Scottish Court of Session Decisions

This was an action of reduction at the instance of Mrs Beatrix Scott or Oyston, residing at 21 Carter Street, Sunderland, widow of John Oyston, sometime shoemaker in Sunderland, against Mrs Grace Dunsmure or Turnbull, residing at Buckenham Hall, Brandon, Norfolk, widow of William Barclay David Donald Turnbull, advocate and barrister-at-law, sometime residing at Stone Buildings, Lincoln's Inn, London. The pursuer sued for reduction of certain deeds which she alleged she had been induced to execute by fraud and circumvention, and when in a weak and facile state of mind. The defender denied the pursuer's averments and stated as a preliminary defence—“The present action has been instituted and is being carried on without the authority of Mrs Oyston, in whose name it has been raised. In fact it has been raised and is being carried on contrary to her express desire.” The defender's first plea in law was—“The present action not being authorised by Mrs Oyston, it ought to be dismissed, and her pretended agents be found liable in expenses.”

The pursuer produced (1) a letter of appointment to her agent as follows—“Sir, I, Mrs Beatrix Scott or Oyston, residing in Sunderland, widow of the late John Oyston, sometime Shoemaker in Sunderland, afterwards residing at No 1 Tarvit Street, Edinburgh, hereby nominate and appoint you my law-agent in Scotland, and authorise and empower you to raise such proceedings as you may deem advisable for the purpose of enforcing my claim to the succession of William Turnbull of Fenwick, Crailing, and Briery Yards, in the county of Roxburgh, who died on 20th December 1840, and of Thomas Turnbull his son, a lunatic, who died on 15th October last, and to reduce all deeds granted by me in prejudice of my rights to and in favour of Mrs Grace Dunsmure or Turnbull, and generally to institute and follow forth such proceedings as you may think necessary on my behalf. And I hereby revoke and recal all mandates and appointment of agents in Scotland prior to this date.—In witness whereof I have hereunto set my hand and seal, and subscribed this letter of authority, written by Lewis William Michie, clerk to T. & W. A. M'Laren, W.S., Edinburgh, at Sunderland, upon the 23d day of March 1875, before these witnesses, Francis Marshall Bowey, solicitor, and George Jackson, ship and insurance broker, both in Sunderland.” And (2) a mandate to her agent, as follows—“Sir, I, Mrs Beatrix Scott or Oyston, sometime residing at No. 1 Tarvit Street, Edinburgh, now at No. 21 Carter Street, Sunderland, widow of John Oyston, sometime shoemaker in Sunderland, in the county of Durham, do hereby authorise and empower and appoint you, as my mandatory, to apply to and receive from James Lawson Hill, W.S., Edinburgh, or from any other person or persons in Scotland in whose possession the same may be, all letters, memoranda, deeds, documents, or other papers belonging to me, and if necessary to raise and follow through any suit or process at law you may consider expedient for the recovery thereof, and upon each recovery to grant receipts therefor, which shall be as valid and effectual to the granters thereof as if the same had been granted by myself.—In witness whereof I have hereunto set my hand and seal, and subscribed these presents, written by James Cran Innes, clerk to T. & W. A. M'Laren, law-agents and conveyancers in Edinburgh, at Sunderland, the 4th day of August 1875 years, before these witnesses, Francis Marshall Bowey, solicitor, Sunderland, and William Anderson, clerk to the said Francis Marshall Bowey.”

The second of these documents was granted a considerable time after the action was raised.

The Lord Ordinary in initio litis granted a commission for the examination of the pursuer, and the commission having been executed, the report was ordered to lie in retentis.

After discussion of the defender's plea, the Lord Ordinary issued the following interlocutor:—“The Lord Ordinary having heard parties' procurators, repels the first plea in law for the defender, and finds her liable in two guineas for the expense of this day's discussion; and upon the motion of the defender, allows her to reclaim against this interlocutor.”

The defender reclaimed, and argued—If the report of the commission were looked at, it would appear that the pursuer never authorised the action, and did not desire that it should be proceeded with. The letter of appointment was only an implied mandate, and was removed by the averment that the action was carried on without authority. If the pursuer did not authorise

Page: 70↓

the action, the defender would have no proper decree against her.

The pursuer argued—The report of the commission could not be looked at before trial, and only then upon proof that the witness was unwell and unable to attend personally. A disclaimer, and nothing else, would entitle the Court to stop the action.

Authorities cited— Noble v. Magistrates of Inverness, 8th February 1825, 3 S. 516; Thomson v. Candlemakers of Edinburgh, 25th May 1855, 17 D. 774; Cowan v. Farnie, 4th March 1836, 14 S. 634; Duncan v. Salmond, 6th January 1874, 1 Ret. 329; Lawsons v. British Linen Bank, 20th June 1874, 1 Ret. 1065.

At advising—