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A defender was found liable in expenses, tho' he prevailed in part, the point which he gained not being that which occasioned the expense.
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In the year 1744, James Cruickshanks, master of the grammar-school at Elgin, was employed to bleach some linen cloth for Alexander Forsyth, Bailie of that burgh; and having carried the same to his shop, the Bailie carped at the cloth as ill whitened; and, without any provocation from the answer made by Cruickshanks, after giving him hard names, gave him a stroke over the head with his ellwand. The Bailie was sensible of the crime he had committed, but, in place of endeavouring to make it up with Cruickshanks, he applied to his brother Magistrate, and got himself fined in L. 30 Scots to the procurator-fiscal of the Bailie-court; and Cruickshanks having brought his complaint before the next Circuit at Inverness, the Lords remitted the matter to be tried before the Sheriff of Elgin, with this instruction, That the Sheriff should have no regard to the decree of the Magistrates of Elgin, the same appearing to have been collusive.
In virtue of this remit, the process being brought before the Sheriff, and proof taken, on advising thereof, the Sheriff decerned the Bailie in L. 100 Scots to the procurator-fiscal, and in L. 350 Scots to the private party, in name of damage and expense.
Of this decree, the Bailie obtained suspension; and at discussing, having not only insisted on the exorbitancy of the fine, as sufficient to open the decree, but, in order to a total absolvitor, alleged provocation, the Lord Ordinary turned the decree into a libel, and before answer, ordained the defender to give in a condescendence of the provocation, and the pursuer to give in a special condescendence of his damage. And the defender not being able to make any tolerable condescendence of provocation, nor the pursuer to condescend upon any special articles of damage, the Lord Ordinary ‘modified the sum of L. 350 of damage to L. 24 Scots, and the fine to the procurator-fiscal to L. 3 Scots, and found the defender liable for these sums, and for the expense of the process before the Sheriff; and ordained the pursuer to give in an account of the said expense.’
But the pursuer having reclaimed, the Lords, upon hearing parties upon the proof, ‘Adhered to the Lord Ordinary's interlocutor, finding the expense before the Sheriff-court due, and remitted to the Ordinary to tax the same; and adhered also to the Ordinary's interlocutor, restricting the L. 100 decerned to the procurator-fiscal to L. 3 Scots; but found the defender liable to the pursuer in L. 10 Sterling in name of his damage and expense in discussing the suspension.’
The riot was considered as atrocious, as having been committed by a Magistrate, at the time in office, within his own house, and without provocation; and though, strictly speaking, there was no damage other than the expense, yet when a man is affronted and beat, something was thought to be due in solatium, and for encouraging persons to seek redress in this way, rather than to take it at their own hand. And whereas it was said that the Sheriff's decree was extravagant, and therefore the defender was under a necessity to suspend, the answer was, That true the Sheriff's decree was extravagant, and, when the suspension came to be discussed, had the suspender only objected to the extravagance, and subjected the modification to the judge, he would have had much to say against being liable in the expense of the suspension; but, instead of that, he pleaded a total absolvitor, on pretence of provocation, in which he failed, and thereby made his right a wrong.
The like happens every day, where one suspends because he is charged for more than is due; if, when the suspension comes to he discust, he only plead that reason, he is safe; but if he pleads other reasons and fails, he may be subjected to expense, notwithstanding his having been charged for more than was due.
Fol. Dic. v. 3. p. 199. Kilkerran, (Reparation.) No 3. p. 484.
