Mandate presumed. Where one has attended meetings of parties concerned in a common interest, unless he explicitly express dissent, his future acquiescence is presumed.
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The practice of slaughtering cattle in the places within the town of Edinburgh hitherto used for that purpose, had been long complained of. Many meetings were held by the proprietors of houses in the New Town, in order to obtain relief, at which Mr Arnot attended.
At first it was proposed to obtain subscriptions for carrying through an act of Parliament, by which a sufficient compensation should be provided to the butchers, to be levied by an assessment on the inhabitants; and Mr Arnot, besides contributing a small sum, was extremely active in advancing this scheme.
Afterward it was, in general, resolved to employ Mr Spottiswood, a solicitor in London, to bring forward an act of Parliament for the above-mentioned purpose. Mr Arnot was not present at the meeting in which this was agreed on, nor at any after one; but no other evidence could be adduced to show, that he dissented or dissapproved of it. A law was accordingly obtained for removing the butchers, under condition of indemnification within a limited time; which, however, were not fulfilled, the statute not having authorised any method of raising the necessary sums. In this manner, the advantage of the whole proceedings was altogether lost.
Mr Spottiswood then brought his action for the monies disbursed by him, and for a suitable reward of his own services, against the persons who had attended the meetings, and, among others, Mr Arnot; who
Pleaded; There are only two grounds in law on which a person can be made liable for the expense of managing or conducting any particular piece of business. The first and more ordinary one is, his having employed the agent who managed it, in which case, he is liable actione mandati. The second is, his having derived a benefit from such management, when he is liable, actione negotiorum gestorum.
The present claim, however, cannot be thought to arise ex negotiis gestis; because, from an essential error in the conduct of the business, its utility has been entirely frustrated. On the footing too, of a special mandate, it is equally destitute of foundation. Instead of authorising, or even approving the abortive measures which were adopted, the defender was active in forwarding one of a nature totally different; and which, while it would have insured a successful conclusion to the undertaking, would have exposed individuals to no other expense than they chose to incur, or was suitable to their peculiar circumstances.
Answered; When men unite together in order to concert an undertaking of common utility, their resolutions must be held to be binding on every one who does not expressly declare his dissent; Scott contra Dewar, 5th July 1782.*
* The nature of this case, which has not been reported, was this Mr Dewar of Vogrie had for some time taken an active part in procuring a law, which was then in agitation, for the emancipation of the colliers in Scotland. He had been preses of many meetings held for this purpose, but had afterwards given notice to Mr Walter Scott, writer to the signet, who had the charge of bringing forward the act of Parliament, that he meant no longer to give it his concurrence. In an action brought by Mr Scott for the expenses incurred by him, the Lords found Mr Dewar liable in that part of the sums claimed which had been disbursed prior to the notification. See Appendix.
The persons, therefore, employed in effectuating their designs, are understood to receive an authority from each of those who have at any time concurred in the proceedings; nor can it be allowed to an individual, under pretence merely of his absence at a particular period, to shake himself loose, on an unsuccessful termination of the enterprise, from his obligation. For, in those cases, Qui tacet, consentire videtur; and Qui vult quod antecedit, non debit nolle quod eonsequitur; 20th July 1725, Campbell contra Creditors of the Eqiuvalent, No 3. p. 9276.
The Court considered Mr Arnot's acquiescence to be equivalent to a mandate; and therefore repelled the defences.
Reporter, Lord Swinton..Act. Elphinston.Alt. Dean of Faculty.Clerk, Sinclair,
Fol. Dic. v. 4. p. 128. Fac. Col. No 275. p. 423.
