What amount of negligence in a solicitor disentitles him to his costs. The advis ability of making a solicitor's negligence the subject of a counter-claim. Solicitor liable for gross negli gence. Judgment of Tindal, C. J., as to what amounts to "gross neg ligence." the defendant that the plaintiff would only charge for disbursements and costs out of pocket. 3. A signed bill of costs was not delivered a month before action brought. not recover, even without reference to the success or miscarriage 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 for work for which he is entitled to recover, the former may be expunged. (Shaw v. Arden, 9 Bing. 287.) Where, however, there has been some other cause concurring with the plaintiff's negligence or incompetence, and conducing to the loss of benefit to the defendant, it forms no defence. (Dax v. Ward, 1 Stark. 409.) It is no ground of defence that the plaintiff neglected to put in a plea for delay according to defendant's instructions. (Johnson v. Alston, 1 Camp. 176.) The fact that an instrument prepared by the plaintiff turns out to be illegal is no defence to an action for the charge for preparing it if there was any reasonable doubt of its legality. (Potts v. Sparrow, 6 C. & P. 749.) And see as 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 disclose serious negligence or want of knowledge of practice or law, which has deprived the defendant altogether or in some measure of the benefit of his claim or defence, it would perhaps be the better course to make such negligence the subject of a set-off or counter-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. It may be here mentioned that the law is now well settled that a London agent cannot, as against the country lay client, retain moneys which he has recovered in a suit for him to satisfy the general balance of an account due by the country legal client. (Ex parte Edwards, S Q. B. Div. 262 (C. A.).) Action against a solicitor for negligence.]-There must be gross negligence or ignorance in the performance of his professional duties by a solicitor to render him liable to an action by his client. (Purris v. Landell, 12 Cl. & F. 91.) He is bound to bring a fair amount of skill, care, and 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. (Hunter v. Caldwell, 10 Q. B. 69; aff. ib. 83.) "It would be extremely difficult," observes Tindal, C. J., 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 bounded; or to trace precisely the dividing line between that reasonable skill and diligence, which appears to satisfy his undertaking and that crassa negligentia or lata culpa for which he is undoubtedly responsible. The cases, however, appear to establish, in general, that an attorney is liable for the consequence of ignorance or non-observance of the rule of 4. The plaintiff's services were wholly useless to the defendant in the said action. The defendant lost the same by reason of the plaintiff negligently bringing the action in the Lord Mayor's Court, which had no jurisdiction over the subject-matter of the suit. practice of the Court in which he sues, for the want of care in the pre- What is "gross neg ligence." The general powers of a solicitor over a suit. A solicitor retained in an action has no implied authority after judg. ment for his client to agree on his behalf to postpone execution. (Loregrove v. White, L. R. 6 C. P. 440.) Nor is it within the scope of the implied authority of a solicitor of a judgment creditor issuing a fi. fa. to direct the sheriff to seize particular goods. (Smith v. Keal, 9 Q. B. Div. 340.) A stipulation in a special agreement under the Attorneys and Solicitors Act, 1870, that a solicitor shall not be liable for negligence is void. (S.7.) Where money of a client comes to the hands of a partner in a firm of Liability solicitors, in the ordinary course of their business as such, the firm are of firm of liable in case of a defalcation by such partner. (St. Aubyn v. Smart, solicitors L. R. 5 Eq. 183; Ib., 3 Ch. 646; Dundonald, Earl of, v. Masterman, for money L. R. 7 Eq. 504.) So where bonds are deposited with solicitors in ordinary of a client course of business and stolen by one partner. (Cleather v. Twisden, in hands 24 Ch. D. 731.) If money is left in the hands of a member of a firm to of member. be invested in a specific mortgage, the firm are responsible; but aliter where it is so left with a general direction that it is to be invested on mortgage, as this contemplates a character of business strictly belonging rather to the occupation of a monetary scrivener or money-lender than to that of solicitors. (Harman v. Johnson, 2 E. & B. 61 ; 22 L. J. Q. B. 297; and see Plumer v. Gregory. L. R. 18 Eq. 621.) A firm of solicitors is not liable for money entrusted to one of its members as a trustee. (Dundonald, Earl of, v. Masterman, supra.) Defences.]-1. Denial of retainer, under which would be ranged a defence denying that the defendant acted as solicitor. 2. Denying the breach of duty. 3. Denial of damage, which, however, is only a defence to the extent Common of reducing the verdict to nominal damages. The onus lies on the defences. defendant of showing that the plaintiff had either no good cause of action or no defence in the action about which the negligence is alleged to have been committed. (See Godefroy v. Jay, 7 Bing. 413.) 4. Statute of Limitations. The statute runs from the breach of duty complained of, and not from the discovery thereof, or the occurring of the consequential damages, unless semble the breach of duty has been fraudulently concealed. (Gibbs v. Guild, 51 L. J. Q. B. 313.) The Summary remedies by and against solicitors. And by way of counter-claim, the defendant 5. Repeats the allegations contained in the last paragraph, and says that he has suffered damage from the plaintiff's said negligence in his conduct for the defendant, as his solicitor, of the said cause of Smith v. Smith. Taxed costs paid to the defendant Smith on the dismissal of the now defendant's action against him, £87. The defendant counter-claims for £250. Reply. 1. The plaintiff joins issue upon the defence. 2. As to the 4th paragraph, he says further, that he explained to the defendant that it was a nice question whether or no the Lord Mayor's Court had jurisdiction, and the defendant thereupon expressly directed him to proceed in the said Court, and said he was content to take all the risks incident to the action proceeding therein. 3. The plaintiff was not negligent in his conduct of the said cause as the defendant's solicitor. Rejoinder. The defendant joins issue upon the reply. 2. Claim by a Solicitor upon a Special Agreement in regard to Conveyancing Business. 1. On the 2nd of February, 1883, an agreement in writing operation of the Statute of Limitations is not suspended or removed by acknowledgment in this action. (See ante, Limitation of Actions.) Solicitors' lien.]-Solicitors have a lien for their general balance on papers of their clients which come to their hands in the course of their business. (Stevenson v. Blakelock, 1 M. & S. 535.) And under the 23 & 24 Vict. c. 127, s. 28, they may obtain an order charging with the payment of their costs "any property recovered or preserved" in any action through their instrumentality. Such an order may be made (1), in Chambers; (2), upon money paid into Court before the termination of the suit; and (3), even after the solicitor applying has ceased to be the solicitor on the record if he was solicitor at the time the money was paid into Court. (Clover v. Adams, 6 Q. B. Div. 622.) If a solicitor improperly retains deeds or money belonging to a client he is liable to an action. But the client may, if he likes, instead of proceeding by action, apply by summons at Chambers, or upon motion in Court, for an order directing the solicitor to hand over the deeds or pay over the money. was made and signed by the plaintiff and defendant, whereby the plaintiff agreed to investigate the title to an estate called "Knarlye," which the defendant had purchased, and to execute the necessary deeds of conveyance to him for a gross sum of £250. 2. The plaintiff duly rendered all the agreed services for the said remuneration. The plaintiff claims £250. Defence. 1. The defendant was acting as the plaintiff's solicitor at the time of the signing of the said agreement, and he induced the defendant to execute it by falsely and fraudulently representing to him that if no special agreement were made, and he charged according to the ordinary scale, the defendant would have to pay him the sum of £350. 2. The sum which the defendant is entitled to charge, according to the ordinary scale, in respect of the said services, is £150, and the defendant brings the said sum into Court, and says it is sufficient to satisfy the plaintiff's claim herein. Reply. The plaintiff joins issue upon the defence. 3. Claim against a Solicitor for Professional Negligence. 1. The plaintiff has suffered damage from the defendant's negligence in his conduct for the plaintiff, as his solicitor, of business undertaken by the defendant on the plaintiff's retainer. 2. The negligence was in making an application under Order XIV., Rule 1, in the case of A.B. (the plaintiff) v. C.D., when the case was one of unliquidated damages, and not of debt. Particulars of damage : Taxed costs paid to defendant on dismissal of summons, £ The plaintiff claims £ 4. Another Claim against a Solicitor for Professional Negligence. 1. The plaintiff has suffered damage from the defendant's negligence in his conduct for the plaintiff, as his solicitor, of business undertaken by the defendant on the plaintiff's re tainer. 2. The negligence was― (a.) In advising the plaintiff that he could, with every prospect of success, bring an action against one A.B. upon an alleged guarantee where the only evidence of the said guarantee was parol; (b.) In neglecting to subpoena the plaintiff's witnesses to attend the trial of the cause of C.D. (the plaintiff) v. A.B.; (c.) In failing to instruct counsel in the said cause, and in neglecting to attend at the trial himself. 3. Judgment was given for the defendant, with costs, in the said action of C.D. v. A.B., and the plaintiff has had to pay to the said A.B. the sum of £130 for his taxed costs. The plaintiff claims £500 damages. Defence and Counter-claim. Defence. 1. The defendant did not advise the plaintiff that he could bring the said action upon a verbal guarantee with any prospect of success. 2. Ten days before the trial of the said action the defendant gave the plaintiff written notice that he would not further act for him in the said cause, unless he forthwith paid to him the sum of £30 for fees to counsel, and to subpoena witnesses, which were then necessary disbursements. 3. The plaintiff refused to supply the defendant with any money, whereupon the defendant withdrew from the further conduct of the said cause. Counter-claim. 1. Prior to the date of his withdrawal from the said cause his costs and charges against the plaintiff as his solicitor in connection with the said action, amounted to £55 13s. 4d. Particulars of the said costs and charges were delivered to the plaintiff in a signed bill of costs more than one month before delivery of defence. The defendant counterclaims £55 13s. 4d. |