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.

m

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 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 a demand by the attorney himself might have done.

If to a plea of tender the plaintiff reply a latitat (111), 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 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 de

m Spybey v. Hide, 1 Camp. N. P. C. 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. 1 Camp N. P. C. 478. n. o Wood v. Newton, B. R. 1 Wils. 141. p Heaward v. Hopkins, Doug 44.

(111) 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.

fendant will not be permitted to enter a suggestion on the roll in order to obtain his costs.

V. Damages.

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 simiJar quality and description bore on or about the day, when the goods ought to have been delivered. But in an action for not replacing stock, 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 to which the stock may have arisen at any intermediate time 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 is the difference between the price contracted for and the market price at the time when the contract ought to have been completed.

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.

q Middx. Court of Conscience, stat. 23 G. 2. c. 33. s. 19. (112)

r Gainsford v. Carroll, 2 B. and C.

624.

s Shepherd v. Johnson, 2 East. 211.

t M'Arthur v. Ld. Seaforth, 2 Taunt. 257.

u Boorman v. Nash, 9 B. and C. 145. x Kemble v. Farren, 6 Bingh. 141.

(112) 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, I. 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.

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 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. But it seems doubtful, whether, in this case, an action of debt would lie. An attorney may maintain an assumpsit for soliciting a cause in other courts, as well as in the court where he is attorney. An attorney may sue by attachment of privilege, though his certificate has expired, and 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 writ. 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 be maintain an action for the amount of his bill. And semble, that a solicitor of the Court of Chancery cannot, by consent in writing, authorise a solicitor of the Court of Exchequer to practise there in his name. To an action of assumpsit for fees due to the plain

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.

Jac. 520. Neg. Sands v. Trevil an
Cro. Car. 194.

d Thursby v. Warren. Cro. Car. 159.
e Prior v. Moore, 2 M. and S. 605.
f Vincent v. Holt, 4 Taunt. 452.

tiff as an attorney, 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 (1), clients, or their assigns, of all other charges concerning the suits which they have for them, subscribed with their bands 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 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 (2),

g Oliver v. Thomas, J.d. Raym. 2.
h Brickwood v. Fanshaw, Carth. 147.

i Brooks v. Hague, T. Raym. 245.

(1) 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 this 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 son. 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.

(2) 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.

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 (3).

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 (1), at law or in equity, until the expiration of one month (5) 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 (6), or last 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 (7), 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 authorised,

(3) In this case it was said by the court, that this statute might be given in evidence under the general issue.

See

See

(4) Charges for conveyancing are not within this statute. post, Hill v. Humphreys, p. 171. and 2 Bos. and Pul. 345. 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 Camp. 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.

(5) The term "month" here means a lunar month. Hurd v. Leach, 5 Esp. N. P. C. 163. Ellenborough, C. J.

(6) Leaving at the counting-house is not sufficient. 2 Bos. and Pul. 343.

(7) 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.