CHAPTER IV.

Feigned issue.

If a feigned issue be ordered by a court of equity, the terms of it are dictated by the court, and form the subject of an interlocutory decree or order; if by a court of law, the terms of it are comprised in the rule made upon the subject. Let the plaintiff's attorney get a copy of the decree or rule, and lay it before counsel, with instructions to draw the issue; and when drawn, serve a copy of it upon the opposite attorney, who will get it settled by counsel upon his part. When settled, you may give notice of trial, sue out jury process, make up the nisi prius record, and proceed to trial, as in ordinary cases. In feigned issues from a court of equity, it is not necessary or usual to sign final judgment.

If the issue be directed by a court of equity, that court will make such order as to costs as it may think right. But if the issue were directed by a court of law, the costs follow the event of the issue, in the same manner as in an ordinary action; the court have no authority to order otherwise, Herbert v. Williamson, 1 Wils. 324. Ld. Fitzwilliam v. Maxwell, 7 Taunt. 31, unless perhaps where they reserve that authority, by consent of the parties, at the time they grant the issue, or as a condition of their granting it. See Hoskins v. Ld. Berkely, 4 T. R. 402.

If the issue be out of Chancery, any motion for a new trial must be made to that court by which the issue was directed. Even where the judge at the trial reserved certain points of law for future consideration, the court of law refused to entertain the motion for a new trial. Stone v. Marsh, 8 Dowl. 71.

BOOK IV.

PROCEEDINGS IN ACTIONS BY AND AGAINST PARTICULAR PERSONS.

CHAPTER I.

Actions by and against attornies.

SECTION I.

Action by an attorney, for the amount of his bill of costs.

This subject has been already fully considered in the first volume of this work, in treating of attornies. We shall therefore treat of it here generally and concisely, referring the reader to those parts of the former volume, where he will find the subject treated of specifically and more at large.

Delivery of Bill.] In all cases in which an attorney seeks to recover, by action or suit, the amount of any "fees, charges or disbursements, at law or in equity," he shall cause a bill thereof, subscribed with his proper hand, to be delivered to the party to be charged therewith, one lunar month exclusively before the commencement of the action or suit. 2 G. 2, c. 23, s. 23. As to what are "fees, charges, or disbursements," within the meaning of the statute, see vol. 1, p. 70; and how it is to be written, subscribed, and delivered to the client, Id. p. 71.

Process and Declaration.] An attorney has the privilege of bringing his action in the court of which he is an attorney, and of laying his venue in Middlesex, no matter where he is resident. Vol. 1, p. 63. The process is the same as in ordi. nary actions on promises; and the declaration is a common indebitatus count in assumpsit, for work and labour as an attorney, to which may be added a count upon an account stated. It may be necessary to mention that an attorney is not bound to sue in a court of requests, unless his privilege in that respect be taken away by the express words of the statute creating or regulating the court. Vol. 1, p. 64.

Evidence of plaintiff under the general issue.] Under the general issue, the plaintiff must prove his retainer, either expressly, or by proving circumstances from which it may be implied; vol. 1, p. 75; he must then prove that the business charged for was done; Id. 75; and lastly that the charges are reasonable. Id. 75, 76.

Defence and evidence.] Where the action is brought for "fees, charges or disbursements," within the meaning of the statute, it will be a good defence that no bill thereof, signed by the plaintiff, was delivered to the defendant, one lunar month exclusively before the commencement of the action; but this defence must be specially pleaded; vol. 1, p. 76; and the onus of proof will be upon the plaintiff.

That the business was done at a time when the plaintiff was uncertificated, will also be a good defence; vol. 1, p. 76, 54; and it must be specially pleaded.

That the business, although done in the name of the plaintiff, was in fact done wholly or in part for the benefit of an unqualified person, will also be a good defence to the action. Vol. 1, p. 76, 77.

That the business charged for, proved wholly useless to the client, whether arising from gross negligence or ignorance, or from inadvertence or inexperience only, of the attorney, will be a good defence; but not where the negligence, &c. has been merely injurious, or where it has not been the sole cause of the proceedings being useless. Vol. 1, p. 77.

The defendant may also set up as a defence, that the plaintiff agreed to do the business, without charging him anything for the same, or upon such other terms as may form a defence to the action. Vol. 1, p. 77.

SECTION II.

Action against an attorney.

If the client sustain damage or injury from the negligence, ignorance or misconduct of his attorney, whilst employed by him as such, he may maintain an action on the case or of assumpsit against his attorney for it. A number of instances are mentioned ante, vol. 1, p. 89, 95, in which the court will interfere in a summary manner, upon the application of the client, and afford him a remedy in such cases or punish the attorney; and not only in those instances, may the client sustain an action against the attorney, if he prefer that mode of proceeding, but in all others wherein he can prove that he has sustained damage from his attorney's negligence, ignorance or misconduct.

The process in such an action, is the same as in ordinary cases. The declaration is of course special. The defendant has the privilege of being sued in that court alone of which he is an attorney; See Groom v. Wortham, 12 Law J. 88, cp. ; but he has no privilege as to venue, and therefore cannot change the venue to Middlesex or insist on its being laid there, unless the cause of action arose there. Vol. 1, p. 63. And he must plead within four days, no matter at what distance from London he may reside. Kinder et al. v. Dunford, 10 Law J. 131, qb.

It may be necessary to mention, that an attorney cannot be sued in a court of requests, unless his privilege in that respect be taken away by the statute creating or regulating the court. Vol. 1, p. 64.

Their discharge from arrest, in what cases.] By stat. 6 G. 4, c. 16, s. 126, if a bankrupt, after obtaining his certificate, be arrested for any "debt, claim, or demand," proveable under the fiat, he shall be discharged on entering a common appearance; or to an action for such debt, he may plead his bankruptcy, and his certificate shall be sufficient evidence of the trading, bankruptcy, fiat, and other proceedings; and if he be taken in execution or detained in prison for such debt, &c., where judgment has been obtained before the allowance of his certificate, a judge of the court, on the bankrupt's pro ducing his certificate, may order the officer, who has him in custody, to discharge him, without exacting any fee. A bankrupt therefore, arrested or detained on mesne process, or in execution, may be discharged by order of a judge, upon summons, and production of his certificate, see ante, vol. 1, p. 135, the certificate being first duly enrolled. Jacob v. Phillips, 2. Dowl. 716. Osborne v. Williamson, 1 Mees & W. 550, S. C. nom. Oswald v. Williams, 5 Dowl. 159. And it is no objection to his discharge to say that he had an opportunity of pleading of his certificate, and neglected to do so: Oswald v. Williams, 5 Dowl. 159; or that he had agreed to give a cognovit; Id.; or that he was before a bankrupt or insolvent, or

had compounded with his creditors, and had not paid 15s. in the pound under the present fiat; See 6 G. 4, c. 16, s. 127. Carew v. Edwards, 2 Dowl. 613; or that the certificate is voida ble, by reason of there not being a good petitioning creditor's debt, or act of bankruptcy, or the like. Semb. But if it be shown that the certificate is actually void, by reason of its having been obtained by fraud, see Horn v. Ion, 4 B. & Ad. 78. Vincent v. Brady, 2 H. Bl. 1. Sowley v. Jones, 2 W. Bl 725. Martin v. O'Hara, Cowp. 823, or by reason of the bankrupt's having lost money by gaming, stockjobbing, &c., within 6 G. 4, c. 16. s. 130, see Hughes v. Morley, 1 B. & A. 22, Holt, 520, or the like, a judge will not interfere, or discharge the defendant. See further upon this subject, ante, vol. 1, p. 135.

As to his temporary privilege from arrest, during the fortytwo days allowed him by his protection, see ante, vol. 1, p. 164. And as to the effect of his certificate in discharging his bail, see ante, vol. 1, p. 207.

The above statute relates only to cases where the person of the bankrupt is taken or detained. But where his goods are taken in execution, after he has obtained his certificate, the court usually order them to be delivered up; see Lister v. Mundell, 1 B. & P. 427; although they have refused to do so, where the goods were seized, and the certificate allowed, on the same day. Hanson v. Blakey, 4 Bing. 493.

Election of Creditor.] A creditor who has brought an action against a bankrupt, for a debt proveable under the fiat, must elect whether he will proceed in his action, or prove upon the estate: he shall not be allowed to prove for the debt without relinquishing his action; and if he have the bankrupt in custody he must first discharge him before he shall be allowed to prove. 6 G. 4, c. 16, s. 59. See Eicke v. Nokes, 2 Dowl.820. and see ante, vol. 1, p.135. Watsonv. Medex, 1 B. & A. 121. Harley v. Greenwood, 5 B. & A. 95. And the bankrupt has a right to have a suggestion of the fact of the plaintiff having proved, entered upon the record; before which the action is not legally terminated, so as to render further proceedings in it by either party irregular. Kemp v. Potter, 6 Taunt. 549. But the court will not interfere to stay proceedings in the action; that can only be done by the court of review or court of chancery. Ransford v. Barry, 7 Dowl. 807. And the bankrupt may, if he will, notwithstanding such proof, proceed to trial by proviso. Whitaker et al. v. Mason, 4 Bing. N. C. 303.

Effect of bankruptcy on a suit.] The bankruptcy of either party does not abate a suit. And therefore if the plaintiff become bankrupt between interlocutory and final judgment, the assignees may proceed in his name to final judgment, ther