Scottish Court of Session Decisions

This is an action at the instance of Margaret Linn Hope or Allan, wife of John Allan, residing at Livingston, near Mid-Calder, the said John Allan, and Margaret Linn, residing with him, against Marian Templeton, Over-Dalserf, near Carluke. It concludes for payment of £134,7s. 1d., and for £100 “as the loss and damage which the pursuers have sustained through the defender having fraudulently and illegally abstracted or stolen a deposit-receipt for £133 sterling, granted by the Bank of Scotland to the pursuer, Margaret Linn Hope or Allan, dated 13th May 1862, uplifted the contents thereof, and retained or applied the same to her own purposes.”

The following averments set forth the pursuers' grounds of action:—

“Cond. 4. The pursuer, Margaret Linn, lives in family with the other pursuers, John Allan and Margaret Linn Hope or Allan, and has a chest in their house in which she keeps her articles of wearing apparel, &c. The said deposit-receipt was always kept in the said chest. In November 1862 the defender paid a visit to the pursuers. During that visit the defender had access to Margaret Linn's chest, in which she (the defender) had been allowed to place several articles of her own, and she took the opportunity of abstracting or stealing the said deposit-receipt therefrom.”

“Cond. 6. Thereafter the defender forged the of the pursuer, Margaret Linn Hope or Allan, by writing the name Margaret Linn Hope' across the back of the said deposit-receipt. She did so without the sanction, authority, or knowledge of the pursuers, or any of them. The defender thereupon resented the said deposit-receipt, with the said forged indorsation thereon, for payment at the office of the City of Glasgow

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Bank at Glasgow, or at Hamilton, or at some other of the offices or branch offices of the City of Glasgow Bank, and obtained payment of the sum therein contained, with bank interest thereon from 13th May 1862, the date of the said deposit-receipt, until 15th November 1862, the date when said payment was made. The said deposit-receipt was handed over by the City of Glasgow Bank to the Bank of Scotland on 15th November 1862, on payment being made by the latter to the former of the sums contained therein. The theft of the said deposit-receipt was not discovered by the pursuers till 16th March 1863, when its absence was noticed by Margaret Linn. The pursuer, John Allan, immediately thereupon proceeded to Edinburgh, and made inquiries at the bank, when he ascertained that the same had been cashed by the defender as above set forth.”

“Cond. 8. By the illegal, fraudulent, and criminal conduct of the defender as above set forth, the pursuers have been defrauded of the sums contained in the said deposit-receipt, and they have suffered great inconvenience in consequence of the want of the money fraudulently uplifted by the defender.”

The defender denied these averments.

The pursuers proposed the following issue:—

“Whether in or about the month of November 1862, the defender wrongfully wrote, or caused to be written, the subscription or name ‘Margaret Linn Hope’ on the back of the deposit-receipt, No. 17 of Process, for £133, by the Bank of Scotland at Edinburgh, in favour of the pursuer, Margaret Linn Hope, and dated 13th May 1862; and whether the said sum of £133 and £1, 7s. 1d., or thereby, of interest thereon were wrongfully obtained by the defender, or by some one on her behalf, from the City of Glasgow Bank, who received payment from the Bank of Scotland of said sums on or about 15th November 1862, and are, or any part thereof, resting-owing to the pursuers by the defender, with interest from 15th November 1862?”

The Lord Ordinary (Ormidale) reported the case with the following

“ Note.—The defender objected to the issue as proposed by the pursuers, on the ground that it was not in conformity with the case as averred on record.

“The Lord Ordinary is of opinion that this objection is substantially well founded, and that the issue ought to be remodelled, so as to make it more in accordance with the pursuer's case as averred by them, more particularly in articles 4 and 6 of their condescendence. This view is supported by the decision of the Court in Moffat v. Underwood, 23d November 1860, 23 D. 48.

“The Lord Ordinary was strongly urged, on the art of the pursuers, to allow the parties a proof before answer, under and in terms of the recent statute. That course, however, was opposed by the defender, and the Lord Ordinary has been unable to see any sufficient reason for adopting it. On the contrary, he thinks the case should be sent to a jury, just as that of Moffat v. Underwood was.

“The Lord Ordinary doubts very much whether anything more was contemplated by the recent statute than that the proof should be taken by the Lord Ordinary himself in place of by a commissioner, in those cases in which, before the passing of the statute, a proof in commission would have been allowed. Were any extension to occur of the number of cases which depend upon an investigation and determination of disputed facts, not before a jury, whose verdict is conclusive (subject of course to new trial, when that is allowed on due cause shown), but by proof under the recent statute, the Lord Ordinary fears the consequences would soon be found to be very inconvenient and objectionable, for it is not to be overlooked that the findings of fact by the Lord Ordinary on such proof are not final, but may be reviewed by the Inner House under a reclaiming note, whose judgment, again, is subject to review by the House of Lords on appeal by either or both of the parties.

“It is right to add that the pursuers in this case stated that they were not to insist in their conclusion for damages. They ought, however, to lodge a minute passing from that conclusion.”

Mackenzie and Tod for the pursuers.

Fraser and Burnet for the defender.

After discussion, the case was continued that the pursuers might consider whether they should abandon the action or withdraw the charges made on record if they were not to be put in issue. The Judges were all of opinion that a pursuer was not entitled to state such charges unless he intended to put them distinctly in issue.

The pursuers thereafter proposed the following amended issue:

“Whether, in or about the month of November 1862, the defender forged, or caused to be forged, the name of the pursuer, Margaret Linn Hope or Allan, by writing the subscription or name ‘Margaret Linn Hope’ on the back of the deposit-receipt, No. 17 of Process, for £133, dated 13th May 1862, and granted by the Bank of Scotland at Edinburgh, in favour of the pursuer, Margaret Linn Hope; and whether the said sum of £133 and £1, 7s. 1d.,or thereby, of interest thereon, were obtained by the defender, or by some one on her behalf, from the City of Glasgow Bank, who received payment from the Bank of Scotland of said sums on or about 15th November 1862, and are, or any part thereof, resting-owing to the pursuers by the defender, with interest from 15th November 1862?”

The defender objected that the charge of theft was not put in issue, but notwithstanding retained on record. In regard to the issue putting the question of forgery, there were not materials for it on record. The time when the forgery was committed was not specified on record, and it was not said either there or in the issue that the money was obtained by means of the forgery.

The Court disallowed both issues proposed, and dismissed the action with expenses.