what was intended merely for delay, or is otherwise in violation of his duty to the Court.1 Generally speaking, the contract of an attorney or solicitor, retained to conduct or defend a suit, is an entire and continuing contract to carry it on until its termination; and if, without just cause, he quits his client before the termination of the suit, he can recover nothing for his bill.2 But he may refuse to go on without an advance of money, or without payment of his costs in arrear, upon giving reasonable notice to his client; or, for just cause, and upon reasonable notice, he may abandon the suit; and in either case he may recover his costs up to that time. But he cannot insist upon the payment of moneys due on any other account.1

§ 143. In the defence of an action for professional fees and services, besides denying and disproving the retainer, the defendant may show, that the plaintiff has not exercised the reasonable diligence and skill, which he was bound to employ; and may depreciate the value of the services, upon a quantum meruit, by any competent evidence. Whether negligence can be set up as a defence to an action for an attorney's bill of fees, is a point which has been much questioned. If the services have proved entirely useless, it has long been agreed, that this may be shown in bar of the whole action; and, after some conflict of opinions, the weight of authority seems in favor of admitting any competent evidence of negligence, ignorance, or want of skill, as a defence to an

1 Johnson v. Alston, 1 Campb. 176; Pierce v. Blake, 2 Salk. 515; Vincent v. Groome, 1 Chitty, R. 182; Anon. 1 Wend. 108; Gilbert v. Williams, 8 Mass. 51.

2 Harris v. Osbourn, 4 Tyrwh. 445; 2 Cr. & M. 629, S. C.; Cresswell v. Byron, 14 Ves. 271; Anon. 1 Sid. 31, pl. 8; 1 Tidd's Pr. 86, 9th edit.; Love v. Hall, 3 Yerg. 408.

3 Lawrence v. Potts, 6 C. & P. 428; Wadsworth v. Marshall, 2 C. & J. 665; Vansandau v. Browne, 9 Bing. 402; Rowson v. Earle, Mood. & M. 538; Hoby v. Built, 3 B. & Ad. 350; Gleason v. Clark, 9 Cowen, 57; Castro v. Bennett, 2 Johns. 296.

4 Heslop v. Metcalf, 8 Sim. 622.

action for professional services, as well as for any other work and labor.1

§ 144. An attorney undertakes for the employment of a degree of skill, ordinarily adequate and proportionate to the business he assumes. Spondet peritiam artis. Imperitia culpæ adnumeratur.? Reasonable skill constitutes the measure of his engagement. "Attorneys," said Ld. Mansfield, "ought to be protected when they act to the best of their skill and knowledge; and I should be very sorry that it should be taken for granted, that an attorney is answerable for every error or mistake, and to be punished for it by being charged with the debt, which he was employed to recover for his client, from the person who stands indebted to him. A counsel may mistake, as well as an attorney. Yet no one will say that a counsel, who has been mistaken, shall be charged with the debt. The counsel, indeed, is honorary in his advice, and does not demand a fee; the attorney may demand a compensation. But neither of them ought to be charged with the debt for a mistake."5 In a more recent case, the law on this subject was thus stated by Ld. Brougham: "It is of the very essence of this kind of action

1 See supra, AsSUMPSIT, § 136, and cases there cited; Kannen v. McMullen, Peake's Cas. 59; Chapel v. Hicks, 2 C. & M. 214; 4 Tyrwh. 43; Cutler v. Close, 5 C. & P. 337; Cousens v. Paddon, 5 Tyrwh. 535; Hill v. Featherstonhaugh, 7 Bing. 569; Montriou v. Jefferys, 2 C. & P. 113; Huntley v. Bulwer, 6 Bing. N. C. 111; Grant v. Button, 14 Johns. 377; Brackett v. Norton, 4 Conn. 517. But see Templer v. McLachlan, 2 New Rep. 136; Runyan v. Nichols, 11 Johns. 547.

2 Story on Bailm. § 431.

3 Story on Bailm. § 432, 433; Reece v. Rigby, 4 B. & A. 202; Ireson v. Pearman, 3 B. & C. 799; Hart v. Frame, 3 Jur. 547; 6 Cl. & Fin. 193; Lanphier v. Phipos, 8 C. & P. 475; Davies v. Jenkins, 11 M. & W. 745.

4 In the United States, the offices of attorney and counsellor are so frequently exercised by the same person, that they have become nearly blended into one; and actions for compensation for services performed in either capacity are freely sustained in most if not all the States of the Union,

5 Pitt v. Yalden, 4 Burr. 2061. And see Compton v. Chandless, cited 3 Camb. 19; Kemp v. Burt, 4 B. & Ad. 424; Shilcock v. Passman, 7 C. & P. 289.

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that it depends, not upon the party having been advised by a solicitor or attorney in a way in which the result of the proceeding may induce the party to think he was not advised properly, and may, in fact, prove the advice to have been erroneous; not upon his having received, if I may so express it in common parlance, bad law, from the solicitor; nor upon the solicitor or attorney having taken upon himself to advise him, and, having given erroneous advice, advice which the result proved to be wrong, and in consequence of which error, the parties suing under that mistake were deprived and disappointed of receiving a benefit. But it is of the very essence of this action that there should be a negligence of a crass description, which we shall call crassa negligentia, that there should be gross ignorance, that the man who has undertaken to perform the duty of attorney, or of a surgeon, or an apothecary (as the case may be) should have undertaken to discharge a duty professionally, for which he was very ill qualified, or, if not ill qualified to discharge it, which he had so negligently discharged as to damnify his employer, or deprive him of the benefit which he had a right to expect from the service. That is the very ground Ld. Mansfield has laid down in that case, to which my noble and learned friend on the woolsack has referred a little while ago, and which is also referred to in the printed papers. It was still more expressly laid down by Ld. Ellenborough in the case of Baikie v. Chandless,2 because there Ld. Ellenborough uses the expression, an attorney is only liable for crassa negligentia; therefore, the record must bring before the Court a case of that kind, either by stating such facts as no man who reads it will not at once perceive, although without its being alleged in terms, to be crassa negligentia -something so clear that no man can doubt of it; or, if that should not be the case, then he must use the very averment that it was crassa negligentia." 3

1 Pitt v. Yalden, 4 Burr. 2060.

2 3 Campb. 17.

3 Purves v. Landell, 12 Clark & Fin. 91, 98, 99. This was an action in

§ 145. More particularly, an attorney is held liable for the consequence of ignorance or non-observance of the rules of practice of the Court; for the want of proper care in the preparation of a cause for trial, or of attendance thereon, and the

Scotland, against a writer to the signet, for advising and conducting an improper and irregular mode of procedure against a debtor, which proved fruitless and expensive to the plaintiff, and resulted in large damages recovered against him in an action for false imprisonment. The action ultimately failed, for want of any allegation and proof of gross ignorance or gross negligence on the part of the attorney or law agent. Ld. Campbell, in delivering his opinion, in which the other lords concurred, expressed himself as follows:-"In an action such as this, by the client against the professional adviser, to recover damages arising from this misconduct of the professional adviser, I apprehend there is no distinction whatever between the law of Scotland and the law of England. The law must be the same in all countries where law has been considered as a science. The professional adviser has never been supposed to guarantee the soundness of his advice. I am sure I should have been sorry, when I had the honor of practising at the Bar of England, if barristers had been liable to such a responsibility. Though I was tolerably cautious in giving opinions, I have no doubt that I have repeatedly given erroneous opinions; and I think it was Mr. Justice Heath, who said that it was a very difficult thing for a gentleman at the Bar to be called upon to give his opinion, because it was calling upon him to conjecture what twelve other persons would say upon some point that had never before been determined. Well, then, this may happen in all grades of the profession of the law. Against the barrister in England, and the advocate in Scotland, luckily no action can be maintained. But against the attorney, the professional adviser, or the procurator, an action may be maintained. But it is only if he has been guilty of gross negligence, because it would be monstrous to say that he is responsible of even falling into what must be considered a mistake. You can only expect from him that he will be honest and diligent; and if there is no fault to be found either with his integrity or diligence, that is all for which he is answerable. It would be utterly impossible that you could ever have a class of men who would give a guaranty, binding themselves, in giving legal advice and conducting suits at law, to be always in the right.

"Then, my Lords, as crassa negligentia is certainly the gist of an action of this sort, the question is, whether in this summons that negligence must not either be averred or shown? This is not any technical point in which the law of Scotland differs from the law of England. I should be very sorry to see applied, and I hope this House would be very cautious in applying, technical rules which prevail in England to proceedings in Scotland. But I apprehend that, in this respect, the laws of the two countries do not differ, and that the summons ought to state, and must state, what is necessary to

use of due means for procuring the attendance of the witnesses; and for the mismanagement of so much of the cause, as is usually and ordinarily allotted to his department of the profession. But he is not answerable for error in judgment upon points of new occurrence, or of nice and doubtful construction, or of a kind usually intrusted to men in another or higher branch in the profession. If he undertakes the collection of a debt, he is bound to sue out all process necessary to that object. Thus, he is bound to sue out the proper process against bail;2 and against the officer, for taking insufficient bail, or for not delivering over the bailbond; and to deliver an execution to the officer, in proper season after judgment, to perfect and preserve the lien created by the attachment of property on mesne process; but not to attend in person to the levy of the execution. If he doubts the expediency of farther proceeding, he should give notice to his client, and request specific instructions; 6 without which, it seems, he would be justified in not prosecuting, in cases where he is influenced by a prudent regard to the interests of his client.7

§ 146. For every violation of his duty, an action lies immediately against the attorney, even though merely nominal damages are sustained at the time; for it is a breach of his contract; but actual damages may be recovered for the direct

maintain the action; this summons must either allege negligence, or must show facts which inevitably prove that this person has been guilty of gross negligence." Ibid. p. 102, 103.

1 Godefroy v. Dalton, 6 Bing. 467, per Tindall, C. J. And see Lynch v. The Commonwealth, 16 S. & R. 368.

2 Dearborn v. Dearborn, 15 Mass. 316; Crooker v. Hutchinson, 1 Verm. 73.

82.

8 Crooker v. Hutchinson, 1 Verm. 73; Simmons v. Bradford, 15 Mass.

4 Phillips v. Bridge, 11 Mass. 246. And see Pitt v. Yalden, 4 Burr. 2060; Russell v. Palmer, 2 Wils. 325.

5 Williams v. Reed, 3 Mason, 405.

6 Dearborn v. Dearborn, 15 Mass. 316.

7 Crooker v. Hutchinson, 2 Chipm. 117.