Scottish Court of Session Decisions

Sequel of the case reported ante, IX. 789, May 26, 1830, which see. After the judgment finding that Reid's ex facie absolute assignation to, the lease was truly a right in security of advances made by Reid for Lyon's behoof, the cause was taken to appeal by Reid. The House of Lords affirmed the judgment, but awarded no costs against the appellant. Reid then presented a petition, stating that the advances in security of which the lease was assigned were very large, and praying for the appointment of a judicial factor to manage the lease and subjects therein contained. The Court granted the petition. Reid died in 1833, and Lyon (heir of the cedent) raised an action of damages against his trustees, founding partly on the alleged mala fides of Reid in falsely asserting his right to the lease to be absolute, and suing out a sequestration in that character, and excluding the pursuer from the subject; and partly on specific allegations of injury done to the subject of the lease while in his occupation. These latter averments were made in the 3d and 4th numbers of the 14th article of the condescendence. The defenders objected that the greater part of the statements were irrelevant, especally as no offer had ever been made to reimburse them of the advances in security of which the lease was held. The Lord Ordinary pronounced the following interlocutor, and explained his views in a note: ^*—“Finds that the first thirteen articles of the condescendence, and the first, second, fifth, and sixth numbers of the fourteenth article, are not stated in a manner sufficiently specific and relevant to infer a conclusion for damages, and to that

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^* “On the supposition that the disposition and assignation of the lands at Comely Garden to the defender was an absolute right, and not a right in security, all the proceedings, both in the process of sequestration and in the subsequent action, were carried on with perfect accuracy and propriety. And whether it was a right in security or not, the proceedings in the sequestration were warrantable, and accordingly the pursuer expressly withdrew his opposition to that process. The disposition was ultimately found to be a right in security in this Court, but not without difficulty, and with still greater difficulty in the House of Lords, in which, although the interlocutors of this Court were affirmed, the pursuer was refused the costs of opposing the appeal. But it is no relevant ground for an action of damages that a party has been unsuccessful in a lawsuit. It is true the pursuer avers in his condescendence that the defender carried on the litigation mala fide and fraudulently, knowing that the disposition was a right in security. But to render a charge of that nature specific and relevant, so as to warrant its being sent to a jury, it is necessary to state the facts from which mala fides and fraud are inferred, and there is no such statement in the present case.

“The averment that the defender has not ceded possession of the subject, or that it is still under sequestration, is also irrelevant, for the pursuer does not say that he has paid or tendered the sum ascertained in the action to be the amount for which the disposition still remains a security.

“The only points, therefore, which, in the Lord Ordinary's opinion, are proper to be sent to trial, are those which relate to the deterioration of the subject while in the defender's possession.”