Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1867/04SLR0087.html
Cite as: [1867] SLR 4_87, [1867] ScotLR 4_87

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SCOTTISH_SLR_Court_of_Session

Page: 87↓

Court of Session.

Wednesday, June 12 1867.

Lord Curriehill Lord Deas Lord Ardmillan Lord President

4 SLR 87

Robertson

v.

Swan & Son

Subject_1Jury Trial
Subject_2New Trial.
Subject_3

Facts:

Motion for new trial, on the ground that the verdict was against evidence, refused.

Headnote:

In this case, in which Thomas Robertson, flesher in Ardrossan, was pursuer, and John Swan & Son, cattle salesmen, Edinburgh, were defenders, the following issue was tried by Lord Barcaple and a jury in April last:—

“Whether, on or about the 11th August 1865, the defenders sold to the pursuer eight bullocks upon an agreement that they were to be delivered and paid for on 28th August 1865, and to be kept by the defenders in the meantime at their own risk; whether, while the said bullocks were being so kept by the defenders, they became infected with the cattle plague, or other serious disease, whereof one of them died while still in the defenders' custody and at their risk; whether on the 28th August the defenders, in the knowledge of the said facts, which they concealed from the pursuer, applied for and received from him payment of the sum of £100 sterling as the price, or part of the price, of the said eight bullocks; and whether the defenders are indebted and rest-owing to the pursuer the sum of £100, or any part thereof, with interest from 28th August 1865?”

The jury unanimously returned a verdict for the pursuer. The defenders obtained a rule on the pursuer to show cause why the verdict of the jury should not be set aside, as against evidence, and a hearing on the rule took place.

Watson and Burnet for pursuer.

A. R. Clark and Macdonald for defenders.

The Court unanimously discharged the rule.

Judgment:

Lord Curriehill said, that having heard this case fully argued by counsel on both sides, and having since carefully read over the evidence, he thought it came to be a case in which the difference depended on contradictory evidence and on the balancing of testimony. If he had been on the jury he confessed he would have had very little difficulty in making up his mind, but he was not on the jury, and the pursuer had got the verdict. It was peculiarly the province of the jury to see the witnesses as well as hear them, and to balance and weigh the credibility of the witnesses on both sides. The jury had come to a unanimous verdict, and he thought this was peculiarly a case in which the Court should not usurp the functions of a jury; and the conclusion he had come to was, that they should let the verdict stand.

Lord Deas was of the same opinion.

Page: 88↓

Lord Ardmillan said he entirely concurred in the great undesirableness and impropriety of interfering with the verdict of a jury, where there was a question entirely or almost entirely of the credibility of witnesses. Therefore he was not prepared to differ from the proposal made, to refrain from disturbing the verdict. But he thought it right to say that, after careful and anxious consideration of the evidence, he could not have concurred in the verdict; and he had the greatest possible doubt whether the verdict reached the truth of this case.

The Lord President said he concurred with their Lordships, but should like to express the state of his mind a little differently. He had his suspicion as to whether this verdict was just; and he would even go the length of saying that, if he were to make up his mind after consideration of this evidence put before him in writing, he should give a verdict for the defenders. But he did not think that his opinion, formed on the evidence in writing, was half so valuable as the opinion of the jury, formed after hearing the witnesses. Therefore he considered it was not within the province of the Court to disturb the verdict.

Rule discharged with costs.

Counsel:

Agent for Pursuer— John Thomson, S.S.C.

Agents for Defenders— Horne, Horne. & Lyell, W.S.
1867

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