« 上一頁繼續 »
army, and the defendant is a gentleman residing at C. Hall, in Against a
sheriff for the county of S., and was in the year 18— sheriff of the said misconduct county.
tion with 2. In the month of September, 1876, a writ of fieri facias a sale was issued from the Division of the High Court of Justice of goods against the goods of the plaintiff, directed to the defendant as execution. the then Sheriff of S., and indorsed for £415, with interest and costs (the £415 being the amount recovered in an action brought by Richard R. against the plaintiff), and the writ so indorsed was delivered to the defendant as such sheriff.
3. The defendant, on the afternoon of the 8th September, seized under the said writ certain race-horses, the property of the plaintiff, named Lady Jane, the Coquette, and others of great value, which said race-horses were then in the care of and being trained by Thomas — trainer at Newmarket, in the said county of s.
4. The defendant wrongfully sold by auction the said racehorses so seized with undue and unnecessary haste, without reasonable notice of the said sale, and without it being possible for the plaintiff, after the seizure and before the sale, to hear of the seizure, so as to enable him to satisfy the execution and avert the sale, and the defendant improperly allotted the said race-horses and sold the same for a price which was inadequate and less than their reasonable price, and without taking due and reasonable care in advertising and giving notice of the sale, and also conducted himself negligently in the conduct and management of the sale, whereby and by reason of the premises the sale realised much less than it otherwise would have done.
5. The defendant also sold a greater number of the said race-horses to satisfy the said execution than was necessary, and converted to his own use some or one of the said horses and a part of the proceeds of the sale.
The plaintiff claims :-
for Goods shipped in his Vessel and sold subject to clean
Receipt being given. Against 1. In the month of August, 1877, the plaintiff sold to one shipowners G. S. 174 tons of glucose at the price of £19 128. 6d. per ton, for refusing to give a on the terms that the plaintiff should deliver the same free on clean re
board an export ship in the Thames, and that the plaintiff ceipt for goods should give to the said G. S. a clean receipt for the same from shipped
the owners of such export ship or their master or agent. and for trover, 2. On or about the 7th of August, 1877, it was agreed by
and between the said G. S. and the defendants that the said 17 tons of glucose should be shipped on board the defendants' ship “Orient” and carried therein to Adelaide upon certain terms then settled between them.
3. Accordingly the said G. S. gave notice to the plaintiff to ship the said 17} tons of glucose in the “ Orient." The plaintiff thereupon conveyed the said 17} tons of glucose packed in 345 cases alongside the said ship in lighter, and gave instructions to the chief officer of the said ship only to receive and keep on board such of the cases as were in good condition, and for which the chief officer would give a clean receipt, so as to enable the plaintiff to comply with his contract with the said G. S. in that respect.
4. The chief officer of the “Orient," the defendants' agent, received and kept on board the said 345 cases of glucose, but did not give and wholly refused to give a clean receipt of bill of lading for them, whereupon the said G. S. refused to accept the said 345 cases in pursuance of the said sale, and the plaintiff demanded the return of the said 345 cases, but the defendants wholly refused to return the same or any part thereof, and converted the same to their own use.
The plaintiff claims £500 damages.
Claim by one of a Firm of Solicitors for his Charges incurred before Partnership and Charges for Work done by the Firm (6).
1. The plaintiffs are solicitors carrying on business in part- Claim for nership at W., in the county of
(a) In order to enable a solicitor to recover his charges for profes- A solicitor sional services he must be prepared to prove
must take 1. That he was duly admitted, enrolled, and qualified as a solicitor, out a cerBy the Stamp Act, 1870, a solicitor who directly or indirectly acts or tificate to practises in any Court as such without having a duly stamped certifi- enable him cate in force at the time, shall be incapable of maintaining any to recover action or suit for the recovery of any fee, reward, or disbursement in his fees. relation to any act or proceeding by him in such capacity. And by the Attorneys and Solicitors Act, 1874 (37 & 38 Vict. c. 68, s. 12), no costs, &c., in relation to any act or proceeding by a solicitor without being duly qualified to act as such, shall be recoverable in any action, &c. By Law list 23 & 24 Vict. c. 127, s. 22, the Law List shall be primâ facie evidence that primâ facie the persons whose names are inserted in it, in the list of solicitors, have evidence of obtained stamped certificates for the current year (Nov. 16 to Nov. 15) and his qualithe absence of a solicitor's name therefrom is prima facie evidence that fication. he has not obtained a certificate for such current year; but in the latter case an extract from the Roll of Solicitors, signed by the secretary of the Law Society, shall be evidence of the facts appearing in such extract.
2. 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 otherwise recognised his employment.
3. 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 other business in respect of which the charges are made, and can prove the main items. (Roscoe Ev. Nisi Prius, 13th ed. 473.)
4. That a bill was delivered pursuant to 6 & 7 Vict. c. 73, s. 37, which Delivery provides that no solicitor, nor an executor of any solicitor, shall com- of a bili mence or maintain an action for the recovery of any fees, charges, or month disbursements for any business done by him as such solicitor until the before expiration of one month after he shall have delivered to the defendant, action or sent by post, or left for him at his counting-house, office, dwelling- essential. house, or last known abode, a bill of such fees, &c., which shall be subscribed by him or any one of the partners, by his name or the name of his firm, or be accompanied by a letter so subscribed, and referring to such bill. Under this enactment a solicitor's bill cannot be recovered on an account stated, without proving the delivery of the bill, though the amount has been admitted. (Eicke v. Mokes, 1 M. & Rob. 359.) But
he may recover on a promissory note given for the amount. (Jeffreys 1. Evans, 14 M. & W. 210.)
The bill must after delivery be left with the defendant for examination. (Brooks v. Mason, 1 H. Bl. 290.)
A delivery to the defendant's solicitor, if he himself afterwards attends the taxation, is sufficient. (Vincent v. Slaymaker, 12 East,
(6) For this note, see post, p. 578.
Claim for solicitor's charges.
2. Before the plaintiffs entered into the partnership the defendant retained and employed the plaintiff J. E. F. as his
372.) So a delivery to one of several persons who join in the retainer.
(Fenchett v. How, 2 Camp. 277.) Solicitors By the Attorney and Solicitors Act, 1870 (33 & 34 Vict. c. 28, s. 4), a may make
solicitor may make an agreement in writing with his client respecting special the amount and manner of payment for his fees or disbursements, &c., a greements either by a gross sum, or commission, or salary ; but where the agreein writing ment is in respect of business transacted in Court, the amount payable as to their thereunder shall not be received by the solicitor until the agreement fees. has been approved by a taxing officer. By sect. 8 no action shall be
brought to enforce such agreement, but it may be enforced by the Court on motion. By sect. 15 an agreement under this Act obviates the objec. tion of no signed bill having been delivered when an action is brought to recover the solicitor's charges.
It has been held that to constitute an agreement as to costs between a solicitor and his client within the meaning of sect. 4 of this Act, the document must be signed by both parties. (Ex parte Munro, Re Levis, 45 L. J. Com. Law, 816.)
The statement of claim should show that all the above conditions have been complied with subject to such modifications as have been mentioned. Proof is altogether another matter, and the plaintiff will only be called on to establish such of them as the defendant denies or does not admit
in his statement of defence. Common Defences.] — The foregoing outline of the conditions it is essential in defences to the absence of admissions by the defendant to establish, indicate suffi. actions by ciently the chief defences to this action. They are-1st. Denial that the solicitors plaintiff was duly admitted and qualified to practise as a solicitor at for their the time of the rendering the services. 2nd. That he had not taken out charges. a certificate pursuant to the 6 & 7 Vict. c. 73, s. 26. 3rd. A denial that the
plaintiff delivered a bill pursuant to the 6 & 7 Vict. c. 73, s. 37, in cases which do not come within the provision of the Attorneys and Solicitors Act before referred to as to special agreements. 4th. Denial of the retainer. 5th. Denial that the services were rendered, including allega
tions charging negligence or incompetence. When the The plaintiff's negligence is no defence if it has not been such as to plaintiff's deprive the defendant of all benefit. (Templer v. McLachlan, 2 N. R. negligence 136.) But where such has been the case, it is a good defence. See for disentitles several instances, Huntley v. Bulner', 6 N. C. 111; Bracey v. Carter, him from 12 Ad. & E. 373 ; Long v. Orsi, 18 C. B. N. S. 610 ; 26 L. J. C. P. 127; recovering. Lewis v. Samuel, 8 Q. B. 685 (in which the plaintiff sued only for costs
out of pocket, to which he had agreed that defendant's liability should be limited). An attorney cannot recover costs of suit in an inferior Court, which, as he ought to have known, had no jurisdiction in the matter, and was restrained by prohibition. (Robinson v. Emanuel, L. R. 9 C. P. 415, 416.) So where he sues in a Court which has no adequate powers to examine material witnesses out of the jurisdiction, and the suit fails accordingly. (Cox v. Leach, 1 C. B. N. S. 617; 26 L. J. C. P. 125.)
When it has appeared that the plaintiff paid no attention to the defendant's case, but resided at a distance from his office, and his business was transacted by a person employed by him, it was held he could not recover, even without reference to the success or mis. carriage of the business done. (Taylor v. Glassbrook, 3 Stark. 75; Hopkinson v. Smith, 1 Bing. 13.) Where the plaintiff has through inadvertence or inexperience done useless work, he cannot recover for it; and where there are charges for such work and separate charges
solicitor, and for work done as such solicitor between Claim for 1876, and the 11th of March, 1877, both inclusive, and for dis- solicitor's
for work for which he is entitled to recover, the former may be expunged. (Shaw v. Arden, Bing. 287.) Where, however, there has been some other cause concurring with the plaintiff's negligence or incom- What petence, and conducing to the loss of benefit to the defendant, it forms no amounts to defence. (Dax v. Ward, 1 Stark. 409.) It is no ground of defence that the negligence plaintiff neglected to put in a plea for delay according to defendant's in a soliinstructions. (Johnson v. Alston, 1 Camp. 176.) The fact that an in- citor disstrument prepared by the plaintiff turns out to be illegal is no defence
entitling to an action for the charge for preparing it if there was any reasonable him to his doubt of its legality. (Potts v. Šparron, 6 C. & P. 749.) And see as costs. to the effect of an error in matters of difficulty, Bulmer v. Gilman, 4 M. & Gr. 108; and In re Sadd, 34 L. J. Ch. 562 ; 34 Beav. 650.
In preparing a statement of defence in cases where the instructions The advisdisclose serious negligence or want of knowledge of practice or law, ability of which has deprived the defendant altogether or in some measure of the making a benefit of his claim, defence, &c., it would perhaps be the better course solicitor's to make such negligence, &c., the subject of a set-off or counter-claim, negligence and as the same evidence would be given on the claim and counter the subject claim as if negligence were pleaded, there need hardly be any appre- of a counhension that the cases would be ordered to be tried separately.
ter-claim. Before the Judicature Acts came into force, if a solicitor who acted as the agent of another sued the client, it would be a good defence that credit was given to the principal solicitor by the plaintiff and not to the client, and evidence to show that this was the custom in the profession would be admitted in support of such a defence. But since the above Acts came into force, if the principal solicitor and his agent sued together as plaintiffs and claimed alternatively this defence would hardly avail the defendant.
When negligence, fc., actionable.]—There must be gross negligence Solicitor or ignorance in the performance of his professional duties by a solicitor liable for to render him liable to an action by his client. (Purvis v. Landell, 12
gross negCI. & F. 91.) He is bound to bring a fair amount of skill, care, and
ligence. knowledge to the performance of his duty, and this is a question of fact for the jury, under the direction of the judge, who is to explain the nature of the duty, and the degree of negligence or ignorance which will make him responsible. (Ilunter v. Caldwell, 10 Q. B. 69 ; aff. ib. 83.) " It would be extremely difficult,” observes Tindal, C. J., in delivering the judgment of the Court, in Godefroy v. Dalton (6 Bing. 467-9), “ to define the exact limit by which the skill or diligence, which an attorney undertakes to furnish in the conduct of a case is Judgment
of Tindal, bounded ; or to trace precisely the dividing line between that reasonable
C. J., as skill and diligence, which appears to satisfy his undertaking and that
to what crassa negligentia or lata culpa for which he is undoubtedly responsible. The cases, however, appear to establish, in general, that an attorney is amounts to liable for the consequence of ignorance or non-observance of the rules of
gross neg. practice of the Court in which he sues, for the want of care in the pre
ligence." paration of the cause for trial, or of attendance thereon with his witnesses, and for the mismanagement of so much of the conduct of a cause as is usually and ordinarily allotted to his department of the profession. Whilst on the other hand he is not answerable for error in judgment upon points of new occurrence or of nice or doubtful construction, or such as are usually intrusted to men in the higher branch of the profession of the law.
We lay no stress opon the fact that the