Scottish Court of Session Decisions

This action is raised by the mother and executrix of the late Andrew Murray Paterson, C.A., in Edinburgh, against J. M. Macqueen, S.S.C., and Henry Kilgour, writer in Edinburgh. The ground of action alleged is that the deceased had been cheated and defrauded by the contrivances and devices of the defenders, and of another person named Galbraith, now dead, in pursuance of a conspiracy previously concocted among them for that purpose. The sum sued for is £396, which is the amount of the damage alleged to have been sustained. The material averments made by the pursuer, but denied by the defenders, are as follows:—

Cond. I. The deceased Andrew Murray Paterson, chartered accountant in Edinburgh, after suffering from disorderment of the stomach and nervous system for several years, took, in the year 1855, by advice of Professor Christison, a voyage to the West Indies for the benefit of his health. The voyage unfortunately did not effect any permanent improvement in Mr Paterson's health, and after his return he continued to suffer from the same complaint. He had been recommended by his medical attendants, for the alleviation of his sufferings, to take small quantities of morphia or opium and brandy after meals; and after doing so for some time, he found it necessary, in order to obtain relief from pain, to take these medicines in considerable and gradually-increasing quantities. This had a most unfortunate result, and gradually led him to the excessive use of stimulants, to the great injury of his constitution, health, and habits.

Cond. II. Shortly after Mr Paterson's return to this country, which was in July 1855, Mr Paterson was introduced to, and became acquainted with, the defenders, John Moir Macqueen and Henry Kilgour, and the deceased James Shaw Galbraith, writer in Denny, in the county of Stirling; and he was, in the year 1856, elected and induced by them to accept, inter alia, the office of trustee on the sequestrated estate of John Ritchie, residing at Denny, in whose affairs they were interested for themselves and for a client, by which means he was brought much into communication and contact with all of them.

Cond. III. At this time, partly in consequence of the disease under which he suffered, and partly in consequence of the frequent and habitual use of opium and stimulants, Mr Paterson was in an extremely bad state of health. Not only were his bodily powers prostrated, but his mental faculties were much impaired. From June 1856 until after the month of June 1857 he continued in the state above described. He was habitually and almost constantly, during said space of time under the influence of opium and stimulants, so as not to know what he was doing; and he had not, even in the intervals of comparative sobriety and abstinence, the full possession or command of his mental faculties. He was at all times during said period easily imposed upon and deceived, and had no strength of mind or power to detect or resist the desires of others who wished to deceive or cheat him, or to lead him into error for their own purposes.

Cond. IV. The defenders and the said James Shaw Galbraith, seeing the condition of body and mind in which Mr Paterson was, and knowing that he, under his father's trust-settlements, was entitled to property, both heritable and moveable, of a considerable amount, and being all of them needy and in want of money, resolved to enrich themselves at his expense. For that purpose they, in or about the month of June, July, or August 1856, or at some other time prior to May 1857, the precise period being to the pursuer unknown, entered into a scheme or conspiracy to engage Mr Paterson in play with them at cards for money—they arranging among themselves that, without his discovering it, they should so act and deal with the cards, and so manage by preconcerted signals to one another, and by other devices known to them and to those who practise in that way, as that they should always win, and Mr Paterson lose, on the result.

Cond. V. This conspiracy and scheme the defenders and Mr Galbraith jointly practised and carried out successfully. During the months of August, September, October, November, and December 1856, and January and February 1857, they induced Mr Paterson, under pretence, inter alia, of diverting his mind from his disease, and of otherwise amusing him, to engage in card-playing with them. They so played sometimes in Edinburgh in various houses, hotels, and other places there, and sometimes in Mr Galbraith's house at Denny. What games they played the pursuer does not know; but while one of their number, in order to deceive Mr Paterson, sometimes so played as to appear to lose money to him, care was taken that the other two who were in company should win from him to a greater extent, and this pretence of losing by one of the three was a mere lure to induce Mr Paterson to play, and to prevent his detecting the fraud that was being practised upon him. In playing the games in which the defenders and Mr Galbraith induced Mr Paterson to engage with them, the defenders and Mr Gaibraith did not play fairly, but by signals known to one another, and by other contrivances and devices, they jointly and systematically, and in pursuance of their said scheme and device, played false so as always to make sure of winning in the end, and of Mr Paterson becoming the loser.

Cond. VI. When ready money was not at hand, the defenders and Galbraith took bills from Mr

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Paterson for the amount of what they represented to be his losses to them. The defender Macqueen carried bill-stamps with him, and upon these stamps, which he had ready for the purpose, the bills or promissory-notes which Mr Paterson was got to subscribe were written.

These averments are followed by an enumeration of eleven bills and promissory-notes which were alleged to have been granted by Paterson to Galbraith, and of three others granted by Kilgour to Paterson, and by him endorsed to Galbraith; and it was stated—

Cond. VIII. No value was given to Mr Paterson for any of the promissory-notes and bills granted by him, above set forth, or for the endorsation of promissory-notes and bill by Kilgour, payable to him, above set forth. There was no consideration therefor, other than the pretence of the money said to have been won from him at cards by the defenders, but which was not won by fair play, but was made, by foul play, to appear to have been won from him, in pursuance of the conspiracy and scheme above set forth. Farther, the bills and promissory-notes were in most, if not in all, instances signed by Mr Paterson when, through intoxication and otherwise, incapable of knowing, and when in fact he did not understand what he was doing, or know the amount of the bills, the date at which they were payable, or any other particulars. The endorsation was written in the same circumstances.

Cond. XIX. Farther, the defenders were equally with Mr Galbraith concerned and participators in the conspiracy and scheme by which Mr Paterson was defrauded out of said sums, and by which the said bills were fraudulently impetrated and obtained. They were partakers in the carrying out of that scheme, and aided and abetted one another in the devices and contrivances by which it was effected, and by which they succeeded, first, in appearing to win money from Mr Paterson at cards, by unfair and false play carried on by them in concert; secondly in procuring bills from him under the false representation that the money for which said bills were granted or endorsed was fairly lost, and when he was in such a state as not to be capable of knowing whether their statement was true or false, or of understanding or transacting business; and, thirdly, in concussing him into payment of the foresaid sums, in the manner above explained, while he was ignorant of the falsehood, cheating, and cozening that had been practised upon him by them.

An issue was allowed by the Lord Ordinary which was lodged and reported to the Court. The defenders argued that the action was irrelevant, and that no issue should be allowed. The Court to-day gave effect to this contention, and dismissed the action with expenses.