[List-Cumbria] Carlisle Patriot, 07 Sep 1816 - Cumberland Assizes (37)

[Petra Mitchinson]

Saturday 07 Sep 1816   (p. 3, col. 4 – p. 4, col. 6)

 

Cumberland Assizes. 

========== 

[continued] 

 

ROBERTSON v. ROUNTREE, junr.—The plaintiff is a Writer to the Signet, in Edinburgh, and the action was brought for the recovery of
£65, from the defendant, being the amount of a bill for business done; £25 had been paid on account. 

 

Mr. WILLIAMS addressed the Jury on behalf of the plaintiff. He said the defendant is a farmer residing at Park-nook, in the parish
of Lanercost, near Brampton, in this county. It happened some time ago when the defendant was in Scotland that he fell under
suspicion (unwarrantably no doubt observed Mr. WILLIAMS) of having stolen a heifer, the property of one ELLIOTT a cattle dealer, for
which he was imprisoned some time in the gaol at Jedburgh. It occurred to the defendant that as he was innocent, malice alone must
have dictated the charge brought against him, and he determined to bring an action in Scotland for Wrongus Imprisonment, and
accordingly the plaintiff was employed to raise this action. By a letter from defendant dated 13th January 1812, addressed to Mr.
ROBERTSON, proper authority was given to raise the action against Robert ELLIOTT, of Newcastleton, and the damages laid at £1000. In
consequence the action was raised and the proceedings went on a considerable time. By the law of Scotland, it appears, if the
plaintiff does not go on for a certain time, the defendant is enabled to put an end to the action by getting an Absolvitor. This was
done in the present instance, and Mr. ROBERTSON as the plaintiff's adviser was obliged to pay all the costs, which he did by
defendant's directions. Mr. ROBERTSON in the course of the proceedings had received £25 out of the sum demanded. Mr. WILLIAMS said
the defence that would be set up to the action was, that ROUNTREE the elder was the person to whom ROBERTSON looked for payment, and
that the business was done on his account, and not for his son; the Jury would soon see with how much justice such a defence could
be made. 

 

Thomas ARMSTRONG sworn.—Knows the defendant James ROUNTREE, and believes the letter dated 13th January 1812, to be his hand writing.


 


Mr. James DONALD sworn.—Is a writer in Edinburgh, which he has been since 1807, and has practised as such for himself several years.
Is acquainted with the hand writing of the Auditor of the Court of Session in Scotland, and with that of Lord GILLIES. It is the
hand writing of those personages which appear to the taxed bill of the plaintiff. In Scotland they have a law called an Absolvitor
which the defendant obtains when the plaintiff cannot proceed. The discharge cannot have the decree of Absolvitor till the attorney
pays the costs. 

 

Robert TELFORD sworn.—Knows ROUNTREE the defendant. In Jan. 1812, thinking of going to Edinburgh, he had some conversation with
young ROUNTREE about his action then pending in Scotland. ROUNTREE's father, supposing him about to go, desired witness to come to
his house on the same subject, observing to him, that he knew of their cause going on as well as they did themselves. Afterwards
witness went to ROUNTREE's house and told them he was not going. The son frequently held conversation with the witness about the
cause, and asked him what he thought of Mr. ROBERTSON's abilities, as he conceived him rather slow in conducting it. 

 

Cross-Examined.—Witness had some talk with Mr. ROBERTSON on the subject, and has heard him say that he looked to the father for
payment, on account of his being more able to do so than the son. Has heard that ROBERTSON brought an action against the father on
this very account. ROBERTSON said that all his correspondence was with the father about the affair, except one letter. Witness was
present when he made a demand on the father for the bill. 

 

Resumed.—It was the son who was imprisoned. ROBERTSON told witness that having had some correspondence with Mr. SAUL, he thought
that his action would not hold good against the father, and he was about to commence one against the son. A letter was shewn to the
witness which he knew to have been written to ROBERTSON by the late Mr. GIBSON, schoolmaster, of Brampton, by order of the father. 

 

Mr. RAINE addressed the Jury in behalf of the Defendant, and laboured hard to place Mr. ROBERTSON's conduct in a sinister point of
view, contending that he has been guilty of trick and contrivance, highly creditable to his cunning and cleverness, but that was
all. Mr. RAINE read the following letter, addressed to the father:— 

 

"Edinburgh, January 18, 1812.—Sir, Having now received the requisite explanation from Mr. REED (a counsel) I write to inform you
that you can have no action against the Sheriff. I have raised an action which will be served on ELLIOTT by Tuesday first. But as I
ought to have a special mandate from your son, I have sent you a copy of one, which your son is to carefully copy and send to me,
but it must be dated back to the 13th or 14th, without which no action of wrongus imprisonment can be raised," &c. 

 

This letter was signed by Mr. ROBERTSON, and addressed to the senior ROUNTREE, at Park-nook. In consequence, the son copied the
letter verbatim, dated it back, and sent it to Mr. ROBERTSON, who without such mandate, or authority, could do nothing in a Scotch
Court of Law. This, Mr. RAINE said, was at best a contemptible trick. But what the defendant most complained of was, that Mr.
ROBERTSON, because he could not be supplied with money at the moment of requesting it, had abandoned the proceeding abruptly, and
enabled ELLIOTT to snap at his absolvitor or release. The fairness of the charge was not disputed, but the manner in which Mr.
ROBERTSON had subsequently conducted himself. Mr. RAINE contended that he had no right to abandon the action in such a manner, and
having done so he must expect to take the consequences of it. 

 

Mr. WILLIAMS said he was anxious, first, that Mr. ROBERTSON should stand well with the Jury, and second, that he should gain the
present action; and he now contended, which he was not aware of before, that both father and son, or either, were liable to be sued,
they having jointly proceeded in the business, and Mr. ROBERTSON was at liberty to bring his action against whichever he pleased.
Mr. ROBERTSON had not proceeded a single step without authority, and he could not have proceeded at all had not the letter been
dated back, for such authority, previous to raising the action, was required by the law of Scotland. Mr. W. contended there was no
policy in sueing [sic] the father who was able to pay, instead of the son who was represented as a beggar, dependent on his father,
and not able to pay. Such a proceeding was not unfair; on the contrary, it was what every one would do. 

 

His Lordship said the single question for the decision of the Jury was whether or not the plaintiff acted for both father and son
jointly; if they thought he did, why then he must have a verdict. But a party is not at liberty to shift his demand from one person
to another; he cannot make a demand on the father, and failing that, bring an action against the son. If he acted originally for and
on account of the father, he cannot sue the son; if for the son, he cannot sue the father.—Verdict for the Defendant. 

 

In our next number we shall endeavour to bring our account of the Assizes to a conclusion.

 

 

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