to be fully competent to understand the nature of the charges in the bill, and to resist them if exorbitant or improper. Hence an action may be maintained by one attorney against another, for business done by the plaintiff for the defendant before he became an attorney, without leaving a bit signed according to the directions of stat. 2 G. 2. c. 23. (11) It is clearly established as a rule of practice, that negligence cannot be set up as a defence to an action on an attorney's bill; for the plaintiff does not come prepared to prove any thing more than the business done, and is not in a situation to meet a charge of negligence (12). An attorney is not liable to be assessed in the poor rates in respect of the profits of his profession". Assumpsit on an attorney's bill.-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 unneces u Ford one, &c. v. Maxwell, one, &c. 2 H. Bl. 589. * Templer v. M'Lachlan, 2 B. & P. N. R. 136. y R. v. Startivant, 7 T. R. 60. (11) In Nelson v. Garforth, 1 Esp. N. P. C. 221, Lord Kenyon C. J. ruled, that where an action is brought by one attorney, for business done as an agent to another attorney, the plaintiff is not obliged to deliver a bill signed. See also Bridges one, &c. v. Francis, Peake's N. P. C. 1, 2. S. P. admitted. But the bill of an agent to an attorney in the country, may be taxed by the master. Dixon v. Plant, Doug. 199. n. [1.] 200 n. Ex parte Bearcroft, C. B. E. 7 Geo. 3. Doug. 200 n. (12) "I do not go the length of saying that in no case can negligence in the party suing be used as a defence to the action, though I think it can only be used, where the negligence has been such, that the party for whom the business was done has thereby lost all possibility of benefit from such business." Per Sir J. Mansfield, S. C. The same doctrine was laid down by Lord Ellenborough, in Farnsworth v. Garrard, M. T. 48 G. 3. B. R. 1 Camp. N. P. C. 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 sary, and Jory v. Orchard, 2 Bos. & Pul. 39. and Anderson v. May, 2 Bos. & 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 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 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 in infinitum." Plaintiff nonsuited. Liability of Attornies for Negligence. An action on the case may be maintained by a client against his attorney for neg ligence or unskilfulness in the discharge of his professional 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 Camp. N. P. C. 40. n. recog➡ nised by Ld. Ellenborough C. J. in Tye v. Gwynne, 2 Camp. N. P. Č. 346. 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. See further on this subject the case of Fisher v. Samuda and another, 1 Camp. N. P. C. 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, 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 holden, 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. In an action against an attorney 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. Russell v. Palmer, 2 Wils. 325. See b Lee v. Ayrton one, &c. Peake's CHAP. VI. AUCTION. Of Agreements relating to the Sale of Lands 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 statute must be observed, and the auctioneer is not to be considered as the agent of both parties. With respect to sales 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 a Walker v. Constable, 1 Bos. & Pul. 306. b Stansfield v.Johnson, 1 Esp. N. P. C. 101. Buckmaster v. Harrop, 7 Ves, 345.; but see Ld. Erskine's opinion S. C. 13 Ves. 473. (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 con 66 cerning 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." 66 (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 ear"nest 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, on "their agents thereunto lawfully authorized." give validity to the contract. The defendant bought a lot of goods for more than 10%. at an auction. Catalogues and conditions of sale were printed, and the defendant was the best bidder. The auctioneer wrote the defendant's name, and the price, against the lot in the printed catalogue, by order of the defendant. Between the day of sale and the time fixed by the conditions for taking the lot away, the defendant sent his servant to see then weighed, which he did. The defendant neglecting to take away the goods, they were resold at a considerable loss, and an action was brought for the difference; and the court strongly inclined -1. That sales by auction were not within the statute of frauds, because a number of persons are generally present, who can testify the terms of the contract; 2. They held the contract here was sufficiently reduced into writing and signed by an agent of the defendant's, for the auctioneer for that purpose was his agent (3); 3. They held the weighing by his servant was a delivery; 4. Yates J. held, that, as the contract was executory, viz. the lot to be taken away in six weeks, it was not within the statute (4). A bidding at an auction may be retracted before the hammer is down, because the assent of the seller is not signified till that takes place. Verbal declarations of the auctioneer, superadding any term to, or contrary to the printed conditions of sale, are not admissible in evidence. An action will not lie against an auctioneer for selling a horse at the highest price bid for him, contrary to the owner's express directions, not to let him go under a larger sum. 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. d Payne v. Cave, 3 T. R. 148. (3) This rule has been acted upon ever since this decision; and in conformity with such rule, it has been holden, that, upon sales made by brokers acting between the parties buying and selling, the memorandum in the broker's book, and the bought and sold notes transcribed therefrom, and delivered to the buyers and sellers respectively, are a sufficient compliance with the statute to render the contract of sale binding on cach. See the opinion of Lord Ellenborough C. J. in Hinde v. Whitehouse, 7 East, 569. (4) If any money is paid as a deposit, though short of the sum stipulated by the couditions, and accepted as such by the auctioneer, it will bind the bargain quoad the auctioneer. Hanson v. Roberdeau, Peake N. P. C. 120. |