," ante, p. 346. Where an action by or against a society is brought in respect of a dispute between the society and its members as to which the High Court of Justice has no jurisdiction, the facts showing such want of jurisdiction may in general be pleaded by way of defence (see "Jurisdiction," post, p. 906), or where the absence of jurisdiction is apparent upon the face of the statement of claim, the defendant may plead an objection in point of law on that ground (Huckle v. Wilson, 2 C. P. D. 410; “Proceedings in lieu of Demurrer," ante, p. 598). In some cases an application may be made by summons for a stay of proceedings on that ground. (Norton v. Counties Building Society, (1895) 1 Q. B. 246; 64 L. J. Q. B. 214.)

Where the plaintiffs sue as a registered society, and the validity of the alleged cause of action depends on the statutory right conferred by registration, the defendant may in general plead a denial of such registration by way of defence.

Where the trustees of a friendly society lend money of the society on personal security only to persons who are not members, the borrowers, if sued by the trustees for the amount of the loan, cannot set up by way of defence that the trustees were prohibited from so lending the money by the provisions of s. 16 (1) of the Act of 1875, as such loan, though unauthorized and a breach of trust on the part of the trustees, is not illegal. (In re Coltman, 19 Ch. D. 64; 51 L. J. Ch. 3.)

A non-registered association in the nature of a benefit or loan society, which has for its object the acquisition of gain by the association or its members, is illegal under s. 4 of the Companies Act, 1862, and therefore contracts made by a member with such an association in the course of its business are illegal. (See "Company," ante, p. 679; "Illegality," ante, p. 727.)

The mere fact that some of the rules of a provident society are in restraint of trade does not constitute a defence to an action against the society for money due under the rules. (Swaine v. Wilson, 24 Q. B. D.

SOLICITORS.

Defence to an Action by a Solicitor for Professional Charges and Disbursements, denying the alleged Retainer and Request (a).

The plaintiff was not solicitor for the defendant as alleged, and the defendant did not request the plaintiff to do any of the work [or, perform any of the journeys, or, bestow any of the attendances], or pay [or, expend] any of the moneys as alleged.

Defence to a like Action, denying that the alleged Work was done or the alleged Payments made.

The plaintiff did not do any of the alleged work [or, perform any of the alleged journeys, or, bestow any of the alleged attendances], or make any of the alleged payments.

Defence to a like Action, that the Plaintiff was not duly qualified as a Solicitor within the meaning of s. 12 of the Solicitors Act, 1874 (b).

The action is brought to recover costs, fees, reward and disbursements on account of and in relation to work done and proceedings taken by the plaintiff acting as a solicitor for the defendant without being duly qualified so to act within the meaning of the Solicitors Act, 1874 (37 & 38 Vict. c. 68), s. 12.

(a) It is not necessary that the retainer should be a formal or express one, as the conduct of the parties may afford sufficient evidence of retainer. (Morgan v. Blyth, (1891) 1 Ch. 337, 355; 60 L. J. Ch. 66.)

(b) By the 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." (See also 23 & 24 Vict. c. 127, s. 26, and the Stamp Act, 1891, s. 43.) The above-cited section further provides that "for the purposes of this section a person shall be deemed to be duly qualified to act as an attorney or solicitor if he shall have in force, at the time at which he acts as an attorney or solicitor, a duly stamped certificate authorizing him so to do, pursuant to the provisions of the stamp laws, and the laws for the time being relating to attorneys and solicitors." (See Fowler v. Monmouth Canal Co., 4 Q. B. D. 334; 48 L. J. Q. B. 457.)

Defence to a like Action, that the Plaintiff did not deliver a signed Bill of Costs a Month before Action, as required by the Solicitors Act, 1843 (c).

The plaintiff's claim in this action is for fees, charges and disbursements for business done by the plaintiff as a solicitor

(c) By the Solicitors Act, 1843 (6 & 7 Vict. c. 73), s. 37, it is enacted that" No attorney or solicitor, nor any executor, administrator, or assignee of any attorney or solicitor, shall commence or maintain any action or suit for the recovery of any fees, charges, or disbursements for any business done by such attorney or solicitor, until the expiration of one month after such attorney or solicitor, or executor, administrator, or assignee of such attorney or 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, charges and disbursements, and which bill shall either be subscribed with the proper hand of such attorney or solicitor (or, in the case of a partnership, by any of the partners, either with his own name or with the name or style of such partnership), or of the executor, administrator, or assignee of such attorney or solicitor, or be enclosed in or accompanied by a letter subscribed in like manner referring to such bill." But by the Legal Practitioners Act, 1875 (38 & 39 Vict. c. 79), s. 2, a judge of the Supreme Court may authorize a solicitor to commence an action for the recovery of his fees, charges, or disbursements against the party chargeable therewith, although one month shall not have expired from the delivery of such bill, on proof "that there is probable cause for believing that the party chargeable therewith is about to quit England, or to become a bankrupt or a liquidating or compounding debtor, or to take any other steps or do any other act which, in the opinion of the judge, would tend to defeat or delay such solicitor in obtaining payment.'

66

The word assignee" in s. 37 of 6 & 7 Vict. c. 73, above cited, is not confined to persons to whom the debt is assigned by operation of law, such as a trustee in bankruptcy, but applies also to persons to whom the debt is absolutely assigned by writing under the Judicature Act, 1873. (Penley v. Anstruther, 52 L. J. Ch. 367; Ingle v. M'Cutchan, 12 Q. B. D. 518; 53 L. J. Q. B. 311.)

If the action is for fees, &c., in respect of business done by a partnership, or is brought by an executor, administrator or assignee, the allegations in the form with respect to non-signature must be modified accordingly. (See 6 & 7 Vict. c. 73, s. 37, supra; Ingle v. M'Cutchan, supra.)

The defence that the provisions of the last-mentioned section with respect to the delivery of a signed bill of costs were not complied with, applies not only to a direct claim for such costs, but also to a claim on an account stated in respect thereof. (Scadding v. Eyles, 9 Q. B. 858.) But the fact that no signed bill of costs was delivered does not afford a defence to an action by a solicitor on a promissory note given to him as security for his costs. (Jeffreys v. Evans, 14 M. & W. 210.) The defence applies only to claims in respect of business done in the character of a solicitor. (Bush v. Martin, 2 H. & C. 311; 33 L. J. Ex. 17; In re Oliver, 36 L. J. Ch. 261; In re Jones, L. R. 13 Eq. 336; 1 Chitty's Practice, 14th ed., p. 132.)

for the defendant, and the plaintiff did not one calendar month before action deliver to the defendant, being the party to be charged therewith, or send by the post to, or leave for him at his counting-house, office of business, dwelling-house, or lastknown place of abode, a bill of such fees, charges, and disbursements subscribed with the proper hand of the plaintiff, or enclosed in or accompanied by a letter subscribed in like manner referring to such bill, as required by the statute 6 & 7 Vict. c. 73, s. 37.

As to the requisites for a proper bill of costs, and as to what amounts to a proper address and delivery within the statute, see 1 Chitty's Practice, 14th ed., pp. 132 et seq.

A mere oral agreement as to a solicitor's costs or remuneration, whether for contentious or non-contentious business, is not binding on the client and does not prevent him from requiring delivery of a bill of costs or from obtaining a taxation. (In re Russell, 30 Ch. D. 114; 54 L. J. Ch. 948; In re West, (1892) 2 Q. B. 102; 61 L. J. Q. B. 639.) But by the Solicitors Act, 1870 (33 & 34 Vict. c. 28), ss. 4-15, as to contentious business, and by the Solicitors' Remuneration Act, 1881 (44 & 45 Vict. c. 44), s. 8, as to conveyancing and other non-contentious business, a solicitor may, subject to certain conditions, make a special agreement in writing with his client for the solicitor's remuneration by a gross sum, commission, or salary, &c. (See Ib.) An agreement under the former Act cannot be enforced_by action, but is enforceable by motion or petition (see s. 8 of that Act; Rees v. Williams, L. R. 10 Ex. 200; 44 L. J. Ex. 266); an agreement under the latter Act may be sued upon in the same manner as an agreement not relating to the remuneration of a solicitor (see s. 8 (4) of that Act).

An agreement signed by the solicitor only cannot be enforced by him as an agreement within the provisions of the above Acts. (In re Lewis, 1 Q. B. D. 724; 45 L. J. Q. B. 816; In re Russell, supra; In re West, supra; and see s. 8 of the Act of 1881.) But such agreement signed by the client only may be enforced by the solicitor, although the solicitor has not himself signed it. (In re Frape, (1893) 2 Ch. 284; 62 L. J. Ch. 473; In re Thompson, (1894) 1 Q. B. 462; 63 L. J. Q. B. 187; and s. 8 (2) of the Act of 1881.)

By s. 9 of the Solicitors Act, 1870, the Court is empowered to set aside agreements under that Act which are not fair or reasonable. (See In re Stuart, (1893) 2 Q. B. 201; 62 L. J. Q. B. 623.)

A solicitor may set off amounts due to him for costs, although he has not delivered a bill of costs before the action. (Brown v. Tibbits, 11 C. B. N. S. 855; see Rawley v. Rawley, 1 Q. B. D. 460.) But it would seem that this does not apply to a case where the defendant claims the costs merely by way of counterclaim strictly so called. (See Judicature Act, 1873, s. 24 (3); O. XIX. r. 3; Chitty's Practice, 14th ed., p. 136.)

The retention by the client of his solicitor's bill for twelve months without taxation affords primâ facie evidence that it is reasonable in amount. (In re Park, 41 Ch. D. 326, 333, 339.)

As to agreements by way of champerty or maintenance, see tenance," ante, p. 780.

"Main

B.L.

31

SPIRITUOUS LIQUORS: see "Illegality," ante, p. 729.

STOCK: see" Shares," ante, p. 836.

SUNDAY TRADING (a).

TENDER (6).

Defence of Tender before Action (b).

(See R. S. C. 1883, App. D. Sect. IV.)

As to the whole [or, As to £, parcel] of the money claimed, the defendant made tender before action [or, on the

(a) By the Sunday Observance Act, 1677 (29 Car. II. c. 7), s. 1, “No tradesman, artificer, workman, labourer, or other person whatsoever, shall do or exercise any worldly labour, business, or work of their ordinary callings upon the Lord's Day, or any part thereof, works of necessity and charity only excepted." Hence a contract made on a Sunday in the exercise of the ordinary calling of a person within the meaning of the statute is not, in general, enforceable by action. (Fennell v. Ridler, 5 B. & C. 406; Norton v. Powell, 4 M. & G. 42; Simpson v. Nicholls, 3 M. & W. 240; Scarfe v. Morgan, 4 M. & W. 270; Smith v. Sparrow, 4 Bing. 84; R. v. Cleworth, 4 B. & S. 927; 33 L. J. M. C. 79; see Leake on Contracts, 3rd ed., p. 646.) But a defence under this statute is not available in an action brought by an innocent person, who at the time of making the contract had no knowledge of the facts constituting the illegality. (Bloxsome v. Williams, 3 B. & C. 232.)

By the Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61), s. 13 (2), a bill is not invalid by reason only that it bears date on a Sunday.

(b) This defence must not be confounded with the defence of "Tender of Amends," which is given by some special statutes as a protection to persons acting, or intending to act, under those statutes, or acting in some official capacity. (See "Tender of Amends," post, p. 967.)

The defence of tender consists in the defendant having been always ready and willing to pay the debt and having tendered it before action to the plaintiff, who refused to accept it. It is a performance of the contract