Counterclaim to

action for solicitor's charges.

Claim against a solicitor for negligence.

By way of counter-claim the defendants say as follows:

1. On or about the 29th day of June, 1876, the defendants lent to the plaintiff the sum of £1000, to be repaid by the plaintiff to the defendants upon demand, together with interest at the rate of £5 per cent. per annum in the meantime.

2. The defendants have required the plaintiff's to repay the said sum, with interest as aforesaid, but he has not done so. The defendants claim £1000, with interest as aforesaid, in respect of the matters stated in this counter-claim.

Statement of Claim against Solicitor for Negligence.

1. Plaintiff is a financial and commission agent in C. Street, London. Defendant is a solicitor at A.

2. In February, 1876, plaintiff was sued in the A. County Court by one D.; and thereupon plaintiff retained the defendant as his solicitor to defend him, and to act for him in and about the said County Court action for reward paid by plaintiff to defendant.

3. In the said action judgment passed for the said D., the then plaintiff, and the now plaintiff was thereupon adjudged to pay the said D. £19 58. for the amount of the said judgment and costs.

4. The plaintiff paid defendant £21, and instructed him as his solicitor forthwith to deduct therefrom defendant's charges as solicitor, and to pay the amount of the said judgment, debt, and costs, and to do all things necessary to discharge the plaintiff' therefrom. Thereupon it became the defendant's duty to pay the said debt and costs to the Registrar of the said County Court or to the plaintiff in the said action, and to inform the said Registrar that the said debt and costs had been duly paid, so that payment and satisfaction of the said debt and costs might be duly entered on the records of the said Court, in order that the said judgment might not be registered against the plaintiff. The said sum of £21 was more than sufficient for the said purposes.

5. Defendant paid the amount of the said debt and costs to the said D., but he negligently failed and omitted to give notice of such payment to the Registrar of the said County Court; nor did he do all or anything necessary and proper to be done in order to prevent the said judgment being registered against plaintiff.

against a negligence.

solicitor for

6. In consequence of the said breaches of duty by defendant, Claim the said judgment was duly registered against plaintiff, and being so registered, plaintiff's name was inserted in the list of debtors against whom County Court judgment had been obtained and registered, whereby plaintiff was made to appear in the said list as a defaulting debtor, and was greatly injured in his credit and reputation as a financial and commission agent, and divers persons who had dealt with him refused any longer to do so.

The plaintiff claims :

(1.) £500 damages.

(2.) Such further or other relief as the nature of the case may require.

Statement of Defence.

1. The defendant does not admit paragraphs 2 and 3 of the Defence. statement of claim, but he says that a verdict in the said action was given for the said D. for £15 15s. with costs, and the plaintiff was ordered to pay the same within fourteen days.

2. A settlement was thereupon at the plaintiff's request arranged in Court between the respective parties, that in order to save the allowances to the plaintiff's witnesses and the cost of taxation, the sum of £19 48. should be paid by the said plaintiff to the solicitor for the said D., and taken by him for the said D. in full satisfaction of the said debt and all costs.

3. Thereupon the plaintiff for the purposes of such settlement gave the defendant the sum of £21, and told him to forthwith pay the said amount of £19 4s. to the said solicitor for the said D. as was agreed, and to deduct the defendant's charges incurred in and about the said settlement, and hand him, the plaintiff, the balance, all of which was thereupon done.

4. The defendant denies that the plaintiff gave him or that he accepted any such instructions as are mentioned in paragraph 4 of the statement of claim, or that under the circumstances set out, any such duty was cast upon him as alleged in the said paragraph, and says that he paid the said sum of £19 4s. to the said solicitor of the said D. in Court, in the said plaintiff's presence, and with his consent, and at his request.

5. Defendant denies that he was guilty of any negligence or

a claim

against a

Defence to breach of duty in and about the subject-matter of this action, and he says that, although he denies that under the circumsolicitor for stances he was bound to do so, yet in fact he did inform the negligence. Registrar of the said Court, in the said Court, that the amount to be paid to the said D. had been settled at £19 4s., and that that amount had been paid to the said solicitor of the said D., and he also says that the said solicitor also communicated the said fact to the said Registrar before leaving the Court.

6. The defendant says that if the plaintiff's name was inserted in the list of debtors as alleged in paragraph 6 of the statement of claim, it was not so inserted by reason of any negligence on his part, or from any cause for which he is liable, and he further says that any injury sustained by the plaintiff was not the direct consequence of such insertion.

Reply.

The plaintiff takes and joins issue on the defendant's statement of defence.

Stock (a).

Alternative

claim for breach of

Claim against Defendants in the Alternative for Breach of Contract to take Debentures, &c. (b).

1. The plaintiff's are a limited company.

2. The defendant L. carries on business as a financial agent contract to in Paris. take debentures.

When

recover

"dif

ferences."

(a) In the absence of a usage to the contrary, a broker purchasing stock to fulfil a contract entered into by him for his principal, but which the principal fails to make good, cannot recover from his principal. broker may (Child v. Morley, 8 T. R. 614.) But where there is a usage on the Stock Exchange that brokers should be responsible to each other on time contracts, and the seller's broker is obliged to pay money in consequence of his principal's default, he may sue the principal for it as money paid for the principal (Smith v. Lindo, 27 L. J. C. P. 335, Ex. Ch.): and in such cases it is immaterial whether or not the principal knew of the usage. (S. C., and Grissell v. Bristowe, L. R. 4 C. P. 36, 49.) In the event of the death or bankruptcy of the principal, whereby he will be unable to take up the stock the broker has bought for him on his own credit, the broker is justified in immediately selling the stock and claiming the difference against the bankrupt's estate, subject to a set-off for any loss

(b) As to the correctness of joining both defendants see ante, pp. 7–12.

3. The defendant T. is a solicitor.

claim for breach of

contract to

4. The plaintiffs' company was registered on the 17th of Alternative December, 1877, and a chairman, directors, and other officers were appointed, and was incorporated for the purpose of constructing and completing a railway through Honduras, so as to connect by a railway communication the Atlantic and Pacific Oceans.

5. The directors of the company invited the public to subscribe a sum estimated to be requisite for the completion of the railway, and some money was subscribed by the public on the security of the debentures of the company, but not sufficient to enable the directors to proceed with the railway and company; and in order to induce the directors not to abandon the undertaking, which they proposed to do in consequence of the want of funds, the defendant L., through the defendant T., who stated that he had authority, and which authority he then in fact had from L. to do so, promised the company that in consideration that they by their directors would allot such debentures and shares as had been and might be applied for, and would not abandon the purposes for which the company was incorporated, and would proceed to employ contractors and incur expenses and liabilities in effecting those purposes, and would deliver to T. on his behalf debentures of the company to the amount of £10,000 in blank, that he L. would subscribe or procure to be subscribed the sum of £80,000 on the security or the debentures of the company and otherwise.

6. The directors, acting upon the faith of such promises, in the month of February, 1874, accordingly allotted debentures and shares to the applicants for the same, and did not abandon the purposes for which the company was formed, and delivered to one B., as agent of the defendant L., debentures of the nominal value of £10,000 in blank.

7. The defendant L. has refused to perform his promise, and has refused to subscribe or procure to be subscribed to the funds of the company, upon the security of the funds of the

take de

bentures.

arising to the estate from such sale being made before the settling day, the customary time for selling out stock on default of the principal to take it up. (Scrimigeour's Claim, L. R. 8 Ch. 921; Crowley's Claim, L. R. 18 Eq. 182.)

Alternative company or otherwise, the sum of £80,000, or any amount of

claim for breach of contract to take debentures.

money.

8. The defendant T. represented to the plaintiffs at the time of the making the promise above mentioned, that he had authority from L. to make the promise for and on behalf of L., but L. has asserted and still asserts that T. had no such authority from him to make the said promise to the plaintiffs, so as to make him liable to subscribe the said moneys or any of them, and the plaintiff's say that in performing the matters and conditions, and in doing the acts and things herein stated, they relied upon the promise made by T. on behalf and for L., and upon the said representation of T. L. has refused to perform the said promise, alleging that T. has no such authority, and in the event of the defendant L. being held not liable in respect of the said promise, on the ground that the defendant T. had no such authority as he represented he had as aforesaid, the plaintiffs will claim the damages from the defendant T. set out in the next paragraph of this statement, and also the relief set out in paragraphs 3A and 4A.

9. The plaintiff's by reason of the premises have not only lost the moneys the defendants ought to have subscribed or to have procured to be subscribed to the funds of the said company aforesaid, but have suffered loss and have incurred and lost the expense by reason of the employment of contractors, and have incurred other expenses in and about attempting to accomplish the objects aforesaid, and have not been able to construct and complete the remainder of the said railway, and have lost the benefits and profits which the plaintiffs would have gained from the said construction and completion of the said railway, and also certain valuable concessions granted by the Government of the Republic of Honduras to the plaintiffs have been rendered of little or no value to the plaintiffs, and the plaintiff's have been put to great expense in endeavouring to procure the performance by the defendant L. of the promises made as aforesaid.

The plaintiff's pray :

1A. That the plaintiff L. may be adjudged to subscribe for and take debentures of the plaintiffs' company for the amount of £80,000, and to pay to the company, or an officer of the same to be appointed by one of the Judges of the High Court of