WITH LAW

agent drawing the fees. A messenger-at-arms is a public officer, and AGREEMENTS bound to serve all the lieges, and such an agreement would interfere AGENTS. with his liberty of action. He also acts judicially in poindings, and ought not to be the dependant of any one.1

The question of conducting a process gratuitously, or for less than the usual professional remuneration, has been occasionally remarked on by the Court; and, though it is to be regarded with disfavour, there are cases in which it may be becoming and proper so to act. In a case where, apparently, there was no proper excuse for such an arrangement, the Court unanimously expressed themselves unfavourably to an engagement by an agent; to conduct a process about to be commenced, upon being paid only his actual outlay, but, if successful, or if the client should effect a compromise, he was to have his whole account. But where an agent had committed a blunder, in conducting a criminal prosecution, the Court sustained an agreement (proceeding on his offer) to conduct a new prosecution, and to 'charge nothing therefor, except mere outlays, should we not succeed.' The prosecution failed, whereupon he claimed his full expenses, as in ordinary circumstances, but the Court gave effect to the agreement, as made in fact by way of reparation for an injury done. And again, Lord Gillies, in Clyne's case, speaks thus : 'It may happen that a case occurs, where, from motives of charity, or generous delicacy, an agent may offer his services to a man, whose rank ' in life is incompatible with an application for the benefit of the poor's 'roll, while his misfortunes may have disabled him from seeking redress ' in this Court without some friendly assistance. An agent who offers to act for such a party, and stipulates that, in the event of failure, he will 'ask no remuneration beyond his actual outlay, does not derogate from 'what is becoming in professional men of the highest respectability in this 'Court.' You will observe, however, that Lord Gillies sanctions only the conduct of a case without remuneration, in the special circumstances he states; in no respect the acceptance of more than professional remuneration in any case.

C

It is to be noticed also, that an agent who enters into an agreement, in itself unlawful, in reference to his professional charges, is not entitled, after the agreement has been acted on, to plead for his own benefit that it is illegal, and to claim as if there had been no agreement.* Parties who had employed an agent in the Court of Session, to conduct legal proceedings, were found not entitled to found on an agreement by that agent, to communicate half of his profits to another agent; but the agent employed by them was ordained (in terms of his own judicial offer) to find security for any claim against them at the instance of the other agent.5

1 Henderson v. Mackay, 20 Dec. 1832, 11 Sh. 225.

2 Clyne v. Swanson, 26 Jan. 1830, 8 Sh. 391.

3 Swanson v. Robertson, 14 June 1833, 11 Sh. 718.

4 Swanson's case; and Bolden v. Fogo, 27 Feb. 1850, 12 D. 798.

5 Pattison v. Roy, 28 Nov. 1845, 18 Scot. Jurist, 88.

MISCELLANEOUS
PROFESSIONAL

CASES.

I shall here request your attention to several professional cases which are instructive, and do not belong to any of the particular classes we have been treating of.

1. The case of Long,1 where a debt due by the York Buildings Company, which at one time was considered desperate, was recovered to an amount exceeding £1000; and the agent having reported this to his constituent, who resided in England, and requested to know what would be allowed him for having realised so large a part of the debt, and incurred so much risk, trouble, and expense, the constituent agreed to accept £500, and allow the agent to keep the remainder. The agent had incurred no risk, and his account for business, which he had not rendered, amounted to only £18. In these circumstances, the agent's representatives were found liable to the constituent in the balance of the debt. In this case, Lord Cringletie, Ordinary, expressed himself thus as to the duties and liabilities of agents, situated as the individual who here acted was. His Lordship says, 'Almost in every case between client and attorney, the latter being ' possessed of all the knowledge, both of the law and of the facts, and 'being, with this advantage, placed in a confidential situation, is in duty 'bound to make full disclosure of both to his constituent, to enable him 'to judge for himself in making a settlement of matters between them : 'and, as a consequence of this, if the attorney be detected in the least misrepresentation of any material circumstance, he ought not to be suffered to derive the advantage of any settlement made under any such ' deception, further than a due recompence for his costs and trouble.' After quoting Lord Eldon's opinions, as to the necessity of strict accuracy in an agent's communications to his client, Lord Cringletie resumes, 'Principles 'ought to be adopted and established which lead to purity of manners ' in practitioners of the law, and to maintain that consequent honourable ' respect with which they ought to be regarded by their country.'

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2. The case of Anstruther,2 where it was found that an obligation by a client to his agent, while the relation of agent and client still subsisted between them, for a sum of money as a gift, in addition to the ordinary business charges, was in the circumstances null, and it was reduced. The report of this case is very instructive.

3. The three cases of Lord Gray and others, Douglas, and Mackenzie.3 (1.) In the case of Lord Gray and others, a body of trustees, having the management of an estate which was entailed, subject to the operation of their trust, having found it necessary to apply for a private Act of Parliament to enlarge their powers, and for other purposes, employed a firm of law-agents in obtaining the Act, and afterwards in carrying it into execution, one of the trustees being a member of the firm. The trustees applied to the Court for an order for payment of the business account incurred to the law-agents. The heir of entail, primarily affected,

1 Long v. Taylor, 8 June 1821, 1 Sh. 57; affirmed 4 June 1824, 2 Sh. App. 233.

2 Anstruther v. Wilkie, 31 Jan. 1856, 18 D. 405.

Lord Gray, Douglas, and Mackenzie, 12 Nov. 1856, 19 D. 1.

entered appearance, and expressed his willingness that the account should be paid; but the Court refused the application, excepting as regarded costs out of pocket. They however allowed interest at five per cent. on these costs, which would not have been chargeable along with ordinary professional remuneration.a

(2.) In the case of Douglas, a factor loco tutoris, in submitting his accounts to the Accountant of Court, credited himself with charges for necessary law business, executed for behoof of the pupil's estate, by a firm of law-agents, of which he was a partner. A decided majority of the whole Court, holding judicial factors to be trustees, and, therefore, to be subject to the rule that trustees cannot make profit by agency in the management of affairs committed to them, found the factor loco tutoris not entitled to his business charges, except to the extent of costs out of pocket.

(3.) In the case of Mackenzie, a similar judgment was pronounced with reference to the curator bonis to a lunatic.b

ACTING AS
LAW-AGENT.

It is now, therefore, settled as a general rule, and apart from special TRUSTEE circumstances, that a law-agent cannot act for himself as a trustee, or for a body of trustees of whom he is one, to the effect of making profit at the expense of the trust-estate with which he is officially connected; and the rule is the same when the business is conducted by a company of law-agents, of which one member is a trustee. The same principle has long been in operation in England. We also have an old case,1 in which the Court of Session negatived the claim to remuneration made by trustees for creditors under a private trust; the Court finding 'that the trustees were not entitled in law to demand any reward for ' their pains.'

I observe that, in England, the rule has been applied to the case of an heritable creditor selling the subjects of his security through a company of auctioneers, of which he was a partner. The Court disallowed the auctioneers' charges. But, where the testator gave his trustees power to name agents and factors, either of their own number, or other fit persons, it was held by a majority of the whole Court, that the trustees might employ a company of professional agents, of which one of their own number was a partner, and allow such company commission and law expenses, on the ground that the express permission to employ one of the trustees, as law-agent for the whole, implied that such employment was to be paid for as in ordinary cases.2

The rule disallowing professional charges does not apply to agents acting as tutors ad litem or curators ad litem.3 I have been informed that the late Lord Rutherfurd considered agents so acting as no more 1 Creditors of Johnston v. Trustees, 4 Jan. 1738, reported in 21 D. 1383.

2 Goodsir v. Carruthers, 19 June 1858, 20 D. 1141.

3 Rennie, 27 June 1849, 11 D. 1201; Pirie v. Collie, 4 March 1851, 13 D. 841.

a See Aitken v. Hunter, 24 May 1871, 9 Macph. 756, and cases cited.

b A similar judgment, in the case of a judicial factor, will be found in Mitchell, etc., v. Burness, 20 July 1878, 5 R. 1124.

entitled to professional remuneration than those acting as trustees, or ordinary tutors or curators. But the Court appear to have allowed an agent, acting as tutor and curator ad litem, his expenses as matter of course, in a late case.1 Agents, when so acting, are of course peculiarly liable to be called on to show that they have acted with prudence and discretion. In Pirie's case, the account allowed to a tutor ad litem was objected to as arising from double agency; that is, it was alleged that the same business was knowingly done and charged for twice over by two separate agents; but the account was specially reported on as not so, and as moderately charged. In Moncreiffe's case, the Lord President M'Neill said, 'It appeared proper, and indeed it was necessary with a 'view to expiscating this matter, and enabling the Court to proceed with the execution of the Act, that such an appointment' (that is, of tutor and curator ad litem) should be made. The appointment was made. 'The curator entered appearance, and a question was raised of consider'able importance. It is necessary that the expenses of the curator so appointed (and it being in no respect alleged that he misconducted himself) should be provided for.'

1 Moncreiffe, 19 July 1859, 21 D. 1359.

TITLE VI.

THE OPERATION OF ERROR, FRAUD, FORCE, AND FEAR, IN
REFERENCE TO THE EXECUTION OF DEEDS.

CHAPTER I.

IF the consent, which is indispensable to the constitution of an obligation or contract, be given by a party in unavoidable error as to essentials, or brought about through fraudulent means by the other party, the obligation or contract will be voidable at the instance of the party in error, or upon whom the fraud has been practised, though not so as to affect the rights of onerous bond fide third parties; and, if a deed be extorted by the influence of force and fear, it is not the act of the person by whom it bears to be subscribed, and it will be voidable at his instance against all concerned.

First, under this title, may be noticed Error, which, in order to ERROR. authorise the reduction of a contract or obligation, must be in substantialibus. Stair says, 'Those who err in the substantials of what is done, contract not.' Erskine says the same. On the question, whether an error in point of law will authorise reduction, and whether the error must not, in order to such consequence, be in the fact, it is now settled that where the reduction infers repayment of money, paid under error in point of law only, it cannot be sustained. The leading Scotch cases on this point are Wilson and M'Lellan, and Dixon. These cases related to money paid in error in point of law, and of which repayment was unsuccessfully sought. But this rule has been found not to extend to the discharge of a claim granted under a material error as to the legal rights of the granter, and consequently without consideration.5

1 Stair, i. 10. 13.

2 Erskine, iii. 1. 16.

3 Wilson and M'Lellan v. Sinclair, as reversed 7 Dec. 1830, 4 Wil. & Sh. App. 398.

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4

Ба

4 Dixons v. Monkland Canal Co., 28 May 1830, 8 Sh. 826; affirmed 7 Sept. 1831, 5 Wil. & Sh. App. 445.

Dickson v. Halbert, 17 Feb. 1854, 16 D. 586.

a See also Mercer v. Anstruther's Trustees, 6 March 1871, 9 Macph. 618; and in particular the opinion of Lord President Inglis therein.