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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was afterwards withdrawn, and the plaintiff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