the servant cannot ordinarily recover more than a month's wages, as damages for the wrongful dismissal (k); but extra damages for dismissal on a false charge of misconduct are recoverable (1). CH. XIX. s. 8. presumed to have been Where a domestic servant has left his master for a considerable When wages period, it will, in general, be presumed that his wages have been paid (m). And the same presumption arises in the case of workmen or labourers, on proof that it was customary for the employer to pay his men at stated periods, e.g., weekly (n). A master is bound to provide medical attendance and medicine for his apprentice (o); but not for his servant in husbandry (p), or for his menial servant (q), even though the illness of the servant arise from an accident, which occurred whilst he was performing the duties of his situation. But if a master send for a medical man to attend his servant, whilst under his roof, he is liable; and he cannot deduct from his servant's wages the expenses occasioned thereby, unless it was specially so agreed (1). And where the master is so legally bound to supply his servant or apprentice with food or medicine, his neglect to do so if the health of the employé is affected is an offence under sect. 6 of the Conspiracy and Protection of Property Act, 1875, 38 & 39 Vict. c. 86. paid. Duty of master as to providing medical atservant. tendance for Inducing breach of contract by If a third person induces the employé to break his contract of exclusive personal service, he will be liable in damages (s) to the employer, even although the relation of master and servant did servant. not strictly apply between the employer and employed (t), and although the third person act bonâ fide and without malice, or in the best interest of himself and others, or on a wrong understanding of his own rights (u); but a person who on being asked gives honest and bona fide advice to another which induces him to break a contract of service with a third person is not liable to an action at the suit of such third person, though damage has resulted from the breach (x). But to induce, from however malicious motives, an employer either to discharge or to refrain from employing a servant, is not (k) Hartley v. Harman (1840), 11 A. & E. 798. (1) Maw v. Jones (1890), 25 Q. B. D. 107. (m) Sellen v. Norman (1829), 4 C. & P. 80. (n) Lucas v. Novisilieski (1795), 1 Esp. 296; Sellen v. Norman (1829), 4 C. & P. 81, n. (a). (0) R. v. Smith (1837), 8 C. & P. 153. (p) See Wennall v. Adney (1802), 3 B. & P. 247. (q) See R. v. Smith (1837), 8 C. & P. 153; Cooper v. Phillips (1831), 4 C. & P. (r) Sellen v. Norman (1829), 4 C. & P. 80, 83. (s) Proof of specific damages need not be given see Exchange Telegraph Co. v. Gregory, [1896] 1 Q. B. 147. (t) Bowen v. Hall (1881), 6 Q. B. D. 333, C. A., per Lord Selborne, L. C., and Brett, L.J., following Lumley v. Gye (1853), 2 E. & B. 216. (u) Read v. Friendly Society of Operative Stonemasons, [1902] 2 K. B. 88. (x) Glamorgan Coal Co. v. South Wales Miners' Federation, [1903] 1 K. B. 118, per Bigham, J. Inducement to discharge or not to employ servant. CH. XIX. S. 8. actionable. This was held by a majority of the House of Lords, Contracts of after consulting the judges, in Allen v. Flood (y). Employment (Servants). Allen v. Flood. Service of other person than employer. Servant may not pledge master's credit. Solicitation of late employer's customers lawful, A contract to serve one person amounts to a contract not to serve another (z); but in the absence of a negative stipulation, a manufacturing company whose manager agreed to give the whole of his time to the company's business is not entitled to an injunction to restrain the manager from giving part of his time to rival company (a), though he might be either dismissed or sued for damages (b). Even where there was a negative stipulation—by a wine merchant's traveller not to employ himself in any other business for ten years-and the traveller left the plaintiff's service and entered that of another firm, the stipulation was held by Romer, J., to be unreasonable, and an injunction was refused (c). Subsequently, however, in a very peculiar case the Court of Appeal granted an injunction against the confidential clerk of enamelled hardware manufacturers, who had agreed to serve them for five years with an option on their part to take him on for a further five years, restraining him from engaging in any business relating to goods sold by his employers, they waiving their option as to the further five years, and the Court doubting whether the agreement ought to be enforced for that further term (d). It has been held that neither a coachman nor a groom has implied authority from their mere relationship of service to pledge his master's credit for forage for his horses (e), and the principle of this case applies generally to servants (f). In the absence of special covenant (g), a clerk or servant who has left or been discharged cannot be restrained from soliciting or doing business with the customers of his former employer (h); but it is an implied term of every contract of service that the servant will not use to the detriment of the master information acquired in course and by reason of the service. Therefore where the defendant while managing a game farm for the plaintiff secretly copied (y) Allen v. Flood, [1898] A. C. 1. (a) Whitwood Chemical Co. v. Hard- (c) Ehrman v. Bartholomew, [1898] 1 Ch. 671, per Komer, J. (d) Robinson v. Heuer, [1898] 2 Ch. 451, C. A. reversing North, J., who had refused an injunction on the authority of Ehrman v. Bartholomew, supra. (e) Wright v. Glyn, [1902] 1 K. B. 745, C. A. (f) See Ch. IX., sect. 1, ante. (g) National Provincial Bank of England v. Marshall, ubi sup. (h) In re Irish (1888), 40 Ch. D. 49 ; as to letters coming to him at former address, see Stapleton v. Foreign Vineyard Association (1864), 12 W. R. 976; Hermann Loog v. Bean (1884), 26 Ch. D. 306, C. A. purpose of from his master's order book a list of the names and addresses of CH. XIX. s. 8. the customers with the intention of using for the soliciting orders from them and did so use it, he was not only held liable to pay damages, but restrained by injunction from making further use of the information he had obtained (i). Contracts of Employment (Servants). but not dis closure of information acquired in course of employment. SECT. 9.-Solicitors (k). (a) Personal Attention. In an action on a solicitor's bill it must appear that the client has had the advantage of the solicitor's personal advice; and therefore, a solicitor cannot recover fees in a suit in which the client consulted and retained the solicitor's clerk, who lived at a distance from his principal, if the clerk were left without instructions, or the means of conferring constantly with his master (l); but the extent to which such a case would be followed at the present day, when ex necessitate rei personal attendance has become much more difficult to give, is doubtful. (b) Want of Qualification. Solicitor the client's business. How affected by want of proper quali A solicitor cannot recover his charges for business done by him in that character, unless his certificate was in force during the period within which the work was done (m). But where the client fication. obtained an order in equity for the taxation of his solicitor's bill, with the usual submission to pay what should be found due, it was held that the taxing-master was not justified in disallowing certain items, merely because they were incurred between the time of the expiry and that of the renewal of the solicitor's certificate (n). And if the plaintiff was duly qualified as a solicitor at the time the work was done, he will be entitled to recover, although he may have ceased to be so at the time of action. brought (o). (c) Solicitor's Remuneration. Solicitor and client may by the Attorneys and Solicitors Act, 1870, 33 & 34 Vict. c. 28, or the Solicitors' Remuneration Act, (i) Robb v. Green, [1895] 2 Q. B. 315, C. A., affirming Hawkins, J., and see the cases there cited, and also Louis v. Smellie (1896), 73 L. T. 226, C. A. (k) See Cordery on Solicitors; Chit. Stat., 5th ed., tit. "Solicitors.' (1) Hopkinson v. Smith (1822), 1 Bing. 13. When a solicitor's clerk may sue clients for business done at his master's office, the clerk, by agreement with the master, being entitled to that depart- (m) Solicitors Act, 1843, 6 & 7 Viet. (n) Re Jones (1869), L. R., 9 Eq. 63. 276. Agreement in Act of 1870. writing under CH. XIX. 8. 9. 1881, 44 & 45 Vict. c. 44, s. 8, agree in writing (p), which need Contracts of be signed by the client only (q), that the solicitor shall be remuEmployment (Solicitors). nerated either by a gross sum or a percentage, or a salary; but if such agreement is objected to by the client as unreasonable or unfair, the taxing-master may inquire into it, and certify to the Court, who can then cancel the agreement. An agreement not to charge anything for costs need not be in writing (r), but an agreement to pay a lump sum in discharge of past costs must be (s). Remuneration-contd. Special Agreements. When the solicitor's negligence affords a defence to an for his fees. In default of special agreement the solicitor's charges must conform to the scale laid down in the Solicitors' Remuneration Order made under the Solicitors' Remuneration Act, 1881, if the business be non-contentious, or in the Rules of Court if it be contentious. In any case the bill, before it can be sued on, must be prepared, signed and sent in in accordance with the Solicitors Act, 1843, 6 & 7 Vict. c. 73, s. 37, by which no action for the recovery of any fees, charges or disbursements may be commenced until the expiration of one month after the delivery of the bill to the party to be charged there with, and elaborate provisions are made for a reference of the bill to taxation, on the application of the party chargeable (ss). (d) Effect of Solicitor's Negligence. The law implies a promise by a solicitor, that he will conduct the business entrusted to him, with a reasonable degree of care, skill, and despatch. But the earlier cases did not afford a very action by him satisfactory answer to the question, whether a solicitor's negligence or unskilfulness constitute a defence to an action by him for his bill; or whether they merely form matter for a cross-action or counter-claim against him. It seems to be now settled, however, that the negligence or unskilfulness of the solicitor do not afford a complete defence to such an action unless, by reason thereof, the client has obtained and can obtain no benefit whatever from his services (t); and that where some benefit has accrued, or may arise from the exertions of the solicitor-although a part of the advantage which might have been secured is lost by his (p) In re Lewis (1876), 1 Q. B. D. 724; In re Russell (1885), 30 Ch. D. 114; Jennings v. Johnson (1873), L. R., 8 C. P. 425; Bewley v. Atkinson, 13 Ch. D. 283, C. A. ; and as to champerty, see also James v. Kerr (1889), 40 Ch. D. 449. Where the agreement is for non-professional work with the client, a common order for taxation cannot be made; In re Inderwick (1883), 25 Ch. D. 279, C. A. As to effect of bankruptcy of client, see Pollit, In re, Minor, Ex parte, [1893] 1 Q. B. 455, C. A.; distinguished in Charlwood, In re Musters, Ex parte, [1894] 1 Q. B. 643, C. A. (q) Thompson, In re, Baylis, Ex parte, [1894] 1 Q. B. 462. (r) Jennings v. Johnson (1873), L. R., 8 C. P. 425. (s) Russell, In re (1885), 30 Ch. D. 114. (88) See the Acts, and the Solicitors Remuneration Order (with cases thereon) in Chitty's Statutes, tit. "Solicitors." (t) Bracey v. Carter (1840), 12 A. & E. 373; Huntley v. Bulwer (1839), 8 Scott, 325. default or misconduct-this shall merely go to reduce the amount CH. XIX. s. 9. of his demand (u). Contracts of Employment (Solicitors). Dalton. To render the solicitor liable, there must be lata culpa or crassa negligentia a gross default, negligence, or ignorance. And if Extent of the solicitor has acted bonâ fide to the best of his skill, and with liability for negligence. an ordinary degree of diligence, he will not be responsible (x). The law on this subject was stated through Lord Chief Justice Godefroy v. Tindal (y) as follows:-"It would be extremely difficult to define the exact limit, by which the skill and diligence which an attorney undertakes to furnish in the conduct of a cause, is bounded; or to trace precisely the dividing-line, between that reasonable skill and diligence which appears to satisfy his undertaking, and that crassa negligentia or lata culpa mentioned in some of the cases, for which he is undoubtedly responsible. The cases, however, appear to establish, in general, that he is liable for the consequences of ignorance or non-observance of the rules of practice of his Court, for the want of care in the preparation of the cause for trial, or of attendance there with his witnesses, and for the mismanagement of so much of the conduct of a cause, as is usually and ordinarily allotted to his department of the profession; whilst, on the other hand, he is not answerable for error in judgment upon points of new occurrence, or of nice and doubtful construction, or of such as are usually entrusted to men in the higher branch of the profession of the law." And, accordingly, a solicitor is not responsible for the consequences of a mistake in a point of law, upon which a reasonable doubt might be entertained (2); or for a mistake in a nice point of practice, arising on the meaning of an Act of Parliament (a), or of a rule of Court (b). But where the plaintiff's attorney suffered the case to be called on at the trial, without previously ascertaining whether a material witness (whom the plaintiff had undertaken to bring into Court) had arrived, and the plaintiff was nonsuited in consequence: it was held, in an action against the attorney for negligence, that it was properly left to the jury to say, whether he had used reasonable care in conducting the cause; and the jury having found in the negative, the Court refused to disturb the verdict (c). So, (u) Cox v. Leech (1857), 1 C. B., N. S. 617; Long v. Orsi (1856), 18 C. B. 610. (x) Purves v. Landell (1845), 12 C. & F. 91; Russell v. Palmer (1767), 2 Wils. 325; Pitt v. Yalden (1767), 4 Burr. 2060; Laidler v. Elliott (1825), 3 B. & C. 738; and see Frankland v. Cole (1832), 2 C. & J. 590; Chapman v. Chapman (1870), L. R., 9 Eq. 276; Baikie v. Chandless (1811), 3 Camp. 17; 13 R. R. 738; Whiteman v. Hawkins (1878), 4 C. P. D. 13. (y) Per Cur. in Godefroy v. Dalton . C.C. (1830), 6 Bing. 460, nonsuiting the (z) Kemp v. Burt (1833), 4 B. & Ad. (a) Chapman v. Van Toll (1857), 8 E. & B. 396. (b) Laidler v. Elliott (1825), 3 B. & C. (c) Reece v. Rigby (1821), 4 B. & Al. 202. Cases of negligence. |