The plaintiff's negligence in the conduct of the business cannot be set up as a defence; Templer v. M'Lachlan, 2 N. R. 136.; unless it has been such as to deprive the defendant of all benefit; or the charges sought to be recovered have been occasioned by the plaintiff's want of proper caution. Huntley v. Bulwer, 6 New Ca. 111. Bracey v. Carter, 12 A. & E. 373. And such failure of consideration is evidence in nonassumpsit. S. C. ib. But if there are other causes conducing to the loss of the benefit besides the plaintiff's negligence, the negligence is no defence to the action. Dax v. Ward, 1 Stark. 409. If an attorney, through inadvertence or inexperience, incurs trouble which is useless to his client, he cannot recover a remuneration for such trouble. Hill v. Featherstonhaugh, 7 Bing.569. And this may be shown under the general issue. Hill v. Allen, 2 M. & W. 283. Entire items for useless work may be discarded by the jury. Shaw v. Arden, 9 Bing. 288. It is no defence to an action for business done in defending a suit, that the plaintiff was instructed to put in a plea in abatement for delay, which he neglected to do, whereby the defendant had judgment against him. Johnson v. Alston, 1 Camp. 176. Where an attorney prepares a document, which is illegal, but with regard to the legality of which there was a reasonable doubt, he is entitled to recover for preparing it. Potts v. Sparrow, 6 C. & P. 749.

An allegation of a tender of a reasonable sum to the plaintiff is not supported by proof of an offer to pay when the bill shall have been taxed. Filmer v. Burnby, 2 M. & G. 529. It is a good defence that the plaintiff paid no attention to the defendant's case, but resided a considerable distance from the place where his business was carried on, and that, in fact, the business was transacted there by his articled clerk. Taylor v. Glassbrook, 3 Stark. 75. Hopkinson v. Smith, 1 Bing. 13. So it is a good defence that the plaintiff undertook the cause gratis; and the declarations of his clerk, when he attended to tax the costs in the cause, are evidence for the defendant. Ashford v. Price, 3 Stark. 185. And on a plea of payment of money into court, and nunquam indeb. to the residue, the defendant may show that the plaintiff had agreed, on a certain event which had occurred, that the work should be done for costs out of pocket, which did not exceed the sum paid in. Jones v. Reade, 5 A. & E. 529.

The defendant may prove, under a proper plea, that the plaintiff has neglected to take out his certificate, by which his admission has become void; 37 Geo. 2. c. 90. s. 31. But where, in an action brought by an attorney in 1825, the defendant proved that the plaintiff had not taken out any certificate during the years 1814, 1815, 1818, 1819, and 1820, but did not prove that the plaintiff had not been re-admitted after that time, and there was evidence that, in 1824, the plaintiff had acted as an attorney and been retained by the defendant in that character, it was held that this primâ facie evidence entitled the plaintiff to recover. Pearce v. Whale, 5 B. & C.38. And an attorney may maintain an action for business done at a time when he was uncertificated, provided a certificate be taken out by him before the end of a year after the expiration of the period to which the prior certificate extended. Bowler v. Brown, 2 A. & E. 116. It is no defence, in an action for fees due for the suing out a commission of bankruptcy, that the plaintiff is only an attorney of K. B., and not a solicitor in chancery. Wilkinson v. Diggell, 1 B. & C. 158. Nor that the plaintiff refused to go on with a suit in chancery, if the de

fendant did not supply him with money. Rowson v. Earle, M. & M. 538. For though an attorney cannot, suddenly, and without notice, abandon a cause, yet, if he gives reasonable notice, he is at liberty to discontinue the conduct of it on his client refusing to supply him with money. Vansandau v. Browne, 9 Bing. 402.

Where one attorney does business for another, the attorney who does the business universally gives credit to the attorney who employs him, and not to the client for whose benefit it is done. If the attorney in such case intends not to be personally responsible, it becomes his duty to give express notice that the business is to be done on the credit of the client. It furnishes no defence that the business was known by the plaintiff' to be done for the benefit of the client. Scrace v. Whittington, 2 B. & C. 11. An attorney is not personally liable to a witness whom he subpoenas to give evidence for his client. Robins v. Bridge, 3 M. & W. 115.

The contract to conduct a suit is entire, and where the suit ended within six years, the Statute of Limitations will not bar the demand for so much of the business as was done more than six years ago. Harris v. Osbourn, 2 C. & M. 629.

ASSUMPSIT ON APOTHECARY'S OR SURGEON'S BILL.

The plaintiff, if an apothecary, must in the first instance prove his title to sue as such; for by statute 55 Geo. 3. c. 194. s. 21. (explained and amended by 6 Geo. 4. c. 133.) no apothecary shall be allowed to recover any charges claimed by him in any court of law, unless he shall prove on the trial, that he was in practice as an apothecary on the 1st of August, 1815, or that he has obtained a certificate to practise, as such, from the Apothecaries' Company. This proof must still be given, since the new rules of pleading, though non assumpsit only be pleaded; or where the defendant pleads (in debt) nunquam indeb. to part, and to the rest a tender. Shearwood v. Hay, 5 A. & E. 383. Wagstaffe v. Sharpe, 3 M. & W. 521. The plaintiff need not prove his identity with the party named in the certificate. Simpson v. Dismore, 9 M. & W. 47. The statute does not relate to physicians, chemists, or druggists, or to the College of Surgeons. Sec. 28, 29. But a person authorised to practise as a physician by a Scotch diploma is not a physician within the statute; the provisions of the act applying only to England and Wales. Apothecaries' Comp. v. Collins, 4 B. & Ad. 604. Collins v. Carnegie, 1 A. & E. 695. And chemists who practise as apothecaries are not exempted from the operation of the statute by sect. 28. Semb. Apothecaries' Comp. v. Greenough, 1 Q. B. 799. It was ruled by Best C. J. that an apothecary may either charge for his attendances, or for the medicines which he supplies; but that he cannot charge for both; Towne v. Lady Gresley, 3 C. & P. 581.; but see Handley v. Henson, 4 C. & P. 110. post, p. 261.

Proof of practice as an apothecary.] Merely administering medicines previous to the 1st of August, 1815, will not be sufficient to prove that the party practised as an apothecary; and incapacity to make up the

An unqua

prescriptions of a physician will be cogent evidence to prove the negative. Apothecaries Comp. v. Warburton, 3 B. & A. 40. lified person, dispensing medicines of his own advice, is within the penalties of the Apothecaries' Act, 55 Geo. 3. c. 194. The Apothecaries' Comp. v. Allen, 4 B. & Ad. 625. It has been ruled by Lord Tenterden that curing a local complaint is not sufficient evidence that the party compounded medicines according to prescription. To entitle him to sue, he must have practised the general duties of an apothecary; Thompson v. Lewis, M. & M. 255. ; viz. making up medicines prescribed by a physician or other person, or by himself; and acting as accoucheur or surgeon only is not such practice. Woodward v. Ball, 6 C. & P.

577.

Certificate.] By 6 Geo. 4. c. 133. s. 7. the common seal of the Company of the Apothecaries is sufficient proof of the certificate, and that the person therein named is qualified to practise; but the seal must be proved to be the seal of the company. Chadwick v. Bunning, R. & M. 306. A general certificate, not confining the party to practise in the country, will entitle him to recover for business done in London, although he has only paid the price of the country certificate. Ibid. The certificate supersedes the necessity of proving an apprenticeship served. Sherwin v. Smith, 1 Bing. 204.

Where a promissory note was given "in consideration of the plaintiff's care and medical attendance bestowed upon the maker, and notice was given of disputing the consideration of the note, it was held (before the new rules of pleading) to be incumbent upon the plaintiff to prove himself qualified by statute 55 Geo. 3. c. 194. Blogg v. Pinkers, R. & M. 125.

Surgeon's Bill.

By 3 Hen. 8. s. 11. c. 1. no one shall act as a surgeon within the city of London or seven miles round, unless he be examined and licensed by the College of Surgeons, under the penalty of 5l. per month. It is incumbent upon the defendant, if he intends to avail himself of the plaintiff being unlicensed, to prove that fact; Gremare v. Le Clerc Bois Valon, 2 Camp. 144.; and, since the late rules, to plead it. It was also intimated in that case that, as the statute contains no prohibitory clause, a person, though subject to a penalty, may recover for his labour; but this seems to be overruled by Cope v. Rowlands, 2 M. & W. 159, 160.

A surgeon who practises as a physician, having no diploma, cannot maintain an action for his fees; Lipscombe v. Holmes, 2 Camp. 441.; and if, in his bill, a surgeon leaves a blank for his charge for attendances, and the defendant pays a certain sum into court on that account, the plaintiff is bound by that sum, and cannot recover more. Batting, 3 Esp. 192.

Tuson v.

A surgeon, not having a certificate from the Apothecaries' Company, cannot charge for his attendance or for administering medicine, except in cases within his own department. He cannot, therefore, recover for attending a patient in the typhus fever. Allison v. Haydon, 4 Bing. 619.; and see Wagstaffe v. Sharpe, 3 M. & W. 522. note (a). But if the plaintiff be a surgeon and apothecary he may, besides his charges for medicines, recover reasonable charges for attendances. Handley v. Henson, 4 C. &

P. 110.

Simpson v. Ralfe, 4 Tyr. 325. But see Towne v. Gresley, antè, p. 260. When the plaintiff has abstained from sending in a bill in the lifetime of his patient in the expectation of a legacy, he may afterwards sue the executors. Baxter v. Gray, 4 Scott New Rep. 374.

Defence.

If the defendant has received no benefit in consequence of the plaintiff's want of skill, the latter cannot recover. Kannen v. M'Mullen, Peake, 59. Duffit v. James, cited 7 East, 480. So a person, who professes to cure disorders in a specified time, and induces the defendant to employ him by false and fraudulent representations of his skill, and does not succeed in his cure, cannot recover for medicines and attendance; Hupe v. Phelps, 2 Stark. 480.; but the remuneration of a regular practitioner, who has used due care and diligence, does not depend on his effecting a cure. Per Abbott C. J., ibid. In the case of a medical man, if an operation, which might have been useful, has merely failed in the event, he is nevertheless entitled to charge; but if it could have been useful in no event, he has no claim on the patient. Per Alderson J. in Hill v. Featherstonhaugh, 7 Bing. 574.

A physician can maintain no action for his fees. Chorley v. Bolcot, 4 T. R. 317. Unless there be a special contract to pay him. Veitch v. Russel, 1 Car. & M. 362.

ASSUMPSIT FOR SERVANTS' WAGES.

In an action by a servant for his wages, the plaintiff must prove a retainer, of which service will be evidence; the length of time of service; and the amount of wages due.

A general hiring, without mention of time, is a hiring for a year; and if during the year the master dismisses his servant without cause, the latter is entitled to his wages until the end of the year. Beeston v. Collyer, 4 Bing. 309. And this though the wages are payable monthly. Fawcett v. Cash, 5 B. & Ad. 904. But if he leaves his service during the year without cause, it is a forfeiture of the wages due to him, and he cannot recover any thing. Huttman v. Boulnois, 2 C. & P. 510. With regard to a menial servant, there is a common understanding (except where a different custom is shown to prevail), that the contract may be dissolved by either party - by the master on paying a month's wages or giving a month's warning; by the servant on giving a month's warning. Beeston v. Collyer, 4 Bing. 313. Nowlan v. Ablett, 2 C. M. & R, 54. In such case, therefore, if the master, without reasonable cause, turns the servant away, the latter will only be entitled to recover a month's wages. Robinson v. Hindman, 3 Esp. 235. But he may recover, on a general count, all the past arrears. Hartley v. Harman, 11 A. & E. 798. Other servants, as clerks, &c., may recover their wages for the remainder of the year, and are entitled to reasonable notice ending with a current year. Williams v. Byrne, 7 A. & E. 177. Beeston v. Collyer, 4 Bing. 309. Where a clerk claims to be a partner, and not a mere clerk, he may be dismissed forthwith as clerk. Amor v.

Fearon, 9 A. & E. 548. And where wages are payable quarterly, and the servant is tortiously discharged in the middle of the quarter, he has been allowed to recover for the whole quarter on the general count for work and labour. Gandell v. Pontigny, 4 Camp. 375., S. C. 1 Stark. 198. See Eardley v. Price, 2 N. R. 333. But it seems that a special action of assumpsit is the proper remedy in such a case. Smith v. Hayward, 7 A. & E. 544. If a servant misconducts himself, the master may turn him away without any warning; Spain v. Arnott, 2 Stark. 256. Trotman v. Dunn, 4 Camp. 212.; and in such case the misbehaviour is a forfeiture of the accruing wages; Ridgway v. Hungerford Market Co., 3 A. & E. 171.; Sherman v. Bennett, M. & M. 489.; even though the master has recovered damages against him for his misconduct. Turner v. Robinson, 5 B. & Ad. 789. So where a servant embezzles, though his wages due exceed what he has embezzled. Brown v. Croft, I Chitty Prac. of the Law, 81. The master is not bound to assign the cause at the time of dismissal. Ridgway v. Hungerford Market Co., suprà. The bankruptcy of the master is not a dissolution of the contract of hiring and service. Thomas v. Williams, 1 A. & E. 685. Incapacity by reason of sickness is not a determination of the contract of service, nor will it justify dismissal without regular notice; R. v. Wintersett, Cald. 298. ; yet disability to perform his duty will prevent a servant from recovering wages, where the agreement is not for any specific term but only for so much as the services of the plaintiff are worth; Bayley v. Rimmell, 1 M. & W. 506. ; unless in the case of a seaman taken sick on a voyage; Chandler v. Grieves, 2 H. Bl. 606.

Where the contract of yearly service is determined by consent in the middle of a quarter, there is no implied contract to pay pro ratâ ; but a jury may infer from circumstances an express agreement to pay for the broken part of the year's service. Lamburn v. Cruden, 2 M. & G. 253. Thomas v. Williams, 1 A. & E. 685.

ASSUMPSIT FOR NOT ACCEPTING GOODS.

In an action of assumpsit for not accepting goods sold, the plaintiff may have to prove the contract and breach, the performance of all conditions precedent on his part, and the amount of damage; or such of these facts as are denied by the pleadings.

The contract.] By the 17th section of the Statute of Frauds, 29 Car. 2. c. 3. no contract for the sale of any goods, wares, and merchandizes, for the price of 101. sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to bind the bargain or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract or their agents thereunto lawfully authorised.

What contracts are within section 17. of the Statute of Frauds.] Executory contracts are within the statute; Rondeau v. Wyatt, 2 H. Bl. 63.; Garbutt v. Watson, 5 B. & A. 613.; and therefore a contract