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Scottish Jury Court Reports |
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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Chapelain v. Baillie, &c. [1821] ScotJCR 2_Murray_458 (17 March 1821) URL: http://www.bailii.org/scot/cases/ScotJCR/1821/2_Murray_458.html Cite as: [1821] ScotJCR 2_Murray_458 |
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Page: 458↓
(1821) 2 Murray 458
CASES TRIED IN THE JURY COURT.
No. 63.
PRESENT, LORD CHIEF COMMISSIONER.
Damage for the rent of a house.
An action for the rent of a house let to the defender.
Defence.—No bargain was concluded.
“Whether, at Edinburgh, on or about the 10th day of December 1819, the defender, Archibald Christie, servant to Lieutenant-General Mathew Baillie, did hire, or agree to hire, for the use of the said General Baillie, a house or lodging, No. 18, South Castle-street, from the pursuer, for the period of four months, from the 16th of December aforesaid, at the rate of L.12. 12s. per month? And, whether the said defenders, one or both of them, have failed to implement the said agreement, by refusing to pay the stipulated hire at the periods the same became due; and whether they still continue to refuse to pay the same?
Page: 459↓
Whether, at Edinburgh, on or about the 16th day of December 1819, the defender, Lieutenant-General Mathew Baillie, did by himself, or by Archibald Christie, his servant, acting in his name, and by his authority, hire, or agree to hire, the house or lodging, No. 18, South Castle-street, in the City of Edinburgh, from the pursuer, for four months from the said 16th of December, at the rate of L.12. 12s. per month? And, whether the said defender, General Baillie, has failed to implement the said agreement, by refusing to pay the stipulated hire at the periods the same became due; and whether he still continues to refuse to pay the same?”
When parties are joint defenders in the Court of Session, the Jury Court will not grant separate trials.
An application was made on the 6th December 1820, to separate the case of the two defenders; and another on the 19th February 1821, to separate the two Issues.
On the first application, the Lord Chief Commissioner stated—That he did not think it fit matter for the Court to look into at that time; and that there was a technical difficulty in the way, as they were joint defenders in the Court of Session. On the second occasion, his Lordship said—
Page: 460↓
A witness, who had attended General Baillie as a sick nurse, having stated, on her cross-examination, that the General did not like a letter sent to him by the pursuer, and that he had given up the house,
Jeffrey, for the pursuer, objects.—This is not evidence, being merely declarations by the defender.
Lord Chief Commissioner.—The evidence is given; and I do not at present think it incompetent. You asked the witness as to what the General said; and they are entitled to sift the witness, to explain her answer to your questions. But proof of the contract being abandoned, or of its never having been entered into, cannot be got from declarations by General Baillie.
It is clear that you may cross-examine, to the full extent of the examination in chief, to try the truth of the evidence in chief;
Page: 461↓
Brown opened the case for the pursuer, and stated—That Christie, the servant of General Baillie, looked at the house, and agreed to hire it; and ordered fires, and some additional furniture.
Moncreiff, for the defender.—The pursuer mistook a mere looking at the house, for hiring it. There is no evidence of authority to Christie, and he had no authority to take the house.
Jeffrey.—The hiring is proved; and if hired, it must be held to be hired for the General.
Lord Chief Commissioner.—The question here is, Whether the contract of hiring was completed? or Whether there was only an intention to hire? One part of the Issues is now out of question; and the points are, Whether Christie had authority to hire the house? and Whether the house was hired?
Page: 462↓
This is one of those contracts which is not reduced to writing, and where parol testimony is admissible; for though there is a letter in this case, that letter is not intelligible without the parol testimony.
The first witness is the one on whose testimony the hiring depends; and if you think the hiring is established, then the authority to hire must be drawn from all the circumstances of the case.
The testimony as to the precise date, is subject to the observation that has been made upon it, that the witness did not specify the reason for remembering it. You saw the witness Christie, who appeared to me a fair witness, and he has now no interest to speak falsely.
As to the agency, this is not a matter requiring written authority; and it appears to me, that this person acted with others as if he was so employed; but there is no evidence of his being so employed; and his own evidence goes to prove, that he had no authority.
The rent might have been proved by proving the value of the house. It has not been distinctly proved, but seems fairly stated in the schedule.
Page: 463↓
Verdict—“For the pursuer on the second Issue, against the defender, Lieutenant-General Mathew Baillie, damages L.52. 12s. 5 3⁄4d.”
Counsel:
Jeffrey and
Brown for the Pursuer.
Moncreiff for the Defenders.
Solicitors: (Agents, James Crawford, w. s., and Campbell and Clayson, w. s.)
