John Hart and W. Hodge, - Appellants; John Frame, Son, and Company, - Respondents
| Jurisdiction | Scotland |
| Judgment Date | 18 June 1839 |
| Date | 18 June 1839 |
| Court | Court of Session |
English Reports Citation: 7 E.R. 670
FROM THE COURT OF SESSION.
Mews' Dig. xiii. 1467, 1470; S.C. Macl. and R. 595; 3 Jur. 547; 7 Scots R.R. 241. Distinguished in Smith v. Grant, 1858, 20 Dunlop 1079. Commented on in Purves v. Landell, 1845, 12 Cl. and F. 100.
[193] APPEAL from the court of session, JOHN HART and W. HODGE,-Appellants; JOHN FRAME, SON, and GO.,- Respondents [April 5, 11, 1838 ; June 18, 1839.] [Mews' Dig. xiii. 1467, 1470; S.C. Mad. and R. 595; 3 Jur. 547; 7 Scots B.R. 241. Distinguished in Smith v. Grant, 1858, 20 Dunlop 1079. Commented on in Purves v. Landell, 1845, 12 Cl. and F. 100.] In undertaking a client's business, an attorney or agent in England or Scotland undertakes on his own part for the existence and the due employment of skill and diligence. Where an injury is sustained by his client in consequence of the absence of either, he is responsible to1 his client for such injury. Where, therefore, masters employed an attorney to take proceedings against their apprentices for misconduct, and the attorney specifically proceeded on the section of the statute which related to servants and not to apprentices; held, that this was an instance of such want of skill or diligence as to- render the attorney liable to- repay to. his clients the damages and costs occasioned by his error. The fact that, in the first instance1, the magistrates proceeded to- convict on the wrong section, furnished no' excuse to the attorney for founding his proceedings upon it. This was an appeal against interlocutors of the Court of Session in Scotland. The Respondents had determined on taking proceedings against some of their apprentices, under the 4 Geo. 4, c. 34,* for [194] alleged misconduct, and had entrusted * 4 Geo. 4, c. 34, intituled, " An Act to' enlarge, the power of Justices in determining complaints between masters and servants, and between masters, apprentices, artificers, and others :" S. 1, after reciting the 20 G. 2, c. 19, 6 G. 3, c. 25, and 4 G. 4, c. 29, enacts," That it shall and may be lawful, not only for any master or mistress, but also for his or her steward, manager, or agent, to make complaint, upon oath, against any apprentice, within the meaning of the said before recited Acts, to any justice of the peace of the county or place where such apprentice shall be employed, of or for any misdemeanor, misconduct, or ill-behaviour of any such apprentice; or if such apprentice shall have absconded, it shall be lawful for any justice of the peace of the county or place where such apprentice shall be found, or where such apprentice shall have been employed, and any such justice isi hereby empowered, upon complaint thereof, made upon oath, by such master, mistress., steward, manager, or agent, which oath the said justice is hereby empowered to administer, to issue his warrant for apprehending every such apprentice : and further, that it shall be lawful for any such justice to hear and determine the said complaint, and to punish the offender, by abating the whole or any part of his or her wages, or otherwise by commitment to. the house of correction, there to remain and to be held to hard labour for a reasonable time, not exceeding three months." S. 3.-" That if any servant in husbandry, or any artificer, calico-printer handy- 670 HART V. FRAME [1838, 1839] VI CLAKK & FINNELLY. the Appellants, as their law agents in that behalf, with the management of these proceedings. The warrants issued against the apprentices were finally set aside as improperly issued oil the third, instead of the first section, of the statute, and the apprentices brought actions, and recovered damages as for false imprisonment. The Respondents then instituted a suit against the Appel-[195]-lants, to obtain compensation for the damages they had thus been obliged to pay. The parties in this suit agreed to submit the following statement of facts for the judgment of the Court below:-That the Appellants were employed by the Respondents to prepare petitions to; the justices of the peace for Renfrewshire, at their instance, against two apprentices of the names of Houston and Crookshanks, belonging to their manufactory, for having deserted their work, and other misconduct; and that the Appellants, having accepted the employment, did prepare the petitions, founded upon the third section oi the 4 Geo. 4, c. 34. That the same were presented to the justices, and warrants granted thereon. On which Houston and Crookshanks were brought up for examination; and after certain procedure and proof before the justices, these parties were convicted, and committed to the house of correction. That they and two other apprentices, named Hunter and Gilmour, who had been convicted and committed to the house of correction, upon petitions at the pursuers' instance, prepared in similar terms by James Campbell, writer in Johnston, having severally presented bills of suspension and liberation to the Court of Justiciary, their Lordships, on considering the bill of suspension and liberation for Hunter, with answers thereto, upon the 23d day of November 1833, pronounced an interlocutor against the said James Campbell for relief in a.n action of damages at Hunter's instance, declaring that the summons was illegally founded on the third, but ought to have been founded on the first section of the statute; and that, in consequence of that interlocutor, no answers having been put into1 the bills for Houston and Crookshanks, which werej founded on grounds similar to those of Hunter's bill, the interlocutors quoted in, the sum-[196]-mons of relief, in the action at the instance of Crookshanks and Houston, were pronounced by their Lordships; by which interlocutors the convictions were quashed, the prisoners ordered to be liberated, and the Respondents found liable in expenses. That in relation to the bill of suspension and liberation at Hunter'si instance, the Appellants acted as agents for the Respondents, and in that capacity employed an agent in Edinburgh, on the Respondents' part, to attend to that proceeding; and that in consequence of the judgment of the Court in that case, the said Edinburgh agent, by the advice of his counsel, recommended that all the other prisoners should be also liberated, which was done accordingly. That, thereafter, separate actions of damages being raised by Houston and Crookshanks against the Respondents, on account of the proceedings at their instance, which actions of damages were duly intimated by the Respondents to the Appellants, the Respondents, after an arrangement with the Appellants, agreed to pay to each of the parties, Houston and Crookshanks, £25 in name of damages, and also to pay the taxed expenses of their actions. That the Respondents have accordingly made payment both of the sum of £25, to each of the parties above mentioned, in name of damages, and also of £32 Is. 4d., being the expenses in Crookshanks' case, and £30 7s., being the expenses in Houston's. That this payment was made in consequence of an agreement by the parties, that it should be without prejudice to the present...
To continue reading
Request your trial
-
D'orta-Ekenaike v Victoria Legal Aid
...193]; Reece v Righy (1821) 4 B & Ald 202 [ 106 ER 912]. 429 (1831) 7 Bing 413 at 422 [ 131 ER 159 at 163]. 430 (1839) 6 Cl & F 193 at 210 [ 7 ER 670 at 676]. 431 (1845) 12 Cl & F 91 at 103 [ 8 ER 1332 at 1337]. 432 (1857) 1 CB (NS) 364 [ 140 ER 150]. 433 (1857) 1 CB (NS) 364 at 403 [ 140 ER......
-
John Hart and William Hodge, Appellants. - Sir William Follett-A. McNeill; John Frame and Company, Respondents. - Dr. Lushington
......and D. 69; Wright, 9th Feb. 1826, 4 S. and D. 440; Stewart, 21st June 1832 and 21st May 1833, 11 S., D., and B., 628; M'Dougall, 27th June 1833, 11 S., D., and B., 795; Stevenson v. Rowand, 4 W. and S. Appeal Cases, 177; see to the same effect, 2 W. and S. 563 ; Frame and Son v. Campbell, 14 S. and D. 914). It is riot doubted that the appellants acted with the most perfect bona fides. But the question here is, whether as between two parties, one of them a professional man, and taking money for his professional aid and assistance, and the other an unprofessional man, ......
-
Crosbie v Murphy
...Bench CROSBIE and MURPHY Stevenson v. Rowand 2 Dow. & C. 104, 119. Hart v. FrameENR 6 Cl. & Fin. 193. p. 210. Pitt v. YaldenENR 4 Burr. 2060, 2061. Baikie v. ChandlessENR 3 Camp. 17. Baikie v. Chandless ENR 3 Camp. 19. Purves v. Landell 12 Cl. & F. 91. Elkington v. HollandENR 9 M. & W. 659,......