Scottish Court of Session Decisions

The Law-Agents and Notaries Public (Scotland) Act 1891 (54 and 55 Vict. cap. 30), sec. 2, provides—“Any person, being neither a law-agent nor a notary-public, who, either by himself or in conjunction with others, wilfully and falsely pretends to be, or takes or uses any name, title, addition, or description implying that he is duly qualified to act either as a law-agent or as a notary-public, or that he is recognised by law as so qualified, shall be guilty of an offence under this Act. …”

Robert Sinclair Rutherford, solicitor, Edinburgh, Secretary and Fiscal of the Society of Procurators of Midlothian, brought a complaint under the Summary Jurisdiction (Scotland) Acts 1864 and 1881, and the Criminal Procedure (Scotland) Act 1887, in the Sheriff Court at Edinburgh against David S. Thyne, Agent of the Union Bank of Scotland, Limited, at Murrayfield.

The complaint set forth:—“That the respondent, being neither a law-agent nor a notary-public, has been guilty of an offence within the meaning of section 2 of the Law-Agents and Notaries Public (Scotland) Act 1891 (54 and 55 Vict. cap. 30), in so far as in or about the month of March 1906, having entered into a contract of copartnership with Forbes T. Wallace, solicitor, Edinburgh, for the purpose of carrying on a law-agent's business within the premises of the said branch bank and elsewhere to the prosecutor unknown, he did ( First), on or about 12th March 1906, issue to the customers of the said bank dealing at said branch, to other members of the public whose names are to the prosecutor unknown, and in particular to James Smith, 8 Colt bridge Avenue, Edinburgh, and James Crowe, joiner, Murray-Held, Edinburgh, a printed circular in the following terms:—

‘The Union Bank of Scotland, Limited,

‘Murrayfield Branch,

‘Edinburgh, 12th March 1906.

‘Dear Sir.—I beg to inform you that Mr Forbes T. Wallace, solicitor, will, on and after the 12th March 1906, he associated with me in business under the firm name of Thyne & Wallace. Mr Wallace has had upwards of seven years' legal experience in the offices of Messrs Wallace & Shepherd, solicitors, Leven, Fife, and Mr Thomas Henderson, W.S., Edinburgh, and while I shall continue to take entire charge of the bank business, Mr Wallace will attend to all law matters, and will, I am confident, at once commend himself as a man of business and legal adviser. I am, yours faithfully, David S. Thyne.’ (2) That from and after the said 12th March he did affix to the door of said premises two brass plates, placed in juxtaposition, and bearing the following words—

‘ Thyne & Wallace.

F. T. Wallace,

Solicitor.

Law Office Hours, 9·30 to 5.’

And (3) That he has, during the period subsequent to the 12th March 1906, carried on the business of a law-agent in copartnership or in conjunction with the said Forbes T. Wallace, whereby he, either by himself or in conjunction with the said Forbes T. Wallace, wilfully and falsely pretended to be duly qualified to act as a law-agent contrary to the said section of said Act, and whereby he is liable to a penalty not exceeding £10, together with the costs of prosecution and conviction….”

On 12th October 1906 the Sheriff-Substitute ( Millar) sustained objections taken to the relevancy of the complaint and dismissed it.

On the application of the complainer a case was stated by the Sheriff-Substitute for appeal to the Second Division of the Court of Session.

After narrating the complaint the Sheriff-Substitute continued—“Objections were taken to the relevancy of the complaint on the 8th day of October 1906, and after hearing counsel thereon, on said 12th October, I delivered judgment, in which I stated that it seemed to me clear that the circular merely intimated to the public that the respondent and Wallace had entered into partnership to carry on two businesses, one that of a bank agent, and the other that of a law agent in Edinburgh, and that the one partner would give his exclusive attention to the one business, and the other partner his attention to the other business. If the partners continued to act as set forth in the circular, in my view there would be no breach of the statute, as the representation was that the respondent would not do any of the law-agent's work. Under the second head of the complaint it was agreed by both counsel that as matter of fact there were two door-plates, one with ‘Thyne & Wallace’ upon it, and the other with the words ‘F. T. Wallace, Solicitor, Law Office Hours 9.30 to 5’ upon it. I held the separation of the two businesses was here continued and that there was here no relevant case. Under the third head of the complaint I asked the counsel for the prosecution whether he was prepared to aver and to prove that the respondent himself did, as a matter of fact, carry on business as a

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law-agent, and he said he was not prepared to do so. Accordingly I held that the third head was a mere summing up of the previous heads and did not make the complaint relevant. In the whole circumstances I was of opinion that the whole complaint was not relevant, and therefore dismissed it with £2 of modified expenses. The question of law for the opinion of the Second Division of the Court of Session is — Was the complaint relevant?”

Argued for the appellant—The public would think from the letter of 12th March and from the plates that a law business was to be carried on by Messrs Thyne & Wallace, and that Thyne as a partner of Wallace, a solicitor, had a mandate to act for him, and must be duly qualified. The Sheriff should have allowed a proof as to the effect of the circular on people's minds, for the question of pretence was a question of fact, whether the public gathered from the circular, &c., that Thyne was qualified.

Counsel for the respondent was not called upon to reply.