before the arbitrator after the enlargement; Re Hick, 8 Taunt. 694; Tyerman v. Smith, 6 E. & B. 719; 25 L. J., Q. B. 359; so if the time had not been enlarged at all; Lawrence v. Hodgson, 1 Y. & J. 16. Such appearance of the parties may be evidence of a new oral submission, for an award to be made within a reasonable time. Bennett v. Watson, 5 H. & N. 831; 29 L. J., Ex. 357. But, though the parties appear and take part in the reference, if they protest at the time, the objection is not waived. Ringland v. Lowndes, 17 C. B., N. S. 514; 33 L. J., C. P. 337, Ex. Ch. So the objection is not waived if it go to the jurisdiction of the arbitrator over the subject-matter. Davies v. Price, 34 L. J., Q. B. 8, Ex. Ch. And if the award be not made within the time limited by the submission, and one of the parties, not knowing the fact, take up the award, his so doing will not be a waiver of the conditions as to time stated in the submission. Darnley, El. of v. L. C. and Dover Ry. Co., L. R., 2 H. L. 43. The plaintiff need not prove that the defendant had notice of the award; for he is bound to take notice of the award as well as the plaintiff. 2 Wms. Saund. 62 (4). Where the award states a "request" to the defendant to pay, this is equivalent to an order to pay. Smith v. Hartley, 10 C. B. 800; 20 L. J., C. P. 169. So where, after issue joined, a cause was referred, and although there was no power to direct a verdict to be entered, the arbitrator ordered that there should be a verdict for the plaintiff for a certain sum: this was held good as an award of that sum to the plaintiff, on which an action for the amount could be maintained; Everest v. Ritchie, 7 H. & N. 698; 31 L. J., Ex. 350; and where an award directs payment to an arbitrator, or to a stranger, for the use of the plaintiff, the plaintiff may sue on it for the money. Wood v. Adcock, 7 Exch. 468; 21 L. J., Ex. 204, Ex. Ch. An award to be made by two arbitrators must be signed by them, in the presence of each other, and at the same time and place, and it is no award unless so signed. Wade v. Dowling, 4 E. & B. 44; 23 L. J., Q. B. 302; Peterson v. Ayre, 15 C. B. 724; 23 L. J., C. P. 129.

If the award be by an umpire, or by the arbitrators and an umpire, the appointment of the latter must be proved. Still v. Halford, 4 Camp. 19. In the absence of any clause to the contrary, the arbitrators may make a valid appointment of an umpire after the time for making the award has expired, if it be within the time limited for the umpirage. Harding v. Watts, 15 East, 556; Holdsworth v. Wilson, 4 B. & S. 1; 32 L. J., Q. B. 289, Ex. Ch. When the arbitrators have agreed on an umpire, they need not sign the appointment at the same time, or together. In re Hopper, L. R., 2 Q. B. 367.

In practice there is usually a witness to the execution of an award who, if the execution is disputed, is generally called; but unless the submission require it, attestation is unnecessary; and in general, therefore, an award may be proved like any other deed or writing, viz., by proof of the arbitrator's handwriting.

Under the Arbitration Act, 1889, a submission, unless a contrary intention is expressed therein (sect. 1), is irrevocable, and (sect. 2) is to be deemed to include the provisions set forth in sched. 1.

As to awards of commissioners under the Inclosure Acts, see Proof of Awards, ante, p. 151.

When the business of a company, incorporated under the Companies Act, 1862, and being voluntarily wound up, is transferred to another company, and the amount to be paid by the company to a dissenting shareholder for the purchase of his interest (sect. 161) has been settled by arbitration (sect. 162), he may maintain an action against the company

on the award so made. De Rosaz v. Anglo-Italian Bank, L. R., 4 Q. B. 462.

Defence.

A denial of the making of the award will now be taken to put in issue its making in point of fact only, and not its validity in law. See Rules, 1883, O. xix. rr. 15, 20, ante, pp. 301, 302. Adcock v. Wood, 6 Exch. 814; 20 L. J., Ex. 435. Nor could the defendant under such a defence show that it was set aside. See Roper v. Levy, 7 Exch. 55; 21 L. J., Ex. 28. Where an award ordered a sum to be paid by instalments, a defence of an oral agreement to pay a less sum at earlier dates than so ordered, and payment thereunder, is good, by way of accord and satisfaction after breach, by non-payment of the first instalment; and is proved, although the payment was made and accepted after the substituted day, if the plaintiff received the payment and made no objection on the ground of its being too late. Smith v. Trowsdale, 3 E. & B. 83; 23 L. J., Q. B. 107. Corruption or misconduct of the arbitrators is not matter of defence; at least, where application might have been successfully made to the court to set the award aside. 1 Wms. Saund. 327 a. (3); Wills v. Maccarmick, 2 Wils. 148; Braddick v. Thompson, 8 East, 344; Brazier v. Bryant, 3 Bing. 167; Grazebrook v. Davis, 5 B. & C. 534; Whitmore v. Smith, 7 H. & N. 509; 31 L. J., Ex. 107. The omission to give one of the parties an opportunity of being heard, is misconduct of the arbitrators, and falls within this rule. Thorburn v. Barnes, L. R., 2 C. P. 384. Nor can the award be impeached on the ground that the decision of the arbitrator has proceeded on a mistake. Johnson v. Durant, 2 B. & Ad. 925. But the defendant may show that it is not conformable to the submission, where the defence is properly pleaded.

Although an award is not final if it do not award costs in some way, where they are in the discretion of the arbitrator, yet if the submission can be made an order of court, the amount need not be specified, as the taxingmaster has jurisdiction over them; and the costs need not have been taxed before action brought. Holdsworth v. Barsham, 4 B. & S. 1; 32 L. J., Q. B. 289, Ex. Ch.

As to calling the arbitrator as a witness to show that he has exceeded his jurisdiction in making his award, which was good on the face of it, see Buccleugh, Dk. of v. Metropolitan Board of Works, and O'Rourke v. Commissioner for Railways, cited ante, p. 164.

It may be observed that, where the amount of compensation to be paid for land compulsorily taken has been fixed by an award under the Lands Clauses Act, 1845, an action for the amount cannot be maintained until a conveyance of the land has been executed. E. London Union v. Metropolitan Ry. Co., L. R., 4 Ex. 309.

ACTION ON A SOLICITOR'S BILL.

By the J. Act, 1873, s. 87, the time-honoured name of "attorney-atlaw was abolished, and attorneys and solicitors are now all called "solicitors of the Supreme Court," vide post, p. 482.

In an action upon a solicitor's bill, the plaintiff must prove, when denied, (1) his retainer as solicitor by the defendant; which may be done by showing either an express retainer, or that the defendant attended at his office, and gave directions, or in other ways recognized his employment; (2) that

the business was done; which may be proved by a clerk, or other agent, who can speak to the existence of the cause, or the business in respect of which the charges are made, and can prove the main items.

Retainer.] Proof of a judge's order, referring the bill to be taxed, and of the defendant's undertaking to pay the taxed costs, and of the master's allocatur, will be sufficient proof both of the retainer and of the business having been done. Lee v. Jones, 2 Camp. 496. In an action against an ordinary corporation, the plaintiff must show a retainer under seal. Arnold v. Poole, Mayor of, 4 M. & Gr. 860; Sutton v. Spectacle Makers' Co., 10 L. T., N. S. 411, E. T. 1864, Q. B. But in the case of commercial companies incorporated by Act of Parliament, such as railway companies, there is usually a power to retain solicitors and other like officers without a retainer under seal. So such power is conferred on companies incorporated under the Companies Acts, 1862, 1867, by sect. 37 of the latter Act. And, where, by an Act of Parliament, the directors of a railway company had power to appoint and displace officers, this was held to extend to an attorney, who therefore need not be appointed under the common seal of the company. R. v. Cumberland, Justices of, 5 D. & L. 43, n.; 17 L. J., Q. B. 102. And, where the retainer, by a common law corporation, is by resolution only, such retainer is sufficient to warrant payment by the corporation, though it may not be sufficient to found an action against them. R. v. Lichfield, 10 Q. B. 534. The liquidator of a company is not personally liable to the solicitor employed by him, in a voluntary liquidation, for the costs thereof; In re Trueman's Estate, L. R., 14 Eq. 278; nor in a compulsory liquidation; Ex pte. Watkin, 1 Ch. D. 130. When several actions against several defendants are consolidated, and are to abide the event of one, the same solicitor having been retained by each of the defendants, he is entitled to hold all the defendants liable to the costs of the action tried, as on a joint retainer. Anderson v. Boynton, 13 Q. B. 308. A solicitor who has obtained judgment for a client has no authority, without special instructions, to engage in interpleader proceedings. Jumes v. Ricknell, 20 Q. B. D. 164. Although a lessee or mortgagor is usually to pay the expenses of the lease or mortgage, yet he is not directly liable for them to the solicitor of the lessor or mortgagee, who prepared the instruments; Rigley v. Daykin, 2 Y. & J. 83; but slight evidence is sufficient to show direct liability, as that the solicitor received instructions from the lessee, and was desired by him to send the bill of costs to him; Smith v. Clegg, 27 L. J., Ex. 300; Webb v. Rhodes, 3 N. C. 732. A solicitor cannot charge profit costs of a mortgage from a client to himself. In re Roberts, 43 Ch. D. 52. As to the liability of the husband for the costs of preparing a marriage settlement, see Helps v. Clayton, et ux., 17 C. B., N. S. 553; 34 L. J., C. P. 1; it must, however, be observed that in this case the dicta were made obiter, as the action was brought against the husband and wife, upon the retainer of the wife, given dum sola. As to the liability of the husband, on the retainer of his wife, living apart from him, see Wilson v. Ford, L. R., 3 Ex. 63.

Admittance, Certificate, &c.] The stat. 6 & 7 Vict. c. 73, s. 2, prohibits any person from acting in any way as solicitor unless duly admitted, enrolled, and qualified. By sect. 31 no solicitor shall prosecute or defend suits in his own or another's name whilst in prison, nor sue for fees, rewards, or disbursements, in respect of any business done by him whilst such prisoner.

By the Stamp Act, 1870, s. 59 (1), "Every person who in any part of the United Kingdom (a) directly or indirectly acts or practises in any court as an attorney, solicitor," &c., "without having in force at the time

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a duly stamped certificate according to the provisions " of that Act; "(b) on applying for any such certificate does not truly specify the facts and circumstances upon which the amount of duty chargeable upon his certificate depends: shall forfeit the sum of 501., and shall be incapable of maintaining any action or suit for the recovery of any fee, reward, or disbursement on account of or in relation to any act or proceeding done or taken by him in any such capacity."

By the Attorneys and Solicitors Act, 1874 (37 & 38 Vict. c. 68), s. 12, "No costs, fee, reward, or disbursement on account of, or in relation to, any act or proceeding done or taken by any person who acts as an attorney or solicitor, without being duly qualified so to act, shall be recoverable in any action, suit, or matter by any person or persons whomsoever." A person is duly qualified for the purposes of this section if he have a stamped certificate in force, or be appointed solicitor to some public department.

The above enactments are wider than 6 & 7 Vict. c. 73, s. 26, which was held only to disable an uncertificated attorney from suing for fees in respect of business done by him in some court referred to in that Act. Richards v. Suffield, Ld., 2 Exch. 616; Greene v. Reece, 8 C. B. SS. And it did not apply where a client had taken out an order of course for taxation of the bill with the usual submission to pay what was found to be due. In re Jones, L. R., 9 Eq. 63.

An attorney of one court could not practise in another court without signing the roll (6 & 7 Vict. c. 73, s. 27), nor could he recover his fees till he had so done. Latham v. Hyde, 1 Cr. & M. 128; Vincent v. Holt, 4 Taunt. 452. So in an action by several partners, attorneys, for business done in a local court, it appearing that only one of the plaintiffs was an attorney of that court, it was held that they could not jointly recover. Arden v. Tucker, 1 M. & Rob. 191. All the superior courts, except the House of Lords, and the Judicial Committee of the Privy Council, are now consolidated together and constitute one Supreme Court of Judicature (J. Act, 1873, s. 3; Bkcy. Act, 1883, s. 93 (1)), and all attorneys and solicitors are now solicitors of that court (J. Act, 1873, s. 87). Signature of the roll of that court only will therefore entitle a solicitor to practise in any division of the Supreme Court.

Signed bill.-Special agreement.] The last Act which requires delivery of a bill before action is 6 & 7 Vict. c. 73. By sect. 37 of that Act, no solicitor, nor any executor, administrator, or assignee of any solicitor, shall commence or maintain any action or suit for the recovery of any fees, charges, or disbursements for any business done by such solicitor, until the expiration of one [calendar] month after such solicitor, or executor, administrator, or assignee of such solicitor, 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, &c., which bill shall either be subscribed by the solicitor or by any of the partners, with his own name or with the name or style of the partnership, or of the executor, administrator, or assignee of such solicitor, or be enclosed in or accompanied by a letter subscribed in like manner referring to such bill. Provided that it shall not be necessary in the first instance for such solicitor, &c., to prove the contents of the bill delivered, sent, or left; but it shall be sufficient to prove that a bill, subscribed or enclosed as aforesaid, was delivered, sent, or left; but nevertheless, it shall be competent for the other party to show that the bill so delivered, &c., was not such a bill as constituted a bona fide compliance with this Act.

The case of bills (for business in the House of Lords and Commons respectively, is provided for by 12 & 13 Vict. c. 78, and 10 & 11 Vict. c. 69, extended by 42 & 43 Vict. c. 17.

The 6 & 7 Vict. c. 73, repeals 2 Geo. 2, c. 23, on which many cases were decided, and the present Act is expressed in language, in general sufficiently different, to make most of them inapplicable to it. Those decisions only are here retained which, from the similarity of the language used, are not manifestly useless.

One distinction between this Act and the former seems to be that the power of taxing bills now extends to bills for any business done by a solicitor. It is no longer confined to proceedings taken in a court, and the only qualification is one evidently implied, though not expressed, viz., that it should be done as solicitor. În all such cases a bill must be delivered, sent, or left in the manner required by sect. 37. See Smith v. Dimes, 4 Exch. 32, 40, per cur.

By 12 Geo. 2, c. 13, s. 6, an attorney might sue another attorney for agency business without delivering any bill; but this Act is repealed, and the present Act contains no such exception. It also requires assignees and personal representatives of solicitors to deliver bills. In some cases (as In re Gedye, 2 D. & L. 915, and In re Simons, 3 D. & L. 156), it had been held that agency business was virtually excepted out of the 6 & 7 Vict. c. 73. But in Billing v. Coppock, 1 Exch. 14, where an attorney employed another attorney to defend an indictment, the bill delivered by the latter to the former was held taxable; and it seems to follow that the delivery of a bill is obligatory. Accord. Smith v. Dimes, 4 Exch. 32. The cases on the effect of including taxable and untaxable items in the same bill are no longer retained, both because all business seems to be now taxable, and because many of the old distinctions were founded on no clear principle, and are not likely to govern the construction of the existing Act.

A solicitor's bill cannot be recovered on an account stated without proof of the delivery of the bill, though the amount has been admitted. Eicke v. Nokes, 1 M. & Rob. 359; Brooks v. Bockett, 9 Q. B. 847. But the solicitor may recover on a promissory note given for the amount. Jeffreys v. Evans, 14 M. & W. 210.

As to setting off a solicitor's bill, see sub tit. Defences-Set-off, post, p. 672. An agreement entered into by a client with his attorney to pay him at a certain special rate for business to be done was not binding, or, at all events, not conclusive upon the client. Drax v. Scroope, 2 B. & Ad. 581. Such an agreement was void, at least to the extent that the attorney could not recover on it a larger sum than the master would allow on taxation; and therefore, a bill in which a gross sum is charged by the attorney as per agreement, without giving specific items so as to enable the master to tax them, was not a compliance with the 6 & 7 Vict. c. 73, s. 37. Philby v. Hazle, 8 C. B., N. S. 647; 29 L. J., C. P. 370. But, in the absence of a defence pleaded of no signed bill delivered, a solicitor might prove and recover a specific sum agreed to be paid. Scarth v. Rutland, L. R., 1 C. P. 642. A solicitor employed as clerk to a public board at a fixed salary can recover his salary, although part of the work be done as a solicitor, without having delivered a bill of such part. Bush v. Martin, 2 H. & C. 311; 33 L. J., Ex. 17. So an agreement between a solicitor and his client that the former shall be paid a fixed yearly salary, to be clear of all expenses of his office, and to include all emoluments, he paying to his client any surplus that may arise of receipts over payments, and undertaking to do no work for any other client, is legal. Galloway v. London, Cor. of, L. R., 4 Eq. 90.