continued. 66 CH. XIX. s. 9. where it appeared that the attorney in a cause which was about to Contracts of be tried delivered a brief to counsel, but that he did not, either Employment (Solicitors). by himself or by a competent clerk, attend at the trial, so as to Negligence give such information upon the matter as counsel might require, this was held to support a charge against the attorney of having 'neglected to instruct counsel" (d). And a jury may find a solicitor guilty of negligence, if he omit to notice particular conveyances and deeds, in laying an abstract before a conveyancer; or if, instead of leaving the whole case to counsel, he chooses to draw his own conclusions, which turn out to be incorrect (e). So, a solicitor will be liable for negligence if he rely on a mere partial extract from a will, produced by the party to whom his client is about to lend money on the security of a legacy given by the will; unless it appear that the client took upon himself the charge and responsibility of examining the will (f). So, he has been held responsible for not exercising a reasonable discretion, in taking out execution upon a judgment after a compromise, where the execution was set aside as being contrary to good faith and vexatious (g). Unauthorised compromise. Fray v. Voules. Advice of counsel. Loss of deed. If a solicitor compromises an action contrary to the direct orders of his client he will be liable in damages, although the compromise was reasonable and in accordance with the advice of counsel. So it was held on demurrer in Fray v. Voules (h), and a later case in which, by compromise after judgment recovered, an attorney accepted 100l. instead of 300l. as found by a jury, in anticipation of the insolvency of the defendant and a new trial for excessive damages, is to the same effect (i). And the mere fact of the solicitor having acted as complained. of, according to the advice of counsel, will not in all cases relieve him from responsibility; the rule being, that his liability must depend upon the nature and description of the mistake or want of skill with which he is charged; and that he cannot shift from himself such responsibility, by consulting another where the law would presume him to have the knowledge himself (k). A solicitor, however, is not answerable for his absence of counsel at a trial (1). If a solicitor lose a deed which is entrusted to him, this will be primâ facie evidence of negligence (m). (d) Hawkins v. Harwood (1849), 4 Exch. 503. (e) Ireson v. Pearman (1825), 3 B. & C. 799. (f) Wilson v. Tucker (1822), 3 Stark. 154. (g) Shaw v. Arden (1832), 9 Bing. 287. (h) Fray v. Voules (1859), 28 L. J., Q. B. 232. (i) Butler v. Knight (1867), L. R., 2 Ex. 109. As to compromise by counsel, see ante, sect. 2. (k) Per Cur. after C. A. V. in Godefroy v. Dalton (1830), 6 Bing. 460, p. 513, supra. (1) Lowry v. Guilford (1832), 5 C. & P. 234. (m) Reeve v. Palmer (1858), 5 C. B., N. S. 84. If he be guilty of a breach of professional confidence, he will be liable for any damage thereby occasioned to his client (n), as was held in Taylor v. Blacklow, in which a solicitor retained specially to raise money on mortgage disclosed a defect in his client's title to his client's brother, for whom he acted generally (0). And where a solicitor is called upon by his client to deliver up papers of which he, the solicitor, has charge, he is bound to deliver them in reasonably fit order and condition for use; and is liable to an action by the client if he neglect to do so (p). Nor is it necessary for the plaintiff, in order to maintain an action against a solicitor for negligence, to prove that he has sustained special damage by reason of such negligence (q). And where an attorney was instructed by his client to defend him against an action for negligent driving, and the attorney suffered judgment to go by default, it was held that it was not necessary for the plaintiff, in order to maintain his action against the attorney for negligence, to prove that he had a defence to the action against him; but that it was for the attorney to prove, if he could, that there was no defence thereto (1). CH. XIX. s. 9. Contracts of Employment (Solicitors). Breach of confidence. Blacklow. Taylor v. Delivery up of papers. Special damage need not be proved And on taxation of the costs of an action, the Court or taxing- Costs. master may disallow and order to be paid by the solicitor any costs occasioned by the delay or misconduct of the solicitor (s); but if the negligence goes to the length of occasioning the loss of the whole action, the client should be left to bring an action of negligence against the solicitor (t). Where a solicitor receives his client's money for investment he Investments. is sometimes liable as a trustee, but not if the client actually approve the security (u). And although there is, in general, no privity between a town agent and the client of a solicitor in the country, so that the client cannot sue the agent for negligence (x); still the solicitor is liable for the mistakes or negligence of his agent, and may be sued by the client for any damage sustained in consequence thereof (y). (n) Taylor v. Blacklow (1836), 3 Scott, 614; and see Doe d. Peter v. Watkins (1837), 3 B. N. C. 421. (0) Taylor v. Blacklow, supra. (p) North-Western Rail. Co. v. Sharp (1854), 10 Exch. 451. (2) Per Tindal, C.J., and Park and Gaselee, JJ., Godefroy v. Jay (1831), 7 Bing. 413. (r) Godefroy v. Jay (1831), 7 Bing. 413. (s) R. S. C., 1883, Ord. LXV., r. 11. (t) In re Massey and Carey (1883), 26 Ch. D. 459, C. A. (u) Cordery on Solicitors, pp. 118, 125; and see Dooby v. Watson (1888), 39 Ch. D. 178; Hughes v. Twisden (1886), 55 L. J., Ch. 481; and for the criminal law, see Larceny Act, 1901, 1 Edw. 7, c. 10, and notes thereto, in Chitty's Statutes, vol. xiv., tit. "Criminal Law," at p. 195. (x) Robbins v. Fennell (1847), 11 Q. B. 248; Cobb v. Becke (1845), 6 Q. B. 930. (y) Collins v. Griffin (1734), Barnes, 37. Liable for negligence of town agent. CH. XIX. s. 9. Contracts of Employment (e) Discontinuance of Conduct of Client's Business. The contract of a solicitor who accepts a retainer in a common (Solicitors). law action is, in the absence of agreement to the contrary, an When a discontinue to Underwood v. Lewis. Good cause for discontinuance. Incapacity or death. entire contract to conduct the case of the client until the action is finished. He is not entitled, therefore, without good cause, or giving reasonable notice to his client, to decline to act further in the action for him, and thereupon sue for his costs in respect of the previous conduct of his client's case. So it was laid down by the Court of Appeal in Underwood, Son, and Piper v. Lewis (z), after careful consideration of all the authorities, and recognising the authority of In re Hall and Barker (a), in which Jessel, M.R., held that it would be unjust to apply the rule undoubtedly applicable to common law actions in the case of Chancery suits, where the proceedings may be very long and of a complicated character. Amongst good causes for discontinuance may be mentioned the refusal of the client to provide necessary funds for disbursements (b); and his insistence on a step being taken which the solicitor knows to be dishonourable (c). Whether personal incapacity by illness would entitle the solicitor to sue for part costs, or whether even his death would entitle his representatives to sue, is doubtful (d). Banker is a mere debtor, bound to pay cheque. SECT. 10.-Bankers (e). The relation of a banker to his customer has been held by the House of Lords in Foley v. Hill to be merely that of debtor to creditor, with the superadded obligation to repay the debt in such Foley v. Hill. parts as it is called for by the cheques of the customer, and the banker is neither agent of nor trustee for the customer (ƒ). After 6 years money belongs to banker. The Limitation Act, 1623, 21 Jac. 1, c. 16, applies to a debt of banker to customer as well as to other debts, so that if an account Pott v. Clegg. remain for six years without any payment of the principal or allowance of interest by the banker, that Statute of Limitations is a bar to the recovery of money due on the account, and such money becomes the absolute property of the banker at the end of six (z) Underwood, Son, and Piper v. Lewis, [1894] 2 Q. B. 306, C. A. (a) Hall and Barker, In re (1877), 9 Ch. D. 538. (b) Van Sandau v. Browne (1832), 9 Bing. 402; Underwood's case, supra. (c) Per A. L. Smith, L.J., in Underwood's case, supra. (d) See per Lord Esher, M.R., and Davey, L.J., in Underwood's case, supra. As to change of solicitor pending action on notice, see R. S. C., Ord. VII., CH. XIX. s. 10. Contracts of Employment (Bankers). cheques. years. This was held by the Court of Exchequer in Pott v. Clegg (g), and by the House of Lords in Foley v. Hill (h). A cheque being a "bill of exchange payable on demand," an action clearly lies against a banker by his customer for not paying it when presented, and if the customer's credit has been injured, Honouring he may recover heavy damages (i). But a cheque is not an assignment to the payee of the customer's balance, either in equity (k) or by operation of sect. 25 (6) (see Ch. XXVI., sect. 1, post) of the Judicature Act, 1873 (); so that if the customer having a balance of 991. give a cheque for only 100l., the banker is legally justified in refusing payment (m). customer's account. Liability for loss of deposits for safe custody. There is some obligation of a banker not to disclose his cus- Disclosing tomer's account, but the extent of it is doubtful (see p. 483, ante). Plate and other valuables are frequently deposited with bankers by their customers for safe custody; and so are title deeds, certificates of shares, and bonds payable to bearer with coupons attached, which the bankers cut off as they become due, and having obtained their value from those who issued them, credit their customers respectively with the amounts so obtained. It is stated in Addison on Contracts that where no charge is made for keeping such things by the bankers, they are gratuitous deposits, so that the bankers are not bound to take even ordinary care of them, and that if the deposits are stolen by a servant of the bank, the bankers are not responsible unless they have knowingly hired or kept a dishonest servant (n). But if the banker charge commission, he is a bailee for reward, and so liable for negligence (o). A banker has a general lien on all securities deposited in his hands by his customers if he can show that they came into his (g) Pott v. Clegg (1849), 16 M. & W. 321, Pollock, C.B., dub. (h) Foley v. Hill, supra, p. 516. It is believed to be the practice of bankers (1) not to inquire for claimants to the funds which thus become legally their own, but (2) not to insist on their legal rights under the Statute of Limitations as against claimants making good their claims. (i) Hopkinson v. Forster (1874), L. R., 19 Eq.741, per Jessel, M.R. See, however, Morris v. London and Westminster Bank (1885), C. & E. 498. (k) Hopkinson v. Forster, supra. (1) Schröder v. Central Bank of London (1876), 24 W. R. 710. (m) This is not so in Scotland; Watson on Cheques, 3rd ed., at p. 15. (n) Addison on Contracts, 10th ed., p. 780, citing Giblin v. McMullen (1868), 2 P. C. 317. The statement in Addison, which first appeared in the 5th ed., by Cave, afterwards Mr. Justice Cave, was adopted as an authority by the Victorian (0) United Service Co., In re; John- For further discussion of the subject, see Wyatt Paine on Bailments, pp. 19-34. Lien. Brandao v. Barnett. CH. XIX. s. 10. possession as a banker in order to perform some office which it is his duty as a banker to perform; but the lien does not attach to Contracts of Employment plate and the like entrusted to him for safe custody, or to Exchequer (Bankers). bills to receive interest on them and exchange them for new bills when due, for such offices though customarily performed by bankers are no part of his duty as a banker (p). Re-delivery of plate, &c. Limitation of action in Wilkinson v. Operation of Bills of Exchange Act. It has not yet been decided, so far as the Editor is aware, after what lapse of time, if any, plate, bonds and other deposits become the banker's own property, that is, what Statute of Limitations. applies. The question is a very serious one, as by death of customers abroad and other reasons, much unclaimed property must necessarily be in the hands of bankers, which to retain is irksome, and to get rid of might be dangerous. It is submitted on the whole that the rule of Wilkinson v. Verity (q) applies, that the right of the customer or of his executor is to sue in detinue for any deposit not returned on demand, and that the Limitation Act, 1623, 21 Jac. 1, c. 16, which fixes six years as the period for suing in detinue, runs against the customer or his representatives six years after demand of the deposit, and refusal to return it, and not six years after any sale, &c., by the banker, and that sect. 8 of the Trustee Act, 1888, 51 & 52 Vict. c. 59, does not apply. The 73rd section of the Bills of Exchange Act, 1882, 45 & 46 Vict. c. 61 (see Ch. XVI., p. 443, ante), defines a cheque as "a bill of exchange drawn on a banker payable on demand," and applies to a cheque "except as otherwise provided" in Part III. of that Act, the provision of that Act applicable to such bill; but the 97th section of the Act continues as to cheques (as well as to bills and notes) the rules of bankruptcy "notwithstanding Operation of anything in the Act contained," and the rules of common law, including the law merchant" save in so far as they are inconsistent with the express provisions of the Act." common law rules. Bound to possess and exercise rea SECT. 11.-Surveyors. A surveyor is bound to use due care, and to exercise a reasonable degree of skill, in executing the business entrusted to him. sonable skill. Thus, if he be employed to make an estimate of expense he must ascertain for himself the necessary facts. And, if relying on information given him by others, he makes an estimate which is (P) Walker on Banking, pp. 137, 139, citing Brandao v. Barnett (1847), 12 Cl. & F. 809. (q) Wilkinson v. Verity (1871), L. R., 6 C. P. 206. |