Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 DAMAGE AND INTEREST.
Subject_3 One who has been imprisoned upon a recognizance entered into for another person, has no claim for a solatium.

Andrew Pitcairn
v.
Umphry and Anderson

Date: 27 July 1775

Click here to view a pdf copy of this documet : PDF Copy

[Faculty Collection, IV. p. 313; Dictionary, 7847.)

Kaimes. I doubt how far consequential damages are to be allowed as well as direct. There is a case to this purpose in the Roman law. If a man purchased wheat for his slaves, and the wheat not being delivered, the slaves died of famine; in that case the seller was not liable, because the damage was only consequential.

Monboddo. The cautioner was bound to pay: Why did he not pay ?

Coalston. This poor man has been most cruelly used. There can be no doubt as to the expenses of the recognizance. The other claims of damages, for imprisonment, and for a solatium, are founded in equity; but I doubt how far there is law to support them.

Covington. I agree as to the general rule of law; but this case is different, for Umphry and his associates ought to have taken up the recognizance when they settled with the officers of the revenue.

Coalston. A cautioner ought to pay; and if he does not, he cannot lay the loss on the principal debtor. But here both debtor and cautioner were disputing the claim, and the debtor ought not to have neglected the interest of the cautioner: hence this case may merit a separate consideration from the common case.

President. The damage here is rather direct than consequential.

On the 27th July 1775, “The Lords found no damages or solatium due;” altering Lord Pitfour's interlocutor.

Act. A. Crosbie. Alt. Alexander Abercrombie. Diss. Coalston, Auchinleck, Stonefield, Hailes, Covington, President. Non liquet,—Justice-Clerk.