Scottish Court of Session Decisions

In this action the pursuers sue the defender for damages in respect of the arrestment and dismantling of their ship the Montrose, first on 14th July 1865 ad fundandam jurisdictionem, and again on the following day, on the dependence of an action raised by the defender against them. They also sued for repetition of a sum of £40, 18s. 8d. which they had paid to the defender under protest in order to get the arrestments loosed, and which they alleged they had been concussed to pay, in order that the vessel might resume her regular trips betwixt Leith and Aberdour. The pursuers proposed the following issues:—

“1. Whether, on or about the 14th and 15th days of July 1865, the defender wrongously, maliciously, and without probable cause, and for a debt not due by the pursuers, arrested the steamship or vessel called the Montrose, and sometime called the Lord Aberdour, of Newcastle-on-Tyne, the property of the pursuers, while lying in the harbour of Leith, and caused her to be dismantled, and detained in the said harbour of Leith—to the loss, injury, and damage of the pursuers?

Damages laid at £300.

2. Whether, on or about the 18th day of July 1865, the defender wrongously exacted and received from the pursuers the sums of money specified in the schedule hereto annexed, in order to have the said arrestments loosed and discharged; and whether the defender is resting

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owing to the pursuers the said sums, or any part thereof, with interest at the rate of 5 per centum per annum from said 18th July 1865 till paid?”

The defender objected to the relevancy of the action. He urged that the first issue should not be allowed because malice, which was an essential element of the ground of action, had only been averred on revisal, the only averment in the original condescendence being that the pursuers “believed” that the arrestment was maliciously used. Farther, in regard to the first arrestment there was not even on the closed record an allegation of malice. He also objected to the second issue on the ground that the payment of the debt which the pursuers now said was not due by them but by the charterers of their vessel was a voluntary act on their part, and that they could not now claim repetition.

The Court allowed the issues, except in regard to the first arrestment, which the pursuers consented to leave out of the first issue. They thought that the averment of a belief that malice existed was sufficient, but that the ambiguity had been cleared up by the insertion on revisal of the words “and averred.” In regard to the other objection it assumed the very question of fact which was to be tried.

As the relevancy of the action was objected to the Court, following the rule laid down in the recent case of Mackenzie v. Goldie ( ante, p. 101), found the defender liable in expenses since the date of closing the record.