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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Thomas Houlden v. Peter Couper [1871] ScotLR 9_169 (20 December 1871) URL: http://www.bailii.org/scot/cases/ScotCS/1871/09SLR0169.html Cite as: [1871] ScotLR 9_169, [1871] SLR 9_169 |
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Page: 169↓
Where the trustee on the bankrupt estate of the pursuer's sons had caused the pursuer's dwelling-house to be entered, and an inventory made of the furniture and effects belonging to him contained therein, without legal warrant— held, in an action of damages against the trustee, that it was not sufficient defence for the defender to establish that the actings of the pursuer, in conjunction with the bankrupts, his sons, had induced the belief on his part that the house and furniture belonged to the bankrupts, and that he had reasonable ground for believing that they might make away with the said furniture.
Motion for a new trial, on the ground of excessive damages, refused, because the damages given were under £100 in amount, and the case one of minor importance, though the Court intimated that in their opinion the damages were excessive.
This action of damages was raised by Mr Thomas Houlden against Peter Couper, the trustee on the sequestrated estates of Mr Houlden's sons, who had carried on business under the firm of Houlden Brothers as fancy stationers, and had become bankrupt in June 1871. Mr Houlden claimed damages against the trustee for having, without judicial warrant, caused Mr George Smith,
Page: 170↓
auctioneer and appraiser, to enter the house in George Square occupied by the pursuer, and inventory the furniture and effects belonging to him contained therein. The defender stated that circumstances had been brought to his knowledge, in the course of the judicial examination of the bankrupts and otherwise, which gave him reason to suppose that the bankrupts were really tenants of the house in question, and that they had an interest in the furniture, which it was his duty to secure for their creditors. That the actings of the pursuer, in conjunction with his sons, had given him reasonable grounds for this belief. And that, farther, he had good reason to suppose the bankrupts intended to make away with this furniture. The case was tried before Lord Ormidale and a jury upon the following issue:—
“Whether, on or about the 26th day of June 18.71, the defender wrongously and unwarrantably caused George Smith, auctioneer and appraiser in Edinburgh, to enter the pursuer's dwelling-house, in or near George Square, Edinburgh, and to inventory household furniture belonging to the pursuer therein, to his loss, injury, and damage?
Damages laid at £200 sterling.”
The jury returned a verdict for the pursuer, and assessed the damages at £90.
In the course of his charge, the presiding Judge directed the jury as follows:—“if the jury are satisfied on the evidence that the house referred to in the issue was, when the acts therein complained of took place, in the occupation of the pursuer as the tenant thereof as his dwelling-house, and also that the furniture, referred to in the issue as having been inventoried, or part of it, belonged to the pursuer, then, in law, the defender was not entitled, without judicial authority or warrant, or the consent of the pursuer, to enter by himself or another into said house and inventory said furniture, and that his having done so was wrongous and unwarrantable in the sense of the issue.”
To this direction the counsel for the defender excepted, and insisted that the Judge should give the following direction:—
“That if the jury be of opinion on the evidence that the pursuer, by his actings in conjunction with the bankrupts, his sons, induced the belief on the defender's part that the house in George Square was the house of the bankrupts, and that the furniture, or a substantial part thereof, belonged to the bankrupts, and that the defender, when he ordered the inventory to be made, had reasonable ground for believing that the bankrupts might make away with the furniture, the pursuer is not entitled to a verdict in his favour on the issue.”
Lord Ormidale refused to give this direction to the jury, whereupon the counsel for the defender again excepted.
A bill of exceptions was accordingly laid by the defender before the Inner-House, containing the two exceptions above narrated. The defender, at the same time, moved for a rule to show cause why a new trial should not be granted, in respect that (1) the verdict was contrary to evidence, and (2) that the damages were excessive.
Innes, for him, was heard on the motion for a rule,
At advising—
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
Page: 171↓
But the second ground stated in support of the motion for a new trial regards the amount of damages given. The defender contends that what was done inflicted no personal loss upon the pursuer, and no loss even of credit, and that therefore the damages, if given at all, should have been limited to a much more moderate sum, and one more justly equivalent to the damage done. I feel the force of this very strongly and I am ready, with your Lordships' concurrence, to grant the rule upon that point, but on that point, only,
The rest of the Judges concurred.
Counsel were thereafter heard on the question of excess of damages.
Thoms, with him Jameson, for the pursuer, in support of the verdict.
Shand and Innes for the defender.
At advising—
Lord President—We have now had the benefit of a full argument upon the question, Whether this verdict should be set aside on the ground that the damages are excessive? Such is the name by which too large damages is known in our practice. Of course I need hardly say that the Court will not interfere simply on the ground that they think the jury have given too much. That would be to interfere with a matter which is peculiarly the province of the jury. There must be something laid before them to justify the use of the term excessive—something to shew that the damages given are outrageous, as our brethren in England term it. Unquestionably the Court have the power, and have frequently exercised it, of setting aside a verdict where the damages were outrageous. For instance, in the case of Snare v. Earl of Fife's Trustees, and again in the more recent case of Miller v. Hunter, where the jury, on a mistaken view, awarded a very large and indefensible sum of damages, and the Court interfered. The Court have also interfered in the opposite case, where the damages given have been excessively small. For instance, in an old case, where the pursuer was a dancing-master, and had lost his leg in consequence of an accident, and the jury awarded him only £100, a sum hardly sufficient to pay his doctor's bill, the Court granted him a new trial. But, so far as my experience in this Court goes, I am not aware that it has in any case interfered except to redress a very great injustice, and I hesitate very much to apply the principle on which the Court has acted hitherto to a case of such small amount as the present. I do not think that the Court has ever interfered to disturb a verdict on the ground of excessive damages, where the damages given did not exceed £100. And though I am bound to say that the impression which forced itself on my mind during the opening speech in this case, that the damages given were much in excess of what was due, has not been removed, still I do not think that this is the sort of case in which we should be warranted in disturbing a verdict of the jury on the ground of excessive damages only.
The other Judges concurred.
Solicitors: Agent for Pursuer.— Lindsay Mackersy, W.S.
Agents for Defender— Lindsay & Paterson, W.S;
