Scottish Court of Session Decisions

Lord President—I am of opinion that this petition must be dismissed. The application is for interdict against certain gentlemen acting as professional law-agents on the employment of the trustees named in the petition. That is, prima facie, a very startling proposition, and it is necessary to see upon what grounds it is rested. The complainer points to a clause in the trust disposition of the deceased, and he says that he has a permanent appointment as law-agent, with the result—for such is his argument—that he is entitled to get an interdict against anybody employed by the trustees presuming to act, whether they are hired or otherwise, as law-agent in any matter which requires agency. But when we look to the trust-disposition I find nothing to support that at all. It is necessary to attend to the juxtaposition in which the clause the complainer founds upon is placed. The sentence taken as a whole is this—“And in addition to the usual powers of gratuitous trustees known in the law of Scotland, I especially authorise and empower my trustees to employ factors or law-agents for the management of my estate, who may be of their own number, and to allow such factor a reasonable remuneration, and the law-agent the usual professional fees for their respective services.” Now, I do not know why the apologetic reference to the usual powers of gratuitous trustees was introduced except so far as it enabled the gratuitous trustees to act as factor and law-agent, but the general power is that of appointing a factor and law-agent with the usual fees for their services. Then the testator goes on—“And I appoint my law-agent to these presents to be law-agent to my trustees, and desire that he should instruct my trustees in the proper and efficient carrying out of this my settlement and trust-disposition and settlement.” Well, I think that that fairly read means no more than this—I appoint this gentleman to be my law-agent at the start of the trust; and he shall as his first step give the requisite information to my trustees for beginning their duties. But does that disable them from exercising the power of appointing another law-agent? I think not. It seems to me that the observations of Lord Cottenham are quite applicable to this case. This gentlemen appoints Mr Cormack to be the law-agent for his trustees in the same sense as he might have appointed him to be law-agent for himself—that is to say, a merely revocable appointment which he could revoke next day or the day after. He put his trustees in the same position, and the result is, that while Mr Cormack may proffer his services at the first, and be paid for the services he performs, the trustees are quite entitled to appoint somebody else and dispense with his services. That is what they have done, and it seems to me, therefore, that the petition is founded on a total misconception. It would be a most unfortunate and preposterous state of matters if this individual, who has merely a pecuniary interest in the trust, should be entitled to perpetual interdict against trustees, who want to have nothing to do with him, going on to appoint another agent and getting the trust business done. I am glad we are not forced to any such conclusion by the terms of the deed, and I am for recalling the judgment and dismissing the petition.

Lord Adam concurred.

Lord M'Laren—I do not doubt that it is in the power of any individual or company to appoint a law-agent or secretary who is to perform their business for a definite time at a salary. But even in such a case the law-agent or secretary would only be in the same position as any other salaried servant. He would be liable to be dismissed at any time, and might claim damages in respect of the uncompleted part of his contract of service. But in this case there is not even the semblance of an obligation undertaken by the testator to employ this gentleman for any definite period of time. After giving the trustees the fullest powers in regard to the trust, he proceeds to make an appointment of his then agent to be law-agent to the trust in the form of an instruction to the trustees, and that, doubtless, as your Lordship has pointed out, would entitle the respondent (the complainer in the Inferior Court) to call together the trustees, read the will, and set the trust agoing. But then it seems to me that being appointed, the agent must hold his appointment as law-agent on the same footing as any other law-agent, and that it can be discontinued at any time by the testator himself exercising his right of revocation, or by his executors, who have all the powers in relation to this contract which their constituent

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