The cases, however, which have been cited and commented on at the bar appear to establish in general that he is liable for the consequences of ignorance or non-observance of the rules of practice of his court, for the want of care in the preparation of the cause for trial, or of attendance there with his witnesses, and for the mismanagement of so much of the conduct of a cause as is usually and ordinarily allotted to his department of the profession; whilst, on the other hand, he is not answerable for error in judgment upon points of new occurrence, or of nice and doubtful construction, or of such as are usually intrusted to men in the higher branch of the profession of the law. We lay no stress upon the fact, that the attorney had consulted his counsel as to the sufficiency of the evidence; because we think his liability must depend upon the nature and description of the mistake or want of skill which has been shown; and he cannot shift from himself such responsibility by consulting another, where the law would presume him to have the knowledge himself (d).

Where an attorney for a plaintiff suffered the case to be called on at the trial, without previously ascertaining whether a material witness (whom the plaintiff, his client, had undertaken to bring into court) had arrived, in consequence of which the plaintiff was nonsuited; it was held, in an action against the attorney for negligence, that it was properly left to the jury to decide whether he had used reasonable care in conducting the cause; and the jury having found in the negative, the court refused to disturb the verdict (e). And a jury may find an attorney guilty of negligence if he omit to notice particular conveyances and deeds, in laying an abstract before a conveyancer; and, instead of leaving the whole case to counsel, choose to draw his own. conclusions, which are incorrect (f). And an attorney is liable for negligence if he rely on a mere partial extract from a will, produced by the party to whom his client was about to lend, and accordingly lent money, on the security of a legacy given by the will, unless the client took the charge and responsibility of exa

(d) See Ravenga v. Mackintosh, 2 B. & C. 693; 4 D. & R. 187, S. C.; Kemp v. Burt, 1 N. & M. 262; 4 B. & Ad. 424, S. C., as to the effect of having acted on counsel's advice, where an action is afterwards brought

for a malicious arrest, &c.

(e) Reece v. Righy, 4 B. & Ald.

202.

(f) Ireson v. Pearman, 3 B. & C. 799; 5 D. & R. 687, S. C.

mining the will upon himself (g). So he is responsible if he do not exercise a reasonable discretion in proceeding to take out execution upon a judgment after a compromise, and the execution is set aside, as being contrary to good faith and vexatious (h).

But the court will not compel an attorney to refund costs unnecessarily incurred, unless he has been guilty of gross negligence (i).

No action can be maintained for negligence in commencing a suit against excise officers for a seizure of goods by them, without giving the previous notice required by law, if it appear that the seizure was lawful; for in such case no damage can have resulted to the client from the attorney's neglect (k). And where an attorney, being instructed to plead in abatement for the purpose of delay, omitted so to do, Lord Ellenborough held that this was no defence to an action on his bill (7); observing that the defendant could not complain that such instructions were disobeyed.

Where, however, an attorney was retained and instructed by his client to defend him against an action for driving over a third person, and the attorney suffered judgment by default, it was held that the latter was liable to an action for negligence in not pleading to the former suit; and that it was not necessary for the plaintiff (the client) to prove that he had a defence to the former action, but it was incumbent for the attorney to prove that there was no defence thereto. And the court seemed to think that the plaintiff (the client) was not bound to show special damage from the attorney's default (m).

The attorney is answerable for the mistakes or negligence of the agent; thus, where a plaintiff obtained a verdict in consequence of the defendant's agent not having informed the defendant of his having been served with notice of trial, the defendant's attorney was held to be liable for the neglect of the agent (n). And if an agent be guilty of negligence, and the attorney's client thereby sustain an injury, the client cannot sue the agent, nor

(g) Wilson v. Tucker, 3 Stark. R.

154.

(h) Shaw v. Arden, 2 M. & Scott, 341; 9 Bing. 287, S. C. See another instance of gross negligence, Frankland v. Cole, 2 C. & J. 590.

(i) Meggs v. Binns, 2 Bing. N. C. 625; 3 Scott, 52, S. C.

(k) Aitcheson v. Mudock, Peake's R. 162; Lee v. Ayrton, id. 119.

(1) Johnson v. Alston, 1 Camp. 176; and see Re Barnes, Barnes, Rep. 38.

(m) See Godefroy v. Jay, 7 Bing. 413; 5 M. & P. 284, S. C.; and see Huntley v. Bulwer, 6 Bing. N. C. 111. (n) Collins v. Griffin, Barnes, 37.

will the court entertain any application of the client against him, for there is no privity between them, the client's remedy in such a case is against his own attorney (0).

The earlier cases did not afford a very satisfactory answer to the question, whether, if an attorney's gross negligence or unskilfulness occasion the litigation or proceedings in respect of which his bill of costs was incurred, such misconduct on his part will constitute a defence to an action by him for his bill, or will merely form matter for a cross action against him. It seems, however, to be now settled, that an attorney cannot recover his bill, where the client had obtained and can derive no benefit whatever from the attorney's services, in consequence of his carelessness or professional ignorance; but that the client must pay the bill, and sue for damages where some benefit has accrued, or may arise from the exertions of the attorney, although some of the advantage, which might have been secured, is lost, from the attorney's default or misconduct: and the attorney is entitled to recover his bill, although there be an entire failure of success, if such failure occurred partly from accident, and not wholly from the plaintiff's negligence (p).

Templer v. M'Lachlan (q) appears to be one of the first cases on this subject. It was an action by an attorney to recover a bill for conducting a suit for M'Lachlan against one Gardiner. Gardiner was arrested in the original suit, but the attorney (Templer) had carelessly suffered worthless bail to justify. However, judgment had been obtained in the action against Gardiner. It was held, that the plaintiff was entitled to recover his bill, even including some costs of proceedings against the bail, the defendant (M'Lachlan) not having answered the attorney's application to him inquiring whether he was to proceed against the bail. Sir James Mansfield, C. J., said, "I do not go the length of saying that in no case of this kind 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 work was done has thereby lost all possibi

(0) Er parte Jones, 2 Dowl. P. C. 161, per Taunton, J., Gray v. Kirby, 2 Dowl. 601.

(p) Dax v. Ward, 1 Stark. R. 409; see Hill v. Featherstonhaugh, 5 M. & P. 541; 7 Bing. 569, S. Č.; Huntley

v. Bulwer, 6 New Cases, 111.

(q) 2 New R. 136. That a medical man cannot recover his bill where he is guilty of gross negligence, &c., per quod no benefit arises to his patient; see ante, 553, 554.

lity of benefit from such work. Now that cannot be said in the present case, since a judgment has been obtained for the defendant, and its fruits may possibly hereafter he had by him. Indeed, if no negligence had occurred on the part of the plaintiff, a surrender of Gardiner would have been the utmost that the defendant could have expected, and consequently his only loss is not having had the body of his debtor in custody. I do not see, therefore, how we can prevent the plaintiff's recovering in this action, or introduce his conduct in the suit against Gardiner into this cause, so as to reduce the amount of his demand. If the defendant had been nonsuited in the action against Gardiner through the mere negligence of his attorney, or had wholly lost the fruit of his proceedings, I should have been very unwilling to allow him to recover the amount of his bill (r).”

Where an attorney sued for business done by him as solicitor to a commission of bankruptcy, and the defence was, that the commission was sued out in consequence of the plaintiff's advice and misrepresentation, that it would be inoperative in the Isle of Man, Lord Ellenborough said, "This does not go to the root of the action. If there has been such a misrepresentation as is complained of, the party may have recourse to a cross action; but the commission cannot be considered as a mere nullity: it operates at all events as a voluntry assignment:" and the plaintiff had a verdict (s). And it has been held, in an action by an attorney to recover from his client the expenses of conducting a reference, that it is no defence that the attorney did not require to see the authority of the opposite party's attorney to sign the submission for such party; although no authority existed, and the award became unavailing (t).

In Montriou v. Jefferys (u), it was decided to be a good defence to an action on an attorney's bill, that the costs were incurred through inadvertency and want of proper caution on the part of the attorney; as the omission to give a notice, and to ad

(r) Some of the judges objected to this line of defence, on the ground of its taking the plaintiff by surprise. It is rarely that the facts will warrant an attorney in objecting to such a defence on the ground of surprise. Although it would be advisable to give notice before the trial of the intended defence, yet it seems to be unnecessary so to do, where the objection is, that

no remuneration can be due, as no possibility of benefit has accrued, or can arise, in consequence of the attorney's breach of duty; see Basten v. Butter, 7 East, 479, &c.; post, 561.

(s) Pasmore v. Birnie, 2 Stark. R. 59. (t) Edwards v. Cooper, 3 C. & P. 277, before Park, J., sed quære.

(u) R. & M. 317; 2 C. & P. 113, S. C.

vise his client that certain sureties, expressly required by an act of parliament, ought to be provided, &c.

It was enacted by the statute 1 Geo. IV. c. 11, s. 119, that no suit in law be proceeded in further than an arrest on mesne process by any assignee of an insolvent's estate, without the consent of creditors and approbation of one of the commissioners of the Insolvent Court. It was held, in an action brought by an attorney to recover his bill of costs, incurred in an action at the suit of such an assignee, that it was incumbent on the attorney to prove that the consent of creditors, and the approbation of one of the commissioners of the Insolvent Court, had been obtained; or at all events that he had informed his client that such consent was necessary (x). Bayley, J., observed, "Templer v. M'Lachlan (y) is distinguishable from the present case, as there it was not impossible that the defendant might at some future time receive benefit from the work of the attorney. Here, for any thing that appears, the defendant, through the plaintiff's negligence, has lost all chance of being reimbursed the expenses incurred, as he will not be entitled to retain for those expenses out of the insolvent's effects."

In Huntley v. Bulwer (z) it appeared the plaintiff was employed as an attorney to conduct an appeal against the removal of a pauper, but omitted to enter and respite the appeal at the first sessions after the removal, and proceeded to the second sessions, after having served the respondents with a notice of the grounds of appeal signed by himself instead of the overseers of the appellant parish, and the sessions refused to hear the appeal; and it was held that the plaintiff was not entitled to recover for his services.

If an entire item in an attorney's bill be for work partly useful, the jury would be precluded from reducing that item, in an action to recover the amount of the bill, and the client must in such a case resort to a cross action; but entire items for entirely useless work may be discarded by the jury (a).

Where the services rendered are utterly worthless, and the work should plainly not have been undertaken, it is not competent to the attorney to recover his bill, although the business

(x) Allison v. Rayner, 7 B. & C. 441; 1 Man. & Ry, 241. (y) Ante, 559.

(a) 6 Bing. N. C. 111; 6 Scott, 247. (a) Shaw v. Arden, 2 M. & Sc. 341; 9 Bing. 287, S. C.