Scottish Court of Session Decisions

The defender having now changed his agents, represents through his counsel that he knew nothing about this, and a letter was read by counsel from Mr Carmont. I am bound to say that that letter seems to me to be written under very grave misconceptions as to what his duty as a country agent was, because it seeks to put the blame on Messrs Lindsay, who, I think, behaved with absolute propriety throughout the whole matter. Messrs Lindsay having, as their letter shows, been told by the country correspondent to see if they could not get time, see the pursuers' agents, who refuse to give any time, then write a full week before the Court meets to say—“We cannot get time, and therefore our only course is to intimate that we do not propose to appear in the procedure roll.” That, of course, is as much as to say that “We do not consider you have any case, and there is nothing more to be done.” To say, as Mr Carmont says, he thought his general instructions to fight the case were sufficient to override that letter and absolve him as a correspondent from any reply seems to me to misunderstand entirely the position of the Edinburgh agent. It is quite true that the Edinburgh agent has to take his country client's instructions; but at the same time he has only got to take them subject to this, that he has to act for the real client, and if he thinks that the action is unfight able he is quite right to say so. When Mr Carmont received that letter, which showed perfectly plainly what Messrs Lindsay thought it their duty to do, his plain duty was, if he did not like it, either to say, “No, you must not stay away from the procedure roll, and you must send up a counsel to make what he can of the case,” or, “If that is your view, we will have another agent.” Instead of that he does nothing, and Messrs Lindsay were absolutely justified in writing as they did upon 14th October. So that, if this was a question where it was perfectly certain that Mr Carmont had brought their action to the notice of the client, there might be no doubt about it. But at the same time your Lordships are always very chary of allow ing a client to be damnified by what may be a mistake of his agent; and it is, I am afraid, just possible that in this matter the client did not quite understand what the result of this procedure would be, although Mr Carmont must be held to have perfectly understood.

In these circumstances the question is, what is to be done? It is quite evident that this may be a mere device to gain time, and your Lordships are certainly not going to assist that class of procedure. I have discovered from the clerks an estimate of what is the expense of the procedure roll discussion, which, of course, is entirely thrown away, and of this reclaiming note, which is also entirely thrown away, and what I propose to do is, that if fourteen guineas are paid in hard cash before Friday morning, the case will be heard on the merits on Friday. If not, the interlocutor will be affirmed. There will be nothing written to-day, and the case will be put out for Friday.

Lord Kinnear and Lord Cullen concurred.

Lord M'Laren and Lord Johnston were absent.

The sum of fourteen guineas having been duly paid, the Court reponed the reclaimer. The case was thereafter heard on the merits, and decree granted as craved.