Scottish Court of Session Decisions

John Thomson, S.S.C., Edinburgh, raised an action in the Sheriff-Court of Bute at Rothesay against James Hamilton, residing at Auclireoch in the island of Arran, for £42,4s. Id. sterling, “being the amount of an account for law business performed and disbursements made by the pursuer for and on the employment of the defender, commencing the 27th day of April 1866, and ending the 29th day of January 1867.” &c. The defence stated was—(1) non-employment; (2) non-liability. The record having been closed in the Inferior Court, and the Sheriff having allowed a proof, the defender, in respect the claim exceeded £40, advocated in terms of the Act of Parliament, 6 Geo. IV. cap. 120, sec. 40. The advocator, in his reasons of advocation, made a long statement as to the history of an action of suspension in which the pursuer acted as agent, and the question in the case is one of fact, Whether the pursuer, who acted in that matter for the defender, had authority or not?

The, Lord Ordinary ( Mure) pronounced the following interlocutor and note:—“The Lord Ordinnary, having heard parties' procurators, and considered the closed record, proof, productions, and whole process, advocates the cause: Finds, that in the month of April 1866 the pursuer was employed by Mr John Emslie, writer in Ardrossan, to enter appearance for the defender and oppose a note of suspension and interdict, which had been served upon the defender at the instance of Alexander M'Kinnon, farmer in Arran, in order to stop a sale under a poinding at the instance of the defender, and that the account now sued for was incurred on the said employment: Finds that, when the pursuer was so employed, Mr Emslie was acting as agent for the defender in the recovery of a bill for £13, due by M'Kinnon to the defender, to the proceedings following upon a protest on which bill

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the note of suspension related: Finds that, after the note of suspension was served upon the defender, Mr Emslie was specially authorised by him to oppose the suspension on the part of the defender, and to employ an agent in Edinburgh on his behalf: Finds that, with this view, the service copy of the note was left with Mr Emslie, who was at the same time furnished by the defender with the information necessary to enable him to answer the suspension, and that the said service copy of the note, and relative information, were duly forwarded to the pursuer: Finds that, after the note of suspension had been passed by the Lord Ordinary and a reclaiming note presented, the defender was informed by Mr Emslie. in answer to inquiries made by him as to the progress of the litigation, that the decision of the Lord Ordinary had been adverse to the defender, and that it had been resolved to reclaim: Finds that the defender did not then, nor until the month of January 1867, make any attempt to repudiate these proceedings, or the employment of an agent in Edinburgh on his behalf: Finds, in these circumstances—in point of law—that the defender is liable to the pursuer in payment of the taxed amount of the account thus incurred: Repels the defences, and remits the said account to the Auditor to tax and report: Finds the defender liable in expenses in this and the Inferior Court, of which appoints an account to be given in, and remits the same, when lodged, to the Auditor to tax and report.

“ Note.—The grounds on which the Lord Ordinary has proceeded in disposing of this case, are embodied in the preceding findings: He thinks it clear, upon the evidence, that the defender authorised Mr Emslie to employ an agent in Edinburgh to defend the suspension, and that he was throughout aware that proceedings were going on in Edinburgh, under that employment, in regard to the interdict process, in which he was materially interested. It may be that the defender was not at first aware who the Edinburgh agent was. But that, in the view the Lord Ordinary takes of the case, cannot affect the pursuer's right to recover his account, incurred on the employment of a duly authorised agent in the country. And whatever may have been the defender's knowledge, in the above respect, at the commencement of the litigation, the Lord Ordinary thinks that it is satisfactorily established that, at the date of the meeting with Mr Emslie at Lagg, in December 1866, the defender was quite aware that the pursuer was the agent engaged in his behalf, and he certainly did not at that time repudiate the employment, but, on the contrary, appears to have sanctioned its continuance.

At the discussion before the Lord Ordinary a distinction was attempted to be made in regard to the defender^ liability for the portion of the account subsequent to July 1866, after which time it was said that, regard being had to the views entertained of the case by the pursuer and the counsel employed, no farther expense should have been incurred without renewed authority from the defender. The Lord Ordinary was at first disposed to think that there was some foundation for this distinction; and it certainly does appear strange that no steps were taken to have a meeting with the defender to explain the very unfavourable position of the case, and to get his instructions with a view to a settlement of it, between the month of July and the middle of December. But for this the Lord Ordinary does not think the pursuer was to blame, and as he had no instructions to abandon the proceedings, he could not well avoid incurring the expense of continuing the appearance in Court until such time as a settlement was effected, in order to prevent the suspender obtaining a decree.”

The advocator reclaimed.

Scott for him.

Fraser and Burnet in reply.

At advising—