undertakes to build a house, and builds it out of the perpendicular, or neglects to examine the ground and secure proper foundations for the building, and constructs the walls so carelessly and negligently that a settlement takes place and cracks. make their appearance, and the structure becomes a dangerous nuisance, the builder is responsible in damages for negligence. (a) So if he is guilty of negligence in not sufficiently underpinning the adjoining house, whereby such adjoining house is injured; and the penalty imposed by s. 94 of the Metropolitan Building Act (18 & 19 Vict. c. 122), on a building owner who, in making his own buildings, damages those adjoining, is cumulative. (b)

The degree of skill and diligence which is required from the workman depends upon the nature and extent of his public profession, and rises in proportion to the value, the delicacy, and the beauty of the work he undertakes to execute, and the fragility and brittleness of the materials intrusted to him to work upon. (c) Clockmakers, jewelers, opticians, and all kinds of skilled workmen and all persons belonging to the learned professions (except barristers), are responsible in damages if they profess to accomplish more than they are able to perform, and undertake works of skill without being possessed of sufficient skill, or apply less than the occasion requires. (d) “Every person," observes TINDAL, C. J., "who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not undertake, if he is an attorney, that at all events you shall gain your cause; nor does a surgeon impliedly undertake that he will perform a cure, nor does he undertake to use the highest possible degree of skill, but he undertakes to bring a fair and competent degree of skill." (e) So a chemist will be liable for negligence in compounding hair wash, by which the plaintiff's wife was injured. (f) And a patent agent for negligence in not being

(a) Harman v. Cornelius, 5 C. B., N. S. 236; 28 Law J., C. P. 88. Farnsworth v. Garrard, i Campb. 39. Duncan v. Blundell, 3 Stark. 7. Munro v. Butt, 8 Eli. & Bl. 738. Williams v. Fitzmaurice, 3 H. & N. 844.

(6) Williams v. Golding, L. R., 1 C.

P, 69. See ante.

(c) Addison on Contracts, 6th edit., 399.

(d) Seare v. Prentice, 8 East, 352. Slater v. Baker, 2 Wils. 359.

(e) Lanphier v. Phipos, 8 C. & P. 479. Hancke v. Hooper, 7 C. & P. 81.

(f) George v. Skivington, L. R., 5 Exch. I.

1 Bowman v. Tallman, 2 Rob. (N. Y.) 385; Weimer v. Sloane, 6 McLean (U.

S.) 259. Ex parte Giberson, 4 Cranch (Id.) 503.

aware of a legal decision which made an important cnange in the practice of obtaining patents. (g)

570. Negligence of attorneys and solicitors. (h)—Every client has a right to the exercise, on the part of his attorney, of care and diligence in the execution of the business intrusted to him, and to a fair average amount of professional skill and knowledge; and if attorneys have not as much of these qualities as they ought to possess, or if, having them, they have neglected to employ them, the law makes them responsible for the loss which has accrued to their clients from their deficiencies. (2) It is the duty of every attorney and solicitor to act with fidelity to his client, and to keep the secrets of the latter; “for if a man, being intrusted in his profession, deceive him who intrusted him, or if a man retained of counsel become afterward of counsel with the other party in the same cause, or discover the eivdence or secrets of the cause; or if an attorney act deceptive, to the prejudice of his client, or make default by collusion with others, whereby his client is injured, an action lies for damages." (j) If an attorney, when his client's deeds are put into his hands, for the purpose of raising money, discloses defects of title to the person who was about to lend, and the client sustains damage therefrom, the attorney is responsible for neglect of duty, and can not shelter himself from the consequences by showing that he was also employed on the part of the proposed lender, and was actuated by a sense of justice towards him; for whenever an attorney finds that he has a conflicting duty to discharge towards his several clients, he must at once withdraw from the inconsistent employment, and decline to act in the matter. Whenever the attorney has his client's title deeds put into his hands for any purpose whatever,

tors Act, 1870 (33 & 34 Vict. c. 28), will absolve such attorney from the consequences of his negligence. See s. 7.

(i) Hart v. Frame, 6 Cl. & Fin. 209. Russell v. Palmer, 2 Wils. 325. As to the liabilities of a firm for the negligence, &c., of one member of it, see Dundonald (Earl of) v. Masterman, L. K., 7 Eq. Ca. 504 38 Law J., Ch. 350. Bickford v. Darcy, L. R., 1 Exch. 354.

(j) Com. Dig, Action on the Case for Deceit, A. 5.

"he is to consider his lips sealed with a sacred silence as to the whole of their contents." (k)

It is also the duty of every attorney, by reason of the emolument he receives for the exercise of his professional skill, to take care that his client does not enter into any covenant or stipulation that may expose him to a larger responsibility than the nature of the business he is instructed to transact may, in the ordinary course of practice, require. If the stipulations are more onerous in their consequences than usual, the matter should be fully explained to the client, and the unusual extent of liability be made known to him. (

If an attorney conducting a suit neglects to comply with the practice or orders of the court, and neglects to take some necessary step in the cause, by means whereof all the previous proceedings become useless, he will be responsible in damages to his client. () And the same consequences follow if he hrings an action for his client, within a limited jurisdiction, on a cause of action manifestly arising out of the jurisdiction, (n) or negligently suffers judgment to go by default when he is retained to defend an action; (0) or fails to instruct counsel properly, and to deliver briefs in sufficient time to enable his counsel effectively to perform the duty entrusted to him; or if he is not present in person, or by his agent at the trial, to see that the witnesses are forthcoming when called upon. (p) When present at the trial, it is the duty of the attorney not to suffer the case to be called on, unless he has previously ascertained that all the necessary witnesses are in attendance; (g) but he is not bound to search after, his counsel, nor is he answerable for the non-attendance or neglect of the latter. (r) If he has received instructions from his client not to compromise an action he is retained to prosecute, he will be guilty of a breach of duty if he does compromise, and can not shelter himself from an action by showing that it was done under the

(k) Tindal, C. J., Taylor v Blacklow, 3 B. N. C. 235.

(7) Stannard v. Ullithorne, 4 M. & Sc. 376; 10 Bing. 491.

(m) Bracey v. Carter, 12 Ad. & E. 373. Frankland v. Cole, 2 Cr. & J. 590.

v. Valden, 4 Burr. 2063.

Pitt

(2) Williams v. Gibbs, 6 N. & M. 788.

(0) Godefroy v. Jay, 5 M. & P. 297; 7 Bing. 419.

(p) Hawkins v. Harwood, 4 Exch. 506; 19 Law J., Exch. 33. De Roufigny v. Pe le. 3 Taunt. 483. Swannell v. Ellis 8 Moore, 340; 1 Bing. 347.

(9) Reece v. Rigby, 4 B. & Ald. 202.
() Lowry v. Guildford, 5 C. & P. 234.

advice of counsel, (s) although that circumstance might go in reduction of damages. But in the absence of a distinct prohibition to compromise, the general authority of an attorney is sufficient for that purpose. (t)

"It would be extremely difficult," observes TINDAL, C. J., "to define the exact amount of skill and diligence which an attorney undertakes to furnish in the conduct of a cause. 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 thereon. 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; but he is not answerable for error in judgment upon points of new occurrence, or of nice or doubtful construction, or of such as are usually intrusted to men in the higher branch of the profession of the law, unless he has thought fit to act upon his own judgment and opinion respecting matters which ought to have been laid before counsel." (u) Prima facie the attorney's retainer ceases on judgment being obtained, but it may be renewed by any acts showing the client's intention that he shall continue to act in that relation. (x)

If an attorney is employed to investigate the title to an estate, or to seek out an eligible investment, and obtain good security for money advanced, and the title is obviously defective, or the security is manifestly bad or insufficient, the attorney will be responsible for his negligence both at common law and in equity. (y) But he is not responsible for an advance on a mortgage which turns out a deficient security, if he has taken the opinion of a competent surveyor as to the value of the property. (z) He is not justified in relying upon an extract

(s) Fray v. Voules, 1 El. & El. 839; 28 Law J., Q. B. 232. Butler v. Knight, L. R., 2 Exch. 109.

't) Pristwick v. Poley, 34 L. J., C. P. 189. Butler v. Knight, supra.

(u) Godefroy v. Dalton, 6 Bing. 468. Purves v. Landell, 12 Cl. & Fin. 98. Shilcock v. Passman, 7 C. & P. 292. Kemp. v. Burt, 4 B. & Ad. 431. Long v. Orsi, 18 C. B. 610. Cox v. Leech, I C. B., N. S. 617. Ireson v. Pearman, 3 B. & C. 812, 813. Townley v. Jones, 8 C.

B., N. S. 289.

(x) Butler v. Knight, supra.

(1) Knight v. Quarles, 4 Moore, 532; 2 B. & B. 102. Whitehead v. Greetham, 10 Moore, 183; 2 Bing. 464. Howell v. Young, 5 B. & C. 259. Chapman v. Chapman, L. R., 9 Eq. Ca. 276.

(z) Chapman v. Chapman, supra. As to his duty to get the best price for property entrusted to him, see Morgan v. Steble, L. R. 7 Q. B. 711.

from a will furnished to him by his client, unless the latter agrees to take the entire responsibility upon himself; but he ought to search for and examine the original will. (a) If he relies upon his own judgment and opinion as to the interpretation and legal operation of deeds and conveyances, he does so at his peril. If he draws a wrong conclusion from them, he will be responsible in damages to his client. He ought, therefore, to lay them before counsel, if he wishes to avoid the responsibility of acting upon his own judgment respecting them. (b)

If, when retained by a client who is about to advance his money on the security of a mortgage, he has reason to suspect that the intended mortgagor has been insolvent, or in embarrassed circumstances, he will be responsible for a breach of duty if he neglects to make searches in the proper quarter to ascertain whether such intended mortgagor has ever taken the benefit of the Insolvent Act; (c) or to make inquiry whether there are any existing incumbrances on the property. (d) If he neglects to register a judgment, or to file a cognovit or warrant of attorney, or to file writs, and his client sustains damage from his default, he will be responsible for the consequences. (c) Nor has he any implied authority, after judgment in favor of his client, to enter into an agreement on his behalf to postpone execution. (f) When employed by a purchaser of leasehold property, he is not exonerated from the duty of investigating the title of the vendor by a stipulation in the conditions of sale that the lessor's title is not to be gone into, and that no abstract of the vendor's title will be furnished. He must, nevertheless, ascertain that the vendor has a lease, and that the whole transaction is not a mere pretense. (g)1

(a) Wilson v. Tucker, 3 Stark. 156.
(b) Ireson v. Pearman, 3 B. & C. 813;

5 D. & R. 699.

(c) Cooper v. Stephenson, 21 Law J., Q. B. 292.

(d) Hopgood v. Parkin, L. R., 11 Eq.

Ca. 74. See Ratcliffe v. Barnard, L. R., 6 Ch. App. 652.

(e) Hunter v. Caldwell, 10 Q. B. 82; 16 Law J., Q. B. 274.

(1) Lovegrove v. White, L. R., 6 C. P. 440.

(g) Allen v. Clark, 11 W. R. 304.

'An attorney is liable for gross negligence, or gross ignorance in the conduct of his client's business, and whether he is guilty of either, is a question of fact for the jury, and it is competent to establish or rebut such charge by the evidence of attor eys learned in the law and its practice. Pennington v. Yell, 11 Ark. 212; Evans v. Watrous, 2 Port. (Ala.) 2c5; Palmer v. Ashley, 3 Ark. 75; Weimer v. Sloane, 6McLean (U. S.) 259. As if he is instructed by his client to bring a suit, and neglects.