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Scottish Jury Court Reports
You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Rankine v. M'Laren. [1825] ScotJCR 3_Murray_494 (28 February 1825)
URL: http://www.bailii.org/scot/cases/ScotJCR/1825/3_Murray_494.html
Cite as: [1825] ScotJCR 3_Murray_494
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SCOTTISH_HoL_JURY_COURT
Page: 494↓
(1825) 3 Murray 494
CASES TRIED IN THE JURY COURT.
No. 50
v.
Present, Lord Chief Commissioner.
Circumstances in which a person was not held liable in damages for incarcerating a person on a caption proceeding on a horning with an erasure in the date.
An action of damages for incarcerating the pursuer by virtue of a caption following on vitiated letters of horning, and for again incarcerating him for payment of the same debt.
Page: 495↓
Defence.—There was no malice, real or constructive, and the pursuer suffered no damage. The trifling mistake for which the agent, not the defender, is liable, was corrected before the horning passed the signet.
“Whether, on the 24th day of April 1823, the pursuer was incarcerated in the jail of Edinburgh, and detained therein until the 4th day of July 1823, by virtue of letters of caption following upon vitiated letters of horning and poinding, raised at the instance of the defender, upon a bill of exchange, for the sum of L.32, 17s. 4d., dated the 14th day of July 1817, due by the said pursuer to the said defender?
Whether the said caption, proceeding on the said letters of horning, was put in force against the pursuer, as aforesaid, to the loss and damage of the pursuer?”
Cunningham opened the case for the pursuer, and Moncreiff for the defender.
Lord Chief Commissioner.—When a person is imprisoned, and comes with a fair case, I have never found a Jury indisposed to give him reparation for the actual loss, and solatium.
Page: 496↓
The error in the date vitiates the document, but then there is no malice shown, and law cannot presume malice where a creditor claims his just debt, which he is in danger of losing by prescription; besides, no damage has been proved. The fact is, that he was imprisoned by an irregular caption, but this must be connected with damage. Some cases are founded on a disposition to injure, but that is not proved in this case; others are founded on actual loss, but here the evidence shows that none was suffered.
On the whole, I do not think there is any necessity for finding nominal damages, which would give rise to a question whether expences should follow.
Verdict—“For the defender.”
Counsel: Cockburn and Cunningham, for the Pursuer. Moncreiff and J. Miller, for the Defender.
Solicitors: (Agents, Greig and Peddie, w. s. and David Greig, w. s.)