WILLIAM DAUNEY & Anor, (Steam-Carriage Company of Scotland) v ROBERT SCOTT & Ors, Road Trustees (Court of Session)

The following note by the Lord Ordinary, in making avisandum with a proposed issue, in order that the Court might determine whether malice should make part of an issue, sufficiently explains the nature of the question submitted for the opinion of their Lordships:

‘The Lord Ordinary having heard parties' procurators on the form of the issue proposed, makes avisandum with the cause to the Court, in order that the issue may be settled in their presence; and appoints printed copies thereof, and of this interlocutor and the subjoined note, to be put into the boxes of the Lords of the Second Division of the Court quamprimum.’

Note .—‘This issue is reported, on account of a question which it is of importance for the parties to have settled without delay, in order that the cause may go to trial, and which cannot be settled without the opinion of the Court.

The action is an action of damages by the proprietors of a steam-coach, for injury done in consequence of certain circumstances in the state of the road on which it ran, and is directed against the trustees of the road. The coach is stated to have been broken and overturned, and several people killed and wounded.

The summons libels, that the acts or operations which are said to have produced the mischief were done by the defenders maliciously , and for the purpose of injuring the steam-carriage, or preventing it from travelling the road. In the condescendence, the same facts are set forth for inferring the purpose of injury; and in two places, though not throughout, the word malicious still occurs.