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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gordon v. Robertson [1873] ScotLR 11_35_1 (28 October 1873) URL: http://www.bailii.org/scot/cases/ScotCS/1873/11SLR0035_1.html Cite as: [1873] SLR 11_35_1, [1873] ScotLR 11_35_1 |
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In an action of damages, brought at an interval of seven years, for wrongous apprehension, the pursuer averred that he had been imprisoned on a bill, notwithstanding a letter of protection from the defender. This letter was not produced, and was alleged to be missing.
Held that there was no relevant ground of action, there being nothing specific on record as to the missing document.
Observed ( per Lord Cowan), that an action of proving the tenor is an essential preliminary to any action on a lost document.
This case came up by a reclaiming note against an interlocutor of the Lord Ordinary ( Gifford) of date June 5, 1872, adjusting an issue, which, as amended, was as follows:—“Whether, on or about 23d September 1865, the defender wrongfully apprehended and incarcerated the pursuer, or wrongfully caused the pursuer to be apprehended and incarcerated, and thereafter wrongfully detained the pursuer, in virtue of diligence against the pursuer at the instance of James Chalmers, shoemaker, Insch, and that after the defender had undertaken to supersede all diligence against the pursuer on the said diligence. to the loss, injury, and damage of the pursuer? Damages laid at £1000.” The action was at the instance of William Gordon, joiner in Aberdeen, against George Allan, advocate there, and James Robertson, accountant, Insch. The pursuer set forth that a bill for £50, which he had granted to a man named Chalmers, had been in reality held by Chalmers for behoof of Robertson, whose agent, he alleged, Allan was. Gordon was arrested on their diligence done upon the bill, and was liberated on condition of his promising to go back to prison if he failed to pay the amount of the bill within so many days. Before the expiration of that time, according to his statement, he arranged with Robertson to settle the bill on which he had been arrested by the acceptance of a new one in Robertson's fa vour, Robertson thereupon writing to Allan that the bill had been settled, and instructing him not to proceed further in the matter. Nevertheless, Allan caused Gordon to be arrested on the old bill. The defenders denied that any such agreement was come to or instructions given, or that Robertson acted in any other character than as agent of Chalmers. Upon this diligence Gordon was sequestrated
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at his own petition, and he set forth Chalmers as a concurring creditor in virtue of the bill, which the pursuer said he had retired. In his state of affairs, too, he gave Chalmers as a creditor on the alleged retired bill. A dividend of 18s. per £ was paid from the pursuer's estate to the ranking creditors, and he ultimately got his discharge without composition under the sequestration. The sequestration occurred in September 1865, and this action was raised in February 1872. The pursuer pleaded—“(1) The apprehension and detention of the pursuer having been in the circumstances wrongful and illegal, the defenders are liable in damages to the pursuer. (2) The pursuer having, through the foresaid wrongful and illegal proceedings, sustained loss, injury, and damage to the extent libelled, is entitled to decree against the defenders in terms of the conclusions of the summons, with expenses.”
The defender James Robertson pleaded—“(1) The pursuer having been sequestrated and not retrocessed in his estate, has no title to sue the present action. (2) The pursuer is barred from insisting in the present action in respect of the sequestration of his estates and proceedings therein. (3) The present action is, in the circumstances, barred by mora, taciturnity, and acquiescence. (4) The statements and pleas of the pursuer are irrelevant, and the defender ought to be assoilzied. (5) The statements of the pursuer, so far as the defender is concerned, being unfounded in fact, and his pleas untenable in law, the defender ought to be assoilzied, with expenses.”
The pursuer allowed the defender Allan to be assoilzied, and the Lord Ordinary thereupon issued the interlocutor which was reclaimed against.
Authorities:— Drummond v. Drummond, 7 W. and S. (H. of L.); Dickson on Evidence, § 1291, § 1296.
At advising:—
As to the question of title, it is another matter; I am for dismissing the action.
I cannot conceive an action brought under more unfavourable circumstances, or giving rise to a more personal bar than the present.
The Court dismissed the action, with expenses.
Counsel for Pursuer (Respondent)— Trayner and J. A. Reid. Agents— Philip, Laing & Monro, W.S.
Counsel for Defender (Reclaimer)— Millar, Q.C Mair and Gibson. Agent— Wm Officer, S.S.C.
I., Clerk.