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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Chatto and Co. v. Pyper and Co. [1827] ScotJCR 4_Murray_351 (24 July 1827)
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Cite as: [1827] ScotJCR 4_Murray_351
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SCOTTISH_HoL_JURY_COURT
Page: 351↓
(1827) 4 Murray 351
CASES TRIED IN THE JURY COURT, AT EDINBURGH, AND ON THE CIRCUIT, FROM DECEMBER 1825 TO JULY 1828.
No. 41
v.
PRESENT, LORDS CHIEF COMMISSIONER AND
Finding for the proprietors of a stage coach on a question whether they wrongfully failed to deliver a parcel.
This was an action to recover L. 135, 2s. 9d., the sum contained in letters of caption, delivered to the defenders in a parcel to be transmitted to Glasgow.
Defences.—The parcel was delivered in Glasgow. No money could have been recovered
Page: 352↓
Whether, on or about the 19th day of September 1825, the pursuers delivered a parcel, containing letters of horning and caption for an alleged debt of L. 135, 2s. 9d., or caused the same to be delivered at the mail coach-office in Edinburgh: And whether the defenders promised, agreed, or undertook to deliver the said parcel to Edward Railton, agent, Glasgow, and failed to perform the said promise, agreement, or undertaking, to the loss, injury, and damage of the pursuers?”
More opened for the pursuers, and said, The case is simple. The parcel was booked at the office of the defenders, and was not delivered. We shall show that money might have been recovered if the caption had arrived. The notice of the restriction to L.5 was not known to the agent. The law is more severe in England than here; but our law holds coach proprietors liable for neglect or misconduct.
Page: 353↓
Notice by a carrier restricting his liability must be proved to have been known to the pursuer in order to protect the carrier.
Lord Chief Commissioner.—The notice protects the carrier when the knowledge of it is brought home to the party, but will not protect him against misfeasance. The carrier may put in the notice, but he must also prove that it was known; and even then he is liable for negligence or misfeasance. The question of negligence is a question of fact. When the law and fact are mixed, it is necessary to state shortly the points to the jury; but all details of argument are reserved for after discussion.
Bain V. Brown, &c.
Dec. 4, 1824.
More.—I shall adopt this course; but it is necessary to state some of the cases which have occurred. A coach contractor has been held liable for sending by a heavy coach instead of the mail.
Lord Chief Commissioner.—That was breach of contract.
More.—On the amount of loss, we hold them clearly liable for the debt.
Before leading evidence, it was admitted that the parcel was delivered at the office, but the contents were not admitted. When a caption issued on the loss of the other was produced, it was objected, that, being at the instance of a foreign company, and there being no mandate, it was null.
Page: 354↓
Incompetent to ask a witness whether he believed that two individuals were in partnership.
A question was raised, whether the agent in Glasgow to whom the parcel was sent, and a messenger there, were in partnership? and one of the clerks of the agent was asked, whether he believed them to be partners?
Lord Chief Commissioner.—I do not think this competent. You may prove acting as a partner, but not belief.
Before deciding whether an alleged partner of the pursuer is a competent witness, the fact of the relation in which he stands to the pursuer must be proved by initial questions.
When the messenger was called, the objection of partnership was stated, but afterwards given up, on learning the limited nature of the questions proposed.
Lord Chief Commissioner.—If the objection is persisted in, make out by initial questions that he is a partner, and we shall then consider the objection. I should be sorry to clog such a case with any irrelevant matter.
Cockburn opened for the defender, and said, The fact here is simple; but there are several points of law of which you, the jury, are bound to be ignorant. Any statement of the damage to the public, from allowing the proprietors to limit their responsibility by a notice, is law. The defenders admit that they got the parcel, and are civilly responsible for it; but nothing was said of its value; and as the persons who
Page: 355↓
Kyd v. Ferguson. March 11, 1826. 4. Sh. and Dun, 549.
But even if you are of opinion that it was not delivered, the Court must direct you not to find damages, as it was suggested that a new caption should be sent, and if it had been sent, the debtor would have paid. Nothing could have been legally taken under the original caption, as there was no mandate.
Evidence admitted in replication, and a messenger, by whom it was alleged that a caption was destroyed, received as a witness.
Evidence was then called for the defenders, and the clerks of the agent in Glasgow shown to the witnesses, that they might state to which of them the parcel was delivered, and which of them were present at the time it was said to have been burnt. At the close of the evidence Mr Jeffrey stated, that the evidence as to the destruction of the caption was complete surprise, for which he was not prepared; but that, so far as he had evidence, he wished to call it in replication.
Lord Chief Commissioner.—Unless Mr
Page: 356↓
The clerks who had been formerly examined, having been reinclosed, were called and again sworn and examined.
When the messenger was called,
Cockburn again objected,—He is partner of the Glasgow agent; and if the parcel was destroyed by him, or those in his office, he is liable in an action.
Jeffrey.—The agent has a share in the messenger business, but the messenger has no share in the agency. Saying it was destroyed by his clerks assumes the fact to be proved. His interest, if he has any, is remote, and not in this cause.
Page: 357↓
Lord Chief Commissioner.—Being liable in an action does not disqualify a witness, unless the verdict in the depending cause can be used against him. It has been frequently decided that this objection may affect his credit, but does not exclude him. In this case he stands in a very peculiar situation, and in a state at least of great civil responsibility; and I shall think it right to warn him, that he may decline answering the questions.
After the witness was examined,
Cockburn.—By the necessary and expedient forms of Court, I am only entitled to observe on the evidence of the witnesses last called; but if you do not believe the natural story told by our disinterested witnesses, you stamp them with perjury; and, on the other side, you have only the messenger and his concurrents coming to white-wash themselves.
Jeffrey, in reply.—This is a most extraordinary case; but before going into it, I must say the plea as to the nullity of the caption is surprise, not being in the pleas in law; but the objection is without foundation.
Thomson on Bills of Ex. 613 and 614.
The knowledge of the notice limiting the responsibility to L. 5 has not been brought home to this party, and does not apply to this
Page: 358↓
The question here is, Whether there was a wrongful delivery, or whether it was delivered to a person accredited by the agent? In support of this last alternative, evidence has been brought of its delivery and destruction by the messenger. Is it to be believed that a messenger and the clerks of the agent would, without any motive, concur in a criminal fraud to destroy their master's business, and come forward today by perjury to stamp themselves with infamy? On the other side, it is possible there might be mistake as to the individual who received the parcel, but on ours it can only be deliberate perjury.
Lord Chief Commissioner.—This case presents features which must excite interest in the minds of those who are to decide on the facts. There are also other questions which can only be got at by your deciding the fact.
It is said the public have a great interest in this case. The individuals concerned in it are greatly interested, and the public, in so far as the law on the subject has not been so clearly brought out here as in England.
Page: 359↓
With respect to this being a caption at the instance of foreigners without a mandate, you may throw that out of view, and come to the consideration of the fact. The objection is one which would have been proper for consideration before the case came here; and had it been stated when the issue was preparing, would have been a ground for sending back the case to the Court of Session. I therefore state to you, that you are to consider the case as if no such formal objection had been made.
The issue consists of three sentences, and the two first are solved by admission and proof; and the question comes, what was the duty of the proprietors of the carriage, having got a parcel to deliver? It was the duty and the practice of the defenders to deliver the parcels safe to the persons to whom they are addressed; and the question is, whether they have failed? If they have, the pursuer has made out his title to damages; but if not, you must find for the defenders. The solution of this is to be drawn from the evidence; and if you find for the pursuer, you must then consider the damages.
As to the notice limiting the responsibility, it is not only necessary that notice be given by the proprietors of the vehicle, but it must be known to the other party. The notice by the proprietors
Page: 360↓
But the question of delivery or not is the most important; and if you are of opinion that the parcel was delivered, then you will find for the defenders. On this I would state it, first, as a case of what I shall term constructive delivery; and secondly, as one of actual delivery; and on this last it is most important to consider the evidence.
On the first, the evidence shows that the agent in Glasgow was in the habit of sending for parcels, and that he did not send any written authority, or even make any formal introduction of his clerks to the persons at the office, but that one or other of them went for the parcels. The question is then put by the defenders, whether, in these circumstances, if they delivered the parcel to a well-dressed, and apparently well-behaved person, they are to remain
Page: 361↓
The next part of the case bears materially on this, and in it the burden of proof lies on the defenders. This is the attempt to prove actual delivery, and is matter entirely for you, the jury, on the evidence, and you will observe, that, though there is uncertainty among the witnesses as to the individual to whom the parcel was delivered, it is not uncommon to forget faces.
Page: 362↓
This part of the case seemed clear for the pursuers, till the extraordinary case was brought forward on the part of the defenders. If you believe his witnesses, you must hold that the parcel was delivered; that it was in the hands of, and was executed by the messenger, and that he afterwards allowed it to be destroyed. It is very singular that this evidence should not have been known till the very day on which this case would have been tried, but for an arrangement delaying it till this day.
I shall not say any thing on the veracity of the witnesses on either side, till your verdict is returned, as the case should go pure to you; but you will consider the manner in which the evidence was given, and the witnesses for the defenders being mistaken as to the individual clerk. You will also consider the conduct of the witnesses for the pursuer. To me they appeared open, to speak to the point, and at once; and the one whom I warned did not take any benefit of the protection which was offered him; but it is for you to decide.
If on this part of the case you believe the witnesses for the pursuer, there is an end of actual delivery; but still the question remains on what I have called constructive delivery, and on the notice. If, on the whole, you find for
Page: 363↓
The great question is, whether, in the circumstances of this case, delivery to a wrong person is a misfeasance? for if that is made out it defeats the notice.
If I authorize an individual to go to a coach-office, and the persons there know that individual, and deliver my parcel to another, that is a misfeasance; but the question here is, whether, if a person different from five individuals, comes for a parcel to the office, the clerk there was bound to refuse delivery, and say you are not one of the five who occasionally come. If, from the circumstances, you think he might deliver to any one who was well dressed, and had the appearance of a clerk, then there was no misfeasance, and you will find for the defenders.
Verdict—For the defenders.
Counsel:
Jeffrey and More, for the Pursuer.
Cockburn,
Cuninghame, and Bain, for the Defenders.
Solicitors: (Agents, Campbell and Mack, w.s. and James Greig, w. s.)