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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Aitken v. Kirk [1876] ScotLR 13_373 (15 March 1876) URL: http://www.bailii.org/scot/cases/ScotCS/1876/13SLR0373.html Cite as: [1876] SLR 13_373, [1876] ScotLR 13_373 |
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Page: 373↓
Sheriff of Edinburghshire.
A notary-public when employed as conveyancer is entitled to charge ad valorem fees, calculated upon a reasonable scale as between agent and client.
This was an action under the Debts Recovery Act 1867, at the instance of Thomas Aitken, accountant and notary-public, Edinburgh, against Jane Kirk, merchant there, for payment of £34, 17s. 3d., being the amount of an account for legal expenses incurred by the defender. The defence of non-employment which was pleaded not having been insisted in, the Sheriff remitted the account to the Auditor of the Court of Session to tax and report. A portion of it, amounting to £26, Is. 3d., was made up of charges in connection with the completion of the purchase of a villa by the defender, and with the negotiation of a loan upon it.
The Auditor reported as follows:—
“In consequence of a remit by the Sheriff of Edinburgh, the Auditor of the Court of Session has examined the account sued for in presence of the pursuer and the agent for the defender, and certifies that, on the assumption that the pursuer is entitled to charge for the conveyancing business included in the account the fees for such business in the table of fees of the societies of W.S. and S.S.C., the same is correctly charged at the sum of Thirty-four pounds seventeen shillings and threepence (£34, 17s. 3d.) sterling, but reserving for the determination of the Sheriff the question of the right of the pursuer so to charge. Reference is made to the subjoined note.
Note.—The pursuer is designed in the summons “accountant and notary-public,” and it is admitted that he holds, and at the date of employment for the defender in the conveyancing business held, the certificate of the Inland Revenue as a “notary-public.” None of the business charged in the account is of a notarial character, but it is maintained by the pursuer that, holding a certificate as a notary, he is entitled to perform business of every description except Court business, and to charge therefor in accordance with the table of fees in force for the time regulating the charges for members of the societies of W.S. and S.S.C. The Auditor does not consider it within his province to dispose of this question, which is one of very considerable importance, and he has therefore reserved it for the decision of the Sheriff. The Auditor believes that many persons, even without the qualification of a certificate as notary, act as conveyancers, and charge the conveyancing fees under the table of the societies of W.S. and S.S.C. He is not prepared to hold that persons so acting are entitled to charge the conveyancing fees, and it appears to him questionable how far a notary-public (even though certificated by the Inland Revenue) is entitled to more than a quantum meruit for any business transacted by him other than business of a proper notarial character. If the pursuer's contention be well-founded, the expenses attending the professional education, apprenticeship, and entrance of the members of the societies of W.S. and S.S.C., and other chartered or incorporated bodies of legal practitioners, appear to the Auditor to be very much money thrown away, in so far as the matter of professional emolument is concerned.
The portion of the account covered by the reservation is the branch headed ‘Title in Mrs Kirk's favour to Warrick Villa, and loan thereon,’ and the amount is £26, Is. 3d. It is proper to note that the defender in settling with the seller of the property has been allowed deduction from the price of £8, 13s. 6d., being one-half of the items of £9, 9s., £7, 10s., and 8s., and that the sums of £7, 10s. and 8s. are outlays. For the business detailed in the other branches of the account, the charges made and sustained do not amount to more than a quantum meruit.”
The Sheriff thereupon pronounced the following interlocutor:—
“The Sheriff having considered the Auditor's report, and heard parties' procurators, Finds that the pursuer is not entitled to charge for the conveyancing business in the account sued for under the table of fees allowed to Writers to the Signet and Solicitors before the Supreme Courts of Scotland; and with regard to the sum which he ought to receive for the said business, remits again to the Auditor of the Court of Session to tax that part of the account in question, on the footing that the pursuer is only entitled to charge quantum meruit, and report.
Page: 374↓
Note.—The pursuer is clearly not entitled to found upon the table of fees made for the societies of W.S. and S.S.C. That table does not apply to any one who is not a member of either. On the other hand, when a person not a member of these societies is employed, he is entitled to due remuneration, and it may happen that in some cases he may be fairly entitled to be paid as highly as the table of fees allows.
The Sheriff does not know what should be given here, and he requests the opinion of the Auditor.”
The Auditor's report was as follows:—
“In consequence of the renewed remit by the Sheriff of Edinburgh, the Auditor of the Court of Session has again considered the branch of the pursuer's account referred to in the remit and note. He has felt, and still feels, much difficulty in forming an opinion as to the remuneration to which the pursuer is entitled on the principle of quantum meruit; and in place of taxing the particular items, he thinks it better to state the views which have occurred to him, leaving it to the Sheriff himself to deal with the charges.
When the renewed remit was made, the Auditor requested the pursuer to give him a detailed note of his time and trouble in connection with the deeds mentioned in the account. This the pursuer declined to give, on the ground that, notwithstanding the judgment of the Sheriff as to the principle of charge, he intended to maintain his right to the full ad valorem charges made by conveyancers in Edinburgh, being those specified in the table of fees of the societies of W.S. and S.S.C., and that by giving the details required he might be held as accepting the principle adopted by the Sheriff, and might be prejudiced in the event of an appeal to another Court. The Auditor is of opinion that the grounds of the pursuer's declinature are bad, and that the details ought not to have been withheld.
In the absence of details other than those given in the account, the Auditor cannot form any accurate estimate of the time during which the pursuer was engaged in the business of the defender; and it has been with some difficulty that he has ascertained the length of the deeds not stated in the account. The purchase of the house appears to have been made by the defender himself, and the pursuer was instructed to prepare the conveyance, and accompanied the defender to the office of the Investment Company to arrange for a loan. The Auditor has no information as to the extent of the progress of titles of the property, or as to the time occupied in their examination. The conveyance was a short one, and its preparation simple. The revisal of the security deeds was also a simple matter. If time alone were to be regarded, the pursuer would, in the opinion of the Auditor, be suitably remunerated by what are known as the regulation fees of the deeds, viz.:—For drawing the conveyance, 28s.; and for revising the other deeds, 20s., 5s., and 26s.—together, £3, 19s. But the element of responsibility is not to be disregarded, and it is in respect of this element that the members of the societies of W.S. and S.S.C., who have tables of fees, state their charges ad valorem. The Auditor does not regard the ad valorem charges in the account as too high to cover the responsibility of an educated and qualified conveyancer. The question remains—and it is stated without any reference to the status of the pursuer—Is every man who undertakes the responsibility of preparing deeds entitled to the same remuneration as the conveyancer who has had a full professional education, and after examination has been admitted a member of a body recognised as conveyancers? The pursuer, as a notary-public admitted after examination, and holding a certificate from the Inland Revenue as a notary, is undoubtedly in a more favourable position than a person acting as a conveyancer without any recognised qualification whatever; but it may be held that the pursuer's qualification is a limited one, and confines him to proper notarial business. This, however, is a question for the Sheriff. If he shall be of opinion that the pursuer is entitled to be remunerated as a general conveyancer, not by time merely but by ad valorem fees, then it seems to the Auditor that the charges in the account may be allowed as the measure of the quantum meruit. If, on the other hand, the Sheriff shall be of opinion that the qualification is a limited one, the charges already indicated may be regarded as the proper allowance, but with an addition of £3, 6s. 6d. in so far as the conveyance is concerned, seeing that the defender has been relieved of one-half of the fee of £9, 9s. by the seller of the house. The outlays (£7, 10s., 8s., and 12s. 6d.) will, of course, be sustained; and the Auditor is also of opinion that the charges of £2, 2s. for warrant of registration, and 10s. for recording, should be allowed. The preparation of the warrant is not strictly proper notarial business; but the warrant and recording have come in place of the instrument of sasine, and may thus be held as within the province of the notary. If the latter view shall be adopted by the Sheriff, there will fall to be deducted from the fees of the conveyance £4, 14s. 6d., and from the fee for revisal of the disposition to the Investment Company £2, 18s. 9d., the other charges and outlays being sustained as stated.”
The Sheriff thereafter pronounced an interlocutor in terms of the above report, and decerned against the defender for £27, 4s.
The pursuer appealed to the First Division of the Court of Session.
Authorities cited— Galloway v. Ranken, June 11, 1864, 2 Macph. 1199; Gibson v. Dods, Jan. 15, 1829, 7 S. 254; Taylor v. Forbes, Jan. 13, 1853, 24 D. 19; Cooke v. Falconer's Reps., Nov. 26, 1850, 13 D. 157; Begg on Law Agents, 64; Winton v. Airth, July 17, 1868, 6 Macph. 258, 40 Jur. 146.
At advising—
There was no limitation of this rule until the passing of the Stamp Act of 1870, and then for merely revenue purposes the classes of persons who were allowed to practice conveyancing were reduced to certain grades of the legal profession,
Page: 375↓
It was quite lawful therefore for this gentleman to accept the employment from Mr Kirk, and it was lawful for Mr Kirk to employ him. If Mr Kirk was not well assured of the skill of Mr Aitken as a conveyancer he was very foolish to do so. But being satisfied of Mr Aitken's skill, and having employed him, it is rather a singular thing for the defender to come forward and say that he was uneducated and ignorant, and to refuse to pay him the usual fees. If a man who was entitled to practice in conveyancing is employed to do conveyancing, and charges the usual fees for that business, are we to inquire whether or not he is a well educated man, so as to judge of the alternative views in the Auditor's second report? What the Auditor says is this,—“If the pursuer is entitled to be remunerated as a general conveyancer, not by time merely, but by ad valorem fees, then it seems to the Auditor that the charges in the account may be allowed as the measure of the quantum meruit.” On the other hand, he further says, if the qualification is a limited one, then the pursuer ought to be remunerated according to a lower scale. How are we to ascertain that the pursuer is qualified and thoroughly educated? It does not follow that because he is not a member of any other body except that of notaries-public that he is an uneducated man, nor does it follow of necessity that because a man belongs to the societies of Writers to the Signet or Solicitors before the Supreme Courts he is therefore highly educated. It may be generally presumed that when a man belongs to either of these professions he is well educated; but that fact is not to be taken as a standard of good or bad education. Unless, therefore, we were really to conduct an inquiry as to the skill of the pursuer, we cannot uphold the views of the Auditor and of the Sheriff. It seems to me this gentlemen is as much entitled to make the charges sued for, which are calculated upon a reasonable scale as between agent and client, as it is the business of the client to see that he employs a properly qualified person. I am for altering the interlocutor of the Sheriff.
I doubt, therefore, if anything turns upon the education and knowledge of a person who writes a deed. I do not see how it can. It is very expedient not to employ persons to write deeds who cannot do so. But if we were to go into questions of expediency, I do not see anything to satisfy me that a notary-public is not to be presumed to be qualified to write a disposition. His examination before admission embraces conveyancing. The examiners ought to ask questions which, if answered rightly, would imply a knowledge of conveyancing. A notary-public is responsible for the accuracy of a notarial instrument or any other deed he prepares. If he took a sasine before the passing of the recent Acts, he would have been responsible if he did not go to the ground. He was the only man at that time who could give sasine, and there is no doubt whatever that the notary-public who drew and signed the sasine was the party liable in damages if he had not that sufficient skill to know what he was required to do, even although a third party wrote the deed.
But although I think it right to make that explanation in reference to the pursuer, I do not see how it enters into the question. I think it enough if he has a license. Still, after all, it comes to be a case of quantum meruit. If the Auditor had not said what he does say, I would have been for remitting to him still, but he reports as a man of skill that, assuming the pursuer was in right to make the charges, he was entitled to found upon the usual ad valorem fees.
Page: 376↓
The Sheriff's interlocutor was recalled, and decree given in terms of the conclusions of the summons, with expenses in both Courts.
Counsel for Pursuer— Fraser—Lang. Agent— David Turner, S.L.
Counsel for Defender— J. P. B. Robertson. Agents— Keegan and Welsh, S.S.C.
