IMPORTANT DICISION TO SOLICITORS AND CLIENTS.

Colonist, Volume IV, Issue 365, 23 April 1861, Page 2

IMPORTANT DICISION TO SOLICITORS AND CLIENTS.

COURT OP QUEEN'S BENCH. (Sittings at Nisi Prius, at Wesbninster, before Lord Campbell and a Comr, non Jury. Van Toll v Ch. ipman. This was an action to recover compensation in damages for :he loss alleged to> have been sustained by the plaintiff by the neglige ace of the defendant in the conduce ot a suit. Mr. Serjeant Shee and Mr. J. P. Doyle appeared for the plaintiff; and Mr. Hawkins for the defendant. The plaintiff, Mrs. Emma Ma ry Van Toll, was the widow of a gentleman who died in 1854, and the defendant was a solicitor, carrying on business at Richmond, in Surrey. Mr. Van Toll, who was a very young man, inherited a co .nsiderable sum or money, and being addicted tc very expensive amusements, he, at the solicitation of his friends, paid £1000 into the London and Westminister Bank in the name of his wife, and shortly after his death Mrs. Van Toll, who w as as young and inexperienced as her husband, en trusted the money to the hands of Captain Roberts , an officer in the Royal Marines, for investment in some safe security ; but instead of investing fit he applied it to his own use, giving the plaintiff a bond for the amount, and agreeing to pay interest upon it. After a time she was unable- <k» procure the return of the capital, and she eraoflc .yed the defendant^ with whom she had been pvevi( .usly acquainted, to proceed against Captain Robert s. iie accordingly issued a writ, filed a dectodratio n, and proceeded in the ordinary way with the* act.on, instead of availing himself of the clause xn the Common Law i rocedure Act, which enabled matters of account to be determined before a judge at chambers at an expense not exceeding £ii. Captain Roberts did not dispute the validity -of the bond, but denied owing the full amount, daimed-—he having paid some interest, as well as a portion of the capital; and therefore the case catae clearl v within the provision in question. The record in the action was ultimately withdrawn, and the case referred to the. Master, who certified that the plait <tiff was entitled' to J741, and £3T for costs. T lie plaintiff at length became dissatisfied with the delay which had taken place, and placed her affairs in the hands of another solicitor, who issued execution; but Captain Roberts then petition ed the Bankluptcy Court and obtained his certificate, and the plaintiff therefore never got her moi icy. It was now alleged that if the defendant had in the first instance taken the case before a judge, as pointed out by the act of parliament, and obtai ned speedy execution, the plaintiff would have re© overed the. whole, or, at any rate, a considerable poi tionof her claim, as the defendant at the time the writ was issued, and for some weeks afterwards, w, as in possession of a large sum of money. i

For the defence it was said that Mr. war. a highly-respectable solicitor,, and wo uld not knowingly have been guilty of the negligence alleged for the sole purpose of increasing his costs.

An attempt was also made to show that Captain Roberts was in a state of such pecuniary embari rassment that, even if the defendant had proceeded |by the more summary piocess against him, the plaintiff would not have received a farthing; and it [ appeared that Captain Roberts was arrested on his wedding-day, which occurred about the time the action was instituted, for a sum of £394, and would have been taken to prison if his father-in-law had not paid the money in order to save him from disgrace. There was a conflict of evidence between the parties as to the means of Captain Roberts when the plaintiff first proceeded against him; but a letter was put in from him to the plaintiff, written at this period, in which he said he only owed her £550, and that he was ready to hand over that sum in full satisfaction of the claim. Lord Campbell asked Mr. Chapman why he did not avail himself of the clause in the Common Law Procedure Act when he received that communication ? Mr. Chapman said he really did not think of it. The London Agent of the defendant also gave a k similar reply. Lord Campbell said he thought those were very fair answers. The Counsel on both sides having been heard in reply. Lord Campbell, in summing up, said he was happy to find that there was no imputation against the character or respectability of the defendant; but still he was answerable for any negligence of which he had been guilty in his capacity as legal adviser tothe plaintiff, and there was strong evidence to justify the jury incoming to the conclusion that there had been negligence, for he had entirely omitted to take advantage of a very salutary enactment, whereby the dispute between the parties might have been summarily adjusted at a very trifling cost. If they considered that the plaintiff was entitled to a verdict, they would then, in assessing the damages, place her in the same situation as they supposed she would have been if the defendant had taken the course prescribed by the act for recovering the money. The jury then retired, and, after a brief absence from court, returned with a verdict for the plaintiff; damages, ,£644. On Saturday last, in.this court, Mr. Chapman, the present defendant, brought an action against Mrs. Van Toll for the amount of his bill of costs in the suit against Captain Roberts : but the jury found that there had been negligence, and gave a verdict for Mrs. Van Toll. It will be observed in this case that the money was not placed in the hands of the solicitor to be invested; but he was merely employed to recover the money from a Captain Roberts, of the Royal Marines, and proceeded in the way he thought best to do so. There was some delay, and another solicitor was employed by the plaintiff, who, • at length became dissatisfied with the delay which had taken place.' In the meantime the gallant captain became a bankrupt. Mr. Chapman was proceeded against lor the amount; his counsel tried all he could to prove that even had there been no loss of time the captain was not in a position to pay, and therefore his client ought to be absolved. But this availed nothing with the common-sense common jury and the clear-headed Lord Campbell — negligence in this case was pronounced to be equal to criminality, and the lawyer, who ' really did not think ' of proceeding properly and cheaply, as legally laid down, had to pay damages to the tune of £644; and lost an action which he brought against his client for costs in the first action; but the common jury—vulgar men as they were—were inexorable, and the negligent and unthinking solicitor, was non-suited. Rifle Shooting.—A portion of No. 2 Company Nelson Rifle Volunteers, under the command of Captain Edwards, had their first meeting for target firing yesterday afternoon, and the practice as a beginning was very good. There were 115 rounds fired, at a range of 100 yards, which gave 6 bull's-eyes, 29 centres, and 41 outers; Lieutenant Blackett scored 11 in 6 shots, and Messrs. Black and Sinclair scored the next highest, each making 13 in 10 rounds. Accident.—On Thursday morning last, just after the men had commenced working on the Pelorus road, Mr. Locke, one of the contractors, had a narrow escape of his life, by the falling of nearly three tons of rock, a portion of which struck him a severe blow on the back, forcing him down the bank into the water. He was taken out severely bruised and conveyed home to his residence in Waimea-street, and is now going on favorably. Gazettes.—-By the Gazettes recently published we see that William Douglas Hall Baillie is to be Captain Commandant of Militia and Volunteers in Marl borough; Arthur Penrose Seymour to be Lieutenant in the Marlborough Mounted Rifles; Thomas Wall, Lieutenant in the Marlborough Rifle Volunteers; Courtney William Ayliher Thomas Kenny, Captain, Bryan Sneyd Herbert Broughton, Lieutenant, and Edward Charles Morgan, Ensign, in the Picton Rangers.