Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1882/20SLR0209.html
Cite as: [1882] ScotLR 20_209, [1882] SLR 20_209

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SCOTTISH_SLR_Court_of_Session

Page: 209↓

Court of Session Inner House First Division.

Thursday, December 7. 1882.

20 SLR 209

Fry

v.

The North-Eastern Railway Company.

Subject_1Process
Subject_2Jury Trial
Subject_3Motion to Apply Verdict
Subject_4Extract Superseded.
Facts:

In a jury trial a verdict was returned for a sum less than the amount of a tender made by the defenders previous to the trial. The defenders were therefore entitled to expenses subsequent to the date of the tender. On the defenders' motion the Court applied the verdict of the jury, and superseded extract of the decree for the sum to which the pursuer was found entitled by the verdict, until the expenses since the tender should be paid to the defenders.

Headnote:

This was an action of damages for personal injury
Page: 210↓
at the instance of William Fry against the North-Eastern Railway Company, the damages being laid at £1700. The case was tried before the Lord President and a jury at the Summer Sittings, when a verdict for the pursuer was returned assessing the damages at £50. The defenders had made a tender of £105 before the trial. The defenders now moved the Court to apply the verdict, and on the ground that the expenses to which the defenders were entitled since the tender would extinguish the amount awarded to the pursuer by the verdict, to supersede extract of the decree till these expenses should be paid.

At advising—

Judgment:

Lord President—I am not aware that this point was ever raised before. I do not refer to any specialties in this case, except that the verdict was returned after a tender was made and refused, and is a verdict for so small an amount that the expenses to which the defenders are entitled, viz., those incurred since the date of the tender, will swallow up the sum for which the pursuer can obtain decree. In these circumstances I think it fair and just that extract should be superseded until the matter of expenses has been settled.

Lord Deas concurred.

Lord Mure—When a defender makes a tender, and the verdict is for less than the tender, and when it is likely that the expenses will be more than the amount of the verdict, then I think it is fair to supersede extract.

Lord Shand—My impression is that extract would not be given out by the extractor until the question of expenses had been disposed of, but assuming that he will give out an extract of this decree at once, I am of opinion with your Lord—ships that extract should be superseded.

The Court therefore applied the verdict, and superseded extract till the defenders' expenses since the date of the tender should be paid.

Counsel:

Counsel for Pursuers— Scott— M'Kechnie. Agents— J. & A. Hastie, S.S.C.

Counsel for Defenders— Trayner— Graham Murray. Agents — Millar, Robson, & Innes, S.S.C.
1882

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