An order to review this decision was obtained on the ground :

"That there was no evidence of the defendant having suffered or permitted the excreta or urine to accumulate in or upon his premises at Studley Park, Kew, aforesaid."

Mr. Davis showed cause.

The substantial question is whether the defendant is answerable for the act of his servant. The Legislature intended that the owner or occupier should be the only person liable in such a case as this, and whether he has or has not knowledge of the nuisance. If the owner or occupier is not liable the object of the section would be defeated.

Counsel cited Barnes v. Learoyd, L.R. 7 Q.B. 474; Mullins v. Collins, L.R. 9 Q.B. at p. 295; Niven v. Geaves, 54 J.P. 548; Bond v. Evans, 21 Q.B.D. 249; Reg. v. Panton, exparte Edmonds, 8 V.L.R. (L). 301; Bosley v. Davies, IQ.B.D. 84; Somerset v. Way, (1894), 1 Q.B. 576; Mowling v. Hawthorn, 17 V.L.R. 150; Hettenback v. Isley, 7 V.L. R. (L) 104; Reg. v. McQueen 1 V.L.R. (L). 18.

Mr. Irvine supported the order. Two views may be taken of section 221, one is that the section imposes a duty or risk upon owners of property to take care that the nuisance shall not arise, the other is that it is not sufficient to shew that the nuisance did arise but that it must also be shewn that the defendant had knowledge of the nuisance. The authorities all support the second view.

Counsel cited Redgate v. Haynes, 1 Q.B.D., 89 ; Somerset v. Hart, 12 Q.B.D., 360.

Cur. adv. vult.

WILLIAMS, J., in giving judgment, said: The defendant was prosecuted under section 221 of the Health Act 1890 for suffering or permitting excreta and urine to accumulate in or upon the floor of his closet whereby a nuisance by offensive smell was caused. The ground upon which the order to review is sought, is shortly this, that there was no evidence that the defendant knew that the filth had accumulated on the floor of the closet. The facts proved before the justices were that a domestic maid servant of the defendants had caused this nuisance, but in the course of her domestic duties, by pouring a pail or bucket of slops into the closet so as to cause this offensive matter to overflow on to the floor. It also appeared that the same thing had happened on two previous occasions, and that complaints had been made on those two occasions to the defendant's servant, and that on one of those occasions the defendant's servant had communicated such complaint to the defendant. All that was given in evidence and was not objected to. The defendant was called and was not contradicted. He said that he did not know that the nuisance had taken place. I am to decide on that state of facts that he is to be convicted under the section,-that it is proved that he had knowledge. I think that upon the facts as they were given in evidence, the justices could find that this offence occurred through the negligence of the defendant. I think it had been proved that the same thing had occurred on two previous occasions, and that on one of those occasions it had been com

municated to the defendant. It might not have been to his knowledge, but it was his carelessness or negligence which had conduced to this, and I think that, within the cases, that would be sufficient to justify this conviction under this section. His carelessness and negligence conduced to the repetition of this offence. But I am disposed to go further, and I think the doctrine qui facit per alium facit per se applies. If the nuisance is suffered, or permitted, or committed by a servant or agent while acting within the scope of the duties of that servant or agent, the knowledge of that servant or agent is to be imputed to the principal. If that view is correct this servant was undoubtedly acting within the scope of her duties, she was employed in emptying slops, which was part of her domestic duties, when she caused the nuisance. She may have emptied them in an improper place, but it was within the scope of her duties, and she knew what the effect of her so emptying them would be. I think her knowledge is to be taken as that of her master. It is not necessary so to decide for the purposes of this case, but I am disposed to go so far, and, if it is necessary to go so far, I am prepared to go the whole length and to hold that, while a servant is acting within the scope of her duties and suffers or permits a nuisance, under sec. 221 the servant's knowledge is that of her master. Order to review discharged with costs.

Solicitors, for the informant, Madden & Buttler : for the defendant, Westley & Dale.

IN CHAMBERS.

Before Williams, J.

LLOYD V. LOOKER.

24th, 26th October.

Rules of Supreme Court 1884, Order XXXVI., 7. 1 -Order LXV., r. 27 (41)-Review of taxation of costs-Change of VENUE.

Where, in an action, judgment is ordered to be entered for the defendant on the statement of claim, without costs, and for the defendant on the counter-claim, with costs, the defendant on the taxation of his costs of the counter-claim, is entitled to all such costs as were necessarily incurred for establishing the counterclaim, even if part of them went to and established the defence. Costs incurred in connection with an application to change the VENUE of an action, may be said to be costs incidental to the counter-claim.

Application on behalf of the plaintiff for an order that the taxation of the bill of costs herein be reviewed and that the objections made by the plaintiff to the allowance of all the items (with the exception of the several items of which the allowance is not objected to as specified in the objection) be allowed; and that the several items objected to be disallowed or divided or apportioned; and that the costs of and occasioned by such objections and this application be paid by the defendant to the plaintiff.

The pleadings in the action were as follow

STATEMENT OF CLAIM.

1. By an offer in writing made by the defendant on the 25th November 1892 to George Dilnot as agent for the plaintiff, and by an acceptance in writing of the said offer made imme: diately thereafter by the said George Dilnot as such agent for the plaintiff, the defendant agreed to purchase from the plaintiff all those pieces of land being allotments 3, 1A and 1B of section 7 Parish of Condah in the colony of Vic toria containing 319 acres 1 rood and 6 perches at £2 13s. 6d. per acre on the following terms: one third cash by deposit of £70 within 7 days after the 25th November 1892 and the balance of the cash deposit, viz., £215 6s. 8d. by a 3 months' bill bearing interest at £6 per cent. per annum. Transfer to be executed on payment of deposit and mortgage to be taken for the balance. Interest payable half-yearly, possession to be given on payment of the £70 and signing of the bill.

2. On the 28th November in pursuance of the said agreement, the defendant paid the sum of £70 as deposit to the said George Dilnot as agent for the plaintiff and shortly thereafter was placed in and went into possession of the said land hereinbefore described.

3. The defendant has been required by the plaintiff in accordance with the said agreement to execute as transferee a transfer to him by the plaintiff of the said lands and to make his bill at three months and to execute a mortgage over the said lands for the balance of the purchase money, and the defendant has failed and refused to execute or make any of the said documents, and has refused to perform his part of the said agreement.

of the said "Dwyer's Paddock" asked the plaintiff and the said George Dilnot the acreage thereof whereupon the plaintiff and the said George Dilnot informed the defendant that the acreage of the said "Dwyer's Paddock" was 319 acres, 1 rood 6 perches, and that the said allotments 3, 1A and 1B were comprised therein, and the defendant in the belief that he was buysigned the said document. ing the said "Dwyer's Paddock" Shortly afterwards the defendant ascertained for the first time, as the fact was, that the said Dwyer's Paddock" tains only 199 acres or thereabouts, and that only the said allotments 1A and 1B are comprised therein, and that the said 319 acres, 1 rood 6 perches were made up of the said 'Dwyer's Paddock, and also of another paddock (being the said allotment 3) separated from the said "Dwyer's Paddock" by a Government road and a 40 acre paddock.

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con

6. In the alternative, the defendant was induced to sign the said document by the misrepresentation of the plaintiff and the said George Dilnot.

PARTICULARS OF MISREPRESENTATION.

[The particulars of misrepresentation were similar to the particulars of mistake]. 7. The defendant never offered or knowingly agreed on the said 25th November 1892, or at all to buy the said allotment 3. 8. The defendant paid the said sum of £70 deposit on the 28th November 1892, whilst under the said mistake, or in the alternative in consequence of the said misrepresentation.

9. The plaintiff now pretends, contrary to the fact and contrary to what the defendant believed at the time of signing the said document, that "Dwyer's paddock" comprises the said allotments 3, 1A and 1B.

10. The defendant within a reasonable time after discover

In the alternative the plaintiff claims £1000 as damages for breach of the said agreement.

DEFENCE

The defendant as to the Statement of Claim says:1. Save as in the 4th paragraph hereof set out, he denies each and every allegation in the 1st paragraph.

2. Save as in the 8th paragraph hereof set out, he does not admit any of the allegations in the 2nd paragraph. 3. Save as in the 10th paragraph hereof set out, he denies each and every allegation in the 3rd paragraph.

4. On the 25th November, 1892 the defendant at the request of George Dilnot therein named signed a document whereby the defendant purported to offer for allotments 3, 1A and 1B section 7, Parish of Condah, containing 319 acres 1 rood and 6 perches, being the land known as 'Dwyer's Paddock" offered for sale by the said George Dilnot, as agent for the owner, to the defendant, £2 13s. 6d. per acre on the following terms:--One-third cash by deposit of £70 within 7 days after acceptance, and the balance of the cash deposit viz., £215 6s. 8d. by 3 months bill, the remaining two-thirds in 3 years. The bill and remaining two-thirds to bear 6 per cent. interest. Transfer to be executed on payment of deposit and mortgage taken for the balance. Interest payable half-yearly. Possession to be given on payment of the £70 and signing of the bill. And on the same day the said George Dilnot, as agent for the owner signed a document accepting the said offer. Save as aforesaid, the defendant did not on the said 25th November, or at all, sign any instrument purporting to be an offer for the purchase of the land in the statement of claim mentioned or any part thereof.

5. The defendant signed the said document under a mistake. PARTICULARS OF MISTAKE.

The defendant on and prior to the said 25th November, 1892 informed the plaintiff, and the said George Dilnot (as the fact was) that he was ready and willing to purchase a certain piece of land known as "Dwyer's Paddock "at £2 13s. 6d. per acre, and the defendant being ignorant of the acreage

time after discovering that the said representation was incorrect informed the plaintiff of the facts and refused to carry out the contract purporting to be expressed in the said two documents referred to in the 4th paragraph of this defence.

11. The defendant will contend that, under the circumstances no valid contract for the sale and purchase of any of the said allotments was ever entered into by and between the plaintiff and the defendant.

12. If however the Court should be of a contrary opinion, the defendant is and always has been ready and willing (and in fact the defendant so informed the plaintiff before action was brought) and the defendant hereby offers to duly carry out the offer contained in the said document signed by him as in the 4th paragraph of the defence mentioned so far as relates to the said allotments 1A and 1B, provided the said allotments are freed from the mortgage in the 16th paragraph hereof mentioned.

13. Subject to acceptance of the offer in the last preceding paragraph hereof, the defendant will object that the contract alleged to be contained in the said two documents is void for non-compliance with the 208th section of the Instruments Act 1890.

14. The defendant will also object that it is not alleged in the statement of claim that the said George Dilnot was the duly authorised agent of the plaintiff within the meaning of sec. 209 of the Instruments Act 1890.

15. In fact the said George Dilnot was not the duly authorised agent of the plaintiff within the meaning of sec. 209 of the Instruments Act 1890.

16. Moreover the plaintiff and the said George Dilnot on the said 25th November 1892, misrepresented and did not disclose to the defendant the true title to the said "Dwyer's paddock and the plaintif in fact then had no such title to any of the said allotments as the defendant is bound to accept.

PARTICULARS.

The plaintiff and the said George Dilnot on the said 25th November 1892 sold the said "Dwyer's paddock" to the defendant as freehold, whereas in fact the title of the plaintiff to the said allotments 1A and 1B although freehold was subject to a mortgage for £650; and the title of the plaintiff to the said allotment 3 was leasehold, and was subject to a mortgage of £650 none of which facts were disclosed to the defendant by the plaintiff or the said George Dilnot.

The defendant says

COUNTERCLAIM.

1. He partially repeats the 4th paragraph of the defence excepting the last sentence thereof commencing with the words " save as aforesaid, &c."

2. He repeats the 5th and 6th paragraphs of the defence with the particulars thereunder respectively.

3. He repeats the 7th paragraph of the defence.

4. The defendant paid the said sum of £70 deposit to the plaintiff on the 28th November 1892 whilst under the said mistake, or in the alternative in consequence of the said misrepresentation and the plaintiff still retains the same and refuses to repay it.

5. He repeats paragraphs 9, 10 and 16 of the defence and he partially repeats paragraph 13 of the defence excepting the first 16 words thereof, and paragraph 15 of the defence excepting the first 2 words thereof.

6. The defendant will contend that, under the circumstances, no valid contract for the sale and purchase of any of the said allotments was ever entered into by and between the plaintiff and the defendant, and that the said 2 documents referred to in the 4th paragraph of the defence as herein repeated ought to be cancelled.

7. In the alternative the defendant will contend that the said 2 documents amount to a contract for the sale by the plaintiff and the purchase by the defendant of the said allotments 1A and 1B only.

S. The defendant is and has always been ready and willing to carry out his part of the terms contained in the said contract in relation to the said allotments 1A and 1B provided that the said allotments are freed from the mortgage mentione in the 16th paragraph of the defence as herein repeated but the plaintiff has upon request by the defendant refused, and still refuses to transfer to the defendant the said 2 allotments either freed from the said mortgage or at all, or to give to the defendant possession thereof or to in any way perform his part of the said contract in relation to the said 2 allot

ments.

The defendant counterclaims

1. A declaration that no valid contract was entered into by between the plaintiff and defendant on the 25th November 1892 or at all in relation to the said allotments 3, 1A and 1B, or any of them and an order that the said 2 documents be forthwith delivered up and cancelled.

2. Repayment of the said sum of £70 with interest from the 28th November 1892 to date of judgment.

Dec. 1, 1894.

plaintiff is not the party to the contract sought to be charged, and further that the defendant went into and has ever since remained in possession of the said lands.

4. As to paragraph 16 of the defence, the plaintiff will contend that the objection therein raised is not an objection to title but is matter of conveyancing only.

:

The plaintiff as to the counter-claim says that :1. He denies that the defendant signed the said document at the request of the said George Dilnot or that the defendant purported to offer for allotments 3, 1A and 1B, section 7, Parish of Condah, and says that the defendant did in fact offer for the said allotments as is therein set forth, and save as aforesaid the plaintiff admits the 1st paragraph of the counterclaim.

2. He denies each and every allegation of fact of paragraph 2 of the counter-claim.

3. He denies each and every allegation of fact of part 3 of the counterclaim.

4. Save that the defendant paid to the plaintiff the said sum of £70 as deposit on the purchase on the 28th November, 1892, and that the plaintiff retains the same as such deposit the plaintiff denies each and every allegation of fact in paragraph 4 of the counter-claim.

5. As to paragraph 5 of the counter-claim the plaintiff denies each and every allegation of fact therein except that the defendant refused to carry out his said contract; and the plaintiff further says that he repeats paragraphs 2, 3 and 4 of the reply to the defence.

6. The plaintiff further says that the defendant went into possession of the said lands under the said contract on or about the 28th November 1892, and has remained in posses

sion ever since.

7. As to paragraph 8 the plaintiff says the only contract entered into by the plaintiff and the defendant is the one set forth in paragraph I of the statement of claim. and the plaintiff has given, and the defendant has taken possession of the said lands described in the said contract.

8. The plaintiff will contend that if the contract is void (which he denies) the defendant cannot sue for specific performance of it.

9. The plaintiff will contend that the defendant will not be entitled to claim specific performance of such a contract as is alleged in paragraph 8, without first obtaining rectification of the contract sued upon.

10. The plaintiff will contend that the defendant is not entitled to claim specific performance of the contract with the variation set up in paragraph 8, inasmuch as it seeks to vary the description of lands as contained in the written contract

REPLY.

The plaintiff as to the defence says

1. That save as to the admissions therein contained he joins issue.

2 As to paragraph 10 the plaintiff says that by the written authority of the plaintiff's solicitor, dated the 28th November, 1892, which specifically named the said 3 allotments mentioned in the defendant's offer to purchase, the defendant was authorised to take possession, and the defendant, on or about this date took possession of the said 3 allotments of land, and by a memorandum of account dated the 6th December, 1892, received by the defendant on or about this date the acreage of the land purchased was stated to be 320 acres, and the plain tiff says that the defendant did not until about the 15th December object to the said contract, and the plaintiff will contend that under these circumstances the defendant is not now entitled to rely on such objection.

3. As to paragraph 15 of the defence, the plaintiff will contend that it affords no answer to this action, inasmuch, as the

REJOINDER TO REPLY.

The defendant as to the reply to the defence says:1. He joines issue.

2. As to paragraph 4 thereof he will object that it is not alleged by the plaintiff that the defendant ever agreed that the said objection to title should be matter of conveyancing only, or that the defendant ever waived the right to raise such an objection as an objection to title.

3. In fact the defendant did not so agree nor did he waive the said right.

REJOINDER TO REPLY TO COUNTERCLAIM. The defendant as to the reply to the counterclaim says:1. Save as to admissions therein he joins issue.

2. As to so much of paragraph 5 as repeats paragraph 4 of the reply to the defence, he repeats paragraphs 2 and 3 of the rejoinder to the reply excepting the first 6 words of the said paragraph 2.

At the hearing Hodges J. ordered judgment to be entered for the defendant on the statement of claim without costs and for the defendant on the counterclaim for £70 with costs.

On taxation the taxing officer allowed costs for "attending to deliver counterclaim," "attending giving plaintiff time to reply," "attending counsel to settle rejoinder to reply and attending to deliver same,"

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"term fee agency," drawing and engrossing order for leave to deliver rejoinder and attending judge for signature," "instructions for application for change of venue and instructions for drawing and engrossing affidavit in support," "attending defendant reading over affidavit and commissioners fee," "drawing and engrossing summons and fees and expenses connected with summons,' attending amending statement of claim, attending filing order and fee paid," "drawing and engrossing case on evidence, and attending counsel and paid his fee," fees connected with notices to produce and admit on behalf of both plaintiff and defendant," "instructions for brief and drawing and engross ing brief," "counsels fee and costs connected therewith," | 'subpoenas to witnesses and costs connected therewith" attending trial," "term fee,' ," "costs connected with obtaining and signing judgment, and costs connected with the taxation of costs."

The plaintiff objected to these costs being allowed for the following reasons; (a) that these costs are costs of the action as distinguished from the costs of the counterclaim; (b) alternatively that these costs were not allowed to the defendant by Hodges J., inasmuch as costs were allowed to the defendant only so far as the costs of the action were increased by reason of the counterclaim; (c) alternatively that these costs were common to the action and to the counterclaim, that the judgment required them to be divided and apportioned between the action and the counterclaim, and that they have not been so divided or apportioned.

The reasons given by the taxing officer for his allowance of these costs were as follows: "I disallow these objections on the grounds that the evidence for the defendant upon the counterclaim was identical with the evidence for his defence, and that as he succeeded in his defence as well as upon the counterclaim I cannot distinguish any costs of the cause except those apportioned in the bill that are separable from the costs of counterclaim."

Mr. Pigott in support. In this case the taxing officer did not distinguish between costs which were costs of the claim as well as costs of the counterclaim. Hodges J. must be taken to have meant by the judgment that the defendant should not be allowed the costs of the claim, but should be allowed his costs with regard to the counterclaim.

HIS HONOR.-1 should have thought that the effect of the order was that the defendant was to have the costs of all matters which relate exclusively to the counterclaim, and that all other costs should be borne by the parties.

Mr. Pigott.-The taxing officer has allowed costs for attending to deliver the counterclaim; instructions for the defence and counterclaim would be given at the same time and the counterclaim would be delivered along with the defence yet full costs have been allowed, the same objection applies to attending counsel to settle rejoinder to reply and indeed to nearly all the items objected to. All the items with regard to the change of venue have reference exclusively to the claim. A plaintiff has a right to choose his venue, and the fact of the defendant obtaining a change of venue does not

affect the question. The fee to counsel on the brief was allowed in full, this should not have been so, for the brief and the fee had reference to the defence as well as to the counterclaim, and it should at least have been apportioned between the costs of the defence and the counterclaim. He cited Bank of Victoria v. Synnot, 11 V.L.R., 598.

Mr. Hill to oppose: I can find no case in which the present question has previously arisen. Where the claim and counterclaim are both dismissed with costs the defendant is entitled to the general costs of the action, and the defendant would have to pay only the amount by which the costs had been increased by reason of the counterclaim. Saner v. Bilton, 11 Ch. D. 416; Mason v. Brentini, 15 Ch. D. 287. The defendant therefore would be entitled to the general costs of the action. All the costs allowed were necessarily incurred in establishing the counterclaim and therefore they were properly allowed. It does not matter if the defence and counterclaim overlapped, and if so, some of the evidence adduced to support the counterclaim would also go to support the defence. When the venue is changed this relates to the whole action and not to the statement of claim only and therefore such costs were properly allowed. The costs for instructions for brief were apportioned. He referred to Knight v. Moore, 3 Bing. N.C. 3.

HIS HONOR said: I shall consider the matter.

HIS HONOR on a subsequent day said: This was a summons taken out by the plaintiff to review the taxation of a bill of costs. The action was heard before Hodges J. at Hamilton, and he ordered judgment to be entered for the defendant on the claim without costs, and for the defendant on the counterclaim with costs; i.e., he found for the defendant both on the claim and on the counterclaim. Generally speaking, the taxing officer has proceeded on a principle which I believe to be the correct one, viz., he has allowed the defendant all such costs as he necessarily incurred for establishing his counterclaim, and even if part of them went to and established the defence yet he has allowed them if they were necessary to establishing the counterclaim. Having come to that conclusion the only items which perplexed me were as to the change of venue. At the first blush they would appear to be items which related purely and solely to the claim. I have, however, sufficient doubt about the matter to prevent me disturbing the taxing officer's decision. The defendant had to bring his counterclaim where the claim was brought, therefore I am inclined to think these costs were also incidental to the counterclaim and am rather inclined to the opinion that the taxing officer was right. I shall dismiss the summons with £2 2s. Od. costs with liberty to add that amount to the costs already taxed. I certify for counsel.

Solicitors, for plaintiff, Hart; for defendant, Hill.

SITTINGS IN BANCO.

Madden, C.J., Williams and a'Beckett, JJ.

ROBINSON AND ANOTHER V. ABBOTT. Nov. 1, 2, 5. Solicitor and client-Sale by solicitor of his property to client-Non-disclosure by solicitor-Absence of fraud-Duty of solicitor-Remedy of client-Rescission-Indemnity-Lapse of time-Acquiescence. A solicitor having been asked by a client to make a safe investment of certain money for her, induced her to purchase shares in a company of which he was the There was no fraud on the part of the solicitor, but he did not disclose to the client that the shares she was buying belonged to him. The company did not turn out a success, and went into liquidation. The client did not find out until a year after the sale that the shares belonged to the solicitor, and did not know until two years more had elapsed that she had any remedy, whereupon she brought an action to obtain that remedy.

owner.

Held, by the Court (dubitante Williams, J.), affirming the decision of Holroyd, J., that the client was entitled to a return of the purchase money paid for the shares, to the calls paid on the shares, and to an indemnity by the solicitor against all future liability in respect of the shares.

By Madden, C.J.: A person cannot acquiesce in a wrong which has been done to him, unless he knows that he has a remedy for that wrong. By Madden, C.J. and a'Beckett, J.: The remedy of rescission or its equivalent may be given not only in cases of fraud, but also in the case of an innocent misrepresentation or omission to disclose by a person who is under a duty to make full disclosures, even though as in this case, that person, by reason of the liquidation of the company, and the shares having become valueless, cannot be put into the same position as he was in before the contract was made. By Madden C.J.: The solicitor became, under the circumstances, a trustee for his client of the money paid to him, and therefore, he was liable to indemnify her against loss.

Appeal from a judgment of Holroyd J., (reported at 14 A.L.T. 277).

The facts were fully set out in the judgment of Holroyd J.

A question was raised as to whether the statement of claim disclosed a claim apart from fraud. The substance of the statement of claim is therefore set out here.

1. The plaintiff Thomasine Robinson is the widow and the plaintiff Thomasine Ann Robinson is the daughter of the late George Robinson who died in the year 1878.

2. The defendant is a solicitor of this Court and ever since the month of July 1879, after the death of the said George Robinson has acted as the solicitor and confidential adviser of the plaintiffs especially with regard to investments.

3. On the 19th July 1888, the plaintiff being at the

office of the defendant for the purpose of releasing a mortgage and receiving the mortgage money, the defendant advised them to take up with part of the money some shares in a land company, known as the Brighton, Caulfield and Moorabbin Property and Investment Company, Limited, in which as the defendant said he had 3000 shares himself.

4. Acting under the defendants advice the plaintiffs paid £375 for 500 shares in the said company paid up to 15s. each, which the defendant offered to procure for them, and on the 18th August 1888, the plaintiffs signed as transferees the transfer submitted by the defendant, and on the 24th August 1888, became registered as the proprietors of the 500 shares, with an uncalled liability of £1 5s. per share.

5. The defendant was in fact the vendor and transferror of the said shares, but he failed to disclose to the plaintiffs and concealed from them this fact and also the fact that by a resolution of the directors of the company dated the 31st July 1888, it was resolved against the warning of the defendant, (who was one of the directors) to purchase some land at Brighton, known as " Smith's paddock" for £26,500 or thereabouts, which was far beyond the value of the said land, and far beyond the whole available capital of the company, even if fully paid up.

6. The plaintiff, in purchasing and taking a transfer of the said shares, acted in ignorance of the facts stated in the 5th paragraph, and on the faith of the fraudulent representation which the defendant made to them that he was not the vendor, but held and was still keeping 3000 shares in the company.

7. The defendant had in fact only 2,000 shares in the said company, and his firm of Abbott & Eales was the firm of solicitors appointed by the articles of association to act for the company.

Mr. Duffy and Mr. Irvine, for the appellant. The only case made by the pleadings is one of fraudulent concealment of two facts and misrepresentation of a third. The learned judge found that there was no fraud, and no misrepresentation, and he bases his judgment on a breach of the defendant's duty as a solicitor to make full disclosure to his clients, the plaintiffs, to whom he was selling his property. This case, however, is not made by the pleadings, and although the learned judge said he would allow an amendment the plaintiffs have not taken advantage of that offer. The facts as found by the learned judge disclose no impropriety on the part of the defendant. A solicitor's duty in selling his property to a client is to give the same advice as if the client had sought his advice in reference to a contemplated purchase by the client from a third person. In this case the advice given by Abbott is exactly what he would have given if the plaintiffs had sought his advice in respect of a purchase of shares in the same company from a third person. To support this case the principle would have to go to this extent, that a solicitor selling his own property must act as if he were some other person. In this case the fact that Abbott was a director of the company, and was sanguine as to its success would cause him to give the advice he gave to