Scottish Court of Session Decisions

A landlord having presented a note of suspension and interdict to prevent his tenant from taking away growing crop from 100 acres of his farm, the Court ultimately repelled the reasons of suspension, and recalled the interdict. The tenant thereafter raised an action of damages for wrongous use of interdict, and obtained a verdict from a jury, who assessed the damages at £1068. The landlord afterwards obtained a rule which was made absolute, and a new trial granted upon two grounds—(1) that upon the evidence and law applicable to the evidence the obtaining of the verdict was erroneous in the sense of the issue, and (2) that the damages which the jury awarded were excessive. A second trial took place, the result of which was that the second jury considerably reduced the damage given to the defender.

The case was on the roll to-day, on the motion of the pursuer, to apply the verdict in the second trial. The question of the expenses of the first trial had been reserved at the time of the discussion on the rule, and now came up for disposal. The defender contended that the pursuer should not be allowed these expenses, because the extravagant award of damages which the jury made was clearly referable to the fault of the pursuer himself, in respect he laid before them evidence which proceeded on a totally erroneous scheme of calculation, and, moreover, the sum awarded was under the amount of the claim made. The defender was entitled to expenses because the pursuer has misled the jury and caused the miscarriage, but, in any event, the defender should not be found liable in expenses. The pursuer answered that he was not responsible for the erroneous result at which the jury had arrived. He had called the most respectable witnesses in support of his claim, who had given their evidence according to a method of calcuation which they considered right. There was no doubt of his bona fides; and, moreover, there was fault on the part of the defender, which probably misled the jury to as great an extent as the fault of the pursuer, in repect he had maintained that no damages were due at all.

The Court, on the ground that there had been fault on both sides—on the side of the pursuer in respect he adopted an erroneous scheme in estimating the damage—on the side of the defender in respect he was wrong in point of law in maintaining that no damage was due at all—found neither party entitled to expenses. The same principle was applied to the expenses of the discussion on the rule, and they were allowed to neither party, in respect the defender had obtained and maintained his rule upon two grounds, in one of which he had been successful and in the other unsucessful.