Stokes v Trumper
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1855 |
| Date | 01 January 1855 |
| Court | High Court of Chancery |
English Reports Citation: 69 E.R. 766
HIGH COURT OF CHANCERY
S. C. 3 W. R. 615. See In re Cartwright, 1873, L. R. 16 Eq. 474; In re Nelson, Son & Hastings, 1885, 30 Ch. D. 13; In re Romer & Haslam [1893], 2 Q. B. 291.
Contracts. Solicitor and Client. Crassa Negligentia. Mistake in Practice. Interrogatories. Cross Interrogatories. Bill of Costs.
[232] stokes v. thumper. May 22, 25, July 2, 24, 1855.(1) [S. C. 3 W. E. 615. See In re Cartwright, 1873, L. E. 16 Eq. 474; In re Nelson, Son & Hastings, 1885, 30 Oh. D. 13; In re Earner & Haslam [1893], 2 Q. B. 291.] Contracts. Solicitor and Client. Crassa Negligentia. Mistake in Practice. Interrogatories. Cross Interrogatories. Bill of Costs. Where a solicitor has been retained for and has undertaken a particular business, his bill of costs for carrying that business through to its conclusion is but one bill; and where the business in question is the prosecution of a suit, and the solicitor has, by his crassa negligentia in the conduct of the suit, caused the suit to be lost, he cannot recover any portion of this bill. In a cause, commenced by information, the relators' solicitor intending to cross-examine two Defendants who had previously been examined in chief on behalf of a Co-defendant, such Defendants were, by mistake, examined upon interrogatories for the examination of witnesses in chief on the part of the informant, and, by reason of this mistake, the information was dismissed, with costs. Held, that the mistake was crassa negligentia on the part of the solicitor, and disentitled him to recover any portion of his bill of costs. In December 1845 the Eev. John Trumper, Vicar of Clifford in Herefordshire, and the Eev. Francis Trumper, the minister of Clifford, retained Mr. Pugh, as their solicitor, to commence and prosecute an information against the trustees of the Clifford charity for various breaches of trust alleged to have been committed by them or one or more of them. Pugh accordingly filed an information against Dew, Growland, Delahay and Lee-Warner, the trustees of the charity, stating various breaches of trust on the part of the Defendant, Dew, in the management of the. charity property, and that the other trustees had never interfered to correct or prevent the acts of mismanagement of which the information complained, and praying (inter alia) that the trustees might be personally charged with all sums misapplied by them. In the course of the proceedings in the suit the Defendants, G-owland and Lee-Warner, were examined in chief on behalf of their Co-defendant, Dew, who had obtained an order for that purpose. The same witnesses were afterwards examined upon interrogatories for the examination of [233] witnesses in chief on the part of the informant. No order was obtained for the purpose of this last-mentioned examination, which was had without the witnesses' consent, and without withdrawing replication. Upon the cause coming on to be heard before Vice-Chancellor Knight Bruce it was stated on behalf of the informant that the examination of the Defendants, G-owland and Lee-Warner, as witnesses in chief on the part of the relators, arose from a mistake, the intention having been to cross-examine them only. But His Honour held that, by reason of their examination on the part of the informant, no decree could be made against the Defendants, Gowland and Lee-Warner, and that the 32d Order of August 1841 did not, under the circumstances of the case, entitle the informant to relief against the other trustees; and the information was dismissed with costs. On a motion subsequently made on behalf of the informant to suppress the depositions of Gowland and Lee-Warner it was ordered by Vice-Chancellor Knight Bruce that they should be suppressed upon certain terms mentioned in the order, His Honour being of opinion that the circumstance of their being examined in chief in support of the information, in support of which they might have been, as Dew's (1) The report of this case has been delayed, in consequence of the editors being unable to obtain the requisite papers. 2K.&J.234. . STOKES V. TRUMPEE, 767 witnesses, cross-examined, w&s attributable to error and want of knowledge, and to no design or intention of abandoning the ease against them. On appeal to Lord Cottenham, C., this order was discharged, the Lord Chancellor being of opinion that even on these terms the relators could not be relieved from mistake. (A report of these proceedings will be found nom. Attorney-General .v. Dew, 3 De G. & S. 488.) The relators died ; the present suit was instituted by the executor of the survivor for the administration of his [234] estate; and, under the common advertisement for creditors, a claim was carried in by Pugh, claiming to be a creditor in the sum of 1231, 17s. 4d. for work done and materials for the same provided upon the relators' retainer, and for fees due and payable to him in respect thereof in the prosecution of the information. The amount of Pugh's bill of costs up to and inclusive of the date of the Lord Chancellor's order was 1123, 8s. 3d. The rest of the bill was made up of the costs of Defendant, Delahay. Pugh, by an affidavit in support of his claim, deposed as follows :- " The Defendant, Dew, having obtained an order for the examination of the Defendants, Lee-Warner and Gowland, I, having considered their evidence material on behalf of the relators in this information, but being in doubt whether the statute 6th & 7th Viet. c. 85, enabled the informant to examine these Defendants and have a decree against them, consulted our counsel who drew the information and pleadings, namely, Mr. Wray, and Mr. Wray, in his opinion, dated the 20th of February 1849, stated, among other things, that, notwithstanding their being interested witnesses, they might by the then late Act be examined by or on behalf of the relators. On the 18th January 1849, previous to my obtaining Mr. Wray's opinion, Bodenham (the Defendant's solicitor) and myself agreed that the commissioner should be at liberty to cross-examine any of the witnesses examined on the part of the informant or of the Defendant, Dew, at any time after the examination of such witnesses in chief, and notwithstanding any other witnesses might have been called and examined on behalf of either of the said parties in the meantime; which said agreement was written by Bodenham and signed...
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