Scottish Court of Session Decisions

In this action the leading conclusion of the summons was to have it declared that the defenders were bound to implement an agreement to compromise an action; the pursuers being the trustees under a trust-settlement of the late James Carstairs, dated 3d July 1862; and the defenders being the trustees under a trust-settlement executed by Mr Carstairs on 11th April 1869, and along with their sister Janet, also a defender, the chief beneficiaries under it.

“The trust-disposition and settlement of James Carstairs of Kelmonhead, dated 11th February 1869, under which the defenders, Thomas, James, and Janet Marshall were the chief beneficiaries, was challenged on the ground that he was not of sound and disposing mind when he subscribed it, and that it was impetrated from him when in a weak and facile state of mind by the defenders, Thomas and James Marshall, by fraud or circumvention and intimidation. These defenders, and their brother Robert Marshall, who was also a trustee, employed Messrs Sinclair and Dodds, Solicitors, Bathgate, and Messrs Gifford & Simpson, W.S., Edinburgh, to defend the action; and for that purpose defences were lodged in the name of Thomas, James, and Robert Marshall, as trustees under that deed. After issues were adjusted, and the case was set down for trial, the said defenders were strongly advised by their counsel to compromise the case. In consequence of that advice, and after various communings with their agents, the defenders Thomas and James Marshall, being two and a quorum of the trustees, granted the probative mandate of 13th March 1871, by which they authorised their agent, Mr Sinclair, to compromise the said action on the terms proposed in the two memoranda annexed thereto, which are duly executed as relative to the said mandate, “or on such other terms and conditions as he may consider proper and judicious.” Acting on this mandate, Mr Sinclair, with the assistance of Mr Simpson, of Messrs Gifford & Simpson, the defenders' Edinburgh agents, effected the compromise or transaction

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now sought to be enforced by the pursuers. Robert Marshall did not take an active part as a trustee under the deed, and he resigned his office on 14th March 1871.”

The defenders now refused to implement the compromise on the following grounds:—(1) That Messrs Gifford & Simpson and Mr Sinclair had no authority from the defenders to compromise the action. (2) That, in any view, they had exceeded their powers by including in the compromise a lease of the lands of Kelmonhead for 350 years at an elusory rent, granted by Mr Carstairs in favour of Thomas Marshall, the lease not being involved in the action of reduction. (3) That they had no authority from Janet Marshall to compromise her rights, she not having subscribed the mandate of 13th March 1871. (4) That it was competent for the defenders to resile, the conditions of the compromise not having been embodied in a probative deed.

The Lord Ordinary ( Mackenzie), after a proof, pronounced the following interlocutor:—

“ Edinburgh, 4 th January 1872.—..…Finds that an action of reduction and count, reckoning, and payment having been raised, on or about 11th July 1870, by the pursuer George Love, and others, against the defenders, Thomas Marshall, James Marshall, and Robert Marshall, as trustees and executors under a trust-disposition and settlement, bearing to be executed by the late James Carstairs of Kelmonhead on 11th February 1869, and also against the said Thomas Marshall, James Marshall, and their sister, Janet Marshall, as claiming to be beneficiaries under the said trustdeed, concluding for reduction of the said trustdeed, defences were lodged by the said Thomas Marshall, James Marshall, and Robert Marshall, as trustees and executors under the said trust-deed, a record was closed, issues were adjusted to try the validity of the said trust-deed, and the case was set down for trial by jury upon 20th March 1871: Finds, that by mandate dated 13th March 1871, the said Thomas Marshall and James Marshall, a majority and quorum of the trustees under the said trust-disposition and settlement, authorised Mr George Sinclair, solicitor, Bathgate, their law agent, and the law agent of their sister, Janet Marshall, in the said action, to compromise the said action on the terms proposed in the memoranda or heads of compromise annexed to the said mandate, or on such other terms and conditions as he, the said George Sinclair, might consider proper and judicious: Finds that the said Thomas Marshall, James Marshall, and Janet Marshall were the principal beneficiaries under the said trust-disposition and settlement, and that the employment of the said George Sinclair to compromise the said action, in virtue of the said mandate, was sanctioned and agreed to by the said Janet Marshall: Finds, that Robert Marshall resigned his office as trustee under the said trust-deed on 14th March 1871: Finds, that in virtue of the said mandate the said George Sinclair compromised the said action on the terms contained in a letter or offer dated 15th March 1871 (No. 9 of process), addressed to Messrs J. & R. Macandrew, W.S., the law agents for the said George Love and others, the pursuers in the said action, and subscribed by the said George Sinclair and by Messrs Gifford & Simpson, W.S., the law agents in Edinburgh in the said action for the said Thomas Marshall, James Marshall, and Janet Marshall, and relative letter of acceptance of said offer (No. 44 of process) by Messrs J. & R. Macandrew, as duly authorised and empowered by the said George Love and others, pursuers, dated 20th March 1871, and addressed to Messrs Gifford & Simpson: Finds that the said Thomas Marshall, James Marshall, and Janet Marshall are bound to implement the said compromise or transaction, and that the pursuers are entitled to enforce the same against them; and Finds, declares, and decerns against them, in terms of the first declaratory conclusions of the summons: Assoilzies the said Robert Marshall from the conclusions of the action, and decerns: Reserves all questions in regard to expenses, and appoints the cause to be put to the roll for further procedure.

Note.—(After the narrative given above)—The defenders plead that Mr Sinclair had no power or authority to compromise or settle the said action; and further, that he had no power or authority to include, as a condition of the compromise, the surrender by Thomas Marshall of certain leases of the lands of Kelmonhead at an elusory rent of 6d. an acre, which he had obtained from James Carstairs. The Lord Ordinary considers that full power was conferred upon Mr Sinclair by the foresaid mandate to compromise the action, and to agree to the surrender of these leases as a condition of the compromise. The import and meaning of the mandate were fully explained to Thomas and James Marshall by Mr Sinclair before it was executed by them, and the Lord Ordinary is satisfied from the evidence, and from what he saw of Thomas and James Marshall in the witness-box, that they fully understood it. In regard to the long leases of the small possession of Kelmonhead, it is true that they are not specially mentioned in the memoranda annexed to the mandate; but Thomas Marshall, who was alone interested in these leases, had been previously made fully aware by Mr Sinclair that they were challengeable on the same grounds as the trust-disposition and settlement, and that the pursuers made it a condition of any compromise that these leases should be given up. Mr Sinclair depones that the question about these leases was so well known to Thomas Marshall, that ‘it was not taken notice of in the mandate. There was a general power in the mandate, which comprehended all these minor matters.’ That this was the case is proved by Thomas Marshall's conduct when the terms of the compromise came to his knowledge. He depones that he never heard, until his meeting with Mr Simpson in Edinburgh, which took place on 10th April 1871, of the long leases being included in the compromise. But this is, in the opinion of the Lord Ordinary, an untrue statement, because it is established by the evidence of Mr Dodds, that, on 21st March 1871, immediately after the conclusion of the compromise, he went over and fully explained to him, from a copy of the two letters containing the same, the whole terms thereof, and that he then made no objections to the condition therein contained in regard to the leases. It also appears, from statements which he made to his former agent, Mr Gardner, about a fortnight after granting the mandate, that he was then aware that the renunciation of the long leases had been made a condition of the compromise. And it is proved by his agent Mr Simpson that when he called upon Mr Simpson, upon 10th April 1871, he was fully aware of this condition, and that he then made no objection to it. These leases were then in the possession of Mr Simpson, having been delivered to him by Thomas Marshall when he was employed to defend the action. Their subsistence

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was, it is thought, incompatible with a compromise on the footing of Thomas Marshall getting the liferent of Kelmonhead.

It was further contended that Janet Marshall had given no authority to Mr Sinclair to compromise her rights. After careful consideration of the proof, the Lord Ordinary is of opinion that she was aware of the granting of the mandate by her brothers, and sanctioned and agreed to the compromise. Under the trust-settlement she was entitled to James Carstairs' moveable estate, after deduction of his moveable debts, and the trust-expenses applicable to the moveable estate. And, under the compromise it was provided that she should receive the whole moveable estate after payment of James Carstairs’ debts, excepting the heritable debts, and the expense to be incurred in realizing that estate. But even although it were to be held that Janet Marshall was not bound by the compromise, that would not affect the liability of Thomas and James Marshall, who are, in the Lord Ordinary's opinion, bound to implement the compromise, in so far as it applies to or affects Janet Marshall, in respect that they took burden on them for, and authorised the action of reduction to be compromised on behalf of, the whole defenders to the action, one of whom was Janet Marshall.

In concluding his remarks on the proof, the Lord Ordinary thinks it right to state that he considers the evidence given by Mr Sinclair, Mr Dodds, and Mr Simpson, entitled to full credit, and that he regrets he cannot say the same of the evidence which was given by the defenders.

The defenders further pleaded that it was competent to them to resile from the compromise, in respect that the letter or offer of 15th March 1871, subscribed by Mr Sinclair and Messrs Gifford & Simpson, was not holograph or tested, and that a transaction or compromise can only be proved by writ or oath. In support of this proposition, they cited the old cases of Cranstoun, Feb. 11, and March 6, 1533; and Somervell, Jan. 21, 1540, Dict. 12, 297; and of Fotheringham, Nov. 27, 1708, Dict. 12, 414; The case of Fotheringham is not in point, and the other two cases cannot now be considered of authority, after the decision in the case of Thomson v. Fraser, Oct. 30, 1868, 7 Macph. 39, in which it was decided that a compromise or transaction may be proved prout de jure. See also Jaffray v. Simpson, July 1, 1835, 13 S. 1122. The defenders also cited the case of Taylor v. Carron Paper Company, July 14, 1869, shortly reported in the Journal of Jurisprudence, vol. xiii. 463, but that report is incorrect. In that case the defender moved for a discharge of the notice of trial, on the ground that the action was compromised on the terms embodied in a letter by the pursuer. The defenders having tendered a condescendence of res noviter, setting forth the compromise alleged by them, the Court, by interlocutor dated 20th July 1869, discharged the notice of trial for the ensuing sittings, on condition of the defenders paying the expenses incurred by the pursuer in preparing for trial, in so far as not available for the future trial of the cause; held that condescendence as a minute for the defenders; and appointed the same to be answered by the pursuer on or before the first sederunt day in October. The case was thereafter compromised, and no decision was pronounced on the alleged compromise.”

After another interlocutor, in which the Lord Ordinary disposed of the whole case, the defenders reclaimed.

Millar, Q.C., and Crichton, for them.

Watson and Strachan in reply.

At advising—