Howell against Young, Gent., one, &
| Jurisdiction | England & Wales |
| Date | 1826 |
| Court | Court of the King's Bench |
English Reports Citation: 108 E.R. 97
IN THE COURT OF KING'S BENCH.
S. C. 8 D. & R. 14; 4 L. J. K. B. O. S. 160; and at Nisi Prius, 2 Car. & P. 238. Not applied, In re Manby, 1856, 26 L. J. Ch. 317. Adopted, Gibbs v. Guild, 1881-82, 8 Q. B. D. 302; 9 Q. B. D. 59. Applied, Bean v. Wade, 1885, 2 T. L. R. 158. Followed, Hughes v. Twisden, 1886, 55 L. J. Ch. 484. Adopted, Blyth v. Fladgate, [1891] 1 Ch. 362. Referred to, In re Somerset, [1894] 1 Ch. 255.
[259] howell against young, gent., one, &c.(a). 1826. DeciaFatfbnTtateirihat the plaintiff had contracted with A. B. to lend him the sum of 30001. at interest; the repayment, with interest, to be secured by a warrant of attorney and certain mortgages of freehold and leasehold premises, provided they should be found to be a sufficient security for the same ; that the plaintiff retained defendant as an attorney, to ascertain whether they would be a sufficient security; that the defendant accepted such retainer, and that it became his duty to use due care and diligence to ascertain whether the warrant of attorney and mortgages would be a sufficient security for the repayment of the 30001. and interest. Breach, that defendant did not use due care and diligence in that behalf, but wholly neglected so to do, and, on the contrary, falsely represented to the plaintiff, that the warrant of attorney and mortgages would be a sufficient security for the repayment of the 30001." with interest, whereupon the plaintiff lent the 30001. to A. B.; that they were not a sufficient security, by reason whereof the plaintiff had wholly lost the interest due and payable on the said sum of 30001. amounting to a large sum, to wit, the sum of 10001. and was likely wholly to lose the said principal sum of 30001. At the trial it appeared, that in the year 1814 the defendant had been retained by the plaintiff to ascertain whether the warrant of attorney and mortgages were a sufficient security for the 30001. and interest, and that at that time he represented they were so. In the year 1820, (the interest to that time having been regularly paid,) it was discovered that the warrant of attorney and mortgages were not a sufficient security : Held, that the misconduct or negligence of the attorney constituted the cause of action, and that the Statute of Limitations began to run from the time when the defendant bad been guilty of such misconduct, and not from the time when it was discovered that the securities were insufficient. [S. C. 8 D. & E. 14; 4 L. J. K. B. 0. S. 160; and at Nisi Prius, 2 Car. & P. 238. Not applied, In re Manly, 1856, 26 L. J. Ch. 317. Adopted, GMs v. Guild, 1881-82, 8 Q. B. D. 302; 9 Q. Bl D. 59. Applied, Bean v. Wade, 1885, 2 T. L. E. 158. Followed, Hughes v. Twisden, 1886,- 55 L. J. Ch. 484. Adopted, Blyth v. Fladgate, [1891] 1 Ch. 362. Eeferred to, In re Somerset, [1894] 1 Oh. 255.] Declaration stated, that before the committing of the grievance thereinafter mentioned, the plaintiff had contracted with J, Olive and E. Olive, to lend them the sum of 30001., at interest, the repayment of that sum, with interest, to be secured by a warrant of attorney to confess judgment made by J. and E. Olive; the sum of 20001., with interest, to be iFurther secured by a mortgage of certain freehold premises of the said J. and E. Olive; and the sum of 10001. to be further secured by a mortgage of certain leasehold premises of J. and E. Olive, provided the said warrant of attorney and mortgages should be found to be a good, valid, and sufficient security for the same; and thereupon on, &c,, at, &c., the plaintiff, at the request of the defend-[260]-ant, retained and employed him for reasonable fees and reward to him in that behalf, to ascertain whether the said warrant of attorney and mortgages would be a sufficient security for the repayment of the said sum of 30001., with interest; and in case the same should appear sufficient, to obtain the proper deeds and writings to secure the repayment of the said sum of 30001. Averment, that the defendant accepted such (a) Three of the Judges of this Court sat, as upon former occasions, from Tuesday, the 14th of February^to Saturday, the 18th February, inclusive. During that period this and the following cases were determined. K. B. xxxvii.-4 98 HOWELL U ÑOUKG 5B.&C.261. retainer and employment; that it became and was his duty to use due and proper care and diligence to ascertain whether the said warrant of attorney and mortgages would be a sufficient security for the repayment of the said sum of 30001., with interest; and in case the same should appear sufficient, to obtain the proper deeds and writings to secure the repayment of that sum. Breach, that the defendant, not regarding his duty, &c., but contriving, &c., did not, nor would use due or proper care and diligence to ascertain whether the said warrant of attorney and mortgages would be a sufficient security, but wholly neglected and omitted so to do; and on the contrary thereof, on, &c., at, &e., falsely and deceitfully represented and asserted, and caused and procured the plaintiff to believe, that the said warrant of attorney and mortgages would be a good, valid, and sufficient security for the repayment of the sum of 30001., with interest; whereupon the plaintiff, believing that the said warrant of attorney and mortgages would be a valid and sufficient security for the repayment of the said sum of 30001. with interest, did on, &c., at, &c., advance and lend to the said J. and E. Olive 3000). upon . security of the said warrant of attorney and mortgages. The declaration then described the warrant of attorney and the mortgages; that they were prepared by the defendant [261] by virtue of his retainer and employment, and accepted by the plaintiff as a sufficient security for the repayment of the said sum of 30001., with interest, in consequence of such representation and assertion of the defendant, and that they were not a sufficient security. By means whereof the plaintiff had wholly lost the interest due and payable on the said sum of 30001. amounting to a large sum, to wit, the sum of 10001., and is likely wholly to lose the said principal sum of 30001. to wit, at, &c. Plea, not guilty. 2ndly, that the cause of action mentioned in the declaration did not accrue within six years. At the trial before Burrough J., at the Summer Assizes for the county of Gloucester, 1825, it...
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