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whole action, the client should be left to bring an action of negli- Ch. XIX. s. 9.
Contracts of gence against the solicitor (r).
Employment Where a solicitor receives his client's money for investment he (Solicitors). is sometimes liable as a trustee, but not if the client actually Investmeuts. approve the security (8).
And although there is, in general, no privity between a town Liable for agent and the client of a solicitor in the country, so that the client negligence of
town agent. cannot sue the agent for negligence (t); 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 (u).
(e) Discontinuance of Conduct of Client's Business. The contract of a solicitor who accepts a retainer in a common When a law action is, in the absence of agreement to the contrary, an solicitor may entire contract to conduct the case of the client until the action is conduct the finished. He is not entitled, therefore, without good cause, or
his client. 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 & Piper v. Lewis (x), after Underwood v.
Lewis. careful consideration of all the authorities, and recognising the authority of In re Hall and Barker (y), 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 Good cause
for disconrefusal of the client to provide necessary funds for disburse
tinuance. ments (z); and his insistence on a step being taken which the solicitor knows to be dishonourable (a). Whether personal in- Incapacity or
death. capacity by illness would entitle the solicitor to sue for part costs, or whether even his death would entitle his representatives to sue, is doubtful (b).
(r) In re Massey and Carey (1883), 26 Ch. D. 459, C. A.
(8) Cordery on Solicitors, pp. 118, 125; and see whole law considered in Dooby v. Watson (1888), 39 Ch. D. 178; and see also Hughes v. Twisden (1886), 55 L. J., Ch. 481.
(y) Hall & Barker, In re (1877), 9 Ch. D. 538.
(z) Van Sandau v. Browne (1832), 9 Bing. 402; Underwood's case, supra.
(a) Per A. L. Smith, L. J., in Underwood's case, supra.
(6) See per Lord Esher, M. R., and Davey, L. J., in Underwood's case, supra.
(1) Robbins v. Fennell (1847), 11 Q. B. 248 ; Cobb v. Becke (1845), 6 Q. B. 930.
(u) Collins v. Griffin (1734), Barnes,
As to change of solicitor pending action on notice, see R. S. C., Ord. VII., r. 3, and notes thereon in the Annual Practice.
(2) Underwood, Son, d Piper v. Lewis, (1894) 2 Q. B. 306, C. A.
After six years
SECT. 10.-Bankers (c). Contracts of Employment The relation of a banker to his customer is that of a debtor to (Bankers).
his creditor, with the superadded obligation to repay the debt in Relationship such parts as it is called for by the cheques of the customer, and between banker and the banker is neither the agent of the customer, nor trustee for customer.
him (d); and the Limitation Act, 1633, 21 Jac. 1, c. 16, applies to
such a debt as well as to other debts, so that if an account remain for money uncalled for
six years without any payment of the principal or allowance of interest belongs to by the banker, that Statute of Limitations is a bar to the recovery banker.
of money due on the account, and such money becomes the absoPott v. Clegg.
lute property of the banker at the end of six years. This was held
in Pott v. Clegg (e). Liability of Plate and other valuables are frequently deposited with bankers banker for loss of deposits for by their customers for safe custody; and so are title deeds, certifisafe custody. cates 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 (f). But if any commission is charged by the banker, he
is a bailee for reward, and therefore liable for negligence (9). Lien.
A banker has a general lien on all securities deposited in his hands by his customers if he can show that the securities came into his possession in the course of his trade 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 plate and the like entrusted to him for safe custody or to exchequer bills to receive interest on them and exchange them for new bills when due, for such offices though Ca. XIX. s.10.
(c) See Grant on Banking, 4th ed. (g) United Service Co., In re; Jokn1882; Walker on Banking, ed. 1877 ; ston's claim (1870), L. R., 6 Ch. 212, disBeven on Negligence, 2nd ed. 1895, Book tinguishing Giblin v. McMullen, on the VII., Ch. III.; and as to cheques, see ground that there the customer alone had Bills of Exchange Act, 1882, 45 & 46 access to the box in which the documents Vict. c. 61, ante, Ch. XVI. s. 3.
were placed ; and see Giblin v. McMullen (d) See Foley v. Hill (1851), 2 H. L. 36. questioned in Beven on Negligence, 2nd (e) Pott v. Clegg (1849), 16 M. & W. ed., at p. 1563, and in the Law Times 321, Pollock, c. B., dub.; and see Foley for May 9th, 1896, in an article by Mr. v. Hill, supra, and p. 675, post.
G. H. Rathbone. It is submitted that (J) Addison on Contracts, 9th ed., if the banker's lien could attach, the p. 772, citing Foster v. Essex Bank (1837, banker would be liable for negligence, decided in 1822), 17 Massachusetts, 479, otherwise not, with the result that he and Giblin v. McMullen (1868), 2 P. C. would be liable for negligently losing 317. The statement in Addison (5th ed., certificates and coupon-bearing bonds, by Cave), was adopted as an authority by but not plate, or title deeds, or other the Victorian ourt, and is good law in deposits with which, as a banker, he has America.
nothing to do.
Contracts of customarily performed by bankers are no part of his duty as a
Employment banker (h).
(Bankers). It has not yet been decided, so far as the Editor is aware, after Re-delivery of what lapse of time, if any, plate, bonds and other deposits become plate, &c. 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 (i) 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, 1633, 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 s. 8 of the Trustee Act, 1888, 51 & 52 Vict. c. 59, does not apply.
A surveyor is bound to use due care, and to exercise a reasonable Bound to degree of skill, in executing the business entrusted to him. Thus, possess and if he be employed to make an estimate of expense he must ascertain sonable skill. for himself the necessary facts. And, if relying on information given him by others, he makes an estimate which is grossly incorrect, he is not entitled to recover anything for his trouble in making such estimate, or connected therewith (k).
So, if a man professes to act as a valuer of any particular kind Valuers. of property, he is bound to know the general rules which are applicable to the valuation of that description of property; e.g., if he professes to be a valuer of ecclesiastical property, he ought to know the distinction which exists, between valuing in cases between an incoming and an outgoing incumbent (I). It is usual for architects and surveyors to charge for their Their remu
neration. trouble a percentage on the cost of the works with reference to which they are employed. But in two cases (m) the propriety of this mode of remuneration has been questioned.
(h) Walker on Banking, pp. 137, 139, citing Brandao v. Barrett (1847), 12 Cl. & F. 809.
(i) Wilkinson v. Verity (1871), L. R. 6 C. P. 206.
(k) Moneypenny v. Hartland (1824), 1
C. & P. 352.
(l) Jenkins v. Betham (1854), 15 C. B. 168.
(m) Upsdell v. Stewart (1794), Peake, 193; 3 R. R. 685 ; Chapman v. De Tastet (1817), 2 Stark. 294 ; 19 R. R. 725.
In the present chapter it is intended to give a very short outline of the law of contracts relating to subject matters not already specifically treated in Chapters X. to XIX., so that this book may embrace in more or less detail all the special subject matters upon which a contract may be made.
SECT. 1.-Contracts to Lend Money.
(a) Loans without Security.
[See tits. “ Money Lent,” “ Promissory Note,"_Bullen and Leake on Pleading,
4th ed., pt. 1 ; Roscoe's N. P. Evidence, vol. i.]
Breach of The contract of loan of money differs from Bailment (as to contract to
which see ante, Ch. XIV.), in that the actual money lent is not to lend, damages for. be re-delivered by the lender, but an equal sum is subsequently
to be repaid. It is a simple contract not requiring writing, and substantial damages are recoverable for the breach of it (a). In most cases the lender takes an acknowledgment in writing from the borrower and either an I. 0. U. or a promissory note, or a bond or deed. If the loan is secured by a covenant in a deed, the specialty merges the simple eontract, and the lender can only sue on the specialty covenant; if there is a promissory note, he will during the currency of the note be estopped from suing otherwise than in accordance with its terms (6); but after it has become due, he can sue on the note, and add a claim for money lent, and the promissory note may be used as evidence in support of money lent.
. The plaintiff must prove the loan of his money; mere payment
(a) Manchester and Oldham Bank v. Cook (1884), 49 L. T. 674.
(6) See ante, Ch. XVI., 8. 4.
of money by the plaintiff to the defendant is not sufficient; it may CH. XX, s. 1. be that the plaintiff paid the money in liquidation of an antecedent Cimtracts to
Lend Money. debt (c), or that it was a gift, but the law presumes against gifts except as between parent and child.
Nor does this action lie, if the money was not lent to the defendant personally, but to another person at his request (d); though it will lie if the defendant alone was in fact the borrower, although the money was delivered by the plaintiff to another person at the defendant's request (e).
So, where the defendant gave a memorandum, whereby he acknowledged the receipt from the plaintiff of a sum of money on the behalf of E. E.," an infant, and promised to be accountable for such sum on demand ; it was held, that the memorandum was evidence to support a count for money lent, as against the defendant (f). So, money advanced upon a contract to repay it on demand, or to execute a mortgage, may, after refusal to execute the mortgage, be recovered in an action for money lent (g).
In James v. Cotton (h), it appeared that the plaintiff agreed to let land to the defendant on building leases, and to lend him 4,0001. to assist him in the erection of twenty houses, the money to be repaid by June, 1828. The defendant agreed to build the houses, to convey them as a security for the loan, and to repay the money. When six houses were built, and 1,1681. had been advanced, the plaintiff requested the defendant not to go on with the other fourteen houses ; and, the defendant having desisted, it was held that, after June, 1828, the plaintiff might recover the 1,1681. on the count for money lent. Where money is lent generally upon, or is secured by, a deposit Money lent ou
security. of goods, the lender has his remedy by action against the borrower, without returning the goods; and, to discharge the person of the borrower, there must be a special agreement to stand to the pledge only (i).
So, where money is lent on mortgage, and the mortgage deed contains no covenant, either express or implied, on which an action can be maintained for such money, the lender may recover it in an action for money lent (k).
(c) Cary v. Gerrish (1801), 4 Esp. 9; Welch v. Seaborn (1816), 1 Stark. 474.
(d) Marriott v. Lister (1762), 2 Wills. 141; Butcher v. Andrews, 1 Salk. 23.
(e) Bull v. Sibbs (1799), 8 T. R. 327.
(1) Harris v. Hunthack (1757), 1 Burr. 373.
(g) Bristowe v. Needham (1842), 9 M. & W. 729.
(h) James v. Cotton (1831), 7 Bing. 266.
(i) South Sea Co. v. Duncomb (1732), 2 Str. 919.
(k) Yates v. Aston (1843), 4 Q. B. 182 ; Mathew v. Blackmore (1857), 1 H. & N. 762 ; and see King v. King (1735), 3 P. Wms. 358.