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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cameron v. Mortimer [1872] ScotLR 9_518 (18 June 1872) URL: http://www.bailii.org/scot/cases/ScotCS/1872/09SLR0518.html Cite as: [1872] SLR 9_518, [1872] ScotLR 9_518 |
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Page: 518↓
(Ante, p. 285.)
On the trial of an issue, whether the defender wrongfully apprehended the pursuer after having agreed to delay diligence, the pursuer put in evidence an admission by the defender on record, that “A. M. is a solicitor, and acted as the agent of the defender in raising and enforcing the diligence.” The pursuer excepted (1) to a direction by the presiding Judge that they were the sole judges upon the evidence as to whether A. M. had express authority to grant delay, but that, in law, he had no implied authority to delay enforcing diligence in the circumstances so stated; and (2) to his refusal to direct that the question as to whether A. M. had implied authority to grant the delay, was one on the evidence for the jury. Exceptions disallowed.
A new trial having been granted, the case was tried before Lord Neaves at Inverness, on the 1st, 2d, and 3d May 1872, on the following issue:—
“Whether, on or about the 29th July 1871, the defender, John Mortimer, wrongfully apprehended and detained the pursuer, or caused him to be apprehended and detained, after having agreed to delay diligence till Monday, 31st July 1871, to the loss, injury, and damage of the pursuer?”
In addition to other evidence led by him, the pursuer put in evidence articles 2, 3, 4, and 5 of the condescendence, with relative answers for the defender. Article 2 was as follows:—“The defender, John Mortimer, resides at Applegrove, Forres, and is a traveller for Messrs Usher & Company,
Page: 519↓
brewers in Edinburgh. The defender, Alexander Morrison, is a solicitor in Elgin, and acted as the agent of the defender Mortimer, in raising and enforcing diligence—the diligence after mentioned.”— Answer for defender Mortimer—“Admitted.” The jury unanimously found for the defender.
The case now came up on a bill of exceptions for the pursuer, which set forth that
“Lord Neaves charged the jury, and directed them that they were the sole judgesupon the evidence as to whether Alexander Morrison, writer in Elgin, had express authority from the defender to grant delay, but that in law he had no implied authority to delay enforcing the diligence in the circumstances stated by the pursuer on record.
Mr Fraser (for the pursuer) excepted to this direction, and asked Lord Neaves to direct the jury that the question as to whether Morrison had implied authority to grant the delay was one on the evidence for the jury.
Which direction Lord Neaves declined to give.
Whereto Mr Fraser excepted.
Mr Fraser further asked Lord Neaves to direct the jury that if the jury are satisfied on the evidence that Morrison was agent of the defender Mortimer in raising and enforcing the diligence against the pursuer, and that Morrison, as such agent, did give delay to the pursuer, then any instructions by the defender not to give delay, not communicated to the pursuer, will not control the implied authority of the agent to give delay, if the jury are satisfied that if there were no such instructions, the agent Morrison had power to give delay.
Which direction Lord Neaves declined to give.
Whereto Mr Fraser excepted.”
Fraser and Strachan for the pursuer.
Millar, Q.C., and J. A. Reid for the defender.
At advising—
The counsel for the pursuer not only excepted to this direction, but asked the Judge to direct the jury that the question as to whether Morrison had implied authority to grant delay was one on the evidence for the jury. I have no doubt as to the meaning of the direction asked, viz., that in judging whether there was any implied authority, the jury had no occasion for assistance from the Court at all, but were entitled to draw their own inference from the facts. An inference from facts may be of a purely legal character, or it may be entirely an inference of fact—the mere establishment of a general fact necessarily resulting from certain external facts proved. The first is clearly for the Court; the second as clearly for the jury. There are, however, cases of extreme nicety, where the inference is partly of fact and partly of law. These require the most delicate handling by the presiding Judge. I do not think that any such delicate question is raised here. In the course of the evidence facts might be proved which would raise inference of facts, but it is not alleged that the presiding Judge did not leave such inference to the jury. But the ultimate inference in this case, viz., the implication of authority, was a legal inference. The object of the pursuer was to establish the legal liability of the defender for his agent. That is not fact at all, but law. To say, that the question, whether Morrison had implied authority to grant delay, was one on the evidence for the jury, is plainly unsound; it would amount to saying that the jury were to decide for themselves whether the relation of the parties and the circumstances of the case were sufficient to raise an implication of authority. It has been suggested that the direction asked does not mean that the question was one for the jury only, but I cannot read it otherwise. If it is open to another interpretation, then it would be objectionable from ambiguity, the most fatal of all objections.
The third exception has not been insisted on. I am therefore for disallowing the bill of exceptions.
Page: 520↓
The next exception is a more difficult one to dispose of. I do not hold that the liability of the defender for the agent Morrison is a question of law only, and not of fact. We do not know enough of the circumstances to come to that conclusion. I read the direction asked as meaning that the question as to whether Morrison had implied authority to grant delay was one solely upon the evidence. I cannot say that we have enough before us to say that this was a question solely for the jury upon the evidence. There may have been much for the jury to determine, but I cannot say that the bare direction asked to be given, without any explanation, would have been a safe one; and all the more so, because the direction asked is put as the counterpart of the direction excepted to. That it is certainly not.
There is no motion for a new trial on the ground that the verdict is contrary to evidence.
One passage only in the charge of the Judge is excepted to. Then Mr Fraser, for the pursuer, requested the Judge to give a certain direction. That direction the Judge declined to give, and a second exception was accordingly taken.
I think it necessary to explain in the outset that a Judge's charge must be presumed to have been in all respects correct and complete, unless in so far as it has been excepted to.
The question whether Morrison had express authority from the defender to grant delay was distinctly left to the jury. Plainly there was no express authority. But, in the circumstances stated by the pursuer on record,—that is, taking the pursuer's case as alleged by himself, in those parts of the record which he put in evidence,—the learned Judge stated to the jury that, in law, Morrison had no implied authority to give delay. The 2d article of the condescendence for the pursuer is what the Judge referred to. It seems to me that there has been some misapprehension in regard to this direction. Rightly understood, it is quite correct.
If the true meaning of this statement of law by the presiding Judge had been, that the implication or inference of authority from the whole facts and circumstances of the case as proved is exclusively matter of law for the Judge, and not to any extent within the province of the jury, I could not accept that as a correct statement. Where the inference or implication is to be reached by considering the facts proved with reference to such legal principle as the Judge thinks it right to explain, then I am of opinion that the duty of drawing the inference or implication ought not to be withdrawn from the jury. Assuming the jury to have ascertained the facts, and to have been, as I doubt not they were, rightly instructed in regard to the law, then the drawing of the inference or implication from the facts so ascertained, is, in my opinion, within their province—not so absolutely or exclusively theirs as to shut out judicial direction, but still so far within the power and duty of the jury that the withdrawing of the question from the jury could not be right.
But I am satisfied that the meaning of the passage excepted to in the charge is not what I now supposed. I understand that all that was really meant is, that the statements of the pursuer, as placed on record and put in evidence, do not sustain the legal implication of Morrison's authority, so that, under the circumstances stated and put in evidence by the pursuer, there is no implied authority.
Assuming, as I have already explained, that the remainder of the charge is not liable to objection, and that the jury were rightly told that they should judge of the evidence, I cannot say that this exception is well founded.
I am anxious to preserve intact the recognition of the right and duty of the jury to draw from the facts which they deem to be instructed by proof the inference or implication of authority, so far as that is an inference in point of fact.
I do not think that that right and duty was meant to be withdrawn from the jury in this case. I cannot assume that it was so withdawn. The observation of the Judge related to the statements of the pursuer on record, and not to the facts as appearing on the proof. Viewing the passage complained of in that limited aspect, I am not prepared to sustain the first exception.
The 2d exception relates to the refusal to give a certain direction in certain absolute and unqualified terms. The direction asked by Mr Fraser is very broad and very absolute, and unqualified. It is not there specified what evidence, or whether any evidence, was led before the jury, tending to instruct authority, or sustaining the implication of authority, and it is not now maintained that the verdict is against evidence.
I again repeat, that I could not concur in withdrawing from the jury entirely the right and duty of drawing the inference or implication of authority from the facts and circumstances proved. But I am not prepared to hold the rights and duty of the jury to be so absolute and paramount as to exclude judicial direction in a case of mingled fact and law. Accordingly, taking for granted that the credibility of witnesses, and the force and value of conflicting testimony and the value of the real evidence arising from the facts and circumstances proved, were all left to the jury, I do not think that the refusal to give a special direction in the absolute terms demanded, affords good ground for complaint. I therefore concur with your Lordships in refusing these exceptions.
I add no more. The defender's case, successfully maintained by him, is, that Morrison had no authority, and no discretion, because he was employed, not to recover the debt, but to raise and enforce the diligence, to put the debtor in prison. In other words, Morrison was employed, not to procure payment, but to gratify revenge. As Lord Jeffrey once said, “I shall chastise the rising indignation within me,” and say not one word of the
Page: 521↓
The Court disallowed the exceptions.
Solicitors: Agent for Pursuer— W. R. Skinner, S.S.C.
Agents for Defender— Philip Laing & Monro, W.S.