Scottish Court of Session Decisions

Lord President—As your Lordships are agreed that the bill of exceptions should be disallowed, it Is as well to dispose of that in the first place. The question submitted to the jury in this case was— (reads issue). Now, the presiding Judge told the jury, in his direction to them,—( reads direction first excepted to). I think that direction was not only sound in itself, but also very well adapted to the circumstances of the case, and very well calculated to lead the jury to a correct decision. There were two main points for the consideration of the jury—First, Whether the house in George Square was the dwelling-house of the pursuer? and second, Whether the furniture in that house was the pursuer's furniture. These were really the two main facts at issue between the parties. His Lordship told the jury that if they were satisfied that they were the house and furniture of the pursuer, then the defender was not entitled to do what he did, and his having done so was wrongous and unwarrantable in the sense of the issue.

It is needless to say more about this part of the exception. But the defender asked a farther direction from the presiding Judge, and, of course, if that was sound in law, and at the same time necessary for the guidance of the jury, or if the want of that direction was calculated to mislead the jury; then the defender, that direction having been refused, is entitled to succeed in this bill of exceptions. But I am of opinion that such was not the case. This is what may be called a negative exception—an exception to what the Judge did not do. The defender must therefore satisfy the Court not only that his proposed direction was sound in law, but that it was also necessary for the proper guidance of the jury. If he fail in either point he is not entitled to prevail.

I think the defender has failed on both these points. I do not think that his direction is good and sound in point of law, for it is as follows— (reads direction proposed in second exception). That is to say, that if these things are so in point of fact, then the act of the defender complained of was not an illegal proceeding which entitled the pursuer to claim redress. Now, certain actings of the pursuer, in conjunction with his sons, might very well; induce the belief, on the part of the defender, that the house and furniture belonged to the bankrupts, without being attended with any such results, in point of law, as those contended for. The actings of the pursuer might lead to the conclusion, as they have here, without any good grounds for the belief, and I cannot accept it as matter of law that such erroneous belief will warrant or even excuse the defender in proceeding as he did. But, in the second place, it appears to me that, so far' as the jury is concernd, it would have been most misleading, for it necessarily suggests the question, Whether the actings of the pursuer and his sons did give rise to such a belief? Now, it seems to me that the evidence in the case does not raise that question at all, and that if the, direction had been given, the jury would have been misled by it accordingly. On these grounds, I think that the bill of exceptions ought to be disallowed.

With regard to the motion for a new trial, on the other hand, we have it urged upon us that there are two grounds for setting aside the verdict. First, because it is against evidence. Now, the two main questions of fact in the case being, as. I have already remarked, Whethor the house is the property. of the pursuer? and Whether the furniture is also his,? on both these points there is conflicting evidence. There was certainly raised, on the part of the defender, a very important question as to the credibility of some of the pursuer's witnesses, especially of John Houlden. The jury have practically

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