pleaded to, for money payable by the plaintiff to the defendant for work done and materials for the same provided by the defendant for the plaintiff at his request, and for money paid by the defendant for the plaintiff at his request, and for money found to be due from the *plaintiff to the defendant on accounts stated between them, [*857 which said amounts the defendant was ready and willing and thereby offered to set off against so much of the said claim of the plaintiff as that plea was pleaded to. Second replication to the first plea,-except so much thereof as relates to money found to be due from the plaintiff to the defendant on accounts stated between them, that the work done and the money paid as in that count mentioned was and is work done and fees, charges, and disbursements in respect of and about such work, charged and paid by the defendant as the attorney and solicitor of the plaintiff, and that the defendant did not one calendar month before this suit send or deliver to or leave for the plaintiff (he being the person to be charged therewith) a bill of such fees, charges, and disbursements, according to the statute in that case made and provided.

Rejoinder, that the said work, charges, and disbursements in the second replication mentioned was done and were charged by and accrued due to the defendant respectively as such attorney and solicitor as in and by the said second replication mentioned, after the passing of the Act of Parliament passed in the 7th.year of the reign of Her present Majesty Queen Victoria (6 & 7 Vict. c. 73), intituled " An Act for consolidating and amending several of the laws relating to attor neys and solicitors practising in England and Wales."

The defendant also demurred to the second replication, the ground of demurrer stated in the margin being, "that the fact of the defendant having, as in the said second replication mentioned, failed to send or deliver to or leave for the plaintiff, one calendar month before this suit, a bill of the defendant's fees, charges, and disbursements, does not in any way prejudice his right to set off the amount thereof." Joinder.

*The plaintiff demurred to the rejoinder, the ground of de[*858 murrer stated in the margin being, "that the provisions of the Act of Parliament therein mentioned show the replication to be good and the rejoinder bad in substance." Joinder.(a)

Crompton Hutton, for the plaintiff.(b)-The main question is whether an attorney's bill which has not been duly signed and delivered pursuant to the statute now in force, the 6 & 7 Vict. c. 73, s. 37, can form the subject of a set-off. The 3 Jac. 1, c. 7, s. 1, enacted that "all

(a) Some discussion having arisen as to whether the plaintiff or the defendant had the right to begin,-seeing that the defendant's demurrer stood first upon the record,-Willes, J., referred to Williams v. Jarman, 13 M. & W. 128,† 2 D. & L. 212, and observed that the practice was now uniform, that, where there are cross-demurrers, the plaintiff begins.

And see Baker v. The Midland Railway Company, 18 C. B. 46 (E. C. L. R. vol. 86), and the authorities referred to in the note to that case, p. 53.

(b) The points marked for argument on the part of the plaintiff were as follows:"That, a set-off being a cross-action, the replication to the plea of set-off showing that no signed bill was delivered one month before action gives a good answer to the plea of set-off, by virtue of the 6 & 7 Vict. c 73, s. 37, and that the rejoinder is bad for the same reason: that the plea of set-off is bad, in being pleaded to a part of the claim in the third count of the declaration, such claim being for unliquidated damages, and not for a debt or sum certain and that the third count is good and unobjectionable."

C. B. N. S., VOL. XI.-32

attorneys and solicitors should give a true bill unto their masters or clients, or their assigns, of all charges concerning the suits which they have for them, subscribed with his own hand and name, before such time as they or any of them should charge their clients with any the same fees or charges." Then came the 2 G. 2, c. 23, s. 23, which enacted that *no attorney or solicitor of any of the Courts afore*859] said (the superior Courts at Westminster, the Courts of great sessions in Wales, and the palatinate Courts, &c.), shall commence or maintain any action or suit for the recovery of any fees, charges, or disbursements at law or in equity, until after the expiration of one month or more after such attorney or solicitor respectively shall have delivered unto the party or parties to be charged therewith, or left for him, her, or them, at his, her, or their dwelling-house or last place of abode, a bill of such fees, charges, and disbursements, &c., which bill shall be subscribed with the proper hand of such attorney or solicitor respectively." The 37th section of the 6 & 7 Vict. c. 73, is in nearly the same terms: "No attorney or solicitor, nor any executor, administrator, or assignee of any attorney or solicitor, shall commence or maintain any action or suit for the recovery of any fees, charges, or disbursements for any business done by such attorney or solicitor, until the expiration of one month after such attorney or solicitor, or executor, &c., shall have delivered unto the party to be charged therewith, or sent by the post to or left for him at his counting-house, office of business, dwelling-house, or last-known place of abode, a bill of such fees, charges, and disbursements, and which bill shall either be subscribed with the proper hand of such attorney or solicitor (or, in the case of a partnership, by any of the partners, either with his own name or with the name or style of such partnership), or of the executor, administrator, or assignee of such attorney or solicitor, or be enclosed in or accompanied by a letter subscribed in like manner, referring to such bill." [BYLES, J.-The words are "shall commence or maintain any action," &c.] The statute of set-off, 2 G. 2, c. 22, s. 13, enacts, that, "where there are mutual debts between the plaintiff and defendant, or, if either party sue or be sued as *executor *860] or administrator, where there are mutual debts between the testator or intestate and either party, one debt may be set against the other, and such matter may be given in evidence upon the general issue, or pleaded in bar, as the nature of the case shall require, so as at the time of his pleading the general issue, where any such debt of the plaintiff, his testator, or intestate, is intended to be insisted on in evidence, notice shall be given of the particular sum or debt so intended to be insisted on," &c. The party, therefore, who relies upon a set-off, must show that he had an actionable debt at the time of the commencement of the suit: Rogerson v. Ladbroke, 1 Bingh. 93 (E. C. L. R. vol. 8), 7 J. B. Moore 412 (E. C. L. R. vol. 17). In Murphy r. Cunningham, 1 Anstr. 198, it was distinctly held that an attorney cannot set off his bill without having delivered it. [WILLES, J., referred to the note to Hooper v. Till, 1 Dougl. 199, where it is said: "It seems to have been taken for granted that an attorney cannot set off his bill till a month after it has been delivered: but the contrary was held by the Court in E. 23 G. 3, in a case of Martin v. Winder; for, in that case, Law having moved on the part of the defendant, who

was an attorney, for a rule to show cause why the proceedings should not be stayed till his bill should be paid, or till a month from the delivery of it should expire, that he might be enabled to set it off, the Court held, that, though an attorney cannot bring an action on his bill till it has been delivered a month, that circumstance is not neces sary to enable him to set it off; that he must not produce it at the trial by surprise, but that it is sufficient in such case to deliver it time enough for the plaintiff to have it taxed before the trial. Upon hearing this opinion of the Court, Law withdrew his motion as unnecessary."] In Bulman v. Birkett, 1 Esp. N. P. C. 449, it was ruled by Lord Kenyon, that, in an action against an attorney, to *which he gives notice of set-off of his bill for business done [*861 for the plaintiff, he must deliver a bill signed, but it need not be delivered a month under the statute. [WILLES, J.-In Ex parte Howell, 1 Rose 312, it was held that an attorney might sue out a commission upon a debt for costs, without having delivered a signed bill and in Eicke v. Nokes, M. & M. 303 (E. C. L. R. vol. 22), Lord Tenterden ruled that an attorney might prove his bill under a commission of bankrupt, without having delivered a signed bill.] Reliance will, no doubt, be placed upon the case of Lester v. Lazarus, 2 C. M. & R. 669,† 4 Dowl. P. C. 397, where Parke, B. says: "Perhaps the more extensive language of the statute of James might operate to preclude an attorney, not only from suing for, but also from setting off the amount of the bill unless delivered. It has been held that the 2 G. 2 applies only to the case of attorneys suing as plaintiffs." But that is entirely extrajudicial: and the case of Murphy v. Cunningham had not been brought to the notice of the Court. A plea of set-off' showing that the plaintiff was indebted to the defendant at the time of plea pleated, is bad; it must show that he was indebted at the commencement of the action: Evans v. Prosser, 3 T. R. 186. In Francis v. Dodsworth, 4 C. B. 202, 220 (E. C. L. R. vol. 56), Lord Truro, in delivering the judgment of the Court, speaking of the 2 G. 2, c. 22, s. 13, says: "The judicial construction of this section has been, that no debts can be used by way of set-off under this statute, except such as are recoverable by action; and it has accordingly been held that the Statute of Limitations may be replied to a plea of set-off. In Chapple v. Durston, 1 C. & J. 1,† it was held, that, to a plea of set-off, the Statute of Limitations must be specially replied; and it was stated in the judgment that a plea of set-off has ever been considered in the nature of a cross-declaration. And in Ford v. Dornford, 15 L. J., *Q. B. 172, Patteson, J., adopts the case of Chapple v. Durston."(a) In Richards v. Easto, 15 M. & W. 244, 250,† upon its [*862 being suggested in argument, that "it is incorrect to say that every special plea must necessarily be in confession and avoidance; the plea of the Statute of Limitations is an instance to the contrary; it goes to the remedy only, not to the right." Parke, B., says: "So also the plea that an attorney has not delivered a signed bill." [BYLES, J.— The Statute of Limitations bars the remedy completely: this statute only suspends it. WILLIAMS, J.-The debt is not the less a debt,

(a) In a subsequent part of the judgment his Lordship says: "It may be correct, for some purposes, to consider the plea of set-off as a declaration: but we do not feel ourselves called upon or warranted in saying that the analogy exists for all purposes."

though barred by the Statute of Limitations.] Then, the plea of setoff is improperly pleaded to the third count. The plaintiff there claims unliquidated damages. The payment to Harrison was a payment by compulsion of law and the plaintiff was bound to declare specially Spencer v. Parry, 3 Ad. & E. 331 (E. C. L. R. vol. 30), 4 N. & M. 770 (E. C. L. R. vol. 30). In Attwooll v. Attwooll, 2 Ellis & B. 23 (E. C. L. R. vol. 75), it was held that a set-off could not be pleaded to a count on a bond conditioned for indemnity. "It is very much to be regretted," says Lord Campbell, "that the defendant should be without defence, and should be driven to bring a cross-action. But so the law at present is. The condition of the bond, when examined, shows that it is to indemnify generally, and not for the payment of any liquidated demand and, according to the cases cited, there can be no set-off pleaded in an action on such a bond." [BYLES, J.-Is that part of the third count to which the set-off is pleaded anything more than a demand for money paid?] The damages would not necessarily be the *863] sum which the plaintiff had paid to *Harrison. In Castelli v. Boddington, 1 Ellis & B. 66 (E. C. L. R. vol. 72), in assumpsit to recover a partial loss on a valued policy of insurance on goods on a voyage to a market, a set-off for premiums was held to be a bad plea, the action being for unliquidated damages. In Johnson v. Diamond, 24 Law J., Exch. 217, C. having at the request of Diamond (the defendant) brought an action against the present plaintiff, Johnson, received from Diamond a bond whereby the latter stipulated that he would pay the present plaintiff such costs as C. should be liable to pay the present plaintiff in case C. should discontinue, become nonsuit, &c., and that he would also permit C. during the pendency of the action or any liability arising therefrom, to retain and apply any money of him (Diamond) that might come into the hands of C. towards the discharge of any costs and liabilities which C. might incur by reason of his permitting the action to be brought and carried on in his name, or from any injury to him from the default of Diamond. C. was nonsuited, and the plaintiff had judgment to recover against C. the costs of such nonsuit. It was held, that the bond did not constitute a "debt" from Diamond to C. within the 61st and 64th sections of the Common Law Procedure Act, 1854, and that the alleged debt in the hands of Diamond could not be attached by the present plaintiff. Martin, B., grounds his decision upon the statute of set-off.

*864]

Hayes, Serjt., for the defendant.(a)-In Tidd's *Practice, 9th edit. 333, it is distinctly laid down that "the statute 2 G. 2, c.

(a) The points marked for argument on the part of the defendant were as follows:"1. That there is no statute in force which, in order to enable the defendant to set off the amount of a bill of costs for fees, charges, or disbursements due to him as an attorney or solicitrenders it necessary for him to have sent or delivered to or to have left for the plaintiff, one calendar month before action, any bill of such fees, charges, and disbursements:

or,

2. That the only effect and operation of the statute, 6 & 7 Vict. c. 73, is, to prohibit an attorney or solicitor from commencing or maintaining any action or suit for the recovery of any fees, charges, or disbursements due in respect of any business done by such attorney or solicitor until the expiration of one calendar month after he shall have delivered or sent to or left for the person to be charged therewith a bill of such fees, charges, and disbursements, in manner and form in the said statute mentioned; and that such statute cannot be construed so as to deprive an attorney or solicitor from setting off the amount of any such bill of costs in any action brought against him for a liquidated demand, although no such bill of the said fees,

23, s. 23, only requires the delivery of a bill for the bringing of an action; and therefore, though an attorney cannot bring an action on his bill till it has been delivered a month, that circumstance is not necessary to enable him to set it off. But he must not produce it at the trial by surprise: it is sufficient in such case to deliver the bill time enough for the plaintiff to have it taxed before the trial." For this, the author refers to Hooper v. Till, Martin v. Winder, and Bulman v. Birkett. [He was stopped by the Court.]

WILLIAMS, J.-I am of opinion that this is a perfectly good set-off, and that the defendant is entitled to judgment on these demurrers. Notwithstanding the case of Murphy v. Cunningham, 1 Anst. 198, which certainly *appears to be a case in point in support of [*865 the replication, I may say that the general understanding of the profession for very many years has been that an attorney may set off his demand for costs, notwithstanding he has not a month previously delivered a signed bill, the statute not in terms precluding him from so doing, but being confined to a prohibition against his bringing an action for his costs until he has complied with that condition, and every principle of justice and good sense being in favour of that course. I think it would be monstrous if a man who is largely indebted to his attorney, and who has a counter-claim against him, should be allowed to recover in respect of his demand merely because the attorney has not one month before setting it up as a defence delivered his bill. As to any supposed hardship of allowing the set-off, I must confess I do not see any; for it is clear that the Court has the power, and would exercise it, to prevent any injustice being done, by staying the proceedings until an opportunity has been afforded to the client to tax the bill. It has been laid down in several successive editions of Tidd's Practice,-a work which was for many years before the eyes of the profession as one of the very highest authority,- that the set-off is allowable: and the principle is to a certain extent sustained by the case of Harrison v. Turner, 10 Q. B. 482 (E. C. L. R. vol. 59). There, to assumpsit on an attorney's bill, the defendant pleaded a set-off, and, in support of that plea, he put in an account furnished to him by the plaintiff: the plaintiff's credit side of this account contained his claim for costs, but of these no signed bill having been delivered, the defendant contended that so much of the plaintiff's account as related to such bill must be struck out: but the Court held that the whole account was evidence for the jury; and Lord Denman, in delivering the judgment of the Court, says: "The #defend[*866 ant contended that so much of this account as related to the bill of costs was to be excluded from the consideration of the jury, because no signed bill had been delivered to him. We think this objection is not well founded, for, the neglect to deliver such a bill merely prevents an attorney from recovering the amount by action, but does not bar the debt." The amount due to the defendant for his costs is a debt within the statute of set-off, 2 G. 2, c. 22; and I see

charges, and disbursements as is mentioned in the said statute has been delivered or sent to or left for the plaintiff before action:

3. That the third count of the declaration is bad in substance, upon the ground that the agreement on the part of the defendant therein mentioned is a promise made by a stranger to the said suit in the third count mentioned, and therefore void as an act of maintenance."