Scottish Court of Session Decisions

This was an action of damages at the instance of four pursuers, who alleged that two of them had advanced £1200, and the other two £300, to James Scott, ironmonger in Edinburgh, for which sums separate bonds and dispositions in security were granted over certain subjects in Howe Street belonging to Scott. The summons concluded for a slump sum of £840. The defender in the action, Mr Macqueen, was agent for the debtor, and the nature of the allegations, which are the grounds of action, appear from the following issues proposed by the pursuers:—

“It being admitted that the pursuers, Jane Gibson and Agnes Gibson, agreed to advance to James Scott, then ironmonger, Howe Street, Edinburgh, the sum of £1200, on a bond and disposition in security over certain subjects in Howe Street, belonging to the said James Scott, to be subscribed by the said James Scott as principal obligant, and also to be subscribed by Alexander Scott, residing in Lauder, Berwickshire, and Alexander Reid, residing at Edmonston, in the county of Edinburgh, as cautioners for the regular payment of the interest on the foresaid sum: It being also admitted that the said Elizabeth Greenshields Gibson and Esther Gibson agreed to advance to the said James Scott the sum of £300, on a bond and disposition in security over certain subjects in Howe Street belong to the said James Scott, to be by the wind James Scott la of obligant, and the to be subscribed by the said Alexander Scott and the said Alexander Reid as cautioners for the regular payment of the interest on the foresaid sum:—

1. “1. Whether, on or about 9th May 1854, the defender, John Moir Macqueen, acting as agent for the said James Scott, on payment to him of the foresaid sum of £1200, by John French, W.S., as agent for the said Jane Gibson and Agnes Gibson, delivered to the said John French, as agent aforesaid, the bond and disposition in security, No. 10 of Process, as a duly executed deed, in the knowledge that the subscriptions ‘Alexander Scott,’ ‘James Browning,’ and ‘James Lockhart,’ appended to said bond, or some one or more of said subscriptions, were forged, to the loss, injury, and damage of the said Jane Gibson and Agnes Gibson?

2. 2. Whether, on or about 9th May 1854 the defender John Moir Macqueen, acting as against for the said James Scott, on payment. to him of the foresaid sum of £300 by John French, W.S., as agent for the said Elizabeth Greenshields Gibson and Esther Gibson, delivered to the said John French, as agent foresaid, the bond and disposition in security, No. 11 of Process, as a duly excepted deed, in the knowledge that the subscriptions ‘Alexander Scott,’ ‘James Browning’ and ‘James Lockhart,’ appended to said fond, or some one or more of said subscriptions, were forged, to the loss, injury, and damage of the pursuers, the said Elizabeth Greenshields Gibson and Esther Gibson?

3. 3. Whether, on or about the 9th May 1854, and the delivery of the said bonds. the said Moir Macqueen falsely and fraudulently represented to the said John French, as agent for the pursuers, for the purpose of enabling the said John French to complete the testing clauses of the said bonds, that the said bonds were signed by the said Alexander Reid before these witnesses,

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   James Browning joiner, Edmonston, and James Lockhart, gardener, Edmonston, while the said John Moir Mac been well knew that the said Alexander Reid had not signed said bonds, or either of them, before the said witnesses, to the loss, injury, and damage of the said pursuers?

4. 4. Whether, on or about 9th May 1854, and at the delivery of the said bonds, the said John Moir Macqueen falsely and fraudulently represented to the said John French, as agent foresaid, for the purpose of enabling the said John French to complete the testing clauses of said bonds, that the said bonds were signed by James Kay, smith at Lauder, and William Glass, residenter there, as witnesses, while he well knew that the said James Kay and William Glass, who subscribed said bonds, did not reside at Lauder, but in Edinburgh, to the loss, injury, and damage of the said pursuers?

5. 5. Whether the defender, as agent foresaid, induced the pursuers respectively to advance the foresaid sums of £1200 and £300 on said bonds and dispositions in security over said subjects, by falsely and fraudulently overstating the rental of said subjects, to the loss, injury, and damage of the said pursuers?

6. 6. Whether the defender, as agent foresaid, undertook the duty of getting the said bonds duly executed by the obligants therein; and whether he failed to perform said duty, to the loss, injury and damage of the pursuers?

7. 7. Whether, on or about 9th May 1854, and at the delivery of the said bonds, the said John Moir Macqueen fraudulently represented to the said John French, as agent foresaid, that the said bonds had been duly executed by the obligants therein, while the said bonds had not been duly executed by said obligants, to the loss, injury, and damage of the pursuers?”

   Damages laid at at £840.

The parties, having failed to adjust issues before the Lord Ordinary (Barcaple) his Lordship reported the case.

Fraser and Scott, for the pursuers, argued—It is quite competent, in an action at the instance of two or more persons, even when they are unconnected, to conclude for a sum in name of damages to be paid to them all jointly. In the present case the several persons were not unconnected, as the two bonds on which they had advanced their money were secured pari passu over the same subjects. The two bonds were contemporaneous in date, and were carried through by the same agent. There was a general agreement to lend £1500, and it was for the mere matter of convenience that the securities were taken in the shape of the two bonds, one for £1200, and the other for £300, instead of one bond for £1500.