The Gazette 1913-14

FEBRUARY, 1914]

The Gazette of the Incorporated Law Society ol Ireland.

85

the defendant were acquainted, and on August 6, 1913, the plaintiff went to the defendant's offices and produced to him a cheque for £15, made payable to one Scampston and signed by J. Balfour Brown. The defendant in his evidence at the trial stated that the plaintiff told him that Scampston had sent the cheque to him to see whether he could get it cashed, and that it was drawn by Mr. Balfour Browne, K.C. Eventually the defendant handed the plaintiff a cheque for £12 10s. in exchange for the cheque, being induced to do so, according to his story, by the plaintiff's representation that it had actually been signed by Mr. Balfour Browne, K.C. The cheque was dis honoured, and had never in fact been drawn by Mr. Balfour Browne, K.C. The defendant instituted proceedings against the plaintiff before the magistrate for obtaining money by false pretences. These proceedings were dismissed, the defendant being bound over to prefer an indictment at the Central Criminal Court against the plaintiff. The indictment was afterwards withdrawn, and the plaintiff brought an action for malicious prosecution against the defendant, and the jury returned a verdict in his favour for £175, and judgment was entered accordingly. The defendant now applied for a new trial on various grounds. Among others it was alleged that at the trial the ] udge had admitted in evidence an agree- made between Mr. Harper, who was not a qualified solicitor, and his employer, which was illegal under the Solicitors Act, 1843. Clause 1 of the agreement, which was in the form of a letter addressed to the plaintiff, was as follows :—" I agree to engage you as my managing clerk, and to pay you a salary of £3 10s. a week, and in addition a bonus of 25 per cent, on all gross costs and other profits . . . received by me on all business introduced by you directly or indirectly." Clause 3 provided : "In the event of the determination of your engagement as my managing clerk the said bonus of 25 per cent, is to be continued to be paid to you notwith standing such determination, less £3 10s. a week." Section 32 of the Solicitors Act, 1843 (with which Section 51 of the Solicitors (Ireland) Act, 1898, corresponds), makes it illegal for any attorney or solicitor wilfully and knowingly to act as agent in any action or

suit in any Court of law or equity, or matter of bankruptcy, for any person not duly qualified to act as an attorney or solicitor, or permit or suffer his name to be anyways made use of in any action, suit or matter upon the account or for the profit of any unqualified person. Mr. Justice Ridley, in giving judgment, said that the document before them was a difficult one to construe, and the question which they had to consider was whether it constituted a breach of the Solicitors Act, 1843, Section 32, and was therefore illegal. In his opinion that depended on whether by the provisions of the agreement it was to be understood that the business upon which the 25 per cent, bonus was to be received by Harper was the business of Mr. Harper or the business of Mr. Nimmo. It appeared to him that they must concede that if the business referred to was Mr. Nimmo's business it did not come within the mischief aimed at by Section 32. He thought, however, that there were circumstances in the case which made it appear that the clients introduced by Harper were his clients, and that the business in connection with them was his business. If the business had come to an end when Harper left Mr. Nimmo's service. ;md there had been no provision as to what was to happen after his engagement terminated, he would have thought that the agreement was a proper one ; but'.when he read in the agreement that after the termination of the engagement the bonus was to continue to be paid to Harper, less £3 10s. a week, notwithstanding the engage ment had come to an end, he came to the conclusion that the clause could only be satisfactorily explained by taking this particular business to be Harper's business. It had been argued that the business was really Mr. Nimmo's business, but, although he could quite understand that that view might by taken by persons who honestly endeavoured .to construe the agreement, he, thought, after considering, all the circum stances, that this was an illegal agreement, because the business was really Harper's. That being so, evidence of this illegal agree ment ought not to have been admitted at the trial, and a new trial must be ordered. Mr. Justice Bankes said that an agreement" was perfectly legitimate which provided that a solicitor's clerk should receive by way of