BREACH OF THE LAW PRACTITIONERS ACT.

New Zealand Times, Volume XXXIII, Issue 5380, 25 June 1878, Page 2

BREACH OF THE LAW PRACTITIONERS ACT.

At the Resident Magistrate’s Court yesterday, before J. 0. Crawford, Esq., R.M., and J. Martin, Esq., J.P., Thomas Kennedy Macdonald was summoned for that on or about the 9th of May, 1878, at Wellington, he did act as a conveyancer, the said Thomas Kennedy Macdonald not then being a barrister and solicitor of the Supreme Court of New Zealand. Mr. Travers appeared in support of the information, and Mr. Edwards on behalf of Mr, Macdonald. Mr. Travers ; In this case I have thought it proper to lay the information for a breach of the Law Practitioners Act, 1861, and I refer your Worship to the section ; it is section 52, as follows : —“ If any man, not being a barrister or solicitor of the Court, shall act as a conveyancer, he shall forfeit and pay for every such offence any sum not exceeding the sum of £SO. In this case it appears there was a person named Collins, who was apparently owner of some property forming part of section 603 in the City of Wellington, and this was at the time a lease was executed to Mr. Cohen. I find this lease was prepared by Mr. Gordon Allan.

Mr. Gordon Allan; What lease ?—Certainly not the lease you speak of; not the lease to Collins.

Mr. Travers : I don’t say that it is, and you have no right to Interrupt me. This lease from Collins to Cohen was prepared by Mr. Gordon Allan. It has got his name to it. Mr. Gordon Allan : I did prepare a lease. Mr. Travers ; Perhaps yon will allow me to state the facts without interrupting me. Mr. Gordon Allan: If I hear my name used, I shall speak. Mr. Travers : Your name will be used frequently, and it will not be my fault if it is, but p’ease have the goodness not to interrupt me. The lease, as I before said, from Collins to Cohen was prepared by Mr. Gordon Allan, and it appears to have been executed in his presence, because I see his signature to it. Upon this lease prepared by Mr. Gordon Allan I find [an instrument which the person who wrote it probably intended to have the effect of a surrender of the lease at law. This was done in the office of Mr. Thomas Kennedy Macdonald, and the witness to the signature in the case was a person named W. A. Waters, who signs himself a law clerk at Wellington, and was dated on the first of May. This person Waters is in the employment of Mr. Thos. Kennedy Macdonald. Afterwards, I find a lease prepared from Mr. Collins to Mr. Morris Hyams of the same property, and this lease was" prepared in the office of Thomas Kennedy Macdonald ; it is witness-d by Henry Best, of Wellington, accountant, who is in the enploymeut of Thomas Kennedy Macdonald, and I have here in my hand a receipt which was given to Morris Hyams, as follows :—“ Memorandum from T. Kennedy Macdonald and Co. 7th June, 1878. Received the sum of one pound and one shilling sterling. T. Kennedy Macdonald and Co., p. H. B. £1 Is." Now, sir, I shall call Mr. Hyams, who will tell you that this money was paid to Messrs. Macdonald and Co. as being one-half the expense of the preparation of this lease. The other half, he will state to you, was to be charged to Collins, the lessor. The lease itself appears to be merely a transcription of the document prepared by Mr. Gordon Allan. Now, sir,' I thought it necessary to take these proceedings in this case against Mr. Macdonald for this reason—it is from no personal feeling, but is a matter of pure indifference to me, in one sense, how often any one breaks the law; but I think it necessary to bring this case, because the Legislature has prohibited persona not in the position of barristers or solicitors from acting as solicitors, and the reason, I apprehend, for the prohibition is this—that conveyancing is a highly technical branch of the law, and the Legislature, desirous that the public should have, in the employment of persons who have passed a rigid examination before the Judges of the Supreme Court, some guarantee that that branch of the law will be administered by persons who have a certain amount of skill in the matter, provided that it should not be undertaken except by those who, as barristers and solicitors of the Supreme Court, were thoroughly competent to undertake it. It ia very well known that in a very large proportion of the lawsuits that have occurred they have arisen through inexperience and ignorance, although in many instances the most skilled persons are liable to commit errors ; but the great bulk of litigation is due to the absence of skill, to ignorance or carelessness, and in a very large proportion of cases to incapacity ; and the Legislature, therefore, to prevent the public from suffering from incapacity and want of skill on the part of those who are ready to undertake business of the kind, has taken the precaution of imposing a penalty on those who do not pass the examination required to fit them for dealing with a highly technical branch of the law; ana it is solely in the interests of the public—not in the interests of the profession, but the public' I have consulted no member of the profession; I have done it on public grounds, and it is perfectly immaterial to me how often, the law is infringed. As a conveyancer I have derived a considerable amount of profit from these infractions of the law, because a large number of oases have exhibited great ignorance on the part of a large number of persons who have infringed the law in this way, and it ia done by ignorant, persons who imagine that what they are getting, bepause it is cheap, suits their purpose, whereas it has been often found to be cheap and nasty, and productive alike of inconvenience and litigation. Mr. Kennedy Macdonald has been guilty of an infraction of the law. He has no annual certificate. He is not on the list of barristers or solicitors practising in this city or iu. thocolony, and it is necessary I shoukTshow you, not only that he is not a barrister or solicitor of this colony, but that, living in this city, ha has not taken out any certificate • of the Supreme Court, and that being so, he is not fit to practice as a conveyancer. The preparation of leases is,' strictly speaking, conveyancing business; and that he intended it to beof_ a profitable character, I shall show you that ha made a charge for doing the work. In the first place, I shall call the Registrar of the SU Mr.^3dwards‘: I admit that Mr. Macdonald is not a barrister and solicitor of the Supreme C Mr. Travers : Therefore I need not go to the trouble of calling the Registrar. 1 WUI call Morris Hyams. _ Morris Hyams, examined by Mr. Tray ol *-. - I believe you are a clothier, residing m Wellington ?—Yes, sir, _ _ r And you recently obtained a lease fpom MrCollins of a piece of land ia WiHia-street ? Is that the document which was handed to you (lease produced) ?—Yes, that is the dooument. By whom was this document prepared!—As far as I know, to the best of my belief it waa prepared ia Messrs Kennedy Macdonald’s oiSce.

Do you know Mr. Best ?—I do. What ia he He is in the office of Kennedy Macdonald and Co. Ho is in Kennedy Macdonald’s employment ?—Yes. Did you pay anything for this lease ?—1 paid one pound one shilling. _ Did that represent tho whole cost, or what did it represent?—Weil, as far as I know, I was to pay one-half, and Mr. Collins was to pay the other. And that receipt (produced) was given to yon for the money as part of the costs for this lease ?—Yes. You didn’t employ any solicitor yourself ? 1 did not employ a solicitor. Do you know of any solicitor being employed f—l am not aware of it. You were not aware of any solicitor being employed in the matter ?—I was not aware. Cross-examined by Mr. Edwards : Do you swear that the guinea was paid for the preparation of the lease ?—Yes. Now, Mr. Hyams, tell me this : Didn’t Mr. Collins say to you he would get Messrs. Moorh'mafj and Edwards to prepare a lease ? 1 swear positively he never mentioned any name.

Didn’t you then say you were a poor man, and you wonld prepare the lease yourself ? Didn’t Collins say to you, “ Go to my solicitor I”—He did not. Didn't you say yon were a poor man, and you would draw up your lease V -urself ?—No; I did not say I would draw up the lease; I said I could draw up the lease. Didn’t Collius object to that?—He didn’t take any notice of it. Will you swear that Mr. Collins didn’t say to yon, “I know Mr. Macdonald; we will go to Mr. Macdonald’s, and he will do it for nothing ?’’—l swear he didn’t say that. Those negotiations for the lease were not

quite settled when you went to Mr. Macdonald's office ? or were they still pending ? They were not settled when I first went there, but got settled afterwards. They got settled in Mr. Macdonald's office ?

—Yes. Yon made no distinct arrangements with Mr Collins before you went to Mr. Macdonald's office ?—No.

Will you swear that this guinea was not a commission paid with reference to that land ? I don’t know of any commission. ; Will you swear that this money, paid to Mr. Macdonald, was not paid in respect of the letting of the property ?—Certainly I will. Were you asked to pay this commission at the time of leaving the office !—I was never asked to pay any commission. Didn’t yon snatch up the deed and take it away without any legal permission whatever ? —I did not snatch it up at all. I took it off the table, and I said, “I am going to take this now." When I got downstairs they would not let me take it until the money was paid. Re-examined by Mr. Travers : You say this guinea was paid as one-half the cost for preparing this lease?—Yes; they said they would not let me take it away without paying the money. ' Hr. Travers: That is the case, your Worship. His Worship.: Is that the whole case ? Mr. Travers : Yes, your Worship. Mr. Edwards: In this case, your Worship, I shall simply show you there has been nothing paid at all in respect of the preparation of the document; that the money paid was paid as a commission in respect of those negotiations which Hyams himself admits were not complete when he called at Mr. Macdonald’s office; and that nothing whatever has been paid for the preparation of the document. It has been done simply because Hyams objected to pay the costs of Collins's solicitor, and Collins said he knew Mr. Macdonald very well, that he was hia friend, and would do it for nothing. I shall call Mr. Best. Henry Beat, examined by Mr. Edwards : You are an accountant in the employ of Mr. Macdonald ? —I am.

Do yon remember these negotiations for the letting of this place in Willia-street to Mr, Hyams ?—I do. What bad yen first to do with it ?In the first instance, Collins and Hyams came to the office to moke arrangements about letting the property. They could not agree amongst themselves. They asked for Mr. Macdonald, but not seeing him, they saw me. They went away, and we had several interviews before they i-ame to a settlement. There were no fixed terms of tenancy agreed to before they went to Mr. Macdonald’s office ? They could not agree until they came to the office.

And they were arranged in the office ? They were.

What took place then ?—Hyams then raised the question about having a lease, and he said he was a very poor man and could not afford to pay a solicitor, and he and Collins requested me to draw one out for him. I did so at Collins’s request. Was anything said about payment?— Nothing whatever. In fact, X never mentioned the question of payment at all, that is, with regard to the lease, Collins and Hyams both mentioned that they would have to pay something for my trouble. I said, “ Ob, yea, you will have to pay me commission.” I did not mention what commission we were going to charge. Have you received any instructions from Mr. Macdonald with reference to this dooudoonment T—Nona whatever. In fact, Mr. Macdonald did not know that I had drawn up a lease.

Hid you received any general instructions to do anything of this sort ? Nothing whatever, excepting not to make any charge, and I have not done so.

And this was charged as commission for the trouble taken in the matter?—Yes. I had considerable trouble in the matter—more trouble than I have had with any lease or any property. Cross-examined by Mr. Travers: Yon say this was commission !—Yes.

Do yon keep accounts ?—Most decidedly. Is this guinea entered as commission ?—lt Is. I made a journal entry at the time. Will you send for the books ?—Yes. [The journal was then sent for.] Have you not prepared other documents of the same kind ?—Yes.

And conveyances ?-—No, none whatever. The only things I have drawn are simply memoranda of agreement. Yon . say you , have not prepared any conveyances ?—None that X am aware of. How many leasee have yon prepared 1— About two.

What are the two you have prepared? — This one, and the other about twelve months Bgo- - yon know Mr. Toomath?—Yes. Was there one drawn for him ?—No. Not for Mr. Bell ?—There was a memorandum of agreement, not a lease proper. Was it for immediate occupation?—Yes,

-And yon evidently don’t know that a memorandnm of agreement for immediate occnpation is a lease ?—That is the one I refer to about twelve months ago. Did yon inform Mr, Hyams that this guinea was commission ?—He asked me what my charges were ; ho said, “ What am I to pay you?” I said, “A guinea.” Collins and he previously agreed that they would pay half each.. Didn’t he ask;you for the lease?—No, he did not, because he bad it in bis pocket. Then, what be said, that you would not give It until yon got the money, is not true ? —X •ay that is untrue. And that it is untrue, also, what ho said—that the guinea was half the cost of preparing the lease ?—I most decidedly say it is untrue. He. had the lease in his possession when he came to me.

Then what was the difficulty about the negotiations if : he had the lease in his pocket?— Rot in the first instance, but when he came to make the pay ment he had it In his possession. And be sweats that you refused to give it until be got the money I —That Is decidedly nntrne.

Didn’t he state that he took the lease downstairs ?— I That is not true.

Y«m made out that account ? [Receipt handed to witness,] I gave him that receipt. Why d-dn’tyou say, “Commission” on it? —I didn’t think it necessary. If I had made out a long account, I should have done so. That is simply a memorandum or receipt. Will you show us the entry 1 [Journal produced,]—Witness pointed out the entry in the journal.

Then you find It convenient to enter this as 'Commission in his charges for the deed ?—I Bnd it convenient not to charge for the deed, and have not done so. They agreed to divide the charge between them. Re-examined by Mr. Edwards, , You- say that this commission was mentinned before there was any mention of the lease whatever ?—There was mention made about the charges, and I said I would charge “hn tor the half dozen interviews before we got the mattef arranged, , va'" ®j enae dy Macdonald examined by Mr. Edwards :. You are an auctioneer and commisSion agent, residing in Wellington ?—Yes. Did,you know anything of the negotiations with respect to the letting ‘of this property in

Willis-street ?—I had an interview with the parties. When was that, do you remember ?—I forget the date. Was that the first interview they had m yonr office ?-—I think it was the second. What was that interview _ about ?—They were disputing tho terms on which the property was to be let. And they came to you for what ?—To arrange tho basis on which this man Morns Hyams to have a lease. They eould not agree amongst themselves. Have you known Collins long ?—Yes. Have you acted for him as agent before ? Yea, continuously. Did he came to you, then, as his agent ? Yes; he never lets a property without coming and talcing my advice, or letting the thing go through me in some way. The terms, you say, were negotiated in your office?—Yes. Did you know anything about the preparation of this document before it was prepared ? —No; I knew nothing about the preparation of the document at all. Did you ever instruct the document to be prepared ?—No ; I presume it was prepared in accordance with the wishes of the parties themselves. And you. knew nothing about it ?—No ; I asked how much time had been taken in the negotiations, and I found a great deal of time had been taken up. I understood the parties agreed to divide the costs. I instructed a . charge of two guineas to be made for the services that had been rendered. When did you first know of the preparation of this document?—After there had been a row between the parties. There was a row on the Saturday afternoon between Collins and Hyams, and I knew of it on the Monday morning following. Was that after it was signed ?—I believe that was after it was signed. Then, in making this charge, what did yon consider it was for ? —Dor services in letting the property. It was entirely a question between themselves, and a most unusual thing for a lessee to pay half ; but that was a private arrangement amongst themselves, with which I had nothing to do. It is a standing arrangement to charge nothing in the office except by way of commission for services rendered. You know nothing about the preparation of this document ?—That was a private arrangement.

Cross-examined by Mr. Travers : The com-

mission, as it is called, is carried to your aocount, and you take it as yours ?—Certainly. And Mr. Best is your clerk ?—Yes. Acting under your instructions, and responsible to you >—l am quite content to take the responsibility of anything done in my office. Is there anything farther ? Mr. Travers : No. This was the defendant’s case. Mr. Edwards ; Your Worship,—ln this case I contend that the information must be dismissed. It has been quite clearly shown, at all events so far as Mr. Macdonald is concerned, that no penalty can be inflicted. It has been proved, and not at all disputed, that Mr. Macdonald knew nothing about the preparation of this document before it was signed. He did not in any way direct it to be prepared, and was in no way responsible for its preparetion. It has been equally clearly shown that no charge has been made in respect of the pre-

paration of the lease. The person, Hyams, himself admits that the terms of the letting were not agreed to, and that they went to Mr. Macdonald’s, and that the terms of the letting were arranged there. Mr. Macdonald has told us, and it has not been contradicted, that ho is Collins’s agent in these matters, and it must be apparent that the charge is for commission, and a very moderate commission, indeed, for the actual services rendered in respect of the

letting of the property. It has been shown by the evidence of Mr. Best, and perfectly trustworthy and credible evidence that has not been shaken in any way, that the commission was mentioned before the document was mentioned at all—before anything was said of the preparation of it; and that it was charged as commission, and that the lease was simply prepared by him because the man Hyams stated he was a very poor man and could not afford to do it himself.

Hia Worship: One thing I cannot clearly understand. Doesn’t the word “practitioners” necessarily infer persons receiving payment ? Mr. Travers; Certainly not. They may practise gratuitously : it is perfectly immaterial. To obtain a conviction, it does not require that payment should have been accepted. Thatisratherauaggravation of the case.

Mr. Edwards: Even it it be so, the defendant cannot be fined, because it has been shown that Mr. Macdonald knew nothing of it until subsequently to the thing being done. If there was ground for the information at all, it has been laid against the wrong person. There is no doubt there is a great deal of force in Mr. Travers' remarks concerning the necessity of checking illicit conveyancing, and it is a matter which, no doubt, ought to be taken up by the Law Society. There is a great deal of it going on in Wellington; but, unfortunately, this is not a case in which an information should have been laid, for the defendant is really innocent of the charge made against him. That, I think, is clearly proved. Mr. Travers : I should like to say one word about the evidence. It is this : Hyams, who is a person perfectly disinterested, comes here and swears on his oath that he never agreed to pay commission, but paid the guinea as one moiety of the cost of preparing the lease. If a gentleman in Mr. Macdonald's position is to be held irresponsible for matters of this kind—taking the profits, and held to be irresponsible because he chooses to give a wink to a clerk to do it and not say a word,—then there is an end to checking breaches of the law. I remember the case of a lot of sailora who found a cask of rum on the beach. They kicked it along the shore with their feet until they found a nigger (laughter); they made him spile it, aHd draw the rum off in a can. He then held it to their lips while they djank it, and when an inquiry was made of tbem, they were able to BWear that none of them had a hand in it. (Laughter.) It h exactly the same in this case. You will find that if Mr. Maodonald had no hand in it, he put his foot in it. I submit that by taking the profits for what his clerk has done, he is acting as a conveyancer, and that the receipt is given in his name for a moiety of the cost of preparing the lease. Now, the Legislature has given to Mr. Macdonald and others an opportunity of transacting business under the Land Transfer Act to convey. Some siolicitora are jealous about it; it is a matter that solicitors need not trouble their mind about; but I apprehend that the mere colorable course adopted in a game of this kind ought not to save Mr. Macdonald from the consequences of the law. Mr. Beat quietly goes into that box and swears he committed a misdemeanor, and if he chooses to lay himself open to a misdemeanor

His Worship : Is it as serious as that ? Mr. Travers ; Certainly it is a misdemeanor to break the law, and a penalty is not the only punishment ; and if it can be clearly shown that Mr. Macdonald was cognisant of this, he cannot escape the consequences of the act of his clerk ; but I think yon will be satisfied that this evidence given of entry of commission is a mere blind to meet the actual facts of the case. Not content with the legitimate profits from the other business, he wishes also to do that, and conceal it under the color of “ a guinea for commission,” when Hyams, who has no interest in the matter, swore upon his oath there that commission was never mentioned, and it was absolutely paid and carried to the credit of Mr. Macdonald os one moiety of the actual cost of preparing that lease ; and that is a much more rational explanation than that given by the defence. It is called commission. Why should Mr. Macdonald find paper and clerks to write out long leases of that kind ? Is it likely ? It is immaterial whether there is a payment or not ; it is acting as a conveyancer. It is a mistake in a gentleman in Mr. Macdonald’s position ;he ought to know better. If his watch is out of order, he takes it to the best watchmaker ho can find to get it repaired. He doesn’t take it to tho tinsmith or brazier ; and he has no right to act as a tinsmith or brazier in a matter that requires the services of a skilled and competent conveyancer. If your Worship does not consider that a case has been made out, I hope it will act as a warning to others not to interfere with matters that they really do not understand. His Worship : Considering tho evidence on both sides, tho information can hardly be sustained. I consider it not proved that the guinea paid was paid for the drawing of this deed; but I rather think it wiis paid in the way of commission. It appears to me that Mr. Best, not having been instructed by Mr. Macdonald, and acting beyond the scope of his ordinary duties, and Mr. Macdonald knowing nothing about the preparation of this lease, the responsibility, if any, rests with Mr. Best, and not with Mr. Macdonald. I shall dismiss the case therefore, and shall not allow costs, as no doubt an irregularity has occurred, and it occurred in Mr. Macdonald’s office. Cose dismissed, without costs.