« PreviousContinue »
in other words, as a mere nullity. The security, therefore, which Stevenson the respondent had employed the appellant to prepare, was set Rowand. aside.
Rowand then having obtained his assignation from Wardrob brought his action of relief, and had judgment (February, 1828) in his favour, and from this judgment Stevenson appealed, and the material reasons assigned for him were these :
“A law-agent is bound to obey the instructions given to him by his employer, and if he exceed or fall short of these instructions he may be justly made liable for the damages which result from his *disregard of them. But if he strictly adhere to these instructions, no responsibility can attach to him. Now, in the present case, the appellant was instructed to prepare an heritable bond and disposition in security by Mr. Campbell to Mr. Wardrob, with a saisine on that bond, and an assignation by Mr. Wardrob to the respondent. He was not instructed or empowered to do more; and all this he performed. The respondent has not offered to prove that his instructions were more ample than they are now stated, and therefore he has no claim on the ground of disobedience to instructions."
Even if the appellant had delivered the security to the respondent as complete, he could not have justly been made liable for the debt, because a law agent is not responsible for an error in cases admitting of reasonable doubt, but is liable only for gross neglect or ignorance. The security, as it actually stood when delivered to the respondent, although not completed in the manner desired and proposed by the appellant, was, in the opinion of the most eminent of the profession, sufficiently valid. The professor of law, when consulted with regard to its validity, thus expressed himself: “I cannot hold the obligation to infeft as expressed in this deed to be conclusive in characterizing as a public infeftment only, a seisin which has been taken on an indefinite precept, granted as the bond bears, 'to the end that the said H. Wardrob may be immediately infeft.' I take this precept to be perfectly sufficient as a warrant for an immediate base infeftment, and that therefore Mr. Wardrob's security is unexceptionable.” Lord BALGRAY, when the cause was first advised, was of the same opinion with the *learned professor. “The question then is,” said his Lordship, “how are we to interpret this precept? Is it an indefinite precept, which is applicable either to a base or a public holding, or is it confined to the latter species of holding ? I
STEVENSON am of opinion that it is an indefinite precept, and, therefore, that ROWAND. the saisine taken upon it confers a good and effectual right.” At
the same time advising the Lord PRESIDENT agreed with Lord BalGRAY. “The infeftment,” said his Lordship, “is given in order to vest the right of property; and the precept shows that the disponer unquestionably meant to grant two modes of holding. Now in the case of Graham, Lord BRAXFIELD held, that, although there was a public holding, yet the precept of saisine made Mr. Graham and his ancestors to hold base. That judgment was acquiesced in. I am therefore of opinion that there is here an effectual base holding, and consequently a good security in favour of Rowand." And at the last advising Lord HERMAND, who had formerly expressed a different opinion, came at last to be convinced that the infeftment was to be considered as a base infeftment, and therefore valid. And admitting that this was a nice and difficult question, his Lordship concluded with stating: “Perhaps if the word 'allenarly' had been introduced here this might have limited the disposition to a public holding. There is an authority in Lord Stair to that effect. I am therefore for altering the interlocutor;" that is, for finding that the security was valid. Now, when so many eminent persons, distinguished by legal knowledge and abilities, were of opinion that this security, as
it stood, was valid, it would be inconsistent with the principles of [ *112 ] law and justice, to hold that a conveyancer who has only *erred along
with them, should be visited for his error with the heavy penalty of making good the debt. The general rule is that a professional man spondet peritiam artis ; but he is not required to possess the highest degree of skill which any Judge or lawyer can possess. If the matter be such, that Judges and lawyers may hold different opinions concerning it without impeachment of that knowledge and talents, the mistake of a law-agent on such a point does not indicate that his skill is less than that which the law requires of him. This is the doctrine in both parts of the island. In the Scotch case of JI'Lean v. Grant, 15th November, 1805, the report bears that the general doctrine of the responsibility of a man of business by error, arising from gross ignorance, or wilful negligence, was recognized by all their Lordships. The difference of opinion in this case regarded entirely the degree of blame to be attached to the defender, which a majority of the Court ultimately thought not to be of such an extent as to subject him in damages. In the English case of Pitt v. Nalden (1), Lord MANSFIELD said, “An attorney ought not to be
(1) Burr. 200.
liable in cases of reasonable doubt." In Baker v. Chandless (1), STEVENSON Lord ELLENBOROUGH laid it down, “ that an attorney is only liable ROWAND. for crassa negligentia." But crassa negligentia cannot be urged against the appellant; and the opinions above quoted show that there was room at least for reasonable doubt. Indeed, the diversity of opinions on the Bench in the case of Grant v. M‘Leay, 1st January, 1791, was held sufficient to excuse the agent. His defence was rested on the difficulty of the professional question, which he proved by the fact that in the original question the judgments of the Court had varied, and this was *sustained a justification. The [*113 ) case of Lang v. Struthers (2) decided on appeal during the last Session, is not adverse to the appellant; for it differed from the present case in many points, and particularly in this material respect, that Mr. Lang had the title deeds before him when he prepared the security, and saw that they contained an express prohibition of the holding de me. Without a confirmation, therefore, he saw that an infeftment in the property was ineffectual; and yet he omitted to take this step, or to advise it to be taken. But in the present case, the titles contained no such prohibition; and, therefore, according to the opinions above given, infeftment in the indefinite precept was valid as a base infeftment. This, too, was the general opinion of law-agents or conveyancers, in which accordingly they modelled their practice. The appellant tried no new experiment in conveyancing, for the respondent himself, in the competition with Campbells, expressly stated, that loans to the amount of half a million were held in Glasgow and its vicinity on securities similar to the one in question ; and he therefore pleaded that the communis error, if there was an error, ought to protect his security. But an agent who follows the ordinary practice cannot be presumed to be deficient in ordinary skill. When that practice is sanctioned by the highest legal opinions, he cannot be charged with crassa negligentia aut imperitia ; and these are the only grounds on which a law-agent can be held responsible for damages.
The reasons assigned for the respondent were:
First, because the appellant, holding himself out as a regular conveyancer, is bound to repair to the respondent the loss occasioned by the gross blunder *in the heritable security above mentioned. It was unnecessary and unusual to prepare an heritable security with only one manner of holding, but if the appellant (1) 3 Camp. 97.
(2) Wils. & Sh. 563.
STEVENSON" thought fit to deviate from the ordinary form, he ought to have ROWAND. completed the security by obtaining confirmation from the superior.
This was as essential as, in the ordinary case, it is to register the instrument of saisine or to perform any other part of ordinary and well-known duty. It was improper for the appellant to deviate from the ordinary form in preparing this security. Had he adhered to it, confirmation would not have been necessary, and the respondent's security would have been as effectual, without confirmation, as were the securities prepared by the other conveyancers. It is impossible to conceive a grosser blunder than that committed by the appellant; and it would be unjust were the consequences of this blunder not to fall upon himself. This point has been already adjudged by this Right Honourable House in the case already mentioned of Lang v. Struthers (1) (May 28, 1827).
Secondly. Because the appellant does not allege, at least does not offer to prove, that he informed the respondent that the security, as prepared by him, was invalid without confirmation. It is ridiculous to suppose that the appellant would have done so, and it looks more like burlesque than serious pleading for the appellant now to make such an insinuation. It is totally untrue, and is destitute equally of proof and probability. Nobody but a fool, or a knave, would have acted in the manner now referred to. There was no use for any deed whatever being prepared, unless the respondent was to get valid security; and it is alike incredible and untrue, that the respondent would have received as valid
securities a parcel of deeds which he was told were perfectly [ *115 ] useless. *And, besides the case of Lang v. Struthers, [several
unreported cases were cited :] [ 117 ] There is one late case, precisely in point, where the Court of
Session had no difficulty in repelling defences similar to those now pleaded by the appellant. The respondent refers to the decision in the late case of Struthers v. Lang (2). In that case the blunder, in consequence of which the security was set aside, was the same with that which was committed by the appellant. In both cases there was a precept of saisine in general terms, while, in the previous part of the deed, the holding was declared to be of and under the grantor's superior only. But the case of Mr. Lang was,
in this respect, more favourable than that of the appellant, that, [ *118 ] by the title-deeds of the *party, sub-infeudation was prohibited, (1) Wils. & Sh. 563.
(2) February 2nd, 1826, Fac. Col. 307; Shaw & Dunlop, 418,
except in certain cases, which made it impossible to follow implicitly any common style of heritable bonds (1).
The judgment of the Court of Session in this last case was affirmed by this Right Honourable House, with 1001. costs; and, as was observed by some of the Judges in the Court below, this is a still more unfavourable case for the appellant than Mr. Lang’s case was.
The cause was heard in February, and on the 13th July, 1830, the LORD CHANCELLOR moved : THE LORD CHANCELLOR (after stating the general nature of the case] :
It appears then, that by this security the property was to be held of the immediate superior lord under whom the grantor held, and that it was by that manner of holding that Mr. Wardrob was infeft
sary that a charter of confirmation should have been obtained from the lord, and no application was made to the lord for that purpose.
The ordinary mode in these cases is, to infeft the disponee or lender of the money by a double manner of holding, a me vel de me, that is, of and under the grantor's superior, which is called a public holding, or of and under the grantor himself, which is called a base holding, which is good as against third parties, whatever it may be with respect to the lord.
When the question came first under discussion in the Court below it was contended on behalf of Mr. Rowand, that although the holding was public, yet as the precept of saisine was quite general, and made no reference to the manner of holding, that the infeftment upon it must of course be considered indefinite, and as constituting, at any rate, a base fee. At first there was a difference of opinion among the Judges below, but at *last they all, with one exception, came to the conclusion that the public holding was defective from the want of a charter of confirmation. They con
it must be construed according to the terms of the obligation, and as that was to grant a holding from the lord, the saisine and infeftment must be considered as applicable to the same manner of holding, and that the security was therefore defective for want of the confirmation.
But then it was argued that the point of law was a new and delicate one, and that some of the Judges below were at first of opinion that as the precept of saisine made no reference to any manner of holding, the infeftment might be construed as base,
(1) May 28th, 1827, Wils. & Shaw, 563.