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CHAPTER V.

ACTIONS.

commence an

I, A. B., of, &c., do hereby retain Mr C. D., of, Retainer of

an attorney to &c., attorney, to commence and prosecute an action in the Court of Queen's Bench, (C. P. or Exch.,) action. against E. F., of, &c., for the recovery of the sum of twenty pounds, due from him to me for goods sold and delivered, dated, &c.

Witness. In, &c.

Between, &c. I, A. B., of, &c., the above-named defendant, do Retainer of hereby retain and employ Mr C. D., of, &c., as my defend.

an attorney to attorney, to defend the above action commenced against me, dated, &c.

Witness. An attorney should in all cases, before commencing an action or undertaking a defence on behalf of his client, procure from him a retainer or authority for that purpose; Wilson v. Wilson, 1 Jac. and W., 457; which (though valid if verbal) should be reduced into writing. It should specify to what extent it is intended such authority should extend,

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Wright v. Castle, 3 Mer. 12 ; Lord v. Killett, 2 M. and K. 1; but see Tabernor v. Tabernor, 2 Keen, 679, in which case the M. R. said that there ought to be a warrant in writing to authorize a solicitor to commence proceedings.

whether simply to sending a letter, issuing a writ, entering appearance, or conducting the whole case. An attorney is not entitled to charge for any proceedings he may have taken for a client without his authority, and would therefore not only be defeated in an action to recover his bill, if he failed in proving his retainer, but render himself personally liable for the costs of the other parties, unless, by subsequent acquiescence in the proceedings, his client should take that liability upon himself. Lord Tenterden, in his judgment in the case of Owen v. Ord, when referring to this subject, said, “ That every respectable attorney ought, before he brings an action, to take a written direction from his client for commencing it; and that he ought to do this both for his own sake and for the sake of his client; that it was much better for him, because he got rid of the difficulty in proving the retainer, and that it would also be better for a great many clients, by putting them on their guard, and preventing them from being drawn into lawsuits without their own express direction."

An attorney who has a general authority to conduct the affairs of a client, would be authorized in defending any action or suit that might be commenced against him, but not in commencing one in his client's name.b

In the relation which exists between an attorney or solicitor and his client, there exists this anomaly, that whilst he is liable to be discharged at any time at the will of his employer, he having once undertaken his client's cause, cannot refuse to conduct it to a close without some good reason. And, if he were to do so, he would render himself liable to an attachment, a would lose any lien or right which he

6 3 Car, and P. 349.

• Wright v. Castle, 3 Mer. 12; Lord v. Killett, 2 M. and K. 1.

c Cresswell v. Byron, 14 Ves. 271. d Mould v. Roberts, 4 Dowl. and R. 719.

might otherwise have had for payment of the costs incurred previous to his refusal;e and if, by such refusal, his client should be subjected to any loss, he would become liable to indemnify him for it.'

If the attorney should consider that his client's case could not, if brought to a close, be of any service to him, or if his client should refuse to furnish him with sufficient funds for the conduct of his cause, he would then (after giving his client such a reasonable notice as might enable him to procure the funds or appoint another attorney) be justified in refusing his further services. Where the attorney or solicitor's withdrawal is upon justifiable grounds, he does not lose his lien for his previous costs, but retains the same right as if he had been discharged by his client.

An attorney who has withdrawn from the conduct of a cause, is not at liberty to act in the same suit on behalf of the opponent of his former client.

Mr C. D., I do hereby, as the attorney (or agent) of and for Demand of E. F., of, &c., according to the form of the statute perusah, and in such case made and provided, demand of you

the perusal and copy of the warrant by virtue of or un- from a conder colour whereof you did, on or about the first day of March last, (state the grievance.) Dated the, &c.

G. H., of, &c.,

Attorney for the said E. F. Mr C. D. I do hereby, as the attorney (or agent) of and for Demand A. B., of, &c., according to the form of the statute from a in such case made and provided, demand of

gaolor. the

you perusal and copy of the warrant of commitment and

copy of a warrant

stable.

e 6 Ves. 2.
! Cook v. Broomhead, 16 Ves. 133.

& Hoby v. Built, 3 B. and Ald. 350 ; Lawrence v. Potts, 6 C. and Pay. 428; Rowson v. Earle, M. and M. 538.

Merriwether v. Mellish, 13 Ves. 161.
Cholmondeley v. Clinton, 19 Ves. 261; Hutchins v.
Hutchins, 1 Hog, 315.

instrument under which you received into your custody the said A. B., on or about the, &c., and kept and detained him in custody for the space of, &c., then next following. Dated, &C.,

Yours, &c., E. F., of, &c.

Attorney for the said A. B. In the, &c.

B. v. D. Undertaking I, the undersigned, A. B.,' of, &c., do hereby unto pay an at- dertake and agree to pay to L. M., of, &c., gent., my torney's bill.

(late) attorney, all such sums of money as shall happen or appear to be due and owing to him on the taxation of his bill of costs, delivered to me on or about the, &c., amounting to the sum of L.

Statute of Frauds, 29th Car. II., c. 3. This statute enacts, that no action shall be brought in the following cases, unless the agreement, or some note or memorandupi thereof, shall be in writing, and signed by the party to be charged therewith, or some other person authorized by him.

1st, Where an executor or administrator promises to answer out of his own estate.

2d, Where a man undertakes to answer for the debt, default, or miscarriage of another.

3d, Where any agreement is made in consideration of marriage.

4th, Where any contract or sale is made of lands, tenements, or hereditaments, or any interest therein.

5th, Where there is any agreement that is not to be performed within one year from the making thereof.

6th, Contracts for the sale of goods of the price of L.10 or upwards, where the buyer has not actually accepted part of the goods, or given something in earnest or part-payment.

i If the undertaking is given by a third person, the consideration upon which it is given should be stated.

Sec 3 Black. 157, 158.

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debt.

The Statute of Frauds was amended by Lord Tenterden's Act, 9th Geo. IV., c. 14, which came into operation on 1st January 1829, and which has rendered a written memorandum necessary in several other cases. Its principal provisions are stated below, under its different sections.

Sec. l. An acknowledgment or promise to take a Acknowloogcase out of the operations of the statutes of limita- ment of a tion must be in writing, and signed by the party chargeable thereby. No joint-contractor, his exe cutor, or administrator, shall be chargeable by reason of any acknowledgment of the other; saving the effect of any payment of any principal or interest, made by any person whatsoever. Though a person may be barred as to one joint-contractor, he may recover against the other on any new acknowledge ment.

2. That no indorsement or memorandum of any Indorsements payment written or made upon any promissory-note, of payment. bill of exchange, or other writing, by or on the behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of the statute.

3. Act shall apply to debts alleged by way of setoff.

4. No promise made after full age to pay any Debts con. debt contracted during infancy, or upon any ratifi. tracted in in

fancy.
cation after full age of any promise or simple con-
tract made during infancy, shall be valid, unless in
writing, and signed by the party to be charged there-
with.

5. No action shall be brought whereby to charge Representaany person by reason of any representation made

tions of cha. racter.

1

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Payment of interest by one of several joint-debtors dur. ing the continuance of the joint-liability takes a case out of the statute as against all, 8 B. and C. 36; Pease v. Hirst, 10 B. and C. 122 ; 8 Bing. 309; Wyatt v. Hodson, 1 Moore and Scott, 442.

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