Scottish Court of Session Decisions

Subject_1 VIOLENT PROFITS.

Andrew Ker, Brewer in Edinburgh,
v.
Alexander Dunbar of Thundertoun, and other late Tacksmen of the Excise

Date: 5 February 1706
Case No. No. 10.

In an action of spuilzie of a caldron and still-pot, the spilt browst and expense of the pursuit allowed in name of damages, but not the rent of the brewery as laid waste, and the loss of the pursuer's trade by the spuilzie, nor yet the price of brewing utensils that fell down for want of use, or of malt spoiled for want of the caldron to brew in.

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In an action of spuilzie at the instance of Andrew Ker against the late tacksmen of the Excise, for their unwarrantable poinding of a copper caldron and still-pot, the Lords found the poinding unwarrantable, and allowed the pursuer to give in a condescendence of damages and expenses sustained thereby. But a condescendence being made, they sustained the same only as to the goods found to be unwarrantably poinded, viz. The copper caldron and still-pot, spilt browst, and the expense of the pursuit; and not for the rent of the brewery laid waste by the illegal poinding; nor for the loss of brewing looms, that fell down through not using thereof; nor for the malt spilt through want of the caldron to brew it in; nor for the profit the pursuer might have had by his trade during the space fore-said; albeit he alleged that all these damages resulted as naturally from the unlawful poinding, as in assythment of the mutilation of a man's hand, the loss of his trade thereby is modified: Because the pursuer needed not suffer his malt to corrupt for not brewing it in due time, nor his looms to fall in staves through want of use, but might have otherwise disposed on both, since he had no caldron to brew; and the foresaid extrinsic damages, with those for the loss of the pursuer's trade, and the want of rent for his brewery, have no contingency with mutilation; for a tradesman's loss through the want of his hand is irrecoverable, whereas the poinding of a caldron might have been repaired, by putting another in the room of it. And damage in the pursuer's employment could no more be required upon that head than a tailor could seek damages for the loss of his trade through the illegal taking away of his thimble and scissars.

Forbes, p. 90.