Scottish Court of Session Decisions

Lord President—This is an action of declarator of contravention of lawburrows, and it is raised at the instance of Elizabeth Wilson or Robertson and her husband for his interest, “and the Right Honourable George Young, Our Advocate for Our interest,” and the petitory conclusion of the summons is that “the defenders ought and should be decerned and ordained, by decree foresaid, conjunctly and severally, to make payment of the sum of 400 merks Scots, or £22 10s. sterling…one-half thereof to Us, and the other half to the pursuers, the said Elizabeth Wilson or Robertson, now Robinson, and John Ivinson Robinson.” Now, it is needless to say that the action could have been raised in no other form in order to be an effectual declarator of contravention of lawburrows. One-half of the penalty goes to the Crown, and the other half to the informer, but the whole sum must be sued for. It now appears that the Lord Advocate gave no authority to institute this summons in his name. A good deal has been said in the argument before us as to his not giving his concurrence. But this is not a case in which his mere concurrence would be of any avail. He must be a joint-pursuer, and he gave no authority to raise this action in his name. After the summons had been executed, it was called in Court as at the instance of Mrs Robertson and others, and in order to justify the use of the word “others,” the Lord Advocate must be a pursuer as well as Mrs Robertson and her husband. The summons was therefore called as at the instance of all the pursuers. Now, I need hardly say that this was altogether wrong, and that the agent who libelled this summons, and procured it to be executed and called without being duly authorised, was acting improperly. It would have been a more serious matter had the pursuers maintained that they had authority from the Lord Advocate, when in truth they had not. But I am happy to think that they did not do so; for it appears from the first interlocutor pronounced by the Lord Ordinary after closing the record that the pursuers’ counsel admitted that the authority of the Lord Advocate had not been obtained. The Lord Advocate having declined to adopt the action or to appear as a pursuer, the Lord Ordinary has dismissed the action, and found the private pursuers liable in expenses to the defender. That is undoubtedly right, as far as it goes; and there is now no appearance by the pursuers in support of their reclaiming note. But the defenders, on 22d March, moved the Lord Ordinary to find the pursuers’ agent also liable to them in expenses, and they now ask an alteration on the interlocutor to that effect. I am of opinion that their motion ought to be granted. I think that the pursuers’ agent, by his misconduct (for I cannot call it anything less than misconduct), has been the cause of the defenders incurring expense, and that being so, there can be no doubt, both on principle and authority, that he must be liable to them in costs.

I have spoken of the agent's misconduct, for I think it amounted to that; but I am of opinion that he acted more from rashness or heedlessness than from intentional misconduct, and I am therefore not prepared to suggest to your Lordships that any censure should follow on our judgment. But I have no doubt as to the agent's liability for the expenses of process.