was transacted through inadvertence or inexperience, and not with the design of imposing on the client, or from any other improper motive (b).

It was formerly considered, that an attorney who had once undertaken and commenced or defended a suit for his client, was bound to continue his services until the action was concluded, although the client omitted to furnish the necessary funds (c). But it is now settled that an attorney is not compelled to proceed to the end of a suit in order to be entitled to his costs, but may, upon reasonable notice, abandon the conduct of the suit; and in such case may recover his costs for the period during which he was employed (d). And where in an action on an attorney's bill, for business done in Chancery, it appeared that the plaintiff had given notice that he would not go on with the chancery suit without being supplied with money, and had actually given up the papers on the master making a report; it was held, that the attorney might recover for the work done up to that time, although the suit was not finally determined (e). The Court of Exchequer were of opinion in a recent case (ƒ), that an attorney is not bound to proceed with a cause, unless the client, on reasonable notice and demand, supply the pecuniary means to pay costs out of pocket.

The contract however of an attorney to conduct a suit is so far entire that the statute of limitations runs only against his claim for his services from the time that such suit is determined (g).

In an action on an attorney's bill (h) it must appear that the

(b) Hill v. Featherstonhaugh, 5 M. & P. 541; 7 Bing. 569, S. C.

(c) 1Sid. 31; Mordecai v. Solomon, Sayer's R. 173; Tidd, 9th ed. 86; sed vide Mann. Exch. Pr. 585, 586; Chit. Arch. 53, 54.

(d) Lawrence v. Potts, 6 C. & P. 428; Vansandau v. Brown, 2 Moore & S. 543; 9 Bing. 402, S. C. What is not reasonable notice of abandonment, Hoby v. Built, 3 B. & Ad. 350.

(e) Rowson v. Earle, M. & M. 538. (f) Wadsworth v. Marshall, 2 C. & Jervis, 665; see also Lawrence v. Potts, 6 C. & P. 428.

(g) Harris v. Osbourn, 2 C. & M. 629; 4 Tyr. 445, S. C.

(h) As to the delivery and signature

of an attorney's bill a month before action brought thereon, and the taxation thereof, see Tidd, 9th ed. 325 to 335; Chit. Arch. 69; Wardle v. Nicholson, 1 N. & M. 355; Curling v. Sedger, 6 Scott, 678. The month is calculated exclusive of the days on which delivered, and the action brought; Blunt v. Heslop, 3 N. & P. 553; 8 Ad. & E. 577, S. C. As to the requisites of the bill, see Chit. Arch. 73, 74; Lane v. Glening, 2 N. & P. 258. Bill partly taxable, id.; and James v. Child, 2 C. & J. 678. An attorney need not deliver a bill of charges, &c., for which he did not mean to charge, nor can he be compelled to do so in order to render his

client has had the advantage of the attorney's judgment and superintendence. An attorney cannot, therefore, recover fees in a suit in which the client consulted and retained the attorney's clerk, who lived at a distance from his principal, if the clerk were left without instructions and the means of conferring constantly with his master, and the client had not, therefore, the advantage of the attorney's judgment and experience (i). But where an attorney, after he had undertaken the defence of a cause, and after he had entered upon it, became a prisoner for debt, and whilst he was so, went on with the cause, and brought it to a successful issue, the parties having had constant communication with him, he was held entitled to recover his bill of costs for the business done, though he was at the time it was done such prisoner (k).

The attorney's remedy for his costs is against the person who employed him (1). And where by custom the lessor's attorney draws a lease to be paid for by the lessee, the attorney must look in the first instance to the lessor, who may afterwards recover from the lessee the amount paid for the lease (m). But

bill for other claims taxable; Sparrow v. Johns, 3 Mee. & W. 600. Nor need a bill for business done by an attorney as agent for another attorney be delivered signed before action to recover it; Tidd, 332; Sundys v. Hornby, 1 M. & Rob. 33; 4 C. & P. 520, S. C.; see id. 318; Hill v. Sydney, 7 Ad. & E. 956. The master may tax his charges, though it was agreed he should be paid at a fixed rate; Drax v. Scroope, 2 B. & Ad. 581. He may recover his bill for issuing a fiat in bankruptcy against a person who employed him so to do, but was not petitioning creditor, although no_assets are received, &c.; Pocock v. Russen, M. & Mal. 357. If his client sue in formá pauperis, he can only recover money out of pocket; Philipe v. Baker, 1 C. & P. 533. He cannot recover his bill, if he was guilty of a fraud on the court in colourably releasing a party liable to him to make him a witness, &c.; Williams v. Goodwin, 11 Moore, 342. When he may sue two persons jointly, if employed by them, though they were separately interested, Hellings v. Gregory and another, 1 C. & P. 627; 10 Moore, 337, S. C. When a firm of attorneys

may sue, although only one of the partners was admitted in the court in which the business was performed, Arden v. Tucker, 4 B. & Ad. 815; Hill v. Sydney, 7 Ad. & E. 956. He cannot sue for his bill in defending a firm in which he was a partner; ante, 240. And if he conduct an action in a court without being qualified to act therein, he cannot sue for his fees, nor has he a lien for them; Latham v. Hyde, 1 C. & M. 128.

(i) Hopkinson v. Smith, 1 Bing. 13; 7 Moore, 237, S. C. As to attorney's claim on another attorney, for business done at the request of the latter, for benefit of third person, Scrace v. Whittington, 2 B. & C. 11; 3 D. & R. 195, S. C. When an attorney's clerk may sue clients for business done at the office, the clerk, by agreement with the master, being entitled to that department of business, Pinley v. Bagnal, 3 Dougl. 155.

(k) Noel v. Hart, 8 C. & P. 230; and see Longmore v Rogers, Willes, Rep. 288, in note.

(1) Supru, note (h).

(m) Grissell v. Robinson, 3 Bing. N. C. 10.

where a lessor and lessee, in the presence of lessor's attorney, signed an agreement that a lease should be prepared by lessor's attorney and paid for by the lessee, and the lease was prepared accordingly, but the lessor, who had only a life estate, dying, the lease was never executed; it was held that the lessor's attorney was entitled to recover from the lessee the costs of preparing the lease (n).

The defendant may plead and set up as a defence to an action on an attorney's bill, if the bill contain a taxable item, that a bill was not delivered according to the statute, or that the plaintiff was uncertificated at the time of doing the business, and did not obtain his certificate within the year; or that the business, though done in the attorney's name, was really done wholly or in part for the benefit of an unqualified person; or that the plaintiff had not exercised reasonable diligence and skill, whereby plaintiff incurred the costs sought to be recovered (o); or that the plaintiff was not properly enrolled (p); or that the plaintiff agreed to be paid in gross for prosecuting the action in respect of which the charges which plaintiff seeks to cover were incurred (q); or that the plaintiff agreed to charge only the money out of pocket which has been paid him (r); or that he agreed to charge nothing unless the action were successful, and that it was not so; or that the plaintiff agreed to charge nothing; and evidence that when the attorney's agent went before the master to have the bill taxed he admitted such was the case will suffice (s).

An attorney is in general personally liable on an agreement entered into by him in his own name, although it relate to an action or matter in which he is only professionally concerned. This rule and its exceptions have already been considered (t).

V. AUTHORS.

There can be no doubt that an author could not recover any remuneration for composing for the press a work of an immoral or libellous description (u). Although it would be a good defence to an action for not supplying manuscript to complete a work according to agreement, that the subject-matter of the intended publication was of an illegal nature, yet, if the work be not produced, the presumption shall be that the publication was lawful (x).

If a person agree to write a treatise for a periodical work, to be published as a part thereof, and the periodical publication be abandoned, the author is discharged from liability to complete his treatise, and may recover upon a quantum meruit for his labour, without tendering or delivering the treatise. This was decided in Planché v. Colburn (y), where the plaintiff had agreed to write for "The Juvenile Library" a volume upon Costume and Ancient Armour. And Tindal, C. J., observed, upon the motion to set aside the verdict for the plaintiff, "The considerations by which an author is generally actuated in undertaking to write a work, are pecuniary profit and literary reputation. Now it is clear that the latter may be sacrificed, if an author who has engaged to write a volume of a popular nature, to be published in a work intended for a juvenile class of readers, should be subject to have his writings published as a separate and distinct work, and therefore liable to be judged of by more severe rules than would be applied to a familiar work intended merely for children." The defendants, by putting an end to "The Juvenile Library," broke their contract with the plaintiff.

VI. BUILDERS, CARPENTERS, and other Workmen.

A contract to build, alter, or repair a house, &c., and to provide materials for the purpose, need not, it seems, be in writing, unless it is not to be performed within a year (≈). The statute of frauds, 29 Car. II. c. 3, s. 17, relates only to contracts for the sale of goods; and the statute 9 Geo. IV. c. 14, s. 7, which ex

(u) In Poplett v. Stockdale, MS., and Ry. & M. 337, Best, C. J., held that the plaintiff, a printer, could not recover for printing such a work ("Harriette Wilson"). And upon the

same principle, the author could have no remedy under such circumstances. (x) Gale v. Leckie, 2 Stark. R. 107. (y) 5 C. & P. 58; 8 Bing. 14, S. C. (z) Ante, 386.

tends its provisions, is confined to contracts for the "sale of goods" of the value of 107. and upwards, to be delivered or made, or completed, &c., at a future period. A contract to build, alter, or repair a house, &c., is not in law a contract for the sale of goods even as regards the materials; it is in legal consideration an entire contract for work and materials (a). The instances in which a contract of this nature must be produced, duly stamped, and proved at the trial, have already been adverted to (b).

In general, the party to sue on a contract of this nature is the party whom the defendant originally retained; but where the defendant had in the first instance employed a third person to build a machine, and the latter, having partly built the machine, assigned it and the contract to the plaintiff, who completed the work upon the defendant's orders to go on, and his promise that he would see the plaintiff paid; it was held that the plaintiff might sue for the price (c).

Where there is a special agreement for the performance of work, no action can be maintained on a quantum meruit whilst such contract remains open (d).

And, therefore, where A. engaged to convey away certain rubbish for B. at a specified sum, under a fraudulent representation by B. as to the quantity of the rubbish which was to be so conveyed, it was held, in an action for the value of the work actually done, that A. could recover only according to the terms of the special contract, although he might, when he discovered the fraud, have repudiated the contract, and sued B. for the deceit (e).

And where additions (f) are ordered and made to a building which a workman contracts to repair or erect and finish for a certain sum, the original contract shall exist as far as it can be traced to have been followed, and the excess only paid for according to the usual rate of charging. But if a man contract to

(a) See ante, 132, 373. When the property in goods, &c., to be made does not vest in the vendee until the article be finished, &c., see ante, 379 to 382. (b) Ante, 125.

(c) Oldfield v. Lowe, Hil. T. 9 & 10 Geo. 4, cited Peake's Add. C. 12, note; 9 B. & C. 73, S. C.; ante, 438.

(d) Rees v. Lines, 8 C. & P. 126. (e) Selway v. Fogg, 5 M. & W. 83; ante, 408, 409.

(f) As to a parol contract for additions where original agreement in writing, see Hoadly v. Maclaine, 4 M. & Sc. 340; ante, 111.