The solicitor’s implied authority: Lord Monboddo, his horse, and the horse’s medicine

A significant issue in agency law is the extent of the agent’s implied authority.  Case-law has defined the implied powers possessed by particular types of agent, for example, partners, solicitors or architects.  In this way, transactions can proceed quickly, without the need for the principal to provide express, detailed instructions. 

The cases which establish the principles of implied authority, most of them dating from the late 19th century, contain some useful statements, not about the agent’s specific implied powers, but rather the overall discretion an agent may have in the conduct of his business.  For example, Begg, in his Treatise on the Law of Scotland relating to Law Agents (2nd edn, 1883 at p.88) states of the solicitor:

“When a law agent has been duly appointed, he does not require to get fresh authority from his client at every stage of his proceedings, a certain amount of authority depends in each case on the nature of work which he has been employed to perform; and the legal presumptions on the fact vary according as the question is raised between agent and client, or between client and a third party.”

This led Begg to conclude that, in general, solicitors enjoy a “reasonable latitude” (p.88-89) in performing their mandate.  It is only when taking an “extraordinary step” in the conduct of litigation that express instructions are required (p.90).

In addition to the implied authority which attaches to a particular post, an agent’s authority may be implied by the object of the agency.  The agent may require particular powers to achieve a certain end, for example, the recovery of a debt or the transfer of heritage. 

Begg cites a number of cases to support his proposition that a general agent such as a solicitor possesses a wide implied authority.  One of those cases is Burnett v Clark (1771) M 8491.  The Burnett in question is James Burnett of Monboddo, a Senator of the College of Justice.  He had instructed a farrier, the unfortunate Clark, to attend his diseased horse, giving him “a positive injunction that he should give the horse no medicine of any kind but nitre.”  Clark gave the horse nitre, but in order to “take the sharp taste of the medicine away, and to make him swallow it more readily”, he mixed it up in a draught with a small quantity of treacle.  The horse died.  Lord Monboddo raised this action against Clark. 

The Court held that the addition of treacle was not a deviation, but was actually necessary.  This is a nice example of the rule that implied authority should be assessed by reference to the object pursued by the agent.  The object here was the treatment of the horse – it would not be possible to specify all the necessary steps.  There was, rather, authority by implication in order to achieve the desired end. 

The case report also contains an interesting statement touching on the discretion enjoyed by a professional agent: just as the solicitor enjoys a “reasonable latitude” in the performance of his mandate, Clark in this case as someone occupying a profession of skill could, the court suggested, take measures which were outside his mandate ("extra fines mandati"), provided that those measures were “innocent and proper.” 

The court overturned the decision of the sheriff and assoilzied Clark.  Lord Monboddo was found liable in the expenses of the action.  It cannot have been a pleasant experience for him, finding that he had misjudged the law, and being found liable in expenses by one of his colleagues, Lord Coulston.  Perhaps he thought his chances of success were high, having employed a certain J Boswell to act on his behalf.  It would have been an experience listening to Mr Boswell debating the merits of a decision to give the poor horse treacle.   

And the horse?….it had been “moribundus” when the draught had been given, so there was no presumption that the treacle had caused its death.     

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