Scottish Court of Session Decisions

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Cite as: [1838] CS 16_1239

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SCOTTISH_Court_of_Session_Shaw

Page: 1239↓

016SS1239

Robertson

v.

Ainslie's Trustees
No. 249.

Court of Session

2d Division

June 29 1838

Jury Cause. R., Lord Justice-Clerk.

Mrs Christina Robertson, Pursuer.— Counsel:
D. F. Hope— Moir. Ainslie's Trustees, Defenders.— Counsel:
Sol.-Gen. Rutherfurd— G. G. Bell— Neaves.

Subject_New Trial.— Headnote:

Circumstances in which new trial, on the ground of a verdict being against evidence, refused.

Facts:

The Jury having found for Mrs Robertson, pursuer of the issue in, this case (reported ante, XV. 1299, which see), the defenders, Ainslie's Trustees, applied for a new trial, on the ground of the verdict being contrary to evidence. They contended, inter alia, that, under the circumstances in which William and John Ainslie, the creditors, for whose behoof the stipulation in question was made, had come forward to be security for payment of the bankrupt Robertson's composition, they had undertaken a great risk; and the whole hazard, looking at the fluctuations in the grain market, lay with them as cautioners, and not with the other creditors; that they did not reserve their own debt, and not even their right to the composition sum, to be insisted in against the debtor subsequently, but so far as the debtor's funds were liable for the composition, the Ainslies were postponed; and in the circumstances of the case, the Jury ought not to have found that the stipulation, referred to in the issue, was corrupt.

For Mrs Robertson, on the other hand, it was maintained, that looking to the evidence, and particularly the documentary evidence, there were no grounds for holding the verdict to be contrary thereto.

Lord Justice-Clerk.—This is an application for a new trial on the ground of the verdict being against evidence. It is a very delicate duty imposed upon the Court to interfere with the province of the Jury, and a matter in which we have to exercise a sound discretion. This subject was brought under the consideration of the Court in the case of Baillie v. Bryson, in 1818, when the opinion then expressed as to the principle on which new trials on the ground of the verdict being contrary to evidence, should be granted, received the full approbation of the Lord Chief Commissioner, and has been treated as sound law in his work upon Jury Trial. ¹ Although the Court should be of a different opinion from the Jury on the evidence, that is not sufficient ground for setting aside a verdict. The verdict must be flagrantly against evidence. No objection is made, and no exception was taken, to the law laid down at the trial. If at the time a composition contract is entered into, any creditor shall stipulate with the bankrupt, behind the books of the other creditors, for full payment of his debt, that is an illegal and also a corrupt stipulation. It is said that here the creditors so stipulating were cautioners, but that appears to me to make the matter not better, but in some respects worse, as they must have been enquiring into the condition of the estate, and have had a better knowledge of it. With this exposition the case was laid before the Jury upon a considerable body of documentary evidence, the defender leading no evidence; and they returned a verdict for the pursuer. I have been obliged to ask myself the question, whether, on the principles above referred to, there is any ground for a new trial, and I can see no ground. Looking to the proceedings in the case, and the issue that was allowed, the defenders could not have been placed in a more favourable situation, the whole burden being undertaken by the pursuer of the issue of making out the affirmative thereof.

The other Judges having concurred,

The Court “discharged the rule.”

Solicitors: John Robertson, W.S.—M. and W. Smillie, S.S.C.—Agents.

_________________ Footnote _________________

¹ 1 Murray, 341, and Adam on Jury Trial, 249.

SS 16 SS 1239 1838

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