power, by returning a verdict of nominal damages, to modify expenses, or even to prevent an award of them being made.

The general rule will not be departed from because excessive damages have been awarded. "On the principle contended for at the bar," said Lord Gillies in one case, "if we thought the damages too low we might give high expenses, and thus render the jury a nullity" (Beatson v. Drysdale, July 8, 1819, 2 Murray, 154). The successful party is still entitled to full expenses, although he obtains as damages a sum much smaller than he sought.

Exception to the general rule.-But the rule that expenses follow the verdict does not hold where, 1st, the damages obtained are merely nominal; nor, 2d, when a tender of a larger sum than that obtained by the verdict has been made by the defender and not accepted by the pursuer. These two very important exceptions to this rule must now be considered.

Nominal Damages.-The 40th section of the Court of Session Act of 1868 provides that "where a pursuer in any action of damages in the Court of Session recovers by the verdict of a jury less than £5 he shall not be entitled to recover or obtain from the defender any expenses in respect of such verdict, unless the judge before whom such verdict is obtained shall certify on the interlocutorsheet that the action was brought to try a right, besides the mere right to recover damages; or that the injury in respect of which the action was brought was malicious; or, in the case of actions for defamation for libel, that the action was brought for the vindication of character, and was in his opinion fit to be tried in the Court of Session." By this section statutory effect is given to rules which, as will presently be seen, have from the first introduction of civil jury trials into this country guided the judges in determining the question of expenses. The important clause in the section is that which renders it absolutely necessary to obtain a certificate from the judge who tried the case. The question has been raised what is the precise effect of granting such a certificate (Craig v. Jex-Blake, July 7, 1871, 9 Macph. 983). Does the mere fact of obtaining it entitle the pursuer to his expenses as a matter of course, or is it still open to the defender to argue that expenses should not be given? In the case in which this question was raised expenses were awarded by the Inner House, but not unanimously, and the point cannot be regarded as settled. Looking to the section itself it would appear that this certificate is not intended to exclude the defender from showing cause why expenses should not be given, but in most cases when it is granted expenses will certainly be awarded.

It has been said that the rules given effect to by this

1 This section seems to be adapted from the English Statute 3 & 4 Vict. c. 24, sec. 1. In the Scotch case of Walker v. Arnot, November 27, 1820, 2 Mur. 349, Lord C. C. Adam recommended the introduction of such a certificate as is now provided for.

section had already been adopted. The Court has all along. recognised the difference between actions in which pecuniary compensation was the object sought, and those in which it was vindication of character or the establishment of a right. In the former class a verdict with nominal damages must be virtual failure, and could not justly carry expenses; in the latter, the pursuer may generally be considered successful if he obtains a verdict. A reference to one or two of the numerous decisions may show what are the circumstances in which judges will be disposed to grant the statutory certificate.

In the early case of Paterson v. Ronald, Jan. 31, 1820, 2 Murray, 188, which was an action för failure to implement a contract, Lord Chief Commissioner Adam said, "The question then is, upon what the claim of damage rests? The claim is for damage to repair a loss, not to repair an injury or an affront, and the claim being for £2500, while the jury give only 1s., I must hold it a case brought without sufficient cause of action." But while the doctrine of the Lord Chief Commissioner, laid down in another case, to the effect that if damages are really nominal costs are not given (see case of Walker v. Arnot, supra), has been accepted as sound when applied to actions for compensation, another dictum of his has also met with general approval, to wit, that "if a man's character is injured, and he is under the necessity of bringing an action to vindicate his character, the jury, by finding a verdict for the pursuer upon the proof, find in express terms the slander to be false, and therefore expenses should be given." (See Lord Moncreiff's opinion in Lane v. Matheson, January 23, 1841, 3 D. 434.)

In the numerous class of discussions where expenses have followed a verdict for nominal damages, it will be found that the Court have proceeded upon the ground that vindication of character had been sought and obtained. (See cases of Walker v. Arnot, supra; Walker v. Robertson, 2 Murray, 508; Hamilton v. Stevenson, July 10, 1822, 3 Murray, 86; Young v. Cleghorn, Jan. 27, 1832, 10 Shaw, 248.) Still the rule which governed these decisions is not absolute. In one action for slander, where the Court seems to have been influenced by the opinion of the judge who tried it, expenses were refused. In another of a similar nature (Duncan v. Balbirnie, March 3, 1860, 22 D. 934), the Court held themselves entitled to look to the subject-matter of the slander, the nature and amount of the evidence adduced, and the relative position of the parties, and came to the conclusion that the case was not one in which the pursuer was entitled to more than a bare verdict. But such exceptions among reported discussions are very rare. Expenses have been awarded to a pursuer in actions for slander, even when not successful upon all the issues. Thus expenses were awarded in one case where the pursuer succeeded in two out of three issues (Balfour v. Wallace, Dec. 3, 1853, 16 D. 110), and in another where he had only gained one out of the four

which went to trial (Rogers v. Dick, Feb. 4, 1864, 2 Macph. 591). But such expenses as appeared to have been caused by insisting upon the issues on which he was unsuccessful were deducted. Where the pursuer had averred, "but failed to prove that the defamation libelled on was the cause of his business falling off, it was held that the defender was not on that account entitled to any modification of the pursuer's expenses, although a great part of his expense was stated to have been incurred in procuring evidence to meet this averment" (King v. Reilly, May 31, 1849, 11 D. 1095). The Court will be very unwilling to recognise any distinction between injury to character and injury to feelings in a case of defamation. Thus where a farthing damages was awarded in an action for slander contained in a letter to the pursuer, and not published beyond the transmission of the letter to him, he was held entitled to his expenses (Craig v. Taylor, Dec. 20, 1866, 5 Macph. 203). In this case, however, the Court viewed an intimation contained in the letter as indicating a threat to publish the defamatory matter to others. And Lord Deas remarked that had it not been for this threat he would have had some doubt as to the expenses.

It will be seen that the 40th section of the Court of Session Act enables a judge to distinguish between actions properly brought for the vindication of character, and those which are of a frivolous description, and unfit for trial in the Supreme Court.

A judge must of course give a certificate if he is satisfied that the action was really brought for the vindication of character, and fit to be tried in the Court of Session, whatever his opinion may be on the merits; whether, when such certificate is granted, it is still open to the Court to take into consideration such circumstances as were instanced in the last case quoted, and refuse expenses, is, as has already been said, doubtful.

The other classes of actions excepted from the general rule by the 40th section are (1) those in which the injury complained of is of a malicious character; and (2) actions brought to try a right. The first embraces all actions brought for malicious injury to person or property. In certain actions for slander malice must be alleged in order to meet the plea of privilege. The question arises, Must malice be averred in order to warrant the judge in granting a certificate, or is it sufficient if in his opinion the injury complained of was malicious? Actions which are in part of a declaratory nature are also exempted. In such cases, if the party succeed in establishing his right, failure to obtain substantial damages ought not to deprive him of his expenses. In one case of this description, however, where the pursuer (who asked £200 damages) established his right, but obtained no damages, the Court modified the expenses on the ground that when an action is brought claiming damages the defender is induced to meet it in a different and more expensive way than if no damages had been claimed (Berry v. Wilson, Feb. 25, 1843, 16 Jurist, 340).

Effect of a tender upon expenses.-The general rule with regard to tenders is, that "if a party tender a sum, and the tender be rejected, and less be found due, the party making the tender should get his expenses" subsequent to the date of the tender (per Lord Cringletie in Heriot v. Thomson, Nov. 29, 1833, 12 Shaw, 145). It will not avail the party making the tender that the sumn found due by the verdict is less than that sought, if it be greater than what is offered by him (see Heriot's case, supra). This may however in certain cases induce the Court to modify the expenses (Smith v. Baird, Dec. 8, 1843, 16 Jurist, 133).1

An exception to the rule now stated arises in actions of damages for defamation. It has been seen that in such actions a verdict of nominal damages will carry expenses, and it may do so, even although the defender has tendered a sum which was not nominal. For the primary object of these actions is to vindicate the character. This is done by a verdict finding for the pursuer upon the issues, although awarding only nominal damages; but the tender of a substantial sum may not have this effect. If, therefore, the defender does not by apology and retracting what has been said do everything in his power to put the pursuer in as good a position as he was before the injury to his character was committed, the tender will not entitle him to his expenses. If a pursuer has any good excuse for going on with the action, after the tender has been made, and is successful, he must have his expenses. "If they retracted the calumny, if they admitted the slander, and cleared the pursuer of it in the same way as a verdict would have cleared him, that would reduce the question to a question of money merely, and in such a question the tender comes to be important. But in order to make the tender available in that view it must be accompanied with the fullest retractation. As a general rule a tender of money without retractation is of no value" (per Lord President M'Neill in Faulks v. Park, December 22, 1854, 17 D. 250). The important question in such cases then comes to be---What is a sufficient retractation? Upon this point the case of Faulks v. Park is instructive (17 D. 247). In that case the slander consisted in having published in a newspaper two paragraphs which indicated that the pursuer had been guilty of a criminal offence for which he had been committed to trial. After the issues had been arranged, but previous to the trial, the sum of £16 was tendered by the defenders, along with the expenses of process up to that date. The defenders further stated, in their minute of tender, " that the said paragraphs were published without any intention of injuring the pursuer, and if they are expressed so as to convey or imply accusation against the pursuer, which they did not intend to make, the

1 £121 were sought, £66, 10s. offered, and £90, 4s. obtained. But it was not an action of damages, and it was remarked from the Bench that had it been one they could only have applied the ordinary rule of law, and given full expenses. See also Webster v. Alexander, July 12, 1859, 21 D. 1214.

defenders regret having made them, and hereby withdraw the same." This tender was not accepted, and trial resulted in a verdict for the pursuer, with a farthing damages. The judges were unanimous in holding that this was not a sufficient tender, not being such a vindication of the pursuer's character as placed him in the same favourable position in point of character as the verdict of the jury would have done. "The defenders ought to have said not only that they withdrew the accusations, but that there was no ground for them" (per Lord Robertson, p. 251). The pursuer in this case seems to have been allowed to refer to what had been subsequently published in the newspaper for the purpose of shewing the construction which the defender put upon his own tender, and the purpose he had in making it. But the judges went upon the terms of the minute of tender itself (see also Macfie v. M William, June 30, 1854, 26 S. Jurist, 450).

This exception to the general rule is strictly limited to cases in which vindication of character is the object sought, and even in such cases the Court will exercise discretion. Thus when an action of damages was raised for verbal and real injury, arising out of a quarrel between the pursuer and defender, and where the abuse seems to have been mutual, a tender of a larger sum than that given by the jury, but not accompanied by an apology, was held to entitle the defender to his expenses. And it is not every injury, although affecting character, which will justify an action to vindicate it. In one case, where the injury consisted in having apprehended a party upon a false charge, Lord Jeffrey remarked, "In all cases of the kind there may be a statement that it is on account of degradation to character that the action is raised; but an action for assault or violence is different from one for defamation, though I do not know any case of violence, when committed on a party in the upper ranks, which does not resolve into a degradation" (Strachan v. Munro).

Tender must be explicit and unqualified.—A tender, in order to carry expenses, must not only offer a larger sum than that awarded by the jury, but must be explicit and free of qualifications and conditions. "Tenders should certainly be encouraged, but I am not for encouraging tenders whose construction will involve matter of fresh litigation. When a party who has done wrong seeks to make a tender, he must make a distinct retractation and an offer of an immediate sum. A tender in the shape of an offer to go into a general accounting will not do. It should not be such that the acceptance of it would involve an admission of a debt due to the

1 Anderson v. Marshall, Nov. 24, 1825, 14 S. 54. Lord Jeffrey, in the case of Strachan v. Munro, July 5, 1845, 7 D. 995, says, "I am very far from saying that in all cases, even of pure defamation, a verdict for the pursuer will entitle him to expenses, though it is for a smaller sum than has already been tendered and refused. The Court will judge of every such case according to its own circumstances." See also the remarks of this judge in the case of Lawson v. Ferguson, July 18, 1866, 38 Jurist, 528.