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culpable negligence as to disentitle the plaintiff to recover for his work, although in consequence of the mistake the bill is withdrawn. Bulmer v. Gilman, 4 M. & Gr. 108; see also In re Sadd, 34 Beay. 650; 34 L. J., Ch. 562. It is a good defence that the plaintiff paid no attention to the defendant's case, but resided at a distance from the place where his business was carried on, and that in fact it was transacted there by another person employed by the plaintiff ; Taylor v. Glassbrook, 3 Stark. 75; Hopkinson v. Šmith, 1 Bing. 13; and this was ruled without reference to the success or miscarriage of the business done.
The plaintiff's negligence may now in any case be set up as a counterclaim pro tanto under Rules, 1883, 0. xix. r. 3, post, p. 671.
Want of certificate, admission, &c.] The defendant may put the plaintiff to prove, under a special defence, that the plaintiff had a certificate; vide ante, pp. 481, 482; or was duly admitted. Hill v. Sydney, 7 Ad. & E. 956. By the 23 & 24 Vict. c. 127, s. 22, the Law List, purporting to be published by the authority of the Commissioners of Inland Revenue, and to contain the names of solicitors who have obtained stamped certificates for the current year (from 16th November or any later day to 15th November in the next year), on or before the 1st of January in the same year, shall, until the contrary be made to appear, be evidence in all courts, &c., that the persons named in it as such solicitors are so certificated; and the absence of the name of any person from the List shall be primâ facie evidence that he is not so qualified to practise as a solicitor under a certificate for the current year; but in the latter case an extract from the Roll of Attorneys under the hand of the registrar for the time being (or of the secretary of the Law Society, while that society acts as registrar) shall be evidence of the facts appearing in the extract. See J. Act, 1875, s. 14.
Agency business.). Where one solicitor does business for another, the solicitor who does the business universally gives credit to the solicitor who employs him, and not to the client for whose benefit it is done. If the solicitor in such case intends not to be personally responsible, it is his duty to give express notice that the business is to be done on the credit of the client. Per cur., Scrace v. Whittington, 2 B. & C. 13. But such notice, though it may protect the solicitor from liability, will not necessarily make the client liable. See Robbins v. Fennell, 11 Q. B. 248, 256; Robbins v. Heath, Id. 257, n.; and Peatfield v. Barlow, L. R., 8 Eq. 61. The usual agency terms are that the agent should be repaid his disbursements, and receive half the profit charges, i.e., charges involving no expenditure, whether they are paid by the client or not; he is not entitled to interest for delay in payment. Ward v. Lawson, 43 Ch. D. 353, C. A.
Statute of Limitations.] The contract to conduct a suit is entire and can only be determined on reasonable notice that the solicitor will not proceed without payment or advances from the client; and where the suit ended within six years the Statute of Limitations will not bar the demand for any part of the business; Harris v. Osbourn, 2 Cr. & M. 629; Martindale v. Falkner, 2 C. B. 706; Harris v. Quine, L. R., 4 Q. B. 653; for the solicitor cannot in general sue for his costs until the suit is ended or his client dead, and the statute does not run till the happening of one of those events. Whitehead v. Lord, 7 Exch. 691 ; 21 L. J., Ex. 239. See, however, In re Hall and Barker, 9 Ch. D. 538. The principle does not extend to miscellaneous work done by a solicitor. Beck v. Pierce, 23 Q. B. D. 316, C. A.
ACTION AGAINST SOLICITOR FOR NEGLIGENCE.
What amounts to actionable negligence.] An error of judgment on a point of law, open to reasonable doubt, is not sufficient; Kemp v. Burt, 4 B. & Ad. 424 ; there must be gross ignorance or gross negligence in the performance of his professional duties. Purves v. Landell, 12 Cl. & F. 91. The solicitor is bound to bring a fair amount of skill, care and knowledge to the performance of his duty, and this will be a question of fact for the jury under the direction of the judge, who will explain the nature of the duty, and the degree of negligence which makes him responsible. Hunter V. Caldwell, 10 Q. B. 69, 83, Ex. Ch.
The omission to take the proper steps for renewing a writ, issued to save the Statute of Limitations, was held to be actionable negligence. S. C. Where a mortgage was prepared under the defendant's advice, and the solvency of the mortgagor was questionable to the knowledge of the attorney, was held his duty to search at the Insolvent Debtors' Court; and if the language of the defendant show that he considered his search expedient, this is evidence of his suspicions; Cooper v. Stephenson, 21 L. J., Q. B. 292; but the court declined to say whether or not searches of this kind are necessarily, and in all cases, essential. Ibid. See also Langdon v. Godfrey, 4 F. & F. 445. It may not be part of the duty of a solicitor to know the legal operation of conveyances, but it is his duty to take care not to draw wrong conclusions from deeds before him, but to lay them before counsel, or draw the conclusions at his own peril; and therefore where a solicitor acted on the advice of counsel to whom he had mis-stated the legal effects of certain deeds which did not accompany the case, this was held evidence for the jury of negligence for which he was responsible. Ireson v. Pearman, 3°B. & C. 799. As to a solicitor's liability for investing his client's money by way of mortgage on an insufficient security, see Dooby v. Watson, 39 Ch. D. 178.
A solicitor instructed to take or to defend legal proceedings is liable for failure by reason of his own culpable neglect; as where he was retained to proceed on a statute against an apprentice, and he proceeded under a wrong section of the statute as against a servant; Hart v. Frame, 6 Cl. & F. 193; or where the solicitor and his witnesses were absent when a cause was called on; and the counsel had a brief and was present, and was obliged to withdraw the record; Hawkins v. Harwood, 4 Exch. 503; or where he sued in an inferior court, which, as he ought to have known, had no jurisdiction in the matter, and was restrained by prohibition. See Robinson v. Emanuel, L. R., 9 C. P. 415, 416.
There are numerous other cases on this subject, and they establish, in general, that a solicitor is liable for the consequence of ignorance or nonobservance of the rules of practice of the court in which he sues; for the want of care in the preparation 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 allotted to solicitors. But 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 counsel. His liability must, however, depend upon the nature and description of the mistake or want of skill which has been shown, and he cannot shift from himself such responsibility by consulting counsel where the law would presume him to have the knowledge himself. Godefroy v. Dalton, 6 Bing. 467-9, per cur.
See Lee v.
Walker, L. R., 7 C. P. 121. A solicitor will be liable to an action, at least for nominal damages, for
compromising an action against the express directions of his client, though the compromise be really for the benefit of the client; Butler v. Knight, L. R., 2 Ex. 109; and, under such circumstances, it is no defence that the solicitor acted under the advice of counsel retained to conduct the cause. Fray v. Voules, 1 E. & E. 839; 28 L. J., Q. B. 232. A solicitor retained in an action has no implied authority after judgment in favour of his client, to agree on his behalf to postpone execution. Lovegrove v. White, L. R., 6 C. P. 440. As to the implied authority of a solicitor to compromise an action, vide ante, pp. 277, 278.
Where the money of a client comes into the hands of a partner in a firm of solicitors in the ordinary course of their business as solicitors, the firm are liable to make good any loss occasioned by the partner's defalcation. St. Aubyn v. Smart, L. R., 5 Eq. 183; L. R., 3 Ch. 646; Dundonald, El. of v. Musterman, L. R., 7 Eq. 504. So in the case of negotiable bonds of the client. Cleather v. Twisden, 24 Ch. D. 731 ; affirm. as to law, but reversed on facts in C. A., 28 Ch. D. 340. A sum of money received to be invested on a specific mortgage falls within this rule; Harman v. Johnson, 2 E. & B. 61 ; 22 L. J., Q. B. 297; but, not a sum left to be invested on mortgage generally, for this is the business of a scrivener, and does not fall within the province of a solicitor merely as such. S. C.; Plumer v. Gregory, L. R., 18 Eq. 621. Nor are the firm liable for money received by a partner quâ trustee; Dundonald, El.of v. Masterman, supra; or otherwise than in a professional capacity. Cleather v. Twisden, C. A., supra,
A solicitor when making a special agreement under the Attorneys and Solicitors Act, 1870 (ante, p. 484), with reference to his fees, cannot stipulate that he shall not be liable for negligence, as such condition is by sect. 7 wholly void.
Damages.] This action is maintainable, though the damages be only nominal; Godefroy v. Jay, 7 Bing. 413, adopting the rule in Marzetti v. Williams, 1 B. & Ad. 415; Fray v. Voules, supra; and where the plaintiff shows that the solicitor has been guilty of negligence, as by letting judgment go by default in an action which he was retained to defend for the plaintiff, it is for the defendant (the solicitor) to show that the plaintiff had no defence in that action, and not for the plaintiff to begin by showing he had a good defence, and so had been damaged by the judgment by default. Godefroy v. Jay, supra. See also Whiteman v. Hawkins, 4 C. P. D. 13. As to damages where the solicitor has compromised the action contrary to his client's instructions, Butler v. Knight, supra; and where he has improperly sold his client's land under a power of sale, Cockburn v. Edwards, 16 Ch. D. 393.
Defence. Statute of Limitations.] As the action can be maintained without showing special damage (supra), it follows that the Statute of Limitations runs from the breach of duty complained of; Howell v. Young, 5 B. & C. 259; and not from the first discovery of the default ; S. O., Short v. M*Carthy, 3 B. & A. 626; nor, from the occurrence of the consequential damage; S. CC.; Smith v. For, 6 Hare, 386; nor is the remedy kept alive by the defendant's admission of his responsibility within six years. Short v. M.Carthy, supra. Under the Trustee Act, 1888 (51 & 52 Vict. c. 59), s. 8 (1), vide post, p. 647, the defence now extends to cases where the solicitor was a trustee, “except where the claim is founded upon any fraud or fraudulent breach of trust to which the trustee was party or privy, or is to recover trust property, or the proceeds thereof still retained by the trustee, or previously received by the trustee and converted to his use."
ACTION BY SURGEONS OR OTHER MEDICAL PRACTITIONERS.
The following are the statutes which relate to the qualifications of medical practitioners, and their capacity to sue.
The Apothecaries Act (55 Geo. 3, c. 194), s. 20, prohibits any person from acting or practising as an apothecary without having obtained a certificate from the Court of Examiners of the Apothecaries' Company. See Davies v. Makuna, 29 Ch. D. 596, C. A. By sect. 21, no apothecary shall be allowed to recover any charges claimed by him in a court of law, unless he shall prove at the trial that he has obtained such certificate.
The Medical Act, 1858 (21 & 22 Vict. c. 90, amended by 22 Vict. c. 21, 23 Vict. c. 7, and 49 & 50 Vict. c. 48, s. 2), provides for the formation of a general “medical register” of all persons qualified to practise in medicine, surgery, and midwifery; and (sect. 31), a person so registered is entitled to practise medicine or surgery, or both according to his qualifications, in any part of the Queen's dominions, and to demand and recover in any court of law, with “ full costs of suit,” reasonable charges for professional aid, advice, and visits, and the cost of any medicines or other medical or surgical appliances rendered or supplied to patients. By sect. 32, “no person shall be entitled to recover any charge in any court of law for any medical or surgical advice, attendance, or for the performance of any operation, or for
any medicine which he shall have both prescribed and supplied, unless he shall prove upon the trial that he is registered under this Act."
By sect. 27, the registrar of the general council, formed under the Act, shali yearly cause to be printed and published, under the direction of the council, a register of the names and residences of all persons entitled to be registered under it and appearing in it on the 1st January in each year, with their medical titles, diplomas, and qualifications, &c.; and a copy of this medical register” for the time being purporting to be so printed and published shall be evidence in all courts, and before all justices and others, that the persons therein specified are registered according to the Act; and the absence of the name of any person from such a copy shall be evidence, until the contrary appear, that he is not registered. Provided that in the case of a name not in the copy of the register, a certified copy under the hand of the registrar of the general council, or of any branch council, of the entry of the name on the general or local register, shall be evidence of registration. As to the form of register, see Pedgrift v. Chevallier, 8 C. B., N. S. 240; 29 L. J., M. O. 225.
By sect. 55, the Act does not extend to prejudice or affect the lawful occupation, trade, or business of chemists and druggists, and dentists, so far as the same extend to selling, compounding, or dispensing medicines. But if a chemist prescribe he must show registration, as sect. 55 exempts chemists only so far as selling, compounding, and dispensing medicine. See Apothecaries' Co. v. Greenough, 1 Q. B. 799.
The Medical Act, 1886 (49 & 50 Vict. c. 48), s. 28, repeals sect. 31, supra, and by sect. 6, provides that a medical practitioner registered on
or after June 1st, 1887 (see sect. 24, infra), is entitled to practise medicine, surgery, and midwifery, and to recover in due course of law in respect of such practice any expenses, charges in respect of medicaments, or any fees to which he may be entitled. But, by sect. 24, the Act does not increase or diminish the privileges in respect of his practice, of any person registered before June 1st, 1887, and he is entitled to practise in pursuance of the qualification then possessed by him in medicine, surgery, or midwifery, or any of them, according as he was then entitled, but not further or otherwise.
The language of the Medical Act, 1858, s. 32, resembles that of the Apothecaries Act, 55 Geo. 3, c. 194, s. 21 (ante, p. 492), under which Act many of the following cases were decided. Proof of qualification is a condition precedent to recovery, but the want of qualification must now be specially pleaded. See Rules, 1883, 0. xix. rr. 15, 20, ante, pp. 301, 302. The provisions above as to proof of registration are probably only cumulative, and plaintiff may prove it by production of a “local register," or, ut semb., by an examined copy, or by a copy certified as in the case of public books under 14 & 15 Vict. c. 99, s. 14. See ante, pp. 97—101. The qualification of an apothecary may be proved by certificate under 14 & 15 Vict. c. 99, s. 8, ante, p. 101. The identity of the plaintiff and the person named in the register will be presumed. Simpson v. Dismore, 9 M. & W. 47. The register only shows registration down to the preceding January, but the plaintiff's continuance on the register will probably be presumed, in conformity with the ordinary presumption of things, remaining in statu quo; ante, p. 34. To entitle the plaintiff to recover for services and medicines supplied, he must have had the necessary qualification, and be registered in respect thereof, at the time the services were rendered and the medicines supplied. Leman v. Houseley, L. R., 10 Q. B. 66; dissenting from Turner v. Reynall, 14 C. B., N. S. 328; 32 L. J., C. P. 164; in which case the provisions of the Apothecaries Act, s. 21, ante, p. 492, seein to have been overlooked ; see per Blackburn, J., L. R., 10 Q. B. 69. The plaintiff, although duly qualified and registered, cannot recover for medical services rendered exclusively by his assistant who was neither qualified nor registered. Howarth v. Brearley, 19 Q. B. D. 303, dissenting from the judgments of Erle, C. J., and Byles, J., in Turner v. Reynall, supra.
Sect. 31 only enables persons registered to practise medicine or surgery "according to their qualifications,” hence, where the plaintiff's qualification is to practise surgery only, he cannot recover for attendance in a medical case, for he is not within the section, and is prohibited from recovering by the Apothecaries Act, s. 21 (ante, p. 492). _Allison v. Haydon, 4 Bing. 619; Leman v. Fletcher, L. R., 8 Q. B. 319. He might, however, recover for medicine administered as ancillary to a surgical case; vide S. CC. See also on this section, per Bramwell, B., Ellis v. Kelly, 6 H. & N. 226; better, 30 L. J., M. C. 35, 37. But a medical man registered on or after June 1st, 1887, may practise in either branch. See 49 & 50 Vict. c. 48, s. 6, ante, p. 492. Sect. 32 of 21 & 22 Vict. c. 90, is not confined in its operation to actions against the patients themselves, but extends to a case where a third person has guaranteed payment for medical attendance, &c., or is primarily liable for it, as supplied on his credit. So, a medical practitioner, engaged by another to attend his patients in his absence, cannot recover the price of his services without proof of registration, De la Rosa v. Prieto, 16 C. B., N. S. 578; 33 L. J., C. P. 262; but semble, that an unregistered assistant may recover his salary from a registered practitioner; per cur. S. C. The Act applies to medical attendance given on board a foreign man-of-war in an English