The Gazette 1955-58

The cheques were paid on the i8th March and the 2Oth March, respectively. Shortly afterwards K. became ill and he died on the i5th April, 1952, without having paid or accounted for the money. His estate was insolvent. The plaintiff sued the defendant in the Circuit Court for the amount agreed in the compromise and the defendant in his defence pleaded that payment had been made. The action was dismissed in the Circuit Court, and on an appeal by the plaintiff to the High Court it was held by Maguire J. that the plaintiff had adopted K. as his solicitor and, specifically, as his agent to arrange the com promise and to receive the moneys therefrom. 2, In contentious business a solicitor not entered on the record cannot bind his client by accepting a cheque or other negotiable instrument. Per Martin Maguire J. :—" The law relating to solicitors as to authority to bind their clients by payments direct to the solicitors falls under two heads, namely i, contentious and 2, non-conten tious business. Sect. 2 of the Solicitors Remunera tion Act, 1881, defines non-contentious business as business connected with sales, purchases, leases, mortgages, settlements, and other matters of con veyancing, and in respect of other business not being business in any action or transacted in any Court, or in the chambers of any Judge or Master, and not being otherwise contentious business. This is not very satisfactory, nor is the definition in Stroud's Judicial Dictionary satisfactory. I do not propose to attempt a definition. It is, however, well established that in contentious business the solicitor on the record is authorised and has power to bind his clients. I have not been referred to any case in which it was held that a solicitor not on the record had such authority. In the case of non-contentious business there is no such authority and payment must be made direct to the client. A solicitor, unless specifically authorised to do so, is not justified in accepting a payment by cheque or other negotiable instrument, since payment, to be within the solicitor's general or statutory authority, must be made in cash. He is liable to make good the loss personally if the cheque is dishonoured. In Blumberg v. Life Interests and Reversionary Securities Corporation, Mr. Justice Kekewich says :—" A solicitor who has authority to accept a tender accepts anything short of a tender in cash at his own risk. No doubt it is usual for solicitors to trust each other and to accept each others' cheques, and the practice is desirable because it promotes good feeling and facilitates business. But I think I would be going much too

far to say that a solicitor has authority to accept a tender according to the law of the land."'—(1897) i. Ch. 193. Note.— Under Section 56 of the Conveyancing Act, 1881, a solicitor has always had implied authority to receive the consideration for a deed upon its production duly executed and provided it contained a receipt for such consideration by the person entitled to give a receipt therefor. Kearney v. Cullen ((1955) I.R., 18). Solicitor held negligent if be fails to point out that sub sequent marriage revokes a will and damages of £1,250 awarded to client for breach of contract. In 1949 the plaintiff, who was then a widow, and Mr. H. each wished to make a will conferring benefits on the other, and on 29th Nov., 1949, they visited the defendant, a solicitor, at his office and instructed him to prepare drafts of wills to be executed by them. The instructions were given separately, although at the same interview. During the interview the question of marriage between Mr. H. and the plaintiff was raised in a manner which should have indicated to the defendant that it was a contingency with an aspect of reality, but the defendant did not warn either the plaintiff or Mr. H. that marriage would involve revocation of the wills for which they had given instructions, nor did he mention the possibility of drafting the wills in a form which would leave them unaffected by the marriage. Wills were drafted by the defendant in accordance with the instructions received by him and were executed by the plaintiff and Mr. H. respectively on 2nd December, 1949. In September, 1950, the plaintiff and Mr. H. were married. The defendant, who was acting for them at the time in connection with the purchase of a house, was informed of the marriage, but did not notify them that their respective wills of December, 1949 were thereby revoked. In June, 1952, the plaintiff con sulted the defendant about changing her will. He destroyed the will of December, 1949, in her presence, without informing her that it had been revoked by her marriage, and drafted a new will, which she executed on i8th June, 1952. In Sep tember, 1952, Mr. H. died intestate. The value of his estate was, approximately, £3,850, and the approximate value of the property to which the plaintiff was entitled from his estate was £2,300, the difference between these values being £1,550. In an action against the defendant, the plaintiff claimed damages for loss and injury suffered by her by reason of the defendant's negligence and 8