Scott v Miller
| Jurisdiction | England & Wales |
| Judgment Date | 30 May 1859 |
| Date | 30 May 1859 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 404
HIGH COURT OF CHANCERY
S. C. 28 L. J. Ch. 584; 5 Jur. (N. S.) 858; 7 W. R. 470. For subsequent proceedings, see Johns. 328.
Attorneys and Solicitors. 6 & 7 Vict. 73, ss. 2, 32. Common Barratry and Maintenance. Exceptions to answer on Ground of Penalties. Pleading.
[220] scott v. miller. April 28, 1859. [S. C. 28 L. J. Ch. 584 ; 5 Jur. (N. S.) 858; 7 W. E. 470. For subsequent proceedings, see Johns. 328.] Attorneys and Solicitors. 6 & 7 Vid. c. 73, ss. 2, 32. Common Barratry and Maintenance. Exceptions to answer on Ground of Penalties. The mischief against which the 32d section of the Attorneys and Solicitors Act (6 & 7 Viet. c. 73) was directed is the practice of acting as an attorney or solicitor without being duly qualified. And the offence prohibited by that section is not the mere permitting your name as an attorney or solicitor to be made use of in an action or suit, " upon the account or for the profit of an unqualified person," but doing it in such a manner as " thereby to enable such unqualified person to appear, act or practise in any suit at law or in equity." Bill by a certificated conveyancer to enforce an alleged agreement by the Defendant, an attorney and solicitor, to pay the Plaintiff a commission equal to half the net JOHNS. 221. SCOTT V. MILLER 405 profits upon all matters of professional business introduced to him by the Plaintiff; the bill averring part performance of the alleged agreement, and charging (in effect), that after introducing matters of business to Defendant, the Plaintiff had nothing further to do therewith, except as regarded the receipt by him in certain cases of the stipulated commission upon the net profits. Defendant by his answer submitted that, if the averments in the bill were tru, he was liable to the penalties enacted by the 32d section of the Act 6 & 7 Viet. c. 73, and to other pains and penalties under the statutes and laws in force concerning common barratry and maintenance, and, therefore, that he was not bound to answer, and he refused to answer interrogatories founded upon those averments. Exceptions to the answer allowed, the Court being of opinion that the agreement as averred was not one which would expose the Defendant to the penalties alleged in the answer. And the argument, that the tendency of the admissions which Defendant might have occasion to make would be to expose him to such pains and penalties as alleged : Held, to be one of which, upon this form of answer, Defendant could not avail himself. Observations upon the offences of common barratry and maintenance. As to the propriety of the alleged agreement, and the policy of encouraging persons to enter into agreements of that nature-gueere. The Paintiff was a certificated conveyancer. The Defendant was an attorney and solicitor. The bill averred that, in the year 1854, the Plaintiff [221] entered into a verbal agreement with the Defendant as such attorney and solicitor, that in case he should introduce to the Defendant any matters of professional business for which the Defendant could have a claim for costs, the Defendant would allow and pay the Plaintiff sums of money by way of commission in respect of such matters of professional business, which should be equal in amount to one equal moiety or half part of the net gains and profits to be realised by the Defendant from all such matters of professional business, after deducting and retaining the amount of all moneys expended and disbursed by the Defendant on account of the said matters of professional business; and also that in case the Plaintiff should employ the Defendant as his attorney or solicitor to transact any matters of professional business for him, the Defendant should not claim or charge against the Plaintiff any costs or sums of money whatever in respect of the last-mentioned matters of professional business, beyond the amount of the sums of money which the Defendant might have expended or disbursed in relation to the last-mentioned matters of business. The bill averred that the terms of this verbal agreement were entered into and accepted by the Defendant; that it was acted upon; and that, in pursuance and in consideration thereof, various matters of professional business were from time to time introduced and recommended by the Plaintiff to the Defendant, and various matters of professional business, especially the bringing and prosecuting and defending of actions at law, were from time to time transacted by the Defendant for clients introduced and recommended by the Plaintiff; and that the Defendant had received the amounts of his bills of costs relating to such matters of professional business, and became justly and truly indebted to the Plaintiff in various sums of money in respect of the com-[222]-mission agreed to be allowed and paid to him by the Defendant. The bill averred that the Defendant from time to time made to the Plaintiff divers small payments on account of such commission as aforesaid; and that the Defendant had also transacted matters of professional business on behalf of the Plaintiff personally, for which he was entitled to charge against the Plaintiff the amount of his costs out of pocket; but that, after deducting all such payments and costs, a large balance was still due from the Defendant to the Plaintiff under the agreement. The Plaintiff charged by his bill that neither he nor the Defendant at any time, directly or indirectly, did, or agreed to do or join in doing, any act whatever which could be construed to be an infringement of the provisions of the statute in force with regard to attorneys and solicitors (6 & 7 Viet. c. 73), inasmuch as the Plaintiff never directly or indirectly interfered in any of the matters of professional business which he introduced to the Defendant; nor had he at any time any right or claim whatever 406 SCOTT V. MILLER JOHNS. 223. to receive any portion of the gains and profits realised and received by the Defendant; nor did he at any time, in any manner, directly or indirectly, act as, or represent himself to be, the clerk or assistant of the Defendant; nor did he ever use or obtain the permission of the Defendant to use the name of the Defendant in any matter of pro fessional business whatever; nor did he ever act as or hold himself out to be the agent of the Plaintiff in any matter whatever; nor did the Plaintiff at any time receive any sum of money whatever for or on account of the Defendant in relation to the matters of professional business introduced by the Plaintiff, except [223] the sums of money which were paid to the Plaintiff by the Defendant, as before mentioned. The bill prayed that it might be declared that the agreement was valid and binding upon the Defendant, and that the same might be performed ; and for an account of what was due from the Defendant to the Plaintiff in respect of the aforesaid commission. Interrogatories based on these averments and charges having been filed, the Defendant, by his answer, submitted...
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