against A. B. trespassed therein and seized all the plaintiff's household furniture and effects.

2. The defendant remained in the plaintiff's said house four days, and the plaintiff has suffered damage thereby.

The plaintiff claims £500 damages.

2. Claim by Plaintiff in the Alternative against a Sherif for Wrongful Execution and Sale.

1. The plaintiff A. B., at the time of the grievance hereinafter mentioned, lived at 13, North Street, Brixton. The plaintiff C. D. was entitled as mortgagee to the household furniture in the said house under a bill of sale of the 10th of May, 1880.

2. The defendant by his officers on the 30th of May, 1880, entered and trespassed in the house of the plaintiff A. B., and wrongfully, under the colour of a writ of fi. fa., seized all the said household furniture therein, and caused it to be sold by auction, and converted the proceeds thereof to his own use.

execution itself is not impaired. (Percival v. Stamp, 9 Exch. 167; 23 L. J. Ex. 25.) The sheriff must not remain on the premises an unreasonable time, and if he does so he is liable to an action. (Ash v. Dawnay, 8 Exch. 237; 22 L. J. Ex. 59.)

The sheriff may also be sued by a landlord for taking goods on execu- Instances tion without paying to him a year's rent when so much rent is in arrear. of actions He is of course liable for not paying over to the execution creditor the against proceeds of the levy, and he may be sued if he neglects to arrest a person sheriff. within his jurisdiction against whom a judge's order for his apprehension has been lodged in the sheriff's hands, or for permitting his escape after arrest. An action for not levying and for making a false return will also lie against him at the instance of the execution creditor. The plaintiff here will have to plead that the debtor had effects in the sheriff's bailiwick of which the latter either had notice or by due diligence might have had notice. In this action the measure of damages is the value of the goods on which execution might have been but was not levied, yet it is for the jury to say, looking at all the circumstances of the case, whether, if the execution had been levied, the plaintiff would have derived any benefit from it by reason of the other creditors of the debtor being in a position to make him bankrupt, and if there was no reasonable probability of benefit to the plaintiff, the defendant is entitled to a verdict. (Hobson v. Thelluson, L. R. 2 Q. B. 642.)

If the sheriff or his officer extorts a larger sum for fees than he is authorised to charge he is liable to an action for extortion. With regard to the right of the sheriff to sue for his fees, it has been recently held that a sheriff's officer who has executed a writ of fi. fa., cannot maintain an action for his fees against the solicitor of the execution creditor where the solicitor has done nothing more than deliver the writ to the sheriff for execution. (Royle v. Busby, 6 Q. B. D. 171; 50 L. J. Q. B. 196, C. A., overruling Brewer v. Jones, 24 L. J. Ex. 143; 10 Exch. 665.)

Solicitor of execution creditor not liable for sheriff's fees.

The plaintiff A. B. claims £100 damages for the said trespass and for the loss of his interest in the said furniture.

The plaintiff C. D. claims £100 damages in respect of the loss of his interest in the said furniture.

Defence.

1. The defendant is the Sheriff of Surrey, and he entered the said house and seized the said household effects under a writ of fi. fa. against the goods of the plaintiff A. B., duly issued, at the instance of X. Y., out of the Queen's Bench Division of the High Court of Justice, and delivered to him in due course to be executed.

2. The defendant executed the said writ according to its tenour, and the proceeds of the sale of the effects seized have been paid over to the said X. Y.

3. The defendant denies that the plaintiff C. D. had any title to the said goods as mortgagee or otherwise.

4. The bill of sale mentioned in the statement of claim was not registered.

Reply.

The plaintiffs join issue upon the statement of defence,

3. Claim against a Sheriff for Selling with Undue Haste and without Sufficiently Advertising.

1. The defendant on the 10th of September, 1880, seized several valuable race-horses, the property of the plaintiff, under a writ of fi. fa. against the plaintiff, and wrongfully sold the same with undue and unnecessary haste, and without giving reasonable notice of and properly advertising the said sale.

2. The defendant also sold a greater number of the said race-horses to satisfy the said execution than was necessary. The plaintiff claims £1500 damages.

4. Claim against a Sheriff for a False Return.

1. On the 11th of April, 1880, the plaintiff caused to be delivered to the defendant a writ of fi. fa. issued out of the Queen's Bench Division of the High Court of Justice upon a

judgment obtained by the plaintiff against one A. B., of C., directing the defendant, as sheriff of B., to levy the sum of £87 10s. 2d. upon the goods and chattels of the said A. B. within his bailiwick.

2. The said A. B. had more than sufficient goods within the defendant's bailiwick to satisfy the said writ, but the defendant neglected to seize the same, and falsely returned to the said writ, that A. B. had no goods within his bailiwick, whereby the plaintiff has wholly lost the said sum of £87 108. 2d.

5. Action against a Sheriff for Extortion.

1. The plaintiff has suffered damage by the wrongful act of the defendant, who, on the 13th of July, 1880, entered his house, in Rye, and, under the colour of a writ of fi. fa., seized the plaintiff's household goods therein, and, by a threat of selling the same, extorted from the plaintiff £7 10s. 2d. for his alleged fees and charges, in addition to the amount of the judgment debt.

2. The defendant was only entitled to £2 13s. 6d. for his fees and charges.

The plaintiff claims £50 damages.

Solicitor (a).

1. Claim by a Solicitor for his Costs.

1. The plaintiff's claim is for the sum of £105, being his costs and charges while acting as the defendant's solicitor upon

(a) Claim by a solicitor for his charges.]-In order to enable a solicitor to recover his charges for professional services he must be prepared to prove

1. That he was duly admitted, enrolled, and qualified as a solicitor. By the Stamp Act, 1870, a solicitor who directly or indirectly acts or practises in any Court as such without having a duly stamped certificate in force at the time, shall be incapable of maintaining any action or suit for the recovery of any fee, reward, or disbursement in relation to any act or proceeding by him in such capacity. And by the Attorneys and Solicitors Act, 1874 (37 & 38 Vict. c. 68, s. 12), no costs, &c., in relation to any act or proceeding by a solicitor without being duly qualified to act as such, shall be recoverable in any action, &c. By 23 &

A solicitor must take

out a cer

tificate to enable him

to recover

his fees.

Law List

primâ facie evi

dence of his qualification.

Delivery

of a bill month before action

essential.

Solicitors

his retainer in the cause of Smith v. Smith from the 3rd of January, 1880, to the 10th of July, 1880.

2. A signed bill of the said costs was delivered by the plaintiff one month before action.

The plaintiff claims £105.

24 Vict. c. 127, s. 22, the Law List is primâ facie evidence that the persons whose names are inserted in it, in the list of solicitors, have obtained stamped certificates for the current year (Nov. 16 to Nov. 15), and the absence of a solicitor's name therefrom is prima facie evidence that he has not obtained a certificate for such current year; but in the latter case an extract from the Roll of Solicitors, signed by the Secretary of the Law Society, is evidence of the facts appearing in such extract.

2. His retainer as solicitor by the defendant, which may be done by showing either an express retainer, or that the defendant attended at his office and gave directions, or otherwise recognised his employment. A retainer need not be in writing, but as a matter of precaution, a solicitor should always have a written retainer.

3. That the business was done, which may be proved by a clerk or other agent who can speak to the existence of the cause or other business in respect of which the charges are made, and can prove the main items. (Roscoe, Ev. Nisi Prius, 13th ed. 473.)

4. That a bill was delivered pursuant to 6 & 7 Vict. c. 73, s. 37, which provides that no solicitor, nor an executor of any solicitor, shall cominence or maintain an action for the recovery of any fees, charges, or disbursements for any business done by him as such solicitor until the expiration of one month after he shall have delivered to the defendant, or sent by post, or left for him at his counting-house, office, dwelling-house, or last known abode, a bill of such fees, &c., which shall be subscribed by him or any one of his partners, by his name or the name of his firm, or be accompanied by a letter so subscribed, and referring to such bill. Under this enactment a solicitor's bill cannot be recovered on an account stated, without proving the delivery of the bill, though the amount has been admitted. (Eicke v. Nokes, 1 M. & Rob. 359.) But he may recover on a promissory note given for the amount. (Jeffreys v. Evans, 14 M. & W. 210.) The bill must after delivery be left with the defendant for examination. (Brooks v. Mason, 1 H. Bİ 290.)

A delivery to the defendant's solicitor, if he himself afterwards attends the taxation, is sufficient. (Vincent v. Slaymaker, 12 East, 372.) So a delivery to one of several persons who join in the retainer. (Fenchett v. How, 2 Camp. 277.)

By the Attorney and Solicitors Act, 1870 (33 & 34 Vict. c. 28, s. 4). a solicitor may make an agreement in writing with his client respecting may make special the amount and manner of payment for his fees or disbursements, either agreements by a gross sum, or commission, or salary; but where the agreement is in in writing respect of business transacted in Court, the amount payable thereunder shall not be received by the solicitor until the agreement has been as to their fees. approved by a taxing officer. Sect. 7 enacts that a provision in any such agreement that the solicitor shall not be liable for negligence as such solicitor shall be void. By sect. 8 no action shall be brought to enforce such agreement, but it may be enforced by the Court on motion or by petition. By sect. 15 an agreement under this Act obviates the objection of no signed bill having been delivered when an action is brought to recover the solicitor's charges.

An agreement by an attorney with a client "to charge him nothing if he lost the action, and to take nothing for costs out of any money that

Defence and Counter-claim.

1. The defendant did not retain the plaintiff as his solicitor in the said cause.

2. If the defendant did retain the plaintiff, it was upon an express agreement in writing made between the plaintiff and

might be awarded to him in such action," need not be in writing. (Jennings v. Johnson, L. R. 8 C. P. 425.) In Rees v. Williams, L. R. 10 Ex. 200, it was held that sect. 8 of the Act of 1870 was intended to prevent actions to recover the remuneration agreed upon in lieu of costs when the work had been done, and did not apply to an action for refusing to allow the attorney to do the work and earn the remuneration, for which an action may be brought.

It has also been held that to constitute an agreement as to costs between a solicitor and his client within the meaning of sect. 4 of this Act the document must be signed by both parties. (Ex parte Munro, re Lewis, 1 Q. B. D. 724 ; 45 L. J. Q. B. 816.)

By the 44 & 45 Vict. c. 44, which is entitled "an Act to make better Solicitors provision respecting the remuneration of solicitors in conveyancing, and may sue other non-contentious business,” a new scale of charges in regard to the on special classes of business mentioned is authorised, and it is provided by sect. 8 agreements that a solicitor may make a special agreement in writing with his client as to nonas to the amount of remuneration he shall receive, and "the agreement contentious may be sued and recovered on or impeached and set aside in like business. manner and on the like grounds as an agreement not relating to the remuneration of a solicitor." It seems therefore, that special agreements made under the 44 & 45 Vict. c. 44, may be sued on; but special agreements made under the 33 & 34 Vict. c. 28, may not be sued upon. Defences.]-The foregoing outline of the conditions it is essential in the absence of admissions by the defendant to establish, indicate sufficiently the chief defences to this action. They are-1st. Denial that the plaintiff was duly admitted and qualified to practise as a solicitor at the time of the rendering the services. 2nd. That he had not taken out a certificate pursuant to the 6 & 7 Vict. c. 73, s. 26. 3rd. A denial that the plaintiff delivered a bill pursuant to the 6 & 7 Vict. c. 73, s. 37, in cases which do not come within the provision of the Attorneys and Solicitors Act before referred to as to special agreements. 4th. Denial of the retainer. 5th. Denial that the services were rendered, including allegations charging negligence or incompetence.

Common defences to actions by solicitors for their charges.

The plaintiff's negligence is no defence if it has not been such as to When the deprive the defendant of all benefit. (Templer v. Me Lachlan, 2 N. R. plaintiff's 136.) But where such has been the case, it is a good defence. See for negligence several instances, IIuntley v. Bulwer, 6 N. C. 111; Bracey v. Carter, disentitles 12 Ad. & E. 373; Long v. Orsi, 18, C. B. N. S. 610; 26 L. J. C. P. 127; him from Lewis v. Samuel, 8 Q. B. 685 (in which the plaintiff sued only for costs recovering. out of pocket, to which he had agreed that defendant's liability should be limited). An attorney cannot recover costs of suit in an inferior Court, which, as he ought to have known, had no jurisdiction in the matter, and was restrained by prohibition. (Robinson v. Emanuel, L. R. 9 C. P. 415, 416.) So where he sues in a Court which has no adequate powers to examine material witnesses out of the jurisdiction, and the suit fails accordingly. (Co. v. Leach, 1 C. B. N. S. 617; 26 L. J. C. P. 125.) When it appeared that the plaintiff paid no attention to the defendant's case, but resided at a distance from his office, and his business was transacted by a person employed by him, it was held he could

M M