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lary unto the said A. B., at and after the rate of L. per annum, so long as I shall continue to
employ the said A. B. in manner aforesaid. Accounts The above-named A. B. and C. D. having this day stated, sign- stated the before-mentioned (or annexed) account, do od, and allowod by the
hereby reciprocally allow and approve the same, (the several vouchers in respect thereto being produced by the said C. D., and compared and carefully examined with the payments mentioned in the statement made by him, are found by the said A. B. to be correct, and are thereupon delivered up to the said A.B. ;) and further, the said A. B. and C. D. do hereby also mutually acknowledge that there is not at the present time any other claim or demand whatcver, to their knowledge or belief, subsisting or depending between them. Dated, &c.
Witness. Attorneys, receivers, or other agents who hold money for others, would do well in depositing it with a banker for safe keeping; or, as a means of transfer, to do so to an account distinct from their own, so as to keep it ear-marked, as (supposing that they had exercised such discretion in the selection of the bank. er, as they would reasonably be expected to have used in their own case) they would thereby be relieved
"A memorandum similar to the above, signed by the parties, may answer until a more formal instrument is prepared.
* If the balance be paid, the acknowledgment of its payment must be upon a receipt stamp. If it is in full of all demands, the same must be on a 10s, stamp, however small the sum. If the allowance include a release, the same must be upon a L.1, 15s. stamp. If mutual releases, there are two parts, and consequently several stamps. It is to be observed, that a general receipt, or acquittance in full of all demands, will discharge all debts, except such as are on specialty, as rent, bonds, and other instruments under seal, which can be waived or released only under seal; Noyes o. Hopgood, Jac. 649; Littler v. Holland, 3 T. R. 540 ; Kaye v. Waghorn, 1 Taunt. 428.
from responsibility on account of any loss which the failure of the banker might occasion ; but the deposit should be made in their own name only, so that they might retain the absolute control over it.*
If a party who owes money to another on two different accounts makes a payment generally, the party receiving it may apply it to either, unless it can be collected from the circumstances that the party paying intended at the time of payment to appropriate it to one specifically; therefore, where a debtor gave a warrant of attorney for a certain sum, and was also indebted upon another account, and divers payments were made to the creditor, but not specifically in discharge of the warrant of attorney, the creditor may enforce it, although he had subsequently received a larger sum, it being decided that the creditor might put the sums paid in discharge of which of the two accounts he chose.Y
Where an agent had delivered an account, by which it appeared that he had received certain payments on account, but which in fact he had not received, he was held to be bound by the account which he had delivered, unless he could show he had given credit by mistake. Shaw v. Picton, 4 B. and C., 715.
A purchase being set aside for fraud, the purchaser was decreed to pay an occupation-rent, receiving back his purchase-money with interest, there being a considerable excess of rent above the interest; annual receipts directed to be made in the accounts until the excess of the rent should liquidate the principal.—Donovan v. Fricker, Jac., 165.
An account between an attorney and client, although long settled and signed, will not be considered conclusive as against the latter, and if any items of charge can be impeached, the account will be so far re-opened by the court on a bill filed for that purpose, that the plaintiff will be allowed to surcharge and falsify.Johnes v. Lloyd, 10 Price, 62; but after an account has been once stated and settled, it would be considered conclusive as between the parties, unless a gross error or mistake could be shown in it. Truman v. Hurst, 1 T. R. 42.
Large sums in gross charged in such accounts must be supported by detail of items composing them, or they will not be allowed.-10 Price, 82.
I, A. B., of, &c., do hereby retain Mr C. D., of, Retainer of &c., attorney, to commence and prosecute an action commence an
an attorney to 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 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,
an attorney to defend.
s 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 con. duct 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.
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 under. taken 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,d would lose any lien or right which he
6 3 Car. and P. 349.
o Wright v. Castle, 3 Mer. 12; Lord o. Killett, 2 M. and K. 1. c Cresswell v. Byron, 14 Ves. 271.
Mould v. Roberts, 4 Dowl. and R. 719.