Scottish Court of Session Decisions

Isabella Brash, servant of a farmer in Berwickshire, was the grand-daughter of Robert Brash, who was the owner of some small houses at Moodiesburn. Mrs Stark, wife of Alexander Stark, innkeeper at Moodiesburn, held a heritable bond over these subjects; and as Isabella Brash was the heir of her grandfather, Robert Brash, she agreed, after his death, to convey her whole right and interest in his succession to Mrs Stark and her husband, for an onerous consideration. On the other hand, Mrs Stark and her husband bound themselves to free and relieve her of all debts for which Robert Brash was liable. Afterwards James Martin, toll-keeper, Glasgow, raised an action against Isabella Brash, as representing her grandfather, for payment of a sum of £27, 10s. 6d., and certain interest, contained in a holograph obligation granted by him. Brash notified this action to Mrs Stark and her husband, as being bound to relieve her, and she put into their hands the service-copy of the summons and citation which had been left with her. Mrs Stark and husband then applied to John Sommerville, formerly writer in Edinburgh, to conduct a defence in the name of Brash against Martin's action, and they put into his hands the service-copy of the summons and citation. They stated to him that the country agent in the case was John M. Steel, writer, Glasgow. Sommerville was not entitled to practise before the Court of Session, but he put the copy-summons and citation into the hands of John Dickie, W.S., Edinburgh, who entered appearance in the name of Brash, and conducted a defence in her name. It was explained, both to Sommerville and Dickie, at the commencement of their employment, that Mr and Mrs Stark were the parties interested in the defence, being liable to relieve Isabella Brash of the debt, if due. No instruction whatever was given by Brash to Sommerville or Dickie; their whole communication was with Mrs Stark and her husband, or with the country agent pointed out by them.

Martin, after some litigation, obtained decree against Brash, with modified expenses. During the dependence of this action, John M. Steel raised an action for payment of the expenses incurred to him as country agent. The action was directed against Mrs Stark and her husband, and against Isabella Brash. The summons was served on Brash personally. Defences were lodged in name of Mrs Stark and husband, but decree in absence was taken against Brash, against which a reclaiming note was presented in her name, and she was reponed. Statements were made in her name in that action, which implied an acknowledgment of her liability to Dickie, W.S., for his account of expenses in Martin's action. But Brash had not given any authority for appearance in that action, more than in the action at Martin's instance.

Dickie, W.S., received from Mrs Stark and husband several payments to account of the expenses incurred in defending against Martin's action, amounting in all to £15. And he raised an action for the balance of his account, amounting to £33, 10s., against Mrs Stark and husband, and against Isabella Brash, now spouse of William Dalgleish, residing at Portobello. The summons set forth that, in Martin's action, Sommerville “was applied to, on the part of the said Isabella Brash, by Mrs Margaret Morison or Stark, and Alexander Stark, innkeeper at Mudiesburn, her husband, who requested the said John Sommerville to conduct the defence against the said action, in name and for behoof of the said Isabella Brash:” And farther, that Mrs Stark and husband had become bound to pay the debts of the grandfather of Brash, and therefore “had a substantial interest in the issue of the said action.” The summons concluded against the defenders as jointly and severally liable. Decree was taken against Mrs Stark and husband, who lodged no defences. Defences were lodged for Mrs Brash or Dalgleish and husband, who went abroad during the discussion, but left a mandatory to defend them. They pleaded that this was a case of special circumstances, which clearly instructed that Dickie was never employed by Mrs Brash or Dalgleish, but solely by Mrs Stork and husband. They were the only persons with whom Sommerville had communicated. Though they had the custody of the service-copy of citation against Mrs Brash, in Martin's action, yet it was explained to Sommerville, at the outset, how this came into their hands, as being the parties truly interested in defending against the action, and bound to relieve Mrs Brash against it. Sommerville explained this to Dickie at the commencement of his employment; and thus any presumption which might otherwise have arisen from the possession of the service-copy, as if it were an authority by Brash to employ an agent for her, was effectually destroyed. And, apart from that circumstance, there was nothing on which to rest a claim against Brash as having ever employed Sommerville or Dickie, the whole payments to account being made by Mrs Stark and husband; and the statements which were made in Steel's action, being made not by authority of Brash, who never authorized appearance in that action, but by Mrs Stark and husband, who alone were interested in it, or caused any defences to be lodged in it Dickie answered that as Mrs Brash put the service-copy of citation into the hands of Mrs Stark and husband, she empowered them to employ an agent for her, and to bind her thereby, because an agent was entitled to rely on her as an employer, if she either directly put such service-copy into his hands, with a request to defend her, or put it into the hands of another party, who delivered it to the agent with a similar request. And although it was explained that Mrs Stark and husband were liable to relieve Mrs Brash, that did not take away her right and interest to defend, if she chose to do so; because, unless she defended, she would be made primarily liable, and she might be doubtful as to her power of operating effectual relief. Since Mrs Brash, therefore, put her service-copy into the hands of Mrs Stark and husband, she must be liable to the pursuer for his account of expenses, though she would have a good claim of relief against them, if they had misapplied the service-copy, and employed an agent for her, contrary to her intentions. And her liability was the more obvious, considering her connexion with the action at Steel's instance, and the statements made therein.

During the discussion, the pursuer recovered payment of the account sued for, from Mrs Stark and husband, and the only question remaining was as to the expenses of the present action, which, however, involved the consideration of the merits of the defence maintained by Mrs Brash.

The Lord Ordinary “having considered the process, and heard parties on the pursuer's claim for expenses, against Isabella Dalgleish and her husband, which is the only part of the case which now requires to be settled, found them liable in expenses, appoints an account thereof to be given in, and, when lodged, remits the same to the auditor to tax, and to report.” ^*

Mrs Brash and husband reclaimed.