Scottish Court of Session Decisions

This case was tried before Lord Kinloch and a jury on 6th June last. A verdict was returned for the pursuer, and the damages were assessed at £50. The defender with his defences had lodged a tender of £52, 10s. But in his defences he pleaded that the pursuer's statements were unfounded, and that he was entitled to absolvitor.

When the verdict came to be applied, both parties moved for expenses. The pursuer moved alternatively that neither party should be found entitled to expenses. The Lord Ordinary (Kinloch) gave effect to this alternative motion, and explained his reasons in the following

Note.—The question of expenses is especially for the discretion of the Court, though this discretion must be governed by regard to general rules.

The defender contended that, because at the time of lodging the defences, he also lodged a tender of a sum of £52, 10s., in full of the claims under the summons, whilst the jury has only given a sum of £50, the pursuer should be found liable in expenses since the date of the tender. It appears to the Lord Ordinary that this result does not necessarily follow.

The Lord Ordinary was not moved by the statement (proposed to be proved by a certificate under the hand of a majority of the jury) that, in fixing the damages at £50, the jury intended to throw the expenses on the defender. If the jury did so, they were stepping entirely out of their province; for they have no right to deal with the question of expenses, which is exclusively for the Court. But the Lord Ordinary can give no countenance to any inquiry into what passed in the jury-room. His opinion in the matter of expenses is formed irrespectively of this statement, which it was irregular to make.

The present is an action of damages for breach of promise of marriage, and such an action is not to be dealt with as an ordinary case of breach of contract. The action has always been regarded as touching on character and feeling, and has been so dealt with by the Court. ( Sandilands v. King, 29th May 1858, 20 D. 1005.)

Whilst making a tender of £52, 10s., the defender, in the defences simultaneously lodged, denied the alleged promise, and claimed absolvitor. His first plea in law is—“The pursuer's statements being unfounded, the defender ought to be assoilzied.” Consistently with this defence, the defender went to the jury for a verdict in his favour. He did not merely seek to keep down the amount of damage; he asked for a verdict out and out.

This was of a piece with his statement in the letter by which he broke off his correspondence with the pursuer, in which he said—“You never had any sanction to couple my name with yours; and the only time you did so in my hearing was to your sister, and then I told you that you were going too fast.”

The Lord Ordinary cannot in the circumstances regard the mere offer of money as a sufficient tender to satisfy the just interests of the pursuer as a woman deeply wronged. The defender admitted no wrong. On the contrary, he committed an aggravated injury on the pursuer by broadly stating that she was attempting to take advantage of him by trumping up a false story of a breach of promise of marriage, than which no statement can be more injurious to a woman's character and feelings.

The Lord Ordinary conceives that the pursuer was entitled, notwithstanding the tender, to go on to obtain a verdict. On the other hand, she must be held to have been wrong in seeking to aggravate the damages beyond the sum which the jury had awarded. And, on the whole matter, the Lord Ordinary thinks that he will rightly exercise his judicial discretion by finding expenses due to neither party.

W. P.

The defender reclaimed.