Scottish Court of Session Decisions

Sequel of the case mentioned ante, XII. 770, which see. The question raised, as there stated, was, whether an individual acting as agent could claim from his client, payment, whether for trouble or disbursements, for Court business performed by him in his own name, or under name of a duly entered and licensed procurator, while he himself had either no license, or was not an entered procurator. Lord M'Kenzie, Ordinary, had found that he had no right “to claim or take credit in this action, on account of either trouble or disbursement incurred by him as agent before the Court, either under his own name, or that of any other person, while he, the said defender, was either not legally qualified to act in his own name as such agent, by being either writer to the signet, solicitor, or advocate's clerk, or had not a license as such agent.”

Johnson having reclaimed, the Court (June 21, 1834) pronounced this interlocutor:—“Adhere to the interlocutor complained of, in so far as it finds that the defender is not entitled to claim or take credit for his disbursements at the time when he had no license or certificate as an agent; quoad ultra, remit to the Lord Ordinary to hear parties further, and do as to his Lordship may seem just; reserving all questions as to expenses.”

The cause having now come before Lord Moncreiff, as Ordinary, in place of Lord M'Kenzie, removed to the Inner House, his lordship pronounced the following interlocutor, adding the subjoined note: ^*—“The Lord Ordinary having considered the closed record, with the interlocutor of remit by the Court, and having heard parties' procurators on the question,

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* “It will he understood, that this interlocutor refers to the period during which Johnson had an attorney's license, but was not an entered procurator. Supposing him to be a person who was then acting as agent for others, though not qualified to do so as an entered procurator, it appears to the Lord Ordinary that the case of Urquhart, as reported, is directly in point. That decision and others, are conclusive against any charges made by such a person for agency or trouble. But the Court certainly made the distinction between such charges and actual outlay. The Lord Ordinary, therefore, does not see how he could pronounce any opposite judgment, whatever his opinion might be.

“If the defender could be considered as the party in the cause to which the account relates, on the ground that he was a trustee with a conveyance for his security, the cases of Stewart, 16th May, 1827, and M'Gowan, 6th March, 1828, would afford him a separate ground for claiming the mere disbursements made. For, though these cases related to the want of license, the claim seems to be at least equally good to the party acting for his own behoof, when not a qualified agent, though he cannot claim fees for agency, &c., not being an entered procurator. But it seems to be very doubtful whether Johnson could be considered as in this situation at the time when the business was carried on.

“It was stated to the Lord Ordinary, on the authority of counsel, that, in the case of Urquhart, the party had agreed to pay the outlays. If it were to appear that the judgment on that point was pronounced of consent, it might alter the weight of the case as a precedent. But the report, though short, is very pointed. It bears that the defender stated that the pursuer had not paid the account; and it bears a short note of the Lord President's speech, in which he in the most positive terms makes the distinction between the fees of agency and the outlays.

“The Lord Ordinary confesses, that but for that decision he would have had considerable doubt of the point, and would rather have been inclined to follow the original interlocutor of Lord Mackenzie in the present cause. And certainly, an English case (in re Clarke—Petersdorff, vol. ii. p. 532, and in the Reports of Dowling and Rayland, 3, 260), shows that in England the whole sum of costs would be disallowed, and even ordered to be paid back, if already paid in such a case. Neither is there any thing in the statute 22 Geo. II. c. 46, sect. 11, there referred to, at all stronger than the law of this country, as declared in the Act of Sederunt, 10th March, 1764.”