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be maintained against him in the first instance. He relied on Hartop v. Jukes, 2 M. and S. 438.
Lens, serjeant, contrà.-Supposing the solicitor not liable, in the first instance, to the messenger for his fees, the solicitor may make himself liable by a particular mode of dealing; and in the present case it was to be inferred that the solicitor and the messenger had acted on the personal credit of the former.
Gibbs, C. J.—Before the choice of assignees the messenger has a right to look to the petitioning creditor for payment. It is he who puts the commission in action; and what the messenger does, is in substance to advancé what the petitioning creditor has brought into operation. The plaintiff, therefore, without any express contract, is entitled to call upon the defendant. With respect to the solicitor, he is known to be an agent only, and to act for others. He is not, therefore, in the first instance responsible. He may make himself responsible if he chooses; but even his making himself responsible will not, without the consent of the messenger, discharge his right of action against the petitioning creditor.
Verdict for the plaintiff.
Best, serjeant, and Campbell, for the plaintiff.
See Hart v. Biggs, ante, 252. there was no personal underand the note which collects taking on the part of the dethe cases.
fendants. 2. The Act of Par
liament, 5 G. II. c. 30. sec. 45. Tarx o. Heys and Another, requires that the solicitor's bill Assignees of Horrock, a
should be taxed by a Master Bankrupt. E. T. 1816.
in Chancery before he is en This was an action for an
titled to recover.
3. The de. attorney's bill, against the as- fendants, acting as trustees for signees of a bankrupt's estate. a body of creditors, are not in The plaintiff did not seek to the situation of ordinary clirecover for any business done ento, and cannot be made to before the defendants were pay till they have funds in chosen assignees, but for busi
hand. ness arising out of the bank. Vaughan, serjeant, contrà, ruptcy subsequent to their ap
relied on Finchett ». How, pointment. It appeared that 2 Camph. 277. the plaintiff had sued out the Gibbs, C. J.-The defendcommission by the desire of ants find the plaintiff employed the petitioning creditor. When by the petitioning creditor : the defendants were chosen they continue him, and act to. assignees, they continued him wards him, as if they had emin his situation as solicitor to ployed him themselves. Ву the commission ; and several recognizing and coutinuing the letters were read in which plaintiff as solicitor to the com. they recognized him in his em- mission, they became person. ployment. But no original ally liable. The provision in and personal retainer the Act of Parliament applies proved, and no engagement only to the allowance which is had been made by the defend. to be made out of the bank. ants to be answerable indi- rupt's estate. The object of vidually.
the legislature was, that the Best, serjeant, for the de- estate of the bankrupt should fendants, contended, 1. That not be charged beyond the they were not liable per- sum allowed by a Master in sonally; they find the platn- Chancery in taxing the attortiff solicitor to the commission, ney's bill. This provision was and continue him, that is to to protect the interests of the say, they do not use their au- creditors on one hand, and thority to displace him. But the property of the bankrupt
on the other.
But the age Vaughan, serjeant, and Star.
Best, serjeant, for the do-
CRAIG v. Cox.
for the pay.
was no such
A. is applied THIS was an action for goods sold and delito by the attorney of B.
vered. Plea Non assumpsit and the Statute ment of a debt. of Limitations.
The question in the case was, He writes in whether there was such an acknowledgment of he will wait on the debt as took it out of the statute of limitathe defendant, when he shall' tions. be able to satisfy him respecting the misunder
The action was brought for the balance of an standing which had oc
had oc. account. In answer to a letter from the plaintiff's tween them:» attorney demanding payment of the debt, and, in
that this case of refusal, threatening to bring an action, the acknowledg. defendant wrote as follows: Sir, as soon as I am ment of a debt
; able to attend to my concerns, I will wait on Capplea of the
tain Craig, whom I shall be able to satisfy respectstatute of li. mitations; and ing the misunderstanding which has occurred bedence ought tween us. I am, &c.” not to be left to a jury, as grounds to infer a new
Best, serjeant, for the defendant, contended, promise to
that this was not evidence to be left to the jury of pay.
a promise to pay, or an acknowledgment of the debt. The defendant says he will adjust the misunderstanding between the plaintiff and himself: this letter is consistent with his producing a receipt for payment at the meeting.
Shepherd, S. G. and Puller, contrà.-It is not offered as an express promise, or as an acknow
ledgment in terms: but the letter is itself equivocal; and very slight evidence has been deemed sufficient to take a case out of the statute. They cited a MS. case, in which the defendant, upon a similar application made to him, wrote for answer, “ that he would satisfy the plaintiff, for he could shew his receipt.” In which case it was held, that the defendant was bound to produce a receipt, and that it was, at all events, sufficient acknowledgment to go to a Jury, upon his failing to produce a receipt.
GIBBS, C. J.-I think this is not sufficient to take the case out of the statute. The defendant does not put his case upon any specific grounds, which are either false, or which, when called upon, he is unable to establish; but he simply says, there is a misunderstanding upon the subject. I agree with the decision cited. But the defendant's answer in this case amounts to nothing more than an assertion that the plaintiff has mistaken the matter.
Shepherd, S. G. and Puller, for the plaintiff.
Best, serjeant, for the defendant.
See Truman v. Fenton, In the case of Bicknell v. Cowp. 548. Lloyd v. Maund, Keppel, 1 New Rep. 20., where 2 T. R. 760. Bryan v. Horse- the defendant wrote, that his man, 4 East 599.
solicitors were in possession