
    The Hon. William Harper vs. C. E. Williamson.
    Where an attorney brought an action against a client for costs and counsel foes, for a case which lie had managed in a Court of Equity, the answer of the defendant, in the hand writing of the attorney,and signed by him as attorney, and sworn to by the defendant, furnishes the highest evidence that can be required, that the service was performed at defendant’s request.
    And although there were two other defendants, yet by reference to the answer, it appeared that their names were added pro format and that the defendant was the only one of them really interested in the case, and both of the others swore that they had not employed the counsel.
    Sut in the case of defendants, if a party be omitted, the objection can not be taken under the general issue, where it did not appear on the face of the declaration, or on any other pleading of the plaintiff, that the party omitted, jointly contracted and was still alive. 
    
    This was an action of assumpsit, brought to recover one hundred and twenty-five dollars, for fees due the plaintiff as sulicitor in the court of equity. The demand consisted of three distinct items ; one for drawing two answers in equity, in a case wherein the defendant and his wife were defendants, and separate answers were required. The second for drawing the joint answer of this defendant and two others ; and the third for arguing a cause, attending references before the master, and other services. The first item was taxed by the commissioner, and therefore allowed by the jury : The others were rejected.
    ' This was a motion for a new trial, on the ground that the verdict was eontray to evidence.
    
      
      
         See 1 Cbitty’s Plead. 29. 1 Saund. 284, n. 4. &c. R.
    
   Mr. Justice Nott

delivered the opinion of the Court.

The first item in the- plaintiff’s demand is admitted to be correct, because it is taxed by the commissioner. But that is not necessary where there is other satisfactory evidence that the services were rendered.

The answer in the second case is in the hand writing of the plaintiff, and signed by him, and sworn to by this defendant. This furnishes the highest evidence that can be required that the service was performed at his request. It is true there were two other defendants. But by a reference to the answer, it appears that their names were added pro forma, and that this defendant was the only one of the three really interested in the case.' They also swore that they did not employ the plaintiff; and of course he. must have been employed by Williamson.

Nott McCord, for the motion.

W. F. De Saussure, contra.

But it is not material in the-present state of the pleadings, whether he was employed by the defendant alone, or by all of them jointly. The plaintiff Was entitled to recover. A new trial must therefore be granted on that ground.

It is not necessary to give an opinion on the third item; that will depend on the evidence to be given on the next trial.

Justices Johnson and Huger, concurred.

Mr. Justice Richardson, dissented.  