Scottish Court of Session Decisions

Lord President—This case having been referred to the oath of the defender, the question is, what is the true meaning of the defender's deposition? Now, the defender admits that the pursuer acted as law-agent for him in two actions, and did the business shown in the account sued for. He says that at the commencement an arrangement was made between him and the pursuer—“(Q) Were you to pay no money at all?—(A) I said I would give you what I actually could.”

The main question is, what is the legal result of that arrangement? I do not agree in the view of the Sheriffs. The words of the deposition import that the pursuer was to be remunerated by the defender, and the remaining question is, what is the effect of the qualification that the amount is measured by the ability of the defender. Now, the cases cited by the pursuer seem in point, and they settle that such words do not set up any limit to the liability other than the whole means of the person undertaking.

This, then, being the legal meaning of the words which I have quoted, I do not think their effect is abated by the words, “I understood you were carrying it” ( i.e., the case) “on as a speculation.” This is not, like the words I have commented on, a statement of the bargain made, but a conjecture of the defender as to the pursuer's estimate of the comparative values of the liability of the defender and the liability of his opponent in the litigation in the event of success. Nor can I adopt the suggestion of the defender that the deposition imports that he terminated the employment of the pursuer. The words founded on are too vague to support this contention, the proposition being the substantive one that there was a cesser of an employment sworn to as having commenced. I am therefore of opinion that the oath is affirmative, and that the pursuer must have decree.

Lord Adam—I concur with your Lordship. I have only to add with reference to the documents which have been printed, and to which we were referred in the course of the debate, that I think they cannot be looked at. The oath must be construed by itself, and without any reference to these documents.

Lord M'Laren—I concur. I wish only to add a word with regard to a point noticed by Lord Adam—the competency of referring to the correspondence which is printed in this case. There is a good deal of law in previous cases upon the question how far writings may be made available for the construction of an oath of reference, but it seems to me that consistently with all that has been laid down in the decisions the rule is, and ought to be, exactly the same as the rule which regulates the use which may be made of one document which is referred to in another document for purposes of construction. The rule is, that you can only make use of the writing referred to for the purpose for which it is referred to in the principal writing. Accordingly, where a deponent under a reference to his oath has referred to his letters as containing his answer to an interrogatory, you are entitled to look at the whole correspondence as part of the evidence in answer to the particular question, but you are not entitled to look at it as contradicting or illustrative of his evidence upon any other point regarding which he has made no reference to the correspondence.

Lord Kinnear—I am of the same opinion. I entirely agree with your Lordship. With reference to the point to which Lord Adam and Lord M'Laren have referred, I think the law is very clearly laid down by the late Lord President in Gordon v. Pratt, February 24, 1860, 22 D. 903, where he says—“It is not difficult to make writings available in an examination on reference if what is necessary is done—that is, placing the writings in the hands of the deponer and interrogating him in reference to them, his answers to which interrogatories are part of the evidence. But all that is evidence is what the deponer says on his oath.”

The Court sustained the appeal and found the oath affirmative of the reference.