Scottish Court of Session Decisions

This action was raised by Charles Spinks, turner, Kirkgate, Leith, against John Innes, engineer, residing in Alloa, for payment of £100 contained in a bank cheque or draft, dated 21st April 1864, drawn by the defender on the manager of the City of Glasgow Bank, and payable to the pursuer. It was averred by the pursuer that the cheque was given in payment of money due to him “for advances of money made and services rendered by him to the defender at various times during a long course of years, when the defender was often in pecuniary difficulties, and pressed for money to meet the daily requirements of himself and family, and otherwise embarrassed and in trouble.” The defender averred on record that on the Edinburgh Fast Day in April 1864, the pursuer, who knew that the defender had succeeded to a considerable sum of money, came to Alloa to visit him, and that after they had been drinking together for some time, the pursuer proposed that the defender should lend him £100 on the security of his property in Leith, which was already fully burdened. The cheque was therefore written out, but at the time it was done, “and when the arrangement was made for the security to be given for the loan, the defender was intoxicated, and incapable from intoxication of doing any business, or of understanding the nature of the transaction into which the pursuer endeavoured to induce him to enter.” Next morning the defender went in search of the pursuer in order to accompany him to Leith to see after the heritable security, when he found he had gone to Glasgow. He therefore telegraphed to the bank there, and payment of the cheque was stopped. No value, he said, was given for the cheque by the pursuer, and it was fraudulently impetrated from the defender in the manner above described.

With the concurrence of parties, the Lord Ordinary (Ormidale) allowed a proof before answer. Thereafter his Lordship found as matter of fact (1) that no value was given by the pursuer to the defender for the cheque; (2) that when the cheque was obtained by the pursuer, the defender was in such a state of intoxication from excessive drinking as to be easily imposed upon and taken advantage of; and (3) that the pursuer, taking advantage of the defender when in that state, fraudulently impetrated the cheque from him. He therefore assoilzied the defender. The pursuer reclaimed, and the Court adhered.