Scottish Court of Session Decisions

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Cite as: [1870] SLR 8_151, [1870] ScotLR 8_151

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SCOTTISH_SLR_Court_of_Session

Page: 151↓

Court of Session Inner House First Division.

Saturday November 26. 1870.

8 SLR 151

Lockhart

v.

Cunninghame.

Subject_1Reparation
Subject_2Damages
Subject_3Pretium Affectionis.
Facts:

Where a subject is sought to be recovered as wrongfully retained, and damages are not specifically sued for, but only the price or value, as an alternative of delivery of the subject itself, held not competent to decern for a price so much in excess of the market value as to be tantamount to a fine or to an award of damages. Held, on the other hand, that where the circumstances justify the owner in attaching a peculiar value to the subject, the Court are entitled to allow somewhat in excess of the market value, as a pretium affectionis.

Headnote:

This was an appeal from the Sheriff-court of Ayrshire, brought by Wm. Lockhart, farmer, Stevenston, against the Sheriff's interlocutors pronounced on a petition against him at the instance of his landlord, Mr Cuninghame of Auchenharvie, craving the Court to ordain the respondent to deliver up to the petitioner a certain chestnut mare, and failing which to pay to the petitioner the sum of £50, as the price or value of the said mare, reserving to the petitioner all claim for loss or damage.

It appeared that the mare had belonged to Colonel M'Call, an intimate friend of the petitioner, and by him had been used as a charger in the Crimea, and was accordingly very much valued by them both. She was given by Colonel M'Call to the petitioner to keep, on condition that she was to be well used, and never to leave the property. In 1867 the respondent, who was a tenant of the petitioner, was in want of a horse for his milk-cart, and the petitioner agreed to let him have the mare on loan, on certain conditions, and among others that she was not to leave the farm, and was to be returned when demanded. The respondent took the mare, and after using her for a short time in his milk-cart, put her to other purposes, and ultimately sold her without the petitioner's knowledge to a doctor in Glasgow. On receiving a visit from Colonel M'Call, the petitioner found out that the mare was missing, and required the respondent to recover possession of her, and return her to him. The respondent failed or refused to do so. And Mr Cuninghame had ultimately to bring this petition before the Sheriff.

The respondent pleaded that he had received the mare as a gift, and denied that the transaction was a loan, or that there were any conditions attached to it. He also denied that she was of the value sued for in the petition.

The Sheriff-Substitute ( Anderson), after proof was led, decerned in terms of the prayer of the petition.

The Sheriff ( Neil Campbell) adhered on appeal.

The respondent appealed to the Court of Session.

Shand and Brand for him.

The Solicitor-General and Burnet, for the petitioner and respondent, were not called upon in reply.

At advising—

Judgment:

Lord President—Except in one particular. I quite agree with the Sheriff's judgment. I only differ from him as to the amount decerned for. I do not think he should have given the full sum for which the petitioner concluded. The evidence led by the parties is all one way. The witnesses for the pursuer are perfectly consistent, while the defender's case depends entirely upon his own evidence, for I am quite satisfied that the witness Miller is speaking of a different occurrence, which took place at a different time of the day, and under different circumstances. On the defender's own evidence there is no call for me to comment, as, on the matter of fact, I have not the slightest doubt.

But the Sheriff has proceeded simply to decern in terms of the prayer of the petition—failing delivery within a certain time, he has ordained the respondent to pay to the petitioner the sum of £ 50 as the price of said mare, reserving the petitioner's claim for loss or damage, &c. Now, I think lie was wrong in decerning for so large a sum. It is as the price and value of the animal, that this sum is sued for, and there is no doubt that this is far above the real price or value. In fact this branch of the Sheriff's judgment looks far too much like the infliction of a fine upon the respondent, or something akin to damages, which it was incompetent for him to give under this petition. Still, I think that the Sheriff would have been entitled to give considerably in excess of the mere market value; he would have been justified in attaching a pretium affectionis to the mare, allowing for the feelings with which the petitioner and Colonel M'Cail, who was behind him, regarded her. I am of opinion that the Sheriff has gone too far, and that the price decerned for, as an alternative of delivery, should be reduced to £20.

The rest of the Court adhered.

Solicitors: Agents for Appellant— Lindsay & Paterson, W.S.

1870