Scottish Court of Session Decisions

Lord President—This is a question of some difficulty, but the case is a very special one. I think the general rule is quite correctly laid down in Miller's Trustee v. Shield, that where there have been two trials, and the party who ultimately prevails failed to succeed in the first, he will not be held entitled to the expenses of that trial in which he has lost. But circumstances may occur to overrule that general principle, and I think that here there are circumstances which are entitled to very great weight. Until our judgment on the bill of exceptions in this case, it had never been authoritatively decided that malice might competently be proved, though not put in issue, and therefore the defenders were to a certain extent excusable in believing that they were not called on at the first trial to meet a proof of malice. Although there was a general allegation of malice on record, that allegation was perfectly general, amounting to nothing more than the use of the word malice. But farther, the nature of the evidence led for the purpose of establishing malice was such that it could not have been anticipated to turn out in evidence to be substantially incorrect in point of fact. I don't say more than that on this point. But the action involved a most serious imputation on the character and conduct of the defenders. When they were successful in getting the verdict of the first jury set aside, and at the second successfully met the case of malice, and so not only escaped from the consequences of the verdict of damages, but vindicated their own character against the serious imputation cast on it by the pursuer, I think they are in a very exceptional position, and have a very strong claim on our indulgent consideration. I am therefore disposed to think they should have the expenses of the first as well as of the second trial.

The other judges concurred.