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1862.

PEARCE

have had it done, and if he had, then he could not have sustained the action. But non constat that he knew it, whereas the defendant must be taken to have known it.

Verdict for the plaintiff, 15l.

TUCKER.

brought under his executor.

the at

Court of Exchequer, Westminster, coram Wilde, B.

FLETCHER v. WINTER. Easter Term. In an action by ACTION for work, &c. by the plaintiff as an attorney. an attorney for the costs of an The claim was, to recover a balance of 1321., after giving action to recover a chattel. credit for 961. as paid. the subject of Pleas: never indebted and payment. a specific bequest, but

Digby Seymour for the plaintiff. claimed by the possessor as a

Parry, Serjt., for the defendant. gift from the testator, the defence being

The claim related to the expenses of the probate of the that the action, will of one Winter, and also the costs of suit or of defence which had failed, was only in several actions brought by or against the defendant as the advice of nis

orney, In December, 1860, the will (which was drawn by the and that it was wholly useless ; plaintiff) was made. In December, 1861, about a year the proper course being to afterwards, the testator died. The will directed the debts ministration

inau- to be paid out of the residuary estate, and there were spesummons in., cific bequests of the bulk of the property, chiefly to an Chancery (the course it was illegitimate son of the testator, and to the defendant, his ultimately found neces- nephew. To the latter was left, inter alia, a barge called

? the Adonis, which, however, after the testator's death, was was neverthe- claimed by his reputed son, on the ground of an alleged less for the jury on the whole gift to him by the testator a few days before his death, case, not whether the course and, therefore, nearly a year after the will. The defendant,

proper, the sole executor, was introduced to the now plaintiff, an but whether it was so wholly attorney, by one Kent, and employed him to take out prouseless as that, the defendant bate of the will, the expense of which was about 391., had derived no which was not disputed, and had, indeed, been almost benefit from it; " but held, also, that attornies might be called and examined as skilled witnesses on that question.

sary t

was

1862.

FLETCHER

WINTER,

paid, being covered (except as to 41.) by a sum of 35l. paid on account.

The rest of the claim, in respect of the costs of the actions, was in the course of the causes abandoned, except so far as related to the costs of an action brought by the now defendant, as executor, against the reputed son, to recover the disputed barge, the Adonis.

The case for the now defendant was, that this action was brought (as the others had been) under the advice of the now plaintiff, and that it was worse than useless.

It appeared that the plaintiff gave Kent a commission on business he introduced to him, and chiefly carried it on by a clerk, named Birch, to whom also he allowed such a commission, and who, in his turn, got business done by one Richards. The now defendant was an illiterate, ignorant man, and stated that he left the matter in the hands of the now plaintiff, his attorney; and that Kent saw him now and then about it, but did not consult him at all about the course to be taken.

In March, 1861, after the action for the barge was commenced, the other side had taken out a summons for an administration in Chancery, but the now plaintiff did not consult his client, the executor, the now defendant, about it, and would not accede to that course being taken. At that time the costs of the action for the barge only came to 81. It was ultimately taken down to trial by the now plaintiff, and the verdict was against his client, the now defendant (the jury finding in favour of the alleged gift), so that he became liable for 1201., the costs of the other side, as well as for his own, which formed the bulk of the claim in the present action.

The plaintiff declared that the proper course was for the executor to bring an action at law to recover the barge (as it was in the possession of the legatee at the time of the death); because, besides the specific legacies, there was quite enough to pay the debts. He said he had as

1862.

FLETCHER

WINTER.

certained the amount of the debts and assets as well as he could, and that the debts were 3001., and the assets 1,1001. This latter estimate, however, it should seem, comprised the whole estate, including the value of the specific legacies; and there was evidence that the assets, exclusive of the specific bequests, only came to 1201., i. e. not enough to pay the debts.

And, on the part of the defendant, it was contended that the proper course would have been to take out an administration summons, or go in under that taken out by the legatee, as it was impossible to avoid the necessity of going into Chancery; because the assets were not sufficient without taking in the specific bequests, and the assets could only be marshalled in Chancery.

Mr. Barnard, who had been counsel engaged for the now defendant in the action for the barge, was called to prove that the course taken in that action was proper, and that there was a case for the plaintiff therein.

It did not, however, appear that there had been a case laid before the learned counsel to advise as to the proper course to be taken, whether it should be an action or an administration summons; and the case for the now defendant, as already stated, was, not that the action itself had been badly conducted, but that it was a wholly wrong and useless course to take, since, even had the then plaintiff succeeded, there would have been still a necessity to resort to Chancery; whereas, on the other hand, if the case had been taken into Chancery at once, the whole matter might then have been settled, without any action at law.

In support of this view Mr. Mayhew, who, in July, 1861, had been employed by the now defendant, was called, and stated that the proper course was to take out an administration summons, and that thereon all parties would have been examined, and the chief clerk might, if the parties consented, bave adjudicated as to the barge ;

1862.

FLETCHER

v. WINTER.

or, if it had been required and deemed necessary, the Court could have directed an issue of fact; but that, in that case, probably the defendant would not have had to pay costs, and that, in the proceedings in Chancery, all questions could have been settled, and the assets marshalled; and he had himself found it necessary in the end to take out an administration summons, in which all matters were wound up.

Several other attornies were called, who gave similar evidence, that the proper course to take was to go into Chancery, and that the course which had been taken was improper (a).

This evidence was objected to, but the objection not being distinctly and formally pressed,

Wilde, B., took no note of the objection, and admitted the evidence (6).

At the close of the case,

Wilde, B. (to the jury). The question is, whether the plaintiff's services in the suit as to the barge were such as to be wholly useless to the now defendant. If not, he is entitled to recover, even although there might be ground to maintain an action for negligence. Now the question as to the barge could only (except by consent) have been determined by the trial of an issue or action at law; and the defendant has had it tried, and has so far derived

(a) The witnesses were not merely asked this, but also whether the plaintiff had been, in their opinion, guilty of negligence, and this, no doubt, was a step beyond the limits, as it was asking them the very question the jury had to determine. See Campbell v. Richards, 2 N. & M. 542. But that the main questions were admissible, see Chapman v. Wallon, 10 Bing 57; et vide Hatch v. Lewis, Vol.

II., p. 478.

(6) And though in his absence a rule for a new trial was granted, on the ground, inter alia, of the improper admission of this evidence, yet, as he informed the Court when the rule came on to be argued, that the objection had not been pressed, the Court refused to entertain it, and seemed to think that there was nothing in it. Vide supra (a).

1862.

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WINTER.

benefit from it, although he has not succeeded. If you think, however, that there was such negligence on the part of the plaintiff, that by reason thereof the defendant derived no benefit from his services, find for the defendant.

Verdict for the defendant (a). (a) A rule was obtained, partly Pollock, C. B., BRAMWELL, B., on the ground of the improper ad- and Wilde, B., by Parry, Serjt., mission of evidence (as to which, and Digby Seymour. The Court however, vide ante), but chiefly as took time to consider, but gave no against evidence. It was argued judgment that Term. in the Sittings after T. T., before

Middlesex

Coram Channell, B.
Sillings.
Easter Term.

ECCLES v. SOUTHERN.
1861.
A sub-con ACTION for work and materials.
tractor, suing
the employer Plea: never indebted.
for work extra
the original

Milward (with him Giffurd) for the plaintiff. contract must, put in that

Monk and Kemplay for the defendant. contract, if in writing, and

The work was stone-work done by the plaintiff, and the also prove a separate and plaintiff being called, stated that one Trimlet had made a distinct contract with the contract in writing with the defendant to do work at a employer to do the work sued

certain asylum, but that the work for which this action was brought was quite distinct from the work under that contract, and under a separate contract with the defendant.

CHANNELL, B., thereupon ruled that the contract between Trimlet and the defendant need not at present be produced.

The plaintiff, on cross-examination, said that this work was “extras on Trimlet's contract;" that Trimlet contracted with Southern, the defendant, for certain work ; that then he, the plaintiff, contracted with Trimlet to take it under him, and got the quantities from him, and was to

for.

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