Hill v. Featherstonhaugh (7 Bing. 569). The client is entitled to expect from his solicitor the same degree of skill, diligence and caution which is expected from engineers, medical men and other professional persons. And where a solicitor brings a claim like the present, it lies with him to shew affirmatively that he has done all that he ought to have done, and not with the client to shew negatively that the solicitor has not done his duty: per Lord Tenterden, C.J., in Allison v. Rayner (7 B. & C. 441). This the Defendant has not shewn; on the contrary, it is clear that he has committed an error in a part of the conduct of the cause which, in the words of Tindal, C.J., is "ordinarily allotted to his department of the profession." In Purves v. Landell it is admitted that misconduct would render a solicitor liable, and we have misconduct here. [242] As to his defence, that he was supported by the opinion of his counsel— (THE VICE-CHANCELLOR. I do not think the counsel's opinion touches it at all.] So far from it, that opinion makes against him. He disregarded the opinion of his counsel, who dissuaded him from even cross-examination. Neither is he protected by the passage cited from Mr. Headlam. Had he meant to rely upon that passage he ought to have obtained an order to examine the Defendants, as Mr. Headlam states at page 853, citing Legh v. Williams. Besides, he ought not to have filed a replication. He has committed a series of blunders. The interpretation of the statute has been decided in this very case of The Attorney-General v. Dew. [THE VICE-CHANCELLOR. The report does not state that the statute was cited.] But it must have been considered. [THE VICE-CHANCELLOR. Had he intended to rely upon the statute, could his conduct have been called crassa negligentia ?] I submit that it could; but the fact is that he never intended to rely upon Mr. Headlam's view of the statute. [THE VICE-CHANCELLOR. Do the authorities decide the question of the amount to be disallowed; for instance, where there have been disbursements in the cause? Suppose, before the error occurred, the relators had been ordered to pay certain costs, incurred properly, and not in consequence of any error on the part of the solicitor, and the solicitor had paid those costs, would that payment be disallowed?] All is to be disallowed-not the last brick which breaks the wall. The contract between solicitor and client is one entire contract, as is shewn by the rule as to the operation of the Statute of Limitations upon a solicitor's bill, where upon this principle time runs from the date of the last item. [243] Mr. James, Q.C., in reply, relied upon Lord Campbell's statement of the law in Purves v. Landell, as establishing that all a client has a right to expect from his solicitor is that he will be honest and diligent. Then in this case the Court would not construe too strictly against Mr. Pugh what he said in his affidavit about having intended to cross-examine. All he said was that he relied on the agreement as a sufficient authority to enable the commissioners to put questions "by way of cross-examination." And that is the light in which the examination of an adverse witness is viewed in all cases, whether it be obtained by interrogatories in chief, or cross-interrogatories. At all events, the objection ought not to be extended to the whole bill; it would be extremely hard to confiscate moneys paid by Pugh to other persons on behalf of his client. Judgment reserved. May 25. VICE-CHANCELLOR Sir W. PAGE WOOD. I fully concur in what was urged in support of the present claim to this extent, that if the case were simply one in which Defendants had been called as witnesses on the part of the relators, and in which it had proved on that account impossible to obtain a decree, it would not have been a case of crassa negligentia. Looking to the stat. 6 & 7 Vict. c. 85, and to the opinions which have been expressed on that statute (although I do not intimate the slightest doubt in my own mind as to the interpretation to be put upon the statute, and even if it had been relied upon in the argument before Vice-Chancellor Knight Bruce, I think [244] the great probability is that his decision would not have been different from what it was), and looking to the doubt expressed by Lord Truro, besides what might have been urged on the authority of Elkington v. Holland and Purves v. Landell, it would have been impossible in such a case as I have supposed to hold that there had been on the part of the solicitor such crassa negligentia as would disentitle him to sue. But the foundation of the argument in the case supposed is that the solicitor acted bona fide, and used ordinary diligence and ordinary skill, and that so acting and using such diligence and skill he was misled, and misled simply on a doubtful point of law, into taking a step which ultimately proved ruinous to his clients. Now this case is wholly different from the case supposed; Mr. Pugh has not been misled by anything of the kind. It is impossible, consistently with the facts in evidence, to hold that he had in the least considered the point of law with a view to examining the Defendants, Gowland and Lee-Warner, as witnesses on the part of the relators. He had taken Mr. Wray's opinion whether they could be examined as witnesses on the part of their Codefendant, Dew, and Mr. Wray had given his opinion that they could. Having taken that opinion, Mr. Pugh was attending where the witnesses were to be examined, and one of the relators suggested that it was desirable for him to examine the Defendants, Gowland and Lee-Warner, in order to elicit the truth. I am putting it most favourably now for Mr. Pugh. I will suppose that the relators said to him, "It is desirable to examine these witnesses, for we have had a conversation with them, and they are able to state some very important matters in our favour." It is immaterial whether his clients said "examine or cross-examine," because the client is not supposed to know anything of such technicalities; but the solicitor was, no doubt, well aware of the right course. [245] Having favourable witnesses produced by the other side, the right course was to cross-examine them, and that was the course he intended to take. It was argued that cross-examination would have been open to the difficulty that, if the examination in chief was not read, then the benefit of the supposed favourable evidence might be lost to the relators, because, the examination in chief not being read the cross-examination could not be read either. That is true, and I should be quite willing to accede to the argument if it were consistent with the facts before me; but the fact is that Mr. Pugh did think fit to cross-examine, he thought it best to do so, and throughout his affidavit he says fairly enough that such was his object. [His Honour read the affidavit to shew this.] It is true that at the close of his affidavit he says, "I also considered that their evidence was material on behalf of the informant, as the prayer of the information against them was for their dismissal from the trusteeship of the charity; and I considered myself justified in the course I pursued from having perused the statute 6 & 7 Vict. c. 85, and Daniell's Chancery Practice by Headlam, and also from having received the opinion of our counsel, Mr. Wray." But it cannot be argued from that passage that he considered he was justified in examining in chief, because the whole of the affidavit shews that he intended to cross-examine, and to cross-examine only. The opinion that Mr. Wray gave cannot justify the solicitor in the course he took, for Mr. Wray, whether correctly or not, advised him not to cross-examine, because crossexamination would give weight to the examination of the witnesses in chief on the part of their Co-defendant, Dew, and possibly preclude the relators from objecting to their testimony on the ground of their being interested witnesses. It is impossible for Mr. Pugh to rely on that opin-[246]-ion as justifying either his examination of the witnesses in chief, or his intention to cross-examine them. And by this blunder, which really seems to be a blunder of the most gross description, instead of putting crossinterrogatories, interrogatories in chief are exhibited, and the witnesses are made witnesses in chief, instead of being examined on cross-interrogatories. It was argued that the view I take is an adherence to the letter, and not to the substance. It seems to me to be the substance itself. The solicitor has taken a course which has led to the whole difficulty. He cannot say, It was a moot point whether by examining in chief I should or should not prevent a decree being taken against the Defendants, and, it being a moot point, I ought not to be liable." Had he crossexamined, that moot point never would have arisen; there would never have been any question of a doubtful character at all; he would have had a plain straightforward case; would have got all the benefit of the examination, and no question of this kind would have arisen. He by his negligence has caused it to arise. He by his negligence has brought his clients up to a doubtful point of law which never need have arisen, and that doubtful point has proved fatal to their cause. The fact of a solicitor by his negligence placing his client in a difficulty of this description is that which the Court is bound to call crassa negligentia the circumstance of his putting an examination in chief instead of a cross-examination is crassa negligentia. The terms used by Parke, B., in Elkington v. Holland (9 M. & W. 661) are these: "The solicitor has not infringed any plain rule of law or point of practice." Here the solicitor has infringed a plain point of practice, in putting in interrogatories in chief instead of cross-[247]-interrogatories. In Purves v. Landell (12 Cl. & F. 107) Lord Lyndhurst, C., admits that where an attorney has shewn a "want of reasonable skill," he is liable in an action for negligence; and in this very case of The AttorneyGeneral v. Dew, as reported by De Gex & Smale, the learned Judge says, "I cannot but attribute to error and want of knowledge, and to no design or intention of abandoning the case against Mr. Gowland or Mr. Lee-Warner, that they were examined, as they were, in chief in support of the information, in support of which they might have been, as Mr. Dew's witnesses, cross-examined." (3 De G. & S. 495, 496.) The case is the same as if it had happened at law, where there can be no doubt the solicitor would have been responsible. That is the effect here: and although one may greatly regret it as regards the position of the solicitor, still it is a case of hardship on both sides; and where the hardship must fall one way or the other the question is whether it ought not to fall on the party who has been guilty of negligence. With regard to the remaining question, whether the whole, or only a part, of the bill is to be disallowed, I have examined the authorities, and I find they establish that where, as here, a solicitor has been retained for and has undertaken a particular business, his bill of costs for carrying that business through to its conclusion is but one bill; and where, as here, the business in question is the prosecution of a suit, and the solicitor has by his crassa negligentia in the conduct of that suit caused the suit to be lost, he cannot recover any portion of his bill. I refer to the class of authorities of which one of the latest is Whitehead v. Lord (7 Exch. 691), and which decide that a solicitor cannot bring his action for a bill of costs until the whole of the business is [248] done, except in a case where there has been a stipulation that, until the client furnishes him with money, he cannot go on with his case. A solicitor has but one retainer-it is all one work and one business that he undertakes to carry through; and here it is in relation to that one business that Mr. Pugh has failed. Mr. James. There have been disbursements. THE VICE-CHANCELLOR. If there are any particular items they had better be stated in Chambers. I am afraid you will find that the principle will apply to all. Mr. Rolt. The disbursements in the suit will follow the decision. July 2. By the certificate of the Chief Clerk the whole of the claim, with the exception of a sum of £5, 17s. 6d., was disallowed. July 24. Mr. Pugh appealed, but the question was not reargued. Upon the matter being opened before the Lords Justices, the claim, by the consent of the Respondent, was settled at £375. [249] In re THE STAT. 10TH & 11TH VICT. C. 96. And In re CAZNEAU'S LEGACY UNDER HOUSMAN'S WILL. Jan. 26, 1856. Practice. 10 & 11 Vict. c. 96. 4th Order of 10th June 1848. Trustee. Petition. Costs. Where trustees, having paid money into Court under the Trustee Relief Act (10 & 11 Vict. c. 96), afterwards apply by petition under the 4th Order of the 10th of June 1848 for a distribution of the fund, the Court has jurisdiction to make an order upon the petition, and is bound to exercise that jurisdiction. But where such a petition was presented by trustees without consent of the parties claiming beneficial interests in the fund, and no cause was shewn by the trustees for taking upon themselves to be the movers in the matter, the Court, to discourage such applications, allowed them only Respondents' costs. On the 14th of December 1855 Spry and Tull, executors of the will of Catherine Housman, who died in February 1855, paid into Court under the Trustee Relief Act (10 & 11 Vict. c. 96), £1693, 14s. 9d. consols, and £25, 14s. 4d. cash, bequeathed by the testatrix to Cazneau. On the 7th of January 1856 Spry and Tull applied by petition under the 4th Order of the 10th of June 1848 for a distribution of the fund. On the 14th of January 1856 a petition for the distribution of the same fund was presented by Lister and Morgan, the official assignees, under a fiat in bankruptcy, awarded and issued against Cazneau in 1837. The fund was also claimed by mortgagees under an indenture of assignment executed by Cazneau in November 1855. Mr. Daniel, Q.C., for the executors. Mr. Rolt, Q.C., and Mr. Eddis, for Lister and Morgan, asked to have the petition of the executors dismissed, with costs. It We contend, in the first place, that trustees are not entitled to present a petition for the distribution of a fund [250] which they have themselves paid into Court. is an abuse of the Act. The object of the Act was the relief of trustees. That object is attained when the trustees pay the trust fund into Court. By the fact of payment their liability ceases. It is no part of their business to see to the distribution of the fund. If trustees are entitled to petition for the distribution of a fund, they may do so the instant after they have paid it into Court. [THE VICE-CHANCELLOR. In re Cooper's Trust, I made an order upon a petition presented by trustees for the distribution of a fund which had been paid into Court under the Act, and the Lords Justices affirmed my order. It is true that in that case all the parties interested were desirous that the petition should be so presented: but if your contention upon the first point is right, that order was wrong; for your argument would prove that the Court has no jurisdiction to adjudicate upon a petition so presented.] But admitting that in a proper case, and where all the parties interested desire it, the Court has jurisdiction to adjudicate upon a petition thus presented, we contend, secondly, that this is not a proper case for the exercise of that jurisdiction; and that in this case the petition of the executors should be dismissed, with costs. Here there has been nothing to justify such an application. There was no delay on the part of those entitled to the fund, whose claims were of an intricate nature, requiring time to prepare them for the hearing. For this not a month is allowed them by the executors, whose object has been simply to run a race with their cestuis que trustent, to see which could first present a petition. [THE VICE-CHANCELLOR. If they were wrong in thus presenting a petition, was it the right way, to remedy that impropriety, for you to file a counter petition ?] Their petition was answered on the 7th of January-ours on the 14th; and on the 11th we informed them that we had instructed counsel to prepare a petition. Mr. Cairns, for the mortgagees. [251] THE VICE-CHANCELLOR. I am clearly of opinion that I have jurisdiction to make an order upon a petition thus presented, and I am bound to exercise that jurisdiction. But, as to costs, it is a very different matter; and upon this I must hear a reply. Mr. Daniel, Q.C., in reply. If the trustees were entitled to present a petition, if the Court can adjudicate upon the petition they have presented, and if they have not involved the other parties in any greater expense than they would otherwise have incurred, why are they not to have their costs? Here the petition was contained in three brief sheets, and was served only upon the parties interested. The conduct of Lister and Morgan in presenting a counter petition, after they had notice of the petition of the trustees, is utterly indefensible. VICE-CHANCELLOR Sir W. PAGE WOOD. It is quite clear to me that I have jurisdiction to adjudicate upon a petition thus presented by trustees for the distribution of a fund which they have paid into Conrt. It was at first doubted whether any relief could be given to Respondents on a petition presented by a party in a different interest, but such jurisdiction was first exercised by Lord Cottenham, C., in Gaffee's Trust (1 MN. & G. 541); and afterwards I took upon myself In re Cooper's Trust, where all the parties wished the petition to be so presented, to make an order upon a petition presented by trustees for the distribution of a fund paid into Court; and my order was affirmed by the Lords Justices without any objection upon the point of jurisdiction. The main question is as to the propriety of the trustees' conduct in taking upon themselves to present such a peti-[252]-tion; and I believe this is the first instance in which that question has arisen-the first instance in which trustees have taken upon themselves, without the consent of the parties claiming to be beneficially interested in the fund, to present a petition for its distribution. What has been the conduct of these trustees? By the payment of the fund into Court they had secured to themselves all the indemnity to which they could possibly be entitled. Everything which they had the slightest interest in seeing done was done. They were indemnified in toto. What right had they, after that, to affect the fund in respect of costs to take upon themselves to be the movers in a matter in which other parties were very materially interested, but in which they had no interest whatever? If a trustee, having occasion to deal with another fund the distribution of which is dependent upon the manner in which the fund he has paid into Court may eventually be distributed, should find that fund allowed to remain undistributed, and the whole question allowed to be hung up indefinitely, it would be a different matter. But, in such a case, what is the duty of the trustee? Clearly not at this short notice to apply for its distribution; but to communicate with the parties claiming to be beneficially interested, and ascertain from them whether they are not going to take some steps to bring the matter to a conclusion. It was impossible for these trustees to imagine that, where so large a sum as the present was at stake, no step would be taken by the claimants. I hope it will be a sufficient discouragement to such conduct as the present on the part of trustees if I give them in this matter only such costs as they would have had if served with a proper petition. [The Court eventually made one order upon both petitions, and gave the executors Respondents' costs on both.] [253] In re THE JOINT STOCK COMPANIES WINDING-UP ACTS, 1848 AND 1849; and THE GREAT CAMBRIAN MINING AND QUARRYING COMPANY. HAWKINS' CASE. Jan. 18, 1856. [S. C. 25 L. J. Ch. 221; 2 Jur. (N. S.) 85; 4 W. R. 224.] Joint Stock Companies Winding-Up Acts, 1848, 1849. Contributory. Notice. A mining company by its prospectus and certificates professed to be a company in 2dly. That although W. H. had not signed the rules, still, having applied and paid for and accepted the certificates of shares, he had authorised the company to register his name in the cost-book without his signing the rules; the contract was complete, and he was a "contributory." Rules peculiar to the cost-book system must be proved. |