C J F ORR, W S v LAURENCE HILL (Court of Session)

Lord President .—In one sense there was no wrong committed, for the trustees wanted the ground, and the owner consented to their taking it. They entered into and retained possession, but wont pay the price. In that sense they have acted illegally and unwarrantably, viz. by retaining possession, and not paying the price.

Lord Mackenzie .—I am of the same opinion. There is no need of an action for the recovery of the ground. The trustees do not offer it even now: they do not say they will give it back: they keep it, and say they mean to keep it. The pursuer is therefore, in these circumstances, entitled to bring an action for the value. It does not much signify in what words the thing is expressed. It is not like the ordinary case of damages. It is substantially an action for the value, because the damage claimed is just the value of the ground.

The Court accordingly adhered , and found the pursuer entitled to expenses since the date of the Lord Ordinary's interlocutor.

Lord Ordinary, Cuninghame. Act. Dean of Fac. (Hope,) Hunter. C. J. F. Orr, W. S. Agent. Alt. D. M'Neill, Mure. Hopkirk & Imlach, W. S. Agents. B. Clerk.

Note .—It is impossible to advert to the comparatively trifling amount of the pursuer's claim, and to the various legal pleas of the greatest importance in practice with which it is met, without regretting that these had not occurred in a case less embarrassed with specialties, and where the amount of the claim in issue would have justified an ample discussion. As at present advised, the Lord Ordinary conceives the pleas of the defender to be neither founded in the law or justice of the case.