LAWYER AND WIDOW.

New Zealand Herald, Volume LXII, Issue 19028, 27 May 1925, Page 12

LAWYER AND WIDOW.

OBJECTIONABLE AGREEMENT.

SHARE IN AN ALLOWANCE.

MAGISTRATE'S CONDEMNATION

[fllT MSLEGJIAI'II. —riIKSS ASSOCIATION. "J NELSON. Tuesday.

Reserved decision was given by Mr. T. K Ma.iiu.scH_, S.M., in tho dofendejj civil action, S. A. Gate, a, widow, v. Robert J. Acheson, barrister, and formerly a stipendiary magistrate.

Plaintiff sought to recover £lO alleged to have been paid for law costs by reason of fraudulent misrepresentation. She had applied to tho Supremo Court for an increased allowance under her late husband's will, and defendant had represented her at the hearing. It had been agreed that his remuneration was to bo one-third of whatever allowance tho Supremo Court awarded. Tho agreement, said the magistrate, did not set out what tho remuneration was to bo in the event of the proceedings being abortive, but it was apparent hum a detailed bill of costs, amounting to £39 6s sd, which defendant produced, that notwithstanding the agreement ho was keeping a complete record of all his attendances, coi i espondenco, etc. The result of the proceedings was that plaintiff received an increase in allowance from 8s to 30s a week, together with tho use of the cottage and furniture until her second marriage or death. The order also directed the payment of £2O for costs as between solicitor and client, and in addition, incidental fees and disbursements to bo paid out of the estate to the solicitor for the plaintiff. This £2O was duly paid to tho defendant and subsequently ho interviewed plaintiff, and as a result obtained from her a further sum of £lO. The magistrate said he was satisfied the agreement was cliampertous, illegal and void. In his opinion it was objectionable for a barrister to agree with a widow client to receive one-third of an allowance made to her by an order under the Family Protection Act. It was, moreover, calculated to create a conflict between plaintiff's interest and defendant's. "It seems to me," continued the magistrate, " that the facts disclosed a cause of action for money paid under a mistake of fact if not for damages for breach of duty in not disclosing a fact which ought to have been disclosed. This, however, is not tho cause of action disclosed iu the claim.*"

Tho plaintiff's case, said the magistrate, stood or fell on tho allegation that defendant had deliberately stated that he had received nothing from tho estate. Ho was not satisfied, however, that defendant did make that statement. A charge of fraud must lie clearly proved. While ho was satisfied that defendant did not disclose the fact that lie had received tho money, he was not satisfied that he affirmatively fraudulently stated that ho had not received the money. While, therefore, he thought that defendant had no right to demand tho money, plaintiff could not recover on the claim as drawn and a nonsuit must bo entered.