214 / 324
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