Scottish Court of Session Decisions

This was an appeal from the Sheriff-Court of Perthshire, at Dunblane, in an action at the instance of Davidson & Stevenson, solicitors in Stirling, against Thomas Buchanan, merchant, Callander, concluding for payment of two business accounts—one of £50, 3s. 5d. for law business performed and moneys disbursed for Buchanan in defending certain actions for payment of legitim, brought against him and his brother Walter Buchanan as surviving and accepting trustees of their father, the deceased Walter Buchanan, saddler, Callander, or as vitious intromitters with his estate; and another account of £11, 3s. 7d., incurred in defending a process of interdict brought against the same parties by a tenant. The final decision of the action for legitim was adverse to Thomas Buchanan and his brother Walter as trustees foresaid. It is reported 7th March 1876— ante, Buchanans v. Buchanan's Trustees, vol. xiii. p. 353, and 3 Rettie, p. 556. In the present action for payment of the accounts, Davidson & Stevenson averred that they were not the regular agents of the trust, but had been separately employed solely by Thomas Buchanan, who gave them all the instructions they received. In particular, they averred that he instructed them to defend the action for legitim by a denial of vitious intromission, in respect the deceased Walter Buchanan had divided his estate previous to his death, and had so left no succession. The action was accordingly defended on these grounds. Thomas Buchanan pleaded, with reference to the first account, that he had given explicit instructions that the action for legitim should be defended on the ground that he had not accepted or acted as one of his father's trustees. This was not done, and Buchanan averred that the action was lost in consequence of his instructions being neglected. He also averred gross mismanagement in not having stated the defence, which was the subject of his special instructions. With reference to the second account sued for, Buchanan denied that he had employed the pursuers. The Sheriff having allowed a conjunct proof, Buchanan, the defender, appealed to the Court of Session. The pursuers and respondents objected to the case being sent to a jury, and asked for a proof before answer on the relevancy of the defence, or that the defences should be de plano dismissed as irrelevant.

The following issues were proposed by the pursuers in the event of the case being sent to a jury:—“(1) Whether the defender employed the pursuers to perform the services and disburse the outlays charged for in the account annexed to the summons, No. 1 of process, commencing 2d June 1873 and ending 4th November 1875, or any and what part thereof? and whether, in respect thereof, the defender is indebted and resting owing to the pursuers in the sum of £50, 3s. 5d., or any and what part thereof, with interest thereon from the 15th day of July 1876 till payment thereof? (2) Whether the defender employed the pursuers to perform the services and disburse the outlays charged for in the second account annexed to the summons, No. 1 of process, commencing 11th March and ending June 14th, both in the year 1875, or any and what part thereof? and whether, in respect thereof, the defender is indebted and resting-owing to the pursuers in the sum of £11, 3s. 7d., or any and what part thereof, with interest thereon from the 15th day of July 1876 till payment thereof?”

The counter-issues by the defender were:—“(1) Whether the defender instructed the pursuers to conduct his defence to the actions at the instance of his brother James Buchanan, charged in the account first annexed to the said summons, No. 1 of process, on the ground that the defender had not accepted or acted as a trustee under his father's trust-disposition and settlement, dated on or about 16th June 1869, and had

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not intromitted with his father's estate? and whether, in breach of said instructions, they failed to conduct said defence on said ground. (2) Whether the pursuers conducted the defence to said actions negligently and unskilfully, in consequence whereof the defender sustained loss and damage to a greater extent than the sum sued for?”

The appellant and defender moved that the case should be sisted until the appeal to the House of Lords in Buchanan v. Buchanan's Trustees should be disposed of. He further argued—There was here a relevant defence. The breach of instructions was not discovered till late in the action. The failure to lodge a defence, for which special instructions have been given, is equivalent to the failure to enter appearance. The ground of judgment in Buchanan v. Buchanan's Trustees was the indebtedness of the appellant. But a debtor on his creditor's death does not become a vitious intromitter. Hence the breach of instructions materially affected the result of the case.

The pursuers argued—The House of Lords never give costs to a successful appellant; hence the accounts now sued for are due in any event. In Buchanan v. Buchanan's Trustees the appellant admitted that he was a trustee; and this was the fact. A law agent is not bound to state in defence untrue and irrelevant facts communicated by a client. The failure to plead in accordance with instructions (assuming these to be given) did not and could not affect the result— Hill v. Finney, 1865, 4 Foster and Finlason, 616. In any case, the present defence of breach of instructions and negligence (if relevantly stated) is relevant as a defence only to the action as regards the first account— Burt v. Bell, Nov. 6, 1861, 24 D. 13. The defence of negligence applies only to the account for the particular piece of business in which the negligence is said to have occurred.