Scottish Court of Session Decisions

Mrs Ballandene, of Wester Pitgober, raised a summary action before the Sheriff of Perthshire, against Turner, the trustee on the sequestrated estate of Harvieston, and others, complaining of an unwarrantable cut which had been made in an embankment on her ground, by which part of her lands had been overflowed, and she had lost the use of it; and concluding for £100 sterling, less or more, in name of damages. The Sheriff found that the trustee (or his constituent) had acted unwarrantably; and, in an advocation, the Lord Ordinary remitted simpliciter. In the mean time Mrs Ballendene raised an action of damages on account of the injury sustained by her property, and concluded for £2000 of damages. The defender objected, that this claim of damages should have been disposed of in the first process; but the pursuer, besides stating it to be doubtful whether such a claim could be enforced under a summary complaint, insisted on her right to make a demand which would not be of so limited a kind as had been inserted in that complaint, in the inferior court. The Lord Ordinary repelled this preliminary objection, and a record was made up, in the course of which the trustee tendered £25, in name of damages, and also the previous expenses, protesting that “if a sum lower, or not greater, than £25, be ultimately awarded by a jury, the pursuer will be liable in all future expenses to the defender.” The tender was rejected.

In the issue which went to trial, the damages were laid at £2000; and at the trial the pursuer still insisted for high damages, and was stated to have substantially claimed £500 or £600 before the jury. The jury awarded £88; and the pursuer having moved for expenses, the Court ordered the account to be taxed. It amounted to £286, 17s. 7d. The defender opposed the motion for expenses, contending that as the whole claim of damages might have been cheaply disposed of in the Sheriff-process; and as this was not a case of injury to the feelings or character, but real damage to property, which admitted of being estimated with tolerable accuracy; and no counter-offer had been made by the pursuer, at rejecting the tender of £25 by the defender; but, on the contrary, the full sum of £2000 had been inserted in the issue, and high damages had been claimed from the jury; while only £88 had been awarded; the expenses should not be allowed to the pursuer, or at least they should be greatly modified.

The pursuer answered, that it had been already decided she was entitled to go on with her action of damages, notwithstanding the prior process in the Sheriff Court; and it was the universal practice to state a random sum of damages, as had been done here; and nothing could have rendered it unnecessary for the pursuer to go on with her action, but a tender by the defender of at least as large a sum as the jury ultimately awarded. Such tender had not been made, and thus the defender, whose wrongous act rendered the process necessary, had never made such an offer of redress as could alone have stopped farther proceedings. A substantial award of damages had been given, and the defender must bear the expenses of the proceedings thus occasioned by himself. Such was the invariable rule in Jury causes.

The Court ordered minutes of debate, and afterwards advised with the other Judges.